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					Family Educational Rights and
Privacy Act Regulations
34 CFR Part 99                             99.12 What limitations exist on the right
                                           to inspect and review records?
Subpart A-General
                                           Subpart C-What are the
Section                                    Procedures for Amending
                                           Education Records?
99.1 To which educational agencies or
institutions do these regulations apply?
                                           Section
99.2 What is the purpose of these
                                           99.20 How can a parent or eligible
regulations?
                                           student request amendment of the
                                           student's education records?
99.3 What definitions apply to these
regulations?
                                           99.21 Under what conditions does a
                                           parent or eligible student have the right
99.4 What are the rights of parents?
                                           to a hearing?
99.5 What are the rights of students?
                                           99.22 What minimum requirements exist
                                           for the conduct of a hearing?
99.7 What must an educational agency
or institution include in its annual
notification?                              Subpart D-May an Educational
                                           Agency or Institution Disclose
99.8 What provisions apply to records of   Personally Identifiable
a law enforcement unit?                    Information from Education
                                           Records?
Subpart B-What are the Rights
of Inspection and Review of                Section
Education Records?
                                           99.30 Under what conditions is prior
Section                                    consent required to disclose
                                           information?
99.10 What rights exist for a parent or
eligible student to inspect and review     99.31 Under what conditions is prior
education records?                         consent not required to disclose
                                           information?
99.11 May an educational agency or
institution charge a fee for copies of     99.32 What recordkeeping requirements
education records?                         exist concerning requests and
                                           disclosures?


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99.33 What limitations apply to the         99.62 What information must an
redisclosure of information?                educational agency or institution submit
                                            to the Office?
99.34 What conditions apply to
disclosure of information to other          99.63 Where are complaints filed?
educational agencies or institutions?
                                            99.64 What is the investigation
99.35 What conditions apply to              procedure?
disclosure of information for Federal or
State program purposes?                     99.65 What is the content of the notice
                                            of investigation issued by the Office?
99.36 What conditions apply to
disclosure of information in health and     99.66 What are the responsibilities of the
safety emergencies?                         Office in the enforcement process?

99.37 What conditions apply to              99.67 How does the Secretary enforce
disclosing directory information?           decisions?

99.38 What conditions apply to              (Authority: 20 U.S.C. 1232g, unless
disclosure of information as permitted      otherwise noted).
by State statute adopted after
November 19, 1974, concerning the           PART 99 – FAMILY EDUCATIONAL
juvenile justice system?                    RIGHTS AND PRIVACY ACT (FERPA)

99.39 What definitions apply to the         The authority citation for this part
nonconsensual disclosure of records by      continues to read as follows:
postsecondary educational institutions in
connection with disciplinary proceedings    (Authority: 20 U.S.C. 1232g, unless
concerning crimes of violence or non-       otherwise noted).
forcible sex offenses?
                                            Subpart A-General
Subpart E -What are the
                                            § 99.1 To which educational agencies
Enforcement Procedures?
                                            or institutions do these regulations
                                            apply?
Section
                                            (a) Except as otherwise noted in § 99.10,
99.60 What functions has the Secretary
                                            this part applies to an educational agency
delegated to the Office and to the Office
                                            or institution to which funds have been
of Administrative Law Judges?
                                            made available under any program
                                            administered by the Secretary,
99.61 What responsibility does an
                                            If –
educational agency or institution have
concerning conflict with State or local
                                            (1)The educational institution provides
laws?
                                            educational services or instruction, or
                                            both, to students; or



                                                                                       2
(2) The educational agency is authorized     The purpose of this part is to set out
to direct and control public elementary      requirements for the protection of
or secondary, or postsecondary               privacy of parents and students under
educational institutions.                    section 444 of the General Education
                                             Provisions Act, as amended.
(b) This part does not apply to an
educational agency or institution solely     (Authority: 20 U.S.C. 1232g)
because students attending that agency
or institution receive nonmonetary           Note to § 99.2: 34 CFR 300.610 through
benefits under a program referenced in       300.626 contain requirements regarding
paragraph (a) of this section, if no funds   the confidentiality of information
under that program are made available to     relating to children with disabilities who
the agency or institution.                   receive evaluations, services or other
                                             benefits under Part B of the Individuals
(c) The Secretary considers funds to be      with Disabilities Education Act (IDEA).
made available to an educational agency      34 CFR 303.402 and 303.460 identify
or institution if funds under one or more    the confidentiality of information
of the programs referenced in paragraph      requirements regarding children and
(a) of this section-                         infants and toddlers with disabilities and
                                             their families who receive evaluations,
(1) Are provided to the agency or            services, or other benefits under Part C
institution by grant, cooperative            of IDEA. 34 CFR 300.610 through
agreement, contract, subgrant, or            300.627 contain the confidentiality of
subcontract; or (2) Are provided to          information requirements that apply to
students attending the agency or             personally identifiable data, information,
institution and the funds may be paid to     and records collected or maintained
the agency or institution by those           pursuant to Part B of the IDEA.
students for educational purposes, such
as under the Pell Grant Program and the      § 99.3 What definitions apply to these
Guaranteed Student Loan Program              regulations?
(Titles IV-A-l and IV-B, respectively, of
the Higher Education Act of 1965, as         The following definitions apply to this
amended).                                    part:

(d) If an educational agency or              "Act" means the Family Educational
institution receives funds under one or      Rights and Privacy Act of 1974, as
more of the programs covered by this         amended, enacted as section 444 of the
section, the regulations in this part        General Education Provisions Act.
apply to the recipient as a whole,
including each of its components (such       (Authority: 20 U.S.C. 1232g)
as a department within a university).
                                             "Attendance" includes, but is not limited
(Authority: 20 U.S.C. 1232g)                 to-

§ 99.2 What is the purpose of these          (a) Attendance in person or by paper
regulations?                                 correspondence, videoconference,



