Privacy, Including FERPA

FERPA states that parents claiming a student as a dependent on their income may access education records even after the student turns 18. However, that law does not give parents the right to be listed as a contact and does not give them the right to be informed that their 18 year old child has asked them to be removed as a contact. It does not even give them the right to access the student’s records. FERPA only states that a school may share education records with a parent of an 18-year old student if the parent claims the student as a dependent.

From the US Department of Education:

“FERPA also permits a school to disclose personally identifiable information from education records of an “eligible student” (a student age 18 or older or enrolled in a postsecondary institution at any age) to his or her parents if the student is a “dependent student” as that term is defined in Section 152 of the Internal Revenue Code. Generally, if either parent has claimed the student as a dependent on the parent’s most recent income tax statement, the school may non-consensually disclose the student’s education records to both parents.”

https://www2.ed.gov/policy/gen/guid/fpco/ferpa/parents.html

The sharing is permitted, but not required, under FERPA.

However, 18-year old students do have the right to determine who sees their records. They have the right to control access. And under McKinney-Vento, unaccompanied youth have the right to have any barriers to their enrollment or retention in school removed. A youth may have very good reasons not to want parents to have access to education records. To be clear, the law does not permit schools to question those reasons— the reasons are not relevant and do not change the student’s rights. However, the reasons might help illuminate why having parents access information could be a barrier to enrollment and retention. For example, parents have posted student grades on Facebook to humiliate them.

In sum, a student’s rights under FERPA and McKinney-Vento are legal requirements, which supersede acts toward parents that may be permissible.

Under FERPA, it depends on a few things. First, is the Head Start program administered by the school district? If so, you can share the information, because you are sharing it with another district official for a legitimate educational reason. If not, do the letters only provide information about young children who are not actually enrolled in your district? If so, you can share the information, because you aren’t actually sharing information about a “student” or from a “student education record.” FERPA only covers education records of current or former students. If you are only saying that a child who is not a student with you is homeless, FERPA does not cover that.

If neither of those exceptions apply, you do need parental consent to share that a student enrolled in your district is homeless, with an agency outside your district. That consent could take the form of a simple email or even text saying you can share that information. It also could be a checkbox you add to any forms that your McKinney-Vento families fill out. More information is available at https://schoolhouseconnection.org/6-things-to-know-about-ferpa/.

Ideally, it would be best if the bookkeeper could share with the liaison the list of students with outstanding fees, and the liaison could see if any McKinney-Vento students are on that list. Any student could miss a fee for any reason, so it may be less potentially stigmatizing for the liaison to see the fee list than for the bookkeeper to see the McKinney-Vento list.

However technically, the McKinney-Vento list could be shared with bookkeeper in this situation, because the bookkeeper meets the FERPA exception of being another school official with a legitimate educational interest in the information (in this case, she needs the information for the legitimate interest of covering McKinney-Vento students’ fees). More information is available here.

The language your registrar is referencing is the following:

“6. If I am a parent of a college student, do I have the right to see my child’s education records, especially if I pay the bill?

As noted above, the rights under FERPA transfer from the parents to the student, once the student turns 18 years old or enters a postsecondary institution at any age. However, although the rights under FERPA have now transferred to the student, a school may disclose information from an “eligible student’s” education records to the parents of the student, without the student’s consent, if the student is a dependent for tax purposes. Neither the age of the student nor the parent’s status as a custodial parent is relevant. If a student is claimed as a dependent by either parent for tax purposes, then either parent may have access under this provision. (34 CFR §99.31(a)(8).)”

(https://www2.ed.gov/policy/gen/guid/fpco/faq.html)

We bolded the phrase “may disclose” in that statement. It is an option, not a requirement, for schools to share information with a parent who claims his/her child as a dependent. The word “may” also appears in the actual regulation:

“(a) An educational agency or institution may disclose personally identifiable information from an education record of a student without the consent required by §99.30 if the disclosure meets one or more of the following conditions: …

(8) The disclosure is to parents, as defined in §99.3, of a dependent student, as defined in section 152 of the Internal Revenue Code of 1986.” 34 CFR §99.31(a)(8).

The “may” here is extremely important, because it conflicts with a “shall” in the McKinney-Vento Act. For unaccompanied homeless youth, the school district must comply with the McKinney-Vento Act. The McKinney-Vento Act states that local educational agencies “shall review and revise policies to remove barriers to the identification of homeless children and youths, and the enrollment and retention of homeless children and youths…” 42 USC §11432(g)(1)(I). This is a requirement, not an option.

In the situation you described, the student fears for his safety. It is very reasonable to expect the student will flee his temporary housing, and also flee the school, if the school releases address information to the parent. Even without the safety concern, a school choosing to release education records to the parent of an unaccompanied homeless youth who is 18 or older, and who has stated he does not want the parent to have that information, certainly creates a barrier to the student’s enrollment and retention in school.

Given the McKinney-Vento Act’s requirement to remove barriers to enrollment and retention, the school must follow the McKinney-Vento Act. FERPA’s allowance that schools may release information to parents who claim their children as dependents does not conflict with the McKinney-Vento Act’s requirement. In the situation you described, the school must opt not to share information with the parent of an 18-year old unaccompanied homeless youth who has stated that he does not want the parent to receive information.

