An Administrator's Guide to California Private School Law

Chapter 14 – Pupil Records

record. If the school determined that it did not need to maintain the videotape for any reason, it would not constitute a pupil record. 2069

2. F EDERAL C ASE L AW The Family Educational and Privacy Rights Act (FERPA) is the federal law governing pupil records. It only applies to schools that accept federal funding from an applicable program of the U.S. Department of Education and therefore is not applicable to the vast majority of California private schools. However, cases decided under the FERPA provide relevant guidance as to the definition of pupil records. For example, the FERPA defines “education records” in terms that are nearly identical to California’s definition of “pupil records.” 2070 One federal court explained FERPA’s purpose in defining “educational records” as follows: parents and students should have access to everything in institutional records maintained for each student in the normal course of business and used by the institution in making decisions that affect the life of the student. 2071 Since there are similarities between the definition of a “pupil record” under California law, and an “educational record” under the FERPA, schools should consider federal cases when considering whether information is a pupil record. The California legislature has itself modified the Education Code to conform with the FERPA, indicating that the state views pupil records similarly to the federal interpretations. 2072 Several federal cases have explained what is not considered an education record. The United States Supreme Court concluded that students' individual assignments handled by student graders do not meet the definition of education records under the FERPA. 2073 A federal Court of Appeals also limited the definition of “education records” when it determined that sending reports to the parents of victims and witnesses of a particular student's verbal and physical harassment did not violate the FERPA. 2074 The court reasoned that, if the school could not release the reports it would “place educators in an untenable position [because] they could not adequately convey to the parents of affected students that adequate steps were being undertaken to assure the safety of the student.” 2075 A district court determined that transcripts of students' depositions in a sexual harassment case against a school coach that were not maintained by the school did not qualify as a pupil record. 2076 Other federal courts have defined what does constitute an education record for the purposes of the FERPA. For example, a district court determined that pupil disciplinary records were education records. 2077 Another federal court reached a similar conclusion even when the disciplinary records were maintained by the school’s attorney. 2078 A California court may reach the same conclusion.

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 499