                                                                                       3
satellite, Internet, or other electronic     (b) The term does not include specific
information and telecommunications           daily records of a student's attendance at
technologies for students who are not        an educational agency or institution.
physically present in the classroom; and
                                             (Authority: 20 U.S.C. 1232g (a)(5)(A))
(b) The period during which a person is
working under a work-study program.          “Directory information” means
                                             information contained in an education
(Authority: 20 U.S.C. 1232g)                 record of a student that would not
                                             generally be considered harmful or an
“Authorized representative” means any        invasion of privacy if disclosed.
entity or individual designated by a State
or local educational authority or an         (a) Directory information includes, but
agency headed by an official listed in       is not limited to, the student’s name;
§ 99.31(a)(3) to conduct – with respect      address; telephone listing; electronic
to Federal- or State-supported education     mail address; photograph; date and place
programs – any audit or evaluation, or       of birth; major field of study; grade
any compliance or enforcement activity       level; enrollment status (e.g.,
in connection with Federal legal             undergraduate or graduate, full-time or
requirements that relate to these            part-time); dates of attendance;
programs.                                    participation in officially recognized
                                             activities and sports; weight and height
(Authority: 20 U.S.C. 1232g(b)(1)(C),        of members of athletic teams; degrees,
(b)(3), and (b)(5))                          honors, and awards received; and the
                                             most recent educational agency or
“Biometric record,” as used in the           institution attended.
definition of “personally identifiable
information,” means a record of one or       (b) Directory information does not
more measurable biological or                include a student’s –
behavioral characteristics that can be
used for automated recognition of an         (1) Social security number; or
individual. Examples include
fingerprints; retina and iris patterns;      (2) Student identification (ID) number,
voiceprints; DNA sequence; facial            except as provided in paragraph (c) of
characteristics; and handwriting.            this definition.

(Authority: 20 U.S.C. 1232g)                 (c) In accordance with paragraphs (a)
                                             and (b) of this definition, directory
"Dates of attendance"                        information includes –

(a) The term means the period of time        (1) A student ID number, user ID, or
during which a student attends or            other unique personal identifier used by
attended an educational agency or            a student for purposes of accessing or
institution. Examples of dates of            communicating in electronic systems,
attendance include an academic year, a       but only if the identifier cannot be used
spring semester, or a first quarter.         to gain access to education records



                                                                                         4
except when used in conjunction with          Head Start Act (42 U.S.C. 9831 et seq.),
one or more factors that authenticate the     including a migrant or seasonal Head
user’s identity, such as a personal           Start program, an Indian Head Start
identification number (PIN), password         program, or a Head Start program or an
or other factor known or possessed only       Early Head Start program that also
by the authorized user; and                   receives State funding;

(2) A student ID number or other unique       (b) A State licensed or regulated child
personal identifier that is displayed on a    care program; or
student ID badge, but only if the
identifier cannot be used to gain access      (c) A program that –
to education records except when used in
conjunction with one or more factors          (1) Serves children from birth through
that authenticate the user’s identity, such   age six that addresses the children's
as a PIN, password, or other factor           cognitive (including language, early
known or possessed only by the                literacy, and early mathematics), social,
authorized user.                              emotional, and physical development;
                                              and
(Authority: 20 U.S.C. 1232g(a)(5)(A))
                                              (2) Is –
“Disciplinary action or proceeding”
means the investigation, adjudication, or     (i) A State prekindergarten program;
imposition of sanctions by an
educational agency or institution with        (ii) A program authorized under section
respect to an infraction or violation of      619 or part C of the Individuals with
the internal rules of conduct applicable      Disabilities Education Act; or
to students of the agency or institution.
                                              (iii) A program operated by a local
"Disclosure" means to permit access to        educational agency.
or the release, transfer, or other
communication of personally                   “Education program” means any
identifiable information contained in         program that is principally engaged in
education records by any means,               the provision of education, including,
including oral, written, or electronic        but not limited to, early childhood
means, to any party except the party          education, elementary and secondary
identified as the party that provided or      education, postsecondary education,
created the record.                           special education, job training, career
                                              and technical education, and adult
(Authority: 20 U.S.C. 1232g(b)(1) and         education, and any program that is
(b)(2))                                       administered by an educational agency
                                              or institution.
“Early childhood education program”
means –                                       (Authority: 20 U.S.C. 1232g(b)(3),
                                              (b)(5))
(a) A Head Start program or an Early
Head Start program carried out under the



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"Educational agency or institution"           (ii) Records relating to an individual in
means any public or private agency or         attendance at the agency or institution
institution to which this part applies        who is employed as a result of his or her
under § 99.1(a).                              status as a student are education records
                                              and not excepted under paragraph
(Authority: 20 U.S.C. 1232g (a)(3))           (b)(3)(i) of this definition.

"Education Records"                           (4) Records on a student who is 18 years
                                              of age or older, or is attending an
(a) The term means those records that         institution of postsecondary education,
are:                                          that are:

(1) Directly related to a student; and        (i) Made or maintained by a physician,
                                              psychiatrist, psychologist, or other
(2) Maintained by an educational agency       recognized professional or
or institution or by a party acting for the   paraprofessional acting in his or her
agency or institution.                        professional capacity or assisting in a
                                              paraprofessional capacity;
(b) The term does not include:
                                              (ii) Made, maintained, or used only in
(1) Records that are kept in the sole         connection with treatment of the student;
possession of the maker, are used only as     and
a personal memory aid, and are not
accessible or revealed to any other           (iii) Disclosed only to individuals
person except a temporary substitute for      providing the treatment. For the purpose
the maker of the record.                      of this definition,"treatment" does not
                                              include remedial educational activities or
(2) Records of the law enforcement unit       activities that are part of the program of
of an educational agency or institution,      instruction at the agency or institution;
subject to the provisions of § 99.8.
                                              (5) Records created or received by an
(3)(i) Records relating to an individual      educational agency or institution after an
who is employed by an educational             individual is no longer a student in
agency or institution, that:                  attendance and that are not directly
                                              related to the individual's attendance as a
(A) Are made and maintained in the            student.
normal course of business;
                                              (6) Grades on peer-graded papers before
(B) Relate exclusively to the individual      they are collected and recorded by a
in that individual's capacity as an           teacher.
employee; and
                                              (Authority: 20 U.S.C. 1232g(a)(4))
(C) Are not available for use for any
other purpose.                                "Eligible student" means a student who
                                              has reached 18 years of age or is