The Uninterrupted Scholars Act defines how and under which circumstances personally identifiable information from education records can be disclosed to caseworkers or other representatives of state, local or tribal child welfare agencies. Guidance on this Act is available here. More information is available here.

If it is common knowledge that the van is used to transport students experiencing homelessness, then you are effectively disclosing the students’ homelessness by having them board the van at a public time and location. In addition, this practice appears to violate the McKinney-Vento Act’s requirement that “local educational agencies … adopt policies and practices to ensure that homeless children and youths are not stigmatized or segregated on the basis of their status as homeless.” 42 U.S.C. §11432(g)(1)(J)(i). The school should try to integrate transportation or allow student to board special vans after the rest of the school buses and parent pick-ups have left the school.

This is not a FERPA issue, because it is not about accessing or disclosing student records. If the student is an unaccompanied youth under the McKinney-Vento Act, the school should follow the youth’s wishes. Ignoring the youth’s wishes would create a barrier to the youth’s retention in school, in violation of the McKinney-Vento Act. 42 U.S.C. §11432(g)(1)(I). There also are federal laws that protect transgender students’ rights, and we strongly encourage schools to support transgender and gender-questioning students. Many resources are available to help schools support transgender students, including:

Student’s rights under the Individuals with Disabilities Education Act (IDEA) depend on state law. IDEA regulations state that a state may provide that when a student with a disability reaches the age of majority, as defined by the state, IDEA rights transfer to the student. 34 CFR §300.520(a). Therefore, you must consult your state law or your state educational agency for information about when IDEA rights transfer to students. It may be that there is no conflict between FERPA and IDEA in your state.

If your state provides parents with rights after students turn 18, then local educational agencies must comply both with IDEA and with FERPA. That means that an 18 year old student can access educational records and consent (or withhold consent) for disclosure. It also means the parent would be able to access special education records and information needed to participate in IEP meetings, even without the student’s consent. Certainly, students also should be invited to IEP meetings and accommodated so they can participate fully in the meeting, as well as invite another advocate to appear with them, if they wish.

No. Consent must be signed, dated, and in writing. However, electronic consent is acceptable. 34 C.F.R. §99.30.

We have submitted this question to the Student Privacy Office at the US Department of Education for guidance, and received the following response: Nothing in FERPA determines or delineates between “who would have more rights”. If both individuals meet the definition of parent, and neither have had their rights revoked under FERPA, they would both have rights.” Based on this information, it appears the federal law does not answer the question, and the decision of whose rights to honor in the case of a disagreement would be at the LEA’s discretion.

Yes. “An educational agency or institution shall give full rights under the Act to either parent, unless the agency or institution has been provided with evidence that there is a court order, State statute, or legally binding document relating to such matters as divorce, separation, or custody that specifically revokes these rights.” 34 C.F.R. §99.4.

A school would have to receive a court order showing that a parent’s rights have been terminated. If the student is in foster care, the foster care/child welfare case worker could provide a copy of such an order. “An educational agency or institution shall give full rights under the Act to either parent, unless the agency or institution has been provided with evidence that there is a court order, State statute, or legally binding document relating to such matters as divorce, separation, or custody that specifically revokes these rights.” 34 C.F.R. §99.4.

The liaison can and should determine unaccompanied youth status based on conversations with the youth. It can be challenging to determine all the circumstances of an unaccompanied youth’s homelessness, as the student may be very hesitant to share the story, due to fears of child welfare environment or repercussions for the student, siblings, or parents. Parents also often refuse to share due to embarrassment, fear of repercussions, or fear of losing access to financial benefits the parent receives for the student. If conversations with the youth reveal that the youth meets the definition of homeless under the McKinney-Vento Act, and is not physically staying with a parent or guardian, then the youth is an unaccompanied homeless youth. Requiring additional verification from a parent or other party creates a barrier to identification, which violates the McKinney-Vento Act. 42 U.S.C. §11432(g)(1)(I).

Yes, the LEA can give FERPA rights to an unaccompanied youth, even if the youth is under age 18. (“The Act and this part do not prevent educational agencies or institutions from giving students rights in addition to those given to parents.” 34 C.F.R. §99.5(b)) LEAs can allow students under age 18 to have access to their education records and provide consent for disclosures, as long as those rights do not supersede the rights of their parents. There is guidance on this point in questions 5 and 6 of this document.

No. Under FERPA, the parent’s rights transfer to the student when the student turns 18. 34 C.F.R. §99.5. At that point the student has the right to control disclosures of his education records as established by FERPA. Information about a homeless student’s living situation is a protected education record. 42 U.S.C. §11432(g)(3)(G). As such, his address is a protected education record. Therefore, the school should not release the youth’s new address to the parent, or even inform the parents of the change.