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attending an institution of postsecondary    (e) Other indirect identifiers, such as the
education.                                   student’s date of birth, place of birth,
                                             and mother’s maiden name;
(Authority: 20 U.S.C. 1232g(d))
                                             (f) Other information that, alone or in
"Institution of postsecondary education"     combination, is linked or linkable to a
means an institution that provides           specific student that would allow a
education to students beyond the             reasonable person in the school
secondary school level; "secondary           community, who does not have personal
school level" means the educational          knowledge of the relevant
level (not beyond grade 12) at which         circumstances, to identify the student
secondary education is provided as           with reasonable certainty; or
determined under State law.
                                             (g) Information requested by a person
(Authority: 20 U.S.C. 1232g(d))              who the educational agency or
                                             institution reasonably believes knows the
"Parent" means a parent of a student and     identity of the student to whom the
includes a natural parent, a guardian, or    education record relates.
an individual acting as a parent in the
absence of a parent or a guardian.           (Authority: 20 U.S.C. 1232g)

(Authority: 20 U.S.C.1232g)                  "Record" means any information
                                             recorded in any way, including, but not
"Party" means an individual, agency,         limited to, hand writing, print, computer
institution, or organization.                media, video or audio tape, film,
                                             microfilm, and microfiche.
(Authority: 20 U.S.C. 1232g(b)(4)(A))
                                             (Authority: 20 U.S.C. 1232g)
"Personally Identifiable Information"
                                             "Secretary" means the Secretary of
The term includes, but is not limited to--   the U.S. Department of Education or an
                                             official or employee of the Department
(a) The student’s name;                      of Education acting for the Secretary
                                             under a delegation of authority.
(b) The name of the student’s parent or
other family members;                        (Authority: 20 U.S.C.1232g)

(c) The address of the student or            "Student," except as otherwise
student’s family;                            specifically provided in this part, means
                                             any individual who is or has been in
(d) A personal identifier, such as the       attendance at an educational agency or
student’s social security number, student    institution and regarding whom the
number, or biometric record;                 agency or institution maintains
                                             education records.

                                             (Authority: 20 U.S.C. 1232g(a)(6))



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§ 99.4 What are the rights of parents?        student's application for admission,
                                              unless the student is accepted and
An educational agency or institution          attends that other component of the
shall give full rights under the Act to       institution.
either parent, unless the agency or
institution has been provided with            (Authority: 20 U.S.C.1232g(d))
evidence that there is a court order, State
statute, or legally binding document          § 99.7 What must an educational
relating to such matters as divorce,          agency or institution include in its
separation, or custody that specifically      annual notification?
revokes these rights.
                                              (a)(l) Each educational agency or
(Authority: 20 U.S.C. 1232g)                  institution shall annually notify parents
                                              of students currently in attendance, or
§ 99.5 What are the rights of students?       eligible students currently in attendance,
                                              of their rights under the Act and this
(a)(1) When a student becomes an              part.
eligible student, the rights accorded to,
and consent required of, parents under        (2) The notice must inform parents or
this part transfer from the parents to the    eligible students that they have the right
student.                                      to –

(2) Nothing in this section prevents an       (i) Inspect and review the student's
educational agency or institution from        education records;
disclosing education records, or
personally identifiable information from      (ii) Seek amendment of the student's
education records, to a parent without        education records that the parent or
the prior written consent of an eligible      eligible student believes to be inaccurate,
student if the disclosure meets the           misleading, or otherwise in violation of
conditions in § 99.31(a)(8),                  the student's privacy rights;
§ 99.31(a)(10), § 99.31(a)(15), or
any other provision in § 99.31(a).            (iii) Consent to disclosures of personally
                                              identifiable information contained in the
(b) The Act and this part do not prevent      student's education records, except to the
educational agencies or institutions from     extent that the Act and § 99.31 authorize
giving students rights in addition to         disclosure without consent; and
those given to parents.
                                              (iv) File with the Department a
(c) An individual who is or has been a        complaint under §§ 99.63 and 99.64
student at an educational institution and     concerning alleged failures by the
who applies for admission at another          educational agency or institution to
component of that institution does not        comply with the requirements of the Act
have the rights under this part with          and this part.
respect to records maintained by that
other component, including records            (3) The notice must include all of the
maintained in connection with the             following:



                                                                                           8
(i) The procedure for exercising the right    (i) Enforce any local, State, or Federal
to inspect and review education records.      law, or refer to appropriate authorities a
                                              matter for enforcement of any local,
(ii) The procedure for requesting             State, or Federal law against any
amendment of records under § 99.20.           individual or organization other than the
                                              agency or institution itself; or
(iii) If the educational agency or
institution has a policy of disclosing        (ii) Maintain the physical security and
education records under § 99.31 (a) (1),      safety of the agency or institution.
a specification of criteria for determining
who constitutes a school official and         (2) A component of an educational
what constitutes a legitimate educational     agency or institution does not lose its
interest.                                     status as a "law enforcement unit" if it
                                              also performs other, non-law
(b) An educational agency or institution      enforcement functions for the agency
may provide this notice by any means          or institution, including investigation of
that are reasonably likely to inform the      incidents or conduct that constitutes or
parents or eligible students of their         leads to a disciplinary action or
rights.                                       proceedings against the student.

(1) An educational agency or institution      (b) (1) Records of law enforcement unit
shall effectively notify parents or           means those records, files, documents,
eligible students who are disabled.           and other materials that are –

(2) An agency or institution of               (i) Created by a law enforcement unit;
elementary or secondary education shall
effectively notify parents who have a         (ii) Created for a law enforcement
primary or home language other than           purpose; and
English.
                                              (iii) Maintained by the law enforcement
(Approved by the Office of Management         unit.
and Budget under control number 1875-
0246)                                         (2) Records of law enforcement unit
(Authority: 20 U.S.C. 1232g (e) and (f))      does not mean –

§ 99.8 What provisions apply to records       (i) Records created by a law enforcement
of a law enforcement unit?                    unit for a law enforcement purpose that
                                              are maintained by a component of the
(a) (1) "Law enforcement unit" means          educational agency or institution other
any individual, office, department,           than the law enforcement unit; or
division, or other component of an
educational agency or institution, such as    (ii) Records created and maintained by a
a unit of commissioned police officers or     law enforcement unit exclusively for a
non-commissioned security guards, that        non-law enforcement purpose, such as a
is officially authorized or designated        disciplinary action or proceeding
by that agency or institution to –            conducted by the educational agency



                                                                                           9
or institution.                              (i) For the purposes of subpart B of this
                                             part, an SEA and its components
(c)(1)Nothing in the Act prohibits an        constitute an educational agency or
educational agency or institution from       institution.
contacting its law enforcement unit,
orally or in writing, for the purpose of     (ii) An SEA and its components are
asking that unit to investigate a possible   subject to subpart B of this part if the
violation of, or to enforce, any local,      SEA maintains education records on
State, or Federal law.                       students who are or have been in
                                             attendance at any school of an
(2) Education records, and personally        educational agency or institution subject
identifiable information contained in        to the Act and this part.
education records, do not lose their
status as education records and remain       (b) The educational agency or
subject to the Act, including the            institution, or SEA or its component,
disclosure provisions of § 99.30, while      shall comply with a request for access to
in possession of the law enforcement         records within a reasonable period of
unit.                                        time, but not more than 45 days after it
                                             has received the request.
(d) The Act neither requires nor
prohibits the disclosure by any              (c) The educational agency or institution,
educational agency or institution of its     or SEA or its component, shall respond
law enforcement unit records.                to reasonable requests for explanations
                                             and interpretations of the records.
(Authority: 20 U.S.C. 1232g(a)(4)(B)(ii))
                                             (d) If circumstances effectively prevent
Subpart B-What are the Rights                the parent or eligible student from
of Inspection and Review of                  exercising the right to inspect and review
                                             the student's education records, the
Education Records?
                                             educational agency or institution, or
                                             SEA or its component, shall –
§ 99.10 What rights exist for a parent
or eligible student to inspect and review
                                             (1) Provide the parent or eligible student
education records?
                                             with a copy of the records requested; or
(a) Except as limited under § 99.12, a
                                             (2) Make other arrangements for the
parent or eligible student must be given
                                             parent or eligible student to inspect and
the opportunity to inspect and review the
                                             review the requested records.
student's education records. This
provision applies to
                                             (e) The educational agency or institution,
                                             or SEA or its component, shall not
(1) Any educational agency or
                                             destroy any education records if there is
institution; and
                                             an outstanding request to inspect and
                                             review the records under this section.
(2) Any State educational agency (SEA)
and its components.



                                                                                     10
(f) While an educational agency or           (1) Financial records, including any
institution is not required to give an       information those records contain, of his
eligible student access to treatment         or her parents;
records under paragraph (b)(4) of the
definition of "Education records" in         (2) Confidential letters and confidential
§ 99.3, the student may have those           statements of recommendation placed in
records reviewed by a physician or other     the education records of the student
appropriate professional of the student's    before January 1, 1975, as long as the
choice.                                      statements are used only for the purposes
                                             for which they were specifically
(Authority: 20 U.S.C. 1232g(a)(1)(A)         intended; and
and (B))
                                             (3) Confidential letters and confidential
§ 99.11 May an educational agency or         statements of recommendation placed in
institution charge a fee for copies of       the student's education records after
education records?                           January 1, 1975, if:

(a) Unless the imposition of a fee           (i) The student has waived his or her
effectively prevents a parent or eligible    right to inspect and review those letters
student from exercising the right to         and statements; and
inspect and review the student's
education records, an educational agency     (ii) Those letters and statements are
or institution may charge a fee for a copy   related to the student's:
of an education record which is made for
the parent or eligible student.              (A) Admission to an educational
                                             institution;
(b) An educational agency or institution
may not charge a fee to search for or to     (B) Application for employment; or
retrieve the education records of a
student.                                     (C) Receipt of an honor or honorary
                                             recognition.
(Authority: 20 U.S.C. 1232g(a)(1))
                                             (c)(1) A waiver under paragraph
§ 99.12 What limitations exist on the        (b)(3)(i) of this section is valid only if:
right to inspect and review records?
                                             (i) The educational agency or institution
(a) If the education records of a student    does not require the waiver as a
contain information on more than one         condition for admission to or receipt of a
student, the parent or eligible student      service or benefit from the agency or
may inspect and review or be informed        institution; and
of only the specific information about
that student.                                (ii) The waiver is made in writing and
                                             signed by the student, regardless of age.
(b) A postsecondary institution does not
have to permit a student to inspect and      (2) If a student has waived his or her
review education records that are:           rights under paragraph (b)(3)(i) of this