Absent court involvement limiting parental rights, parents retain FERPA rights until the student turns 18, even if the student is living elsewhere. In this situation, the sibling may also meet the definition of “parent,” as an “individual acting as a parent in the absence of a parent or a guardian.” 34 C.F.R. §99.3. If the parents do not specify whether the sibling can access education records, then the school can provide FERPA rights to both the parents and the sibling. If the parents tell the school they do not want the sibling to access education records, the school should honor that. However, the school can provide the student access to his own records, even though the student is under age 18. (“The Act and this part do not prevent educational agencies or institutions from giving students rights in addition to those given to parents.” 34 C.F.R. §99.5(b)) The student then could choose to share those records with his sibling. A solution like this may be important for an unaccompanied homeless youth. The McKinney-Vento Act requires local educational agencies to “remove barriers to the identification of homeless children and youths, and the enrollment and retention of homeless children and youths.” 42 U.S.C. §11432(g)(1)(I). The sibling’s support for the student’s education, and the school’s good faith in working with the student, could be essential to remove barriers to his retention in school.

A liaison can bring case notes home, for two reasons. First, case notes might not even be subject to FERPA. “Records that are kept in the sole possession of the maker, are used only as a personal memory aid, and are not accessible or revealed to any other person except a temporary substitute for the maker of the record” are specifically excluded from the definition of education records covered by FERPA. 34 C.F.R. §99.3. It sounds like these paper case notes may meet that exclusion.

However, even if the case notes are subject to FERPA, FERPA’s protections are triggered when there is a “disclosure of personally identifiable information from the student’s education records.” 34 C.F.R. §99.30. In this scenario, staff who have the legal right to access the information, simply are accessing it in a different location. As long as personally identifiable information is not disclosed to others in the home (or out of the home) there is no FERPA issue. By taking adequate precautions to prevent disclosure, such as keeping the information locked up, accessing just one binder at a time, never leaving it unattended while others are around, etc., this is in line with FERPA at a time when schools are closed due to COVID-19.

It is very unlikely that the U.S. Department of Education would sanction a liaison or school who brought case notes home under these circumstances, and with reasonable care taken to keep the case notes safe, if the notes were stolen.

Under FERPA, the definition of parent includes “an individual acting as a parent in the absence of a parent or a guardian.” 34 C.F.R. §99.3. The friend’s parent could meet that definition in this situation, and the school could treat that person as a parent. If the student’s actual parent intervenes and tells the school not to disclose education records to the friend’s parent, the school should follow the parent’s wishes. However, the school could continue to provide the student with access to his or her education records. In either case, the school definitely could add the friend’s parent to the student’s contact list, as that person is an important emergency contact for the student at this time.

A student’s grades are part of the student’s education record and typically require parental consent to be disclosed. The district might have a standard form to enroll students in your tutoring and advocacy services, and that form might include a statement that the student’s grades, and any other relevant information, will be released to your tutors. That would be a streamlined way to inform parents of the release and obtain their consent. In addition, depending on the ages of the students you work with, the school may provide the students access to their own records, even though the student is under age 18. (“The Act and this part do not prevent educational agencies or institutions from giving students rights in addition to those given to parents.” 34 C.F.R. §99.5(b)) The student then could choose to share those records with your tutors and advocates. A solution like this may be important for unaccompanied homeless youth. The McKinney-Vento Act requires local educational agencies to “remove barriers to the identification of homeless children and youths, and the enrollment and retention of homeless children and youths.” 42 U.S.C. §11432(g)(1)(I). Tutoring and advocacy services may be important to keep the student in school, and it may be necessary for the tutors to know their students’ grades for tutoring to be effective.

Since FERPA only controls disclosures of education records, telling a community partner where families experiencing homelessness tend to stay is not a FERPA violation. However, depending on the identity of the community partner, it could be a violation of the McKinney-Vento Act. The McKinney-Vento Act requires local educational agencies to “remove barriers to the identification of homeless children and youths, and the enrollment and retention of homeless children and youths.” 42 U.S.C. §11432(g)(1)(I). If families or youth feel like the school has sent community agencies to find them in a threatening or intimidating manner, that would be a significant barrier to identification and retention in school. For example, if community agencies might threaten to contact child protective services or law enforcement based on the families’ living conditions, or based on an unaccompanied youth being on her own, it would not be appropriate to share families’ or youth’s location with that agency. The school must be sure the agency will not create barriers to the students remaining in school or damage the school’s relationship with the student or family. Hopefully, this will not be an issue with most community agencies.

Sharing the names and addresses of students experiencing homelessness with an outside agency requires parental consent (or consent of the student if age 18 or over), because information about a homeless student’s living situation is a protected education record. Consent can be electronic, via an email or text message. You also could share the agency’s contact information with the parent or student.

If you are providing names and addresses of many families who need wifi, both those experiencing homelessness and those with permanent housing, the release of that information could be considered a release of directory information. 34 C.F.R. §99.3. Since not all of the families are homeless, the list itself does not reveal any student’s homeless status. A school can release directory information without parental consent. 34 C.F.R. §99.37. However, if you are providing only names and addresses of McKinney-Vento students, and the county is aware that the students are experiencing homelessness, you must have parental consent (or consent of the student if age 18 or over), because information about a homeless student’s living situation is a protected education record. Consent can be electronic, via an email or text message. You also could share the agency’s contact information with the parent or student. If you cannot reach the parent or student with the contact information you have, then the county probably also will not be able to reach them with that same information. Giving that information to the county is unlikely to solve the problem.