                                                                                           11
section, the educational institution shall:    institution decides not to amend the
                                               record as requested, it shall inform the
(i) Give the student, on request, the          parent or eligible student of its decision
names of the individuals who provided          and of his or her right to a hearing under
the letters and statements of                  § 99.21.
recommendation; and
                                               (Authority: 20 U.S.C. 1232g(a)(2))
(ii) Use the letters and statements of
recommendation only for the purpose for        § 99.21 Under what conditions does a
which they were intended.                      parent or eligible student have the right
                                               to a hearing?
(3)(i) A waiver under paragraph (b)(3)(i)
of this section may be revoked with            (a) An educational agency or institution
respect to any actions occurring after the     shall give a parent or eligible student, on
revocation.                                    request, an opportunity for a hearing to
                                               challenge the content of the student's
(ii) A revocation under paragraph              education records on the grounds that the
(c)(3)(i) of this section must be in           information contained in the education
writing.                                       records is inaccurate, misleading, or
                                               in violation of the privacy rights of the
(Authority: 20 U.S.C. 1232g(a)(1) (A),         student.
(B), (C), and (D))
                                               (b)(1) If, as a result of the hearing, the
Subpart C-What Are the                         educational agency or institution decides
Procedures for Amending                        that the information is inaccurate,
                                               misleading, or otherwise in violation of
Education Records?                             the privacy rights of the student, it shall:
§ 99.20 How can a parent or eligible
                                               (i) Amend the record accordingly; and
student request amendment of the
student's education records?
                                               (ii) Inform the parent or eligible student
                                               of the amendment in writing.
(a) If a parent or eligible student believes
the education records relating to the
                                               (2) If, as a result of the hearing, the
student contain information that is
                                               educational agency or institution decides
inaccurate, misleading, or in violation
                                               that the information in the education
of the student's rights of privacy, he or
                                               record is not inaccurate, misleading, or
she may ask the educational agency or
                                               otherwise in violation of the privacy
institution to amend the record.
                                               rights of the student, it shall inform the
                                               parent or eligible student of the right to
(b) The educational agency or institution
                                               place a statement in the record
shall decide whether to amend the record
                                               commenting on the contested
as requested within a reasonable time
                                               information in the record or stating why
after the agency or institution receives
                                               he or she disagrees with the decision of
the request.
                                               the agency or institution, or both.
(c) If the educational agency or


                                                                                        12
(c) If an educational agency or               student may, at their own expense, be
institution places a statement in the         assisted or represented by one or more
education records of a student under          individuals of his or her own choice,
paragraph (b)(2) of this section,             including an attorney.
the agency or institution shall:
                                              (e) The educational agency or institution
(1) Maintain the statement with the           shall make its decision in writing within
contested part of the record for as long      a reasonable period of time after the
as the record is maintained; and              hearing.

(2) Disclose the statement whenever it        (f) The decision must be based solely on
discloses the portion of the record to        the evidence presented at the hearing,
which the statement relates.                  and must include a summary of the
                                              evidence and the reasons for the
(Authority: 20 U.S.C. 1232g(a)(2))            decision.

§ 99.22 What minimum requirements             (Authority: 20 U.S.C. 1232g(a)(2))
exist for the conduct of a hearing?
                                              Subpart D-May an Educational
The hearing required by § 99.21 must          Agency or Institution disclose
meet, at a minimum, the following
                                              Personally Identifiable
requirements:
                                              Information from Education
(a) The educational agency or institution     Records?
shall hold the hearing within a
reasonable time after it has received the     § 99.30 Under what conditions is prior
request for the hearing from the parent       consent required to disclose
or eligible student.                          information?

(b) The educational agency or institution     (a) The parent or eligible student shall
shall give the parent or eligible student     provide a signed and dated written
notice of the date, time, and place,          consent before an educational agency or
reasonably in advance of the hearing.         institution discloses personally
                                              identifiable information from the
(c) The hearing may be conducted by           student's education records, except as
any individual including an official of       provided in § 99.31.
the educational agency or institution,
who does not have direct interest in the      (b) The written consent must:
outcome of the hearing.
                                              (1) Specify the records that may be
(d) The educational agency or institution     disclosed;
shall give the parent or eligible student a
full and fair opportunity to present          (2) State the purpose of the disclosure;
evidence relevant to the issues raised        and
under § 99.21. The parent or eligible
                                              (3) Identify the party or class of parties
                                              to whom the disclosure may be made.


                                                                                         13
                                            (B) A contractor, consultant, volunteer,
(c) When a disclosure is made under         or other party to whom an agency or
paragraph (a) of this section:              institution has outsourced institutional
                                            services or functions may be considered
(1) If a parent or eligible student so      a school official under this paragraph
requests, the educational agency or         provided that the outside party--
institution shall provide him or her with
a copy of the records disclosed; and        (1) Performs an institutional service or
                                            function for which the agency or
(2) If the parent of a student who is not   institution would otherwise use
an eligible student so requests, the        employees;
agency or institution shall provide the
student with a copy of the records          (2) Is under the direct control of the
disclosed.                                  agency or institution with respect to the
                                            use and maintenance of education
(d) "Signed and dated written consent"      records; and
under this part may include a record and
signature in electronic form that-          (3) Is subject to the requirements of
                                            § 99.33(a) governing the use and
(1) Identifies and authenticates a          redisclosure of personally identifiable
particular person as the source of the      information from education records.
electronic consent; and
                                            (ii) An educational agency or institution
(2) Indicates such person's approval of     must use reasonable methods to ensure
the information contained in the            that school officials obtain access to only
electronic consent.                         those education records in which they
                                            have legitimate educational interests.
(Authority: 20 U.S.C. 1232g (b)(1) and      An educational agency or institution that
(b)(2)(A))                                  does not use physical or technological
                                            access controls must ensure that its
§ 99.31 Under what conditions is prior      administrative policy for controlling
consent not required to disclose            access to education records is effective
information?                                and that it remains in compliance with
                                            the legitimate educational interest
(a) An educational agency or institution    requirement in paragraph (a)(1)(i)(A) of
may disclose personally identifiable        this section.
information from an education record of
a student without the consent required by   (2) The disclosure is, subject to the
§ 99.30 if the disclosure meets one or      requirements of § 99.34, to officials of
more of the following conditions:           another school, school system, or
                                            institution of postsecondary education
(1)(i)(A) The disclosure is to other        where the student seeks or intends to
school officials, including teachers,       enroll, or where the student is already
within the agency or institution whom       enrolled so long as the disclosure is for
the agency or institution has determined    purposes related to the student’s
to have legitimate educational interests.   enrollment or transfer.