Yes. With parental consent (or consent of a student age 18 or older), the school can release names, addresses, and other contact information to community agencies to provide food, supplies, or any other kind of support.

An outside agency that is not a school and is not covered by FERPA does not have to abide by FERPA. The agency may have its own information privacy rules, or may be covered by a different federal or state privacy law.

It sounds like this release is too broad under FERPA. Information about a homeless student’s living situation is a protected education record. 42 U.S.C. §11432(g)(3)(G). Education records can be released to “other school officials, including teachers, within the agency or institution whom the agency or institution has determined to have legitimate educational interests.” 34 C.F.R. §99.31(a)(1)(i). The question is: who has a legitimate educational interest in knowing the student is experiencing homelessness, or otherwise in a special residency situation? If all staff at all schools can access this information, that is too broad. All staff at all schools do not have a legitimate educational interest in knowing the student is homeless. Certain key staff at each particular student’s school may have a legitimate interest—staff such as the student’s teacher(s), the school social worker, or the school counselor. It is important to keep in mind that staff and students may know each other outside of school. They may attend the same faith community or live in the same neighborhood. It is important to protect students’ and families’ privacy. It also is a good practice to let parents and students know who has access to this information and to give them the opportunity to opt out of sharing.

Sharing homelessness too broadly not only violates FERPA, it also violates the McKinney-Vento Act’s requirement to “remove barriers to the identification of homeless children and youths, and the enrollment and retention of homeless children and youths.” 42 U.S.C. §11432(g)(1)(I). If information about a student’s homelessness is widely shared, students and families will be less likely to feel comfortable revealing their situation, thereby creating a barrier to identification.

It depends who in the administration can access the information. Information about a homeless student’s living situation is a protected education record. 42 U.S.C. §11432(g)(3)(G). Education records can be released to “other school officials, including teachers, within the agency or institution whom the agency or institution has determined to have legitimate educational interests.” 34 C.F.R. §99.31(a)(1)(i). Many administrators have a legitimate educational interest in knowing who the McKinney-Vento students in the school or district are, to ensure barriers to their enrollment and retention in school are eliminated. For example, principals and assistant principals may be able to serve McKinney-Vento students better in the areas of full participation, student discipline, attendance, and others if they are aware of the students’ challenges.

However, not all administrators have a legitimate educational interest in knowing the identities of all homeless students. Also, generally it is fair to assume that every school has students experiencing homelessness that are not known to the school. Therefore, rather than alerting administrators to particular homeless students, it is a better practice to train them to assume that one or more of students are experiencing homelessness at any given time, known or unknown, and administrators therefore should work to address those challenges for all students. It also is a good practice to let parents and students know who has access to this information and to give them the opportunity to opt out of sharing. These approaches can help the school comply with the McKinney-Vento Act’s requirement to “remove barriers to the identification of homeless children and youths, and the enrollment and retention of homeless children and youths.” 42 U.S.C. §11432(g)(1)(I). If information about a student’s homelessness is widely shared, students and families will be less likely to feel comfortable revealing their situation, thereby creating a barrier to identification.

Education records can be released to “other school officials, including teachers, within the agency or institution whom the agency or institution has determined to have legitimate educational interests.” 34 C.F.R. §99.31(a)(1)(i). The local educational agency may have determined that a student’s teacher has a legitimate educational interest in knowing the student is experiencing homelessness. One reason may be to prompt the teacher to ask the McKinney-Vento program to provide supplies for projects.

However, it is fair to assume that every school, and possibly every classroom, has students experiencing homelessness that are not known to the school. Therefore, rather than alerting teachers to particular homeless students, it is a better practice to train teachers to assume that one or more of their students are experiencing homelessness at any given time, known or unknown, and teachers therefore should work to address those challenges for all students. For example, teachers can contact the Title I or McKinney-Vento program for any students who need help with supplies for projects. Title I or McKinney-Vento can create a system for teachers to request supplies for students.

It also is a good practice to let parents and students know who has access to this information and to give them the opportunity to opt out of sharing. These approaches can help the school comply with the McKinney-Vento Act’s requirement to “remove barriers to the identification of homeless children and youths, and the enrollment and retention of homeless children and youths.” 42 U.S.C. §11432(g)(1)(I). If information about a student’s homelessness is widely shared, students and families will be less likely to feel comfortable revealing their situation, thereby creating a barrier to identification.

It seems like this would be a FERPA violation, unless the students’ parents (or the students, if they are age 18 or older) consented to the release of this information to all teachers. Education records can be released to “other school officials, including teachers, within the agency or institution whom the agency or institution has determined to have legitimate educational interests.” 34 C.F.R. §99.31(a)(1)(i). The local educational agency may have determined that a student’s teacher has a legitimate educational interest in knowing the student is receiving social work counseling. However, it is unclear how all teachers could have a legitimate educational interest in knowing this information for students that are not in their class(es). In addition, if notes or details of what is discussed during social work counseling sessions are being shared with all teachers, this could be a significant breach of privacy. If the information includes the fact that the student is experiencing homelessness, that would make the breach even more significant.