                                                                                       14
                                             (ii) As used in paragraph (a)(4)(i) of this
Note: Section 4155(b) of the No Child        section,"financial aid" means a payment
Left Behind Act of 2001, 20 U.S.C.           of funds provided to an individual (or a
7165(b), requires each State to assure the   payment in kind of tangible or intangible
Secretary of Education that it has a         property to the individual) that is
procedure in place to facilitate the         conditioned on the individual's
transfer of disciplinary records with        attendance at an educational agency or
respect to a suspension or expulsion of a    institution.
student by a local educational agency to
any private or public elementary or          (Authority: 20 U.S.C. 1232g(b)(1)(D))
secondary school in which the student is
subsequently enrolled or seeks, intends,     (5)(i) The disclosure is to State and local
or is instructed to enroll.                  officials or authorities to whom this
                                             information is specifically-
(3) The disclosure is, subject to the
requirements of § 99.35, to authorized       (A) Allowed to be reported or disclosed
representatives of-                          pursuant to a State statute adopted before
                                             November 19, 1974, if the allowed
(i) The Comptroller General of the           reporting or disclosure concerns the
United States;                               juvenile justice system and the system's
                                             ability to effectively serve the student
(ii) The Attorney General of the United      whose records are released; or
States;
                                             (B) Allowed to be reported or disclosed
(iii) The Secretary; or                      pursuant to a State statute adopted after
                                             November 19, 1974, subject to the
(iv) State and local educational             requirements of § 99.38.
authorities.
                                             (ii) Paragraph (a)(5)(l) of this section
(4)(i) The disclosure is in connection       does not prevent a State from further
with financial aid for which the student     limiting the number or type of State or
has applied or which the student has         local officials to whom disclosures may
received, if the information is necessary    be made under that paragraph.
for such purposes as to:
                                             (6)(i) The disclosure is to organizations
(A) Determine eligibility for the aid;       conducting studies for, or on behalf of,
                                             educational agencies or institutions to:
(B) Determine the amount of the aid;
                                             (A) Develop, validate, or administer
(C) Determine the conditions for the         predictive tests;
aid; or
                                             (B) Administer student aid programs; or
(D) Enforce the terms and conditions of
the aid.                                     (C) Improve instruction.




                                                                                     15
(ii) Nothing in the Act or this part         (1) Specifies the purpose, scope, and
prevents a State or local educational        duration of the study or studies and the
authority or agency headed by an official    information to be disclosed;
listed in paragraph (a)(3) of this section
from entering into agreements with           (2) Requires the organization to use
organizations conducting studies under       personally identifiable information from
paragraph (a)(6)(i) of this section and      education records only to meet the
redisclosing personally identifiable         purpose or purposes of the study as
information from education records on        stated in the written agreement;
behalf of educational agencies and
institutions that disclosed the              (3) Requires the organization to conduct
information to the State or local            the study in a manner that does not
educational authority or agency headed       permit personal identification of parents
by an official listed in paragraph (a)(3)    and students, as defined in this part, by
of this section in accordance with the       anyone other than representatives of the
requirements of § 99.33(b).                  organization with legitimate interests;
                                             and
(iii) An educational agency or institution
may disclose personally identifiable         (4) Requires the organization to destroy
information under paragraph (a)(6)(i) of     all personally identifiable information
this section, and a State or local           when the information is no longer
educational authority or agency headed       needed for the purposes for which the
by an official listed in paragraph (a)(3)    study was conducted and specifies the
of this section may redisclose personally    time period in which the information
identifiable information under paragraph     must be destroyed.
(a)(6)(i) and (a)(6)(ii) of this section,
only if –                                     (iv) An educational agency or institution
                                             or State or local educational authority or
(A) The study is conducted in a manner       Federal agency headed by an official
that does not permit personal                listed in paragraph (a)(3) of this section
identification of parents and students by    is not required to initiate a study or agree
individuals other than representatives of    with or endorse the conclusions or
the organization that have legitimate        results of the study.
interests in the information;
                                             (v) For the purposes of paragraph (a)(6)
(B) The information is destroyed when        of this section, the term "organization"
no longer needed for the purposes for        includes, but is not limited to, Federal,
which the study was conducted; and           State, and local agencies, and
                                             independent organizations.
(C) The educational agency or
institution or the State or local            (7) The disclosure is to accrediting
educational authority or agency headed       organizations to carry out their
by an official listed in paragraph (a)(3)    accrediting functions.
of this section enters into a written
agreement with the organization that –       (8) The disclosure is to parents, as
                                             defined in § 99.3, of a dependent



                                                                                      16
student, as defined in section 152 of the      education records of the student that are
Internal Revenue Code of 1986.                 relevant for the educational agency or
                                               institution to proceed with the legal
(9)(i) The disclosure is to comply with a      action as plaintiff.
judicial order or lawfully issued
subpoena.                                      (B) If a parent or eligible student
                                               initiates legal action against an
(ii) The educational agency or institution     educational agency or institution,
may disclose information under                 the educational agency or institution
paragraph (a)(9)(i) of this section only if    may disclose to the court, without a
the agency or institution makes a              court order or subpoena, the student's
reasonable effort to notify the parent or      education records that are relevant for
eligible student of the order or subpoena      the educational agency or institution
in advance of compliance, so that the          to defend itself.
parent or eligible student may seek
protective action, unless the disclosure is    (10) The disclosure is in connection with
in compliance with-                            a health or safety emergency, under the
                                               conditions described in § 99.36.
(A) A Federal grand jury subpoena and
the court has ordered that the existence       (11) The disclosure is information the
or the contents of the subpoena or the         educational agency or institution has
information furnished in response to the       designated as "directory information,"
subpoena not be disclosed;                     under the conditions described in
                                               § 99.37.
(B) Any other subpoena issued for a law
enforcement purpose and the court or           (12) The disclosure is to the parent of a
other issuing agency has ordered that the      student who is not an eligible student or
existence or the contents of the subpoena      to the student.
or the information furnished in response
to the subpoena not be disclosed; or           (13) The disclosure, subject to the
                                               requirements in § 99.39, is to a victim of
(C) An ex parte court order obtained by        an alleged perpetrator of a crime of
the United States Attorney General (or         violence or a non-forcible sex offense.
designee not lower than an Assistant           The disclosure may only include the
Attorney General) concerning                   final results of the disciplinary
investigations or prosecutions of an           proceeding conducted by the institution
offense listed in 18 U.S.C.                    of postsecondary education with respect
2332b(g)(5)(B) or an act of domestic or        to that alleged crime or offense. The
international terrorism as defined in 18       institution may disclose the final results
U.S.C. 2331.                                   of the disciplinary proceeding,
                                               regardless of whether the institution
(iii) (A) If an educational agency or          concluded a violation was committed.
institution initiates legal action against a
parent or student, the educational agency      (14)(i) The disclosure, subject to the
or institution may disclose to the court,      requirements in § 99.39, is in connection
without a court order or subpoena, the



                                                                                         17
with a disciplinary proceeding at an          postsecondary education from disclosing
institution of postsecondary education.       information.
The institution must not disclose the
final results of the disciplinary             (16) The disclosure concerns sex
proceeding unless it determines that          offenders and other individuals required
                                              to register under section 170101 of the
(A) The student is an alleged perpetrator     Violent Crime Control and Law
of a crime of violence or non-forcible        Enforcement Act of 1994, 42 U.S.C.
sex offense; and                              14071, and the information was provided
                                              to the educational agency or institution
(B) With respect to the allegation made       under 42 U.S.C. 14071 and applicable
against him or her, the student has           Federal guidelines.
committed a violation of the institution's
rules or policies.                            (b)(1) De-identified records and
                                              information. An educational agency or
(ii) The institution may not disclose the     institution, or a party that has received
name of any other student, including a        education records or information from
victim or witness, without the prior          education records under this part, may
written consent of the other student.         release the records or information
                                              without the consent required by § 99.30
(iii) This section applies only to            after the removal of all personally
disciplinary proceedings in which the         identifiable information provided that
final results were reached on or after        the educational agency or institution or
October 7, 1998.                              other party has made a reasonable
                                              determination that a student’s identity is
(15)(i) The disclosure is to a parent of a    not personally identifiable, whether
student at an institution of postsecondary    through single or multiple releases, and
education regarding the student's             taking into account other reasonably
violation of any Federal, State, or local     available information.
law, or of any rule or policy of the
institution, governing the use or             (2) An educational agency or institution,
possession of alcohol or a controlled         or a party that has received education
substance if-                                 records or information from education
                                              records under this part, may release de-
(A) The institution determines that the       identified student level data from
student has committed a disciplinary          education records for the purpose of
violation with respect to that use or         education research by attaching a code to
possession; and                               each record that may allow the recipient
                                              to match information received from the
(B) The student is under the age of 21 at     same source, provided that--
the time of the disclosure to the parent.
                                              (i) An educational agency or institution
(ii) Paragraph (a)(15) of this section does   or other party that releases de-identified
not supersede any provision of State law      data under paragraph (b)(2) of this
that prohibits an institution of              section does not disclose any
                                              information about how it generates and



                                                                                      18
assigns a record code, or that would         in § 99.31(a)(3) that may make further
allow a recipient to identify a student      disclosures of personally identifiable
based on a record code;                      information from the student’s education
                                             records without consent under
(ii) The record code is used for no          § 99.33(b).
purpose other than identifying a de-
identified record for purposes of            (2) The agency or institution shall
education research and cannot be used to     maintain the record with the education
ascertain personally identifiable            records of the student as long as the
information about a student; and             records are maintained.

(iii) The record code is not based on a      (3) For each request or disclosure the
student’s social security number or other    record must include:
personal information.
                                             (i) The parties who have requested or
(c) An educational agency or institution     received personally identifiable
must use reasonable methods to identify      information from the education records;
and authenticate the identity of parents,    and
students, school officials, and any other
parties to whom the agency or institution    (ii) The legitimate interests the parties
discloses personally identifiable            had in requesting or obtaining the
information from education records.          information.

(d) Paragraphs (a) and (b) of this section   (4) An educational agency or institution
do not require an educational agency or      must obtain a copy of the record of
institution or any other party to disclose   further disclosures maintained under
education records or information from        paragraph (b)(2) of this section and
education records to any party except for    make it available in response to a
parties under paragraph (a)(12) of this      parent’s or eligible student’s request to
section.                                     review the record required under
                                             paragraph (a)(1) of this section.
(Authority: 20 U.S.C. 1232g(a)(5)(A),
(b), (h), (i), and (j))                      (5) An educational agency or institution
                                             must record the following information
§ 99.32 What recordkeeping                   when it discloses personally identifiable
requirements exist concerning requests       information from education records
and disclosures?                             under the health or safety emergency
                                             exception in § 99.31(a)(10) and § 99.36:
(a)(l) An educational agency or
institution must maintain a record of        (i) The articulable and significant threat
each request for access to and each          to the health or safety of a student or
disclosure of personally identifiable        other individuals that formed the basis
information from the education records       for the disclosure; and
of each student, as well as the names of
State and local educational authorities      (ii) The parties to whom the agency or
and Federal officials and agencies listed    institution disclosed the information.



                                                                                         19
(b)(1) Except as provided in paragraph       other appropriate grouping rather than
(b)(2) of this section, if an educational    by the name of the student.
agency or institution discloses personally
identifiable information from education      (iii) Upon request of an educational
records with the understanding               agency or institution, a State or local
authorized under § 99.33(b), the record      educational authority or Federal official
of the disclosure required under this        or agency listed in § 99.31(a)(3) that
section must include:                        maintains a record of further disclosures
                                             under paragraph (b)(2)(i) of this section
(i) The names of the additional parties to   must provide a copy of the record of
which the receiving party may disclose       further disclosures to the educational
the information on behalf of the             agency or institution within a reasonable
educational agency or institution; and       period of time not to exceed 30 days.

(ii) The legitimate interests under          (c) The following parties may inspect the
§ 99.31 which each of the additional         record relating to each student:
parties has in requesting or obtaining the
information.                                 (1) The parent or eligible student.