In general, it is fair to assume that every school, and possibly every classroom, has students experiencing homelessness that are not known to the school, and students with adverse childhood experiences and ongoing trauma of which the school is not aware. Therefore, rather than alerting teachers to particular homeless students, it is a better practice to train teachers to assume that one or more of their students are experiencing homelessness at any given time, known or unknown, and teachers therefore should work to address those challenges for all students. It also is a good practice to let parents and students know who has access to this information and to give them the opportunity to opt out of sharing. These approaches can help the school comply with the McKinney-Vento Act’s requirement to “remove barriers to the identification of homeless children and youths, and the enrollment and retention of homeless children and youths.” 42 U.S.C. §11432(g)(1)(I). If information about a student’s homelessness or social work or mental health challenges is widely shared, students and families will be less likely to feel comfortable revealing their situation, thereby creating a barrier to identification.

Education records can be released to “other school officials, including teachers, within the agency or institution whom the agency or institution has determined to have legitimate educational interests.” 34 C.F.R. §99.31(a)(1)(i). Registrars and secretaries probably do have a legitimate educational interest in knowing who the McKinney-Vento students in their school are, to help make sure they are aware of their right to remain in the school of origin, as well as other rights and services.

However, generally it is fair to assume that every school has students experiencing homelessness that are not known to the school. Therefore, rather than alerting secretaries and registrars to particular homeless students, it is a better practice to train them to ask students and families who are withdrawing about why they are moving, whether their move is temporary or permanent, etc. Asking those questions upon withdrawal is an excellent strategy to identify McKinney-Vento students who recently lost their housing and were not previously identified. This kind of practice can be a key strategy to “remove barriers to the identification of homeless children and youths.” 42 U.S.C. §11432(g)(1)(I).

Yes. In this case, the staff who are sending the gift cards or contacting the families have a legitimate educational interest in the information. They need it to do their job. Education records can be released to “other school officials, including teachers, within the agency or institution whom the agency or institution has determined to have legitimate educational interests.” 34 C.F.R. §99.31(a)(1)(i). The staff members do not need to know the students are homeless. However, if only McKinney-Vento students are receiving these resources, the staff will know the students are homeless. That is acceptable, due to the legitimate educational interest.

To our knowledge, FERPA does not provide parents the right to access online databases of this kind. FERPA does give parents the right to “the opportunity to inspect and review the student’s education records.” However, that doesn’t necessarily mean immediate access to an online database. The FERPA regulations clearly give the school up to 45 days to comply with a request to inspect records. The request can be granted by giving the parent access to the information at the school office, or providing copies. 34 CFR §99.10. So under FERPA, it appears you could deny a parent access to the online database at an unaccompanied youth’s request.

In addition, even beyond FERPA, the McKinney-Vento Act would require you to honor the youth’s wishes in this situation. The McKinney-Vento Act requires LEAs to remove barriers to enrollment and retention in school for children and youth experiencing homelessness. 42 USC §11432(g)(1)(I). The parent mocking the student on Facebook certainly could cause the kind of humiliation that could lead a student to drop out of school. (Or worse– It’s not overly dramatic to note that students experiencing homelessness are 7.2 times more likely to attempt suicide than their housed peers, with over a third of homeless high school students reporting a suicide attempt over a single school year.) The McKinney-Vento Act would require the school to take action to remove the barrier to enrollment (which includes full participation) and retention in school. Blocking the parent from the online database would help do that.

Yes, unaccompanied youth do have the right to do this. Since the McKinney-Vento Act requires LEAs to remove barriers to enrollment and retention in school for children and youth experiencing homelessness, the school has to be sensitive to issues that could lead to students avoiding school or even dropping out. 42 USC §11432(g)(1)(I). How the school interacts with parents is one of those issues, given the conflict, tension, and even violence in the families of many unaccompanied youth. If an unaccompanied youth wishes to remove her parents from the contacts/demographics screen, the school needs to do that. You’re correct that the parent’s FERPA rights to “the opportunity to inspect and review the student’s education records” remain intact.

Sharing a student’s homeless status with teachers is not per se illegal, but there do need to be procedures in place to ensure the information is protected. A blanket policy of sharing homeless status with all teachers is likely to violate regulations under the Family Educational Rights and Privacy Act (FERPA) and the McKinney-Vento Act unless parents and students 18 or over are informed and given the opportunity to opt out of sharing that information.

As you know, a student’s homeless status is a protected educational record. However, there is an exception under FERPA that allows sharing educational records with school officials who have a legitimate educational interest. Teachers are school officials, and in some cases teachers would have a legitimate educational interest in the information. If the principal wishes to share information about homelessness with teachers, the principal must determine whether each teacher has a legitimate educational interest in the information. In addition, the school must inform parents and eligible students of how it defines the terms “school official” and “legitimate educational interest” in its annual notification of FERPA rights.

Based on the FERPA regulations and the McKinney-Vento Act, the school should let parents and unaccompanied youth know under what circumstances homeless status will be shared with teachers. Telling teachers without getting approval from parents and youth first could be a barrier to retention in school, as many students have stated how traumatic and upsetting it was when their teachers were told without the youth knowing first. That would violate the McKinney-Vento Act.

Your practice of sharing the information on a need-to-know basis, and informing parents and youth prior to sharing, is the surest way to ensure compliance with McKinney-Vento and FERPA. A blanket policy of sharing homeless status with all teachers is likely to run counter to both FERPA and McKinney-Vento.

Under FERPA, all rights to inspect education records and consent for their disclosure pass to the student when the student turns 18. This means an 18-year old student controls access to her education records. There are several exceptions in FERPA that allow schools to share information without consent, including with parents. The most common exception related to this issue allows schools to share records with a parent if the student is a dependent of the parent for tax purposes under IRS tax rules. However, if the student specifically tells a school not to share records with a particular person, including a parent, it is likely that the school is risking liability if it violates the student’s specific instructions. Also, the school might not have adequate information to know whether the student actually is a dependent for tax purposes under IRS rules. Compare the school’s information about the family’s tax returns and internal financial practices to a student specifically telling the school not to release records, and it seems clear which rule the school should follow.

Since FERPA is a federal law, it supersedes conflicting state laws. Therefore, in this situation, under FERPA, the school should follow the wishes of the 18-year-old student. The McKinney-Vento Act does not change the interpretation of this issue, since the controlling law is FERPA. The McKinney-Vento Act would support FERPA in this situation, since McKinney-Vento requires schools to remove barriers to identification, enrollment, and retention in school. Following the student’s wishes, in this case, will help remove barriers to enrollment or retention, since if the school were to share information with the parent against the student’s wishes, the student might feel unsafe or unwelcome at school, and might consider leaving school.

Also see: https://studentprivacy.ed.gov/faq/who-eligible-student

If the student is 18, the student can consent for the friend to access school records and participate in the student’s education. 34 CFR 99.3.

For students under age 18, if an adult is acting as a parent in the absence of a parent or guardian, then that adult meets FERPA’s definition of parent and has the rights of a parent. No designation or other action is needed. 34 CFR 99.3; 99.4.

An unaccompanied youth under age 18 also can access his or her own records and consent for their disclosure, as long as a parent does not object. 34 CFR 99.5(b).

Generally speaking, federal laws supersede state laws. However, families who are fraudulently using federal law to avoid following state or local policies on school assignment or attendance are not protected. There is a balance between ensuring that students’ rights under the McKinney-Vento Act are protected, while also intervening in fraudulent situations.

The McKinney-Vento Act specifies that information about a student’s homelessness is an educational record protected by FERPA. 42 U.S.C. § 11432(g)(3)(G). This means that calling landlords, talking to neighbors, or other invasive practices that potentially expose a student’s living situation to third parties are illegal.

The McKinney-Vento Act also requires that “SEAs and LEAs must develop, review, and revise policies to remove barriers to the identification, enrollment and retention of McKinney-Vento students, including barriers due to outstanding fees or fines, or absences.” 42 U.S.C. § 11432(g)(1)(I). Aggressive homelessness verification efforts create barriers to identification and enrollment, and possibly retention, because the invading of privacy creates a climate where families who are already vulnerable and embarrassed are less likely to disclose their living situation out of fear of repercussions. Under current immigration enforcement practices, undocumented or immigrant families may be especially negatively impacted.

It is also worth pointing out the U.S. Department of Education’s Guidance about this part of the law. In Question A-4, the Department states:

“The McKinney-Vento Act includes a broad, ongoing requirement for SEAs and LEAs to review policies or practices that may act as barriers to the identification, enrollment, attendance, and school success of homeless children and youths, including barriers due to outstanding fees or fines or absences. (See, e.g., sections 721, 722(g)(1)(I)). It is important for SEAs and LEAs to consistently review their policies and practices with regular input from homeless parents, youths, and advocates so that new barriers, or barriers that the SEA or LEA staff may be unaware of, do not prevent children and youths from receiving the free, appropriate public education to which they are entitled.”

Another helpful reference is this NCHE document: https://nche.ed.gov/wp-content/uploads/2018/10/conf-elig.pdf

Federal law does not require a written procedure on confidentiality for McKinney-Vento students. However, if your state department has listed that on their monitoring tool, the state is requiring it. Sometimes states will require written procedures or other steps that technically may not be required by federal law, because the state feels it is the best or only way to ensure good compliance. So if the state is asking for procedures, I think you do need to have written procedures available to show them.

It is not a Family Educational Rights and Privacy Act (FERPA) violation to share information on these students’ McKinney-Vento eligibility with their mentors. FERPA specifically allows the sharing of education records without parent consent to other school officials, including teachers, within the district or school whom the district or school has determined to have legitimate educational interests. The district or school must use reasonable methods to ensure that school officials obtain access only to those education records in which they have legitimate educational interests. 34 CFR §99.31(a)(1). The mentors certainly would have a legitimate educational interest to know the student is McKinney-Vento eligible and to know about other needs.

As for parent permission or notification, we see no reason that would be required. This is part of the school day and takes place at school. The students choose to participate. We don’t see where parental permission would come into play. If a mentor wants to spend time with the student outside of school, take the student on a college visit, etc., then you likely are moving into parental consent territory (but still would need to ensure full participation in this school activity, per the McKinney-Vento Act). That said, you might want to check with your State Coordinator just in case there is a relevant state requirement.

Under FERPA, parents and legal guardians to have a right to see their children’s educational records. The caregiver form would be part of the educational record. So a parent or guardian would have the right to see that form. Of course, the school has the right to verify the guardian’s identity, such as by having the guardian show ID and some document that establishes guardianship. For more information on FERPA, you can visit https://www2.ed.gov/policy/gen/guid/fpco/ferpa/index.html.

You definitely could let the caregiver know that a guardian has requested the form, and that you are required to share it. That way, the caregiver can be prepared, in case there is any concern about the caregiver’s safety in light of this guardian being upset.

Under FERPA, in this case the school does need to follow the parent’s wishes, unless there is some court order preventing the parent from exercising those rights. The sister does not have any legal custody or guardianship, she’s just a caregiver and sister, so the parent’s rights are primary and controlling over all others. That is true until the student turns 18, at which time all FERPA rights transfer to him. At that time, he even could refuse to let his parents see his records.

An individual acting as a parent in the absence of a parent or guardian meets the definition of parent in FERPA. 34 CFR §99.3. However, if a parent or legal guardian is present and attempting to exercise FERPA rights, their rights trump others.

The school could give the youth access to his educational records. Although FERPA does not specifically guarantee the rights of unaccompanied youth under 18, the law does permit schools to allow students under age 18 to have access to their education records and provide consent for disclosures, as long as those rights do not supersede the rights of their parents. There is guidance on this point in questions 5 and 6 of this document: https://www2.ed.gov/policy/gen/guid/fpco/pdf/ferpa-disaster-guidance.pdf

Note: Nothing in FERPA changes the student’s McKinney-Vento rights. As an unaccompanied youth, he has the right to choose to remain in his school of origin or attend the school near where he is staying. The district must give priority to his wishes. Those are the McKinney-Vento requirements. The parent of course is welcome to pursue family reunification services from community resources. But the school has to comply with McKinney-Vento. If the parent has refused to let the sister excuse absences and otherwise be involved, then the district can allow the youth to do that on his own.

A joint guidance document from the Department of Education and the Department of Health and Human Services provides good answers to the HIPAA vs. FERPA question. For example, it says:

“Because student health information in education records is protected by FERPA, the HIPAA Privacy Rule excludes such information from its coverage.”

In other words, student education records are protected under FERPA, but exempt from HIPAA, which, in turn, means that the school nurses would not face liability under HIPAA. The student education records information protected under FERPA includes information on immunizations, allergies, medications, and any other information that is part of the student’s education record. Those records are protected by FERPA. FERPA specifically allows transmission of education records without parental consent to a school to which the student is transferring. FERPA also allows the sharing of education records with others in the school who have a legitimate educational reason to see them.

You can find the guidance here.

You should release the records. Since the student has been identified as McKinney-Vento eligible (which appears to be an appropriate identification based on the information you provided), you are obligated to eliminate barriers to enrollment and transfer records to the enrolling school. In addition, under FERPA, parental consent is not required to release records to a school to which a student has transferred.

In this context, if you are sharing personally-identifiable information with anyone outside the school system, you need parental consent under FERPA. You also need to make sure the collaboration and information-sharing don’t erect barriers to identification, enrollment or retention in school, under McKinney-Vento. For example, if a student does not want to be referred to a particular program or does not want information shared, and your collaboration could “scare” him away from school or make him not identify himself as homeless, that’s an illegal barrier under McKinney-Vento.

It’s always fine for you to provide a student or parent with information about available services. It’s also fine to offer to make the connection, and if the parent accepts, that is your consent. It’s probably best to get that in writing, though, in the form of a simple one-page consent.

That provision is: “(G) PRIVACY.—Information about a homeless child’s or youth’s living situation shall be treated as a student education record, and shall not be deemed to be directory information, under section 444 of the General Education Provisions Act (20 U.S.C. 1232g).” The citation is 42 U.S.C. 11432(g)(3)(G).

This is a regulation specifically about disclosing information about substance abuse. https://www.law.cornell.edu/cfr/text/42/part-2 If this professional is providing substance abuse counseling, she does need consent to share that information. Other information would fall under FERPA.

You are correct. Information about a McKinney-Vento student’s living situation is part of the child’s educational record, protected under FERPA. That means that only other school/district staff with a legitimate educational interest should be able to access that information without specific parental consent. It seems that keeping the questionnaires in the cumulative file could allow access to a number of school/district staff who do not have a legitimate educational interest in the information. So I would be concerned about violating FERPA by including those forms in the cumulative file. More information about FERPA is available in our April 4 webinar, “FERPA, Homelessness, and Foster Care.”

FERPA’s rights are rights, meaning anyone who meets the definition of “parent” has the right to access educational records, for any purpose. Basically, the parents are the owners of the records. This person has no proof he is the biological or adoptive parent. However, he does appear to be “acting as a parent in the absence of a parent or guardian,” which meets the FERPA definition of “parent.”

Is the mother involved with the student? Is she requesting access to records, or has she stated she does not want this man to see records? If the answer to any of those questions is yes, the situation may be different. A biological parent’s rights beat the rights of a caregiver. That’s why FERPA says “in the absence of a parent or guardian.” So if mother is around and involved, you probably should contact her before releasing records to this caregiver.

If the mother is not around, then I think this caregiver does have the right to access educational records, for any purpose. If you are concerned about the caregiver, it couldn’t hurt to run a quick check on missingkids.org.

Can we provide our Head Start agency with letters verifying homelessness? In our area, children experiencing homelessness automatically receive child care subsidies, so we provide letters.

Our school received a donation to help pay student fees. Is it appropriate to share McKinney-Vento students’ names with the bookkeeper to identify if those students have balances needing to be paid?

What rights does a case manager with the Department of Child and Family Services have under FERPA?

How do we protect privacy when students are transported on specialized transportation afterschool (when school is in session)? Everyone at dismissal can see our McKinney-Vento students getting onto a van.

Can a student under 18 who wants to change his/her name from Julie to John, do so without parent’s permission or against parent’s wishes?

In the world of special education, parents have legal rights to sign students’ Individualized Education Programs (IEPs), consent for evaluations, and attend IEP meetings. How does FERPA interact with this right when students are 18 or older?

Can consent be verbal?

What if a student has two natural parents, divorced, and also a legal guardian, whose rights have priority?

What if one parent enrolled the student, but another parent refuses to consent to the release of education records. Does that non-enrolling parent have the right to withhold consent?

How does a school know if a parent’s rights have been terminated?

Can a liaison “verify” that a youth is unaccompanied with the youth or must we “verify” with their parent or legal guardian or the person assuming responsibility for them?

Does parental consent under FERPA apply when the student is unaccompanied and there is no parent available? Can we give rights to the unaccompanied youth?

Does the local educational agency have to let a parent know if an 18-year-old unaccompanied homeless youth asks to have his home address changed in his student record?

We have a student (under age 18) who left home due to extreme family conflict and is living with a sibling. The parents now are creating problems for the sibling. Do we still give the parent FERPA rights, but remove the sibling?

If a parent enrolled a student, but the student then left home to stay temporarily with a friend’s family due to the parent’s substance abuse, who can access the student’s records? Can I add the friend’s parent to the student’s contact list?

If we have community partners that would like to pay for food or hotel stays for McKinney-Vento families or youth, what information can we share with those partners? Names of hotels where our families tend to stay? Student names?

Some of our families need a wifi unit that the county has offered to loan us. Can I just give the families’ contact info to the county? What if we cannot reach a parent or student?

During this time of COVID, families need weekend food. Can they give permission for their information to be shared with a church or organization to deliver food/supplies?

What about a community partner with a Memorandum of Understanding coming into the school to meet with students and their agency providing by-name list information?

In my district’s database, students enrolled under special residency situations (homeless, educational guardianship, kinship care, etc.) are indicated with H or R next to student’s name. This information is visible to staff at each individual school. Is this a FERPA violation?

If we keep the names of our McKinney-Vento students in a google spreadsheet that the administration can see, does this violate FERPA?

Would it fall under the “ legitimate educational interest” exception when we need to inform teachers about the homeless students in their classroom when we have to provide required supplies for projects?

In our school district, all social work counseling sessions are in a database that all teachers can access– including counseling sessions of students in homeless situations. Does this violate FERPA?

Can a school share students’ names and addresses with staff that are sending gift cards to the family or contacting the family to give food baskets?

Is sharing a student’s homeless status with a teacher illegal? I’ve always shared that information on a need-to-know basis only, but one of our principals wants to share the full list with all teachers.

We have a student who has been verified as an unaccompanied youth. She is over 18 and has requested that her parent does not have access to her academic record. We do not have a procedure in place for this in our district. Is there something in the law that helps us define our next steps?

I’m working with an unaccompanied youth who is living with an older friend. We’re trying to get some information about what rights the friend has to access educational records. She is committed to the student, but the parent will not sign over a release or anything.

How do the McKinney-Vento Act and FERPA work with state laws against fraudulent claims by parents/caregivers for the purpose of enrolling in a particular school and/or district?

In collaborating with outside entities to serve students, how do we protect against violating FERPA or McKinney-Vento? Also, under FERPA, can we make referrals to outside programs and agencies to serve McKinney-Vento students and families?

I know that ESSA protects a homeless student’s address as part of the education record, and therefore cannot be disclosed as directory information, etc. Where is the citation to quote the statute for this?

A service provider at one of our schools will not share information about students due to “42 CFR Part 2.” What is this regulation?

Where should we store the yearly McKinney-Vento questionnaires we use to identify students experiencing homelessness? I have always told our registrars to keep them in a separate file and NOT in the cumulative file.