(2)(i) A State or local educational          (2) The school official or his or her
authority or Federal official or agency      assistants who are responsible for the
listed in § 99.31(a)(3) that makes further   custody of the records.
disclosures of information from
education records under § 99.33(b) must      (3) Those parties authorized in
record the names of the additional           § 99.3l(a)(l) and (3) for the purposes of
parties to which it discloses information    auditing the recordkeeping procedures of
on behalf of an educational agency or        the educational agency or institution.
institution and their legitimate interests
in the information under § 99.31 if the      (d) Paragraph (a) of this section does not
information was received from:               apply if the request was from, or the
                                             disclosure was to:
(A) An educational agency or institution
that has not recorded the further            (1) The parent or eligible student;
disclosures under paragraph (b)(1) of
this section; or                             (2) A school official under § 99.31
                                             (a)(1);
(B) Another State or local educational
authority or Federal official or agency      (3) A party with written consent from
listed in § 99.31(a)(3).                     the parent or eligible student;

(ii) A State or local educational            (4) A party seeking directory
authority or Federal official or agency      information; or
that records further disclosures of
information under paragraph (b)(2)(i) of     (5) A party seeking or receiving records
this section may maintain the record by      in accordance with § 99.31(a)(9)(ii)(A)
the student’s class, school, district, or    through (C).



                                                                                      20
                                              (B) A State or local educational
(Approved by the Office of Management         authority or Federal official or agency
and Budget under control number 1875-         listed in § 99.31(a)(3) has complied with
0246)                                         the requirements of § 99.32(b)(2).

(Authority: 20 U.S.C. 1232g(b)(1) and         (2) A party that receives a court order or
(b)(4)(A)                                     lawfully issued subpoena and rediscloses
                                              personally identifiable information from
§ 99.33 What limitations apply to the         education records on behalf of an
redisclosure of information?                  educational agency or institution in
                                              response to that order or subpoena under
(a)(l) An educational agency or               § 99.31(a)(9) must provide the
institution may disclose personally           notification required under
identifiable information from an              § 99.31(a)(9)(ii).
education record only on the condition
that the party to whom the information is     (c) Paragraph (a) of this section does not
disclosed will not disclose the               apply to disclosures under
information to any other party without        §§ 99.31(a)(8), (9), (11), (12), (14), (15),
the prior consent of the parent or eligible   and (16), and to information that
student.                                      postsecondary institutions are required to
                                              disclose under the Jeanne Clery
(2) The officers, employees, and agents       Disclosure of Campus Security Policy
of a party that receives information          and Campus Crime Statistics Act, 20
under paragraph (a)(l) of this section        U.S.C. 1092(f) (Clery Act), to the
may use the information, but only for the     accuser and accused regarding the
purposes for which the disclosure was         outcome of any campus disciplinary
made.                                         proceeding brought alleging a sexual
                                              offense.
(b)(1) Paragraph (a) of this section does
not prevent an educational agency or          (d) An educational agency or institution
institution from disclosing personally        must inform a party to whom disclosure
identifiable information with the             is made of the requirements of paragraph
understanding that the party receiving        (a) of this section except for disclosures
the information may make further              made under §§ 99.31(a)(8), (9), (11),
disclosures of the information on behalf      (12), (14), (15), and (16), and to
of the educational agency or institution      information that postsecondary
if –                                          institutions are required to disclose
                                              under the Clery Act to the accuser and
(i) The disclosures meet the                  accused regarding the outcome of any
requirements of § 99.31; and                  campus disciplinary proceeding brought
                                              alleging a sexual offense.
(ii) (A) The educational agency or
institution has complied with the             (Authority: 20 U.S.C.1232g(b)(4)(B))
requirements of § 99.32(b); or




                                                                                       21
§ 99.34 What conditions apply to             (2) The disclosure meets the
disclosure of information to other           requirements of paragraph (a) of this
educational agencies or institutions?        section.

(a) An educational agency or institution     (Authority: 20 U.S.C. 1232g(b)(1)(B))
that discloses an education record under
§ 99.31(a) (2) shall:                        § 99.35 What conditions apply to
                                             disclosure of information for Federal
(1) Make a reasonable attempt to notify      or State program purposes?
the parent or eligible student at the last
known address of the parent or eligible      (a)(1) Authorized representatives of the
student, unless:                             officials or agencies headed by officials
                                             listed in § 99.31(a)(3) may have access
(i) The disclosure is initiated by the       to education records in connection with
parent or eligible student; or               an audit or evaluation of Federal or State
                                             supported education programs, or for the
(ii) The annual notification of the agency   enforcement of or compliance with
or institution under § 99.7 includes a       Federal legal requirements that relate to
notice that the agency or institution        those programs.
forwards education records to other
agencies or institutions that have           (2) The State or local educational
requested the records and in which the       authority or agency headed by an official
student seeks or intends to enroll or is     listed in § 99.31(a)(3) is responsible for
already enrolled so long as the disclosure   using reasonable methods to ensure to
is for purposes related to the student’s     the greatest extent practicable that any
enrollment or transfer;                      entity or individual designated as its
                                             authorized representative –
(2) Give the parent or eligible student,
upon request, a copy of the record that      (i) Uses personally identifiable
was disclosed; and                           information only to carry out an audit or
                                             evaluation of Federal- or State-supported
(3) Give the parent or eligible student,     education programs, or for the
upon request, an opportunity for a           enforcement of or compliance with
hearing under Subpart C.                     Federal legal requirements related to
                                             these programs;
(b) An educational agency or institution
may disclose an education record of a        (ii) Protects the personally identifiable
student in attendance to another             information from further disclosures or
educational agency or institution            other uses, except as authorized in
if:                                          paragraph (b)(1) of this section; and

(1) The student is enrolled in or receives   (iii) Destroys the personally identifiable
services from the other agency or            information in accordance with the
institution; and                             requirements of paragraphs (b) and (c) of
                                             this section.




                                                                                     22
(3) The State or local educational           provisions, to protect personally
authority or agency headed by an official    identifiable information from education
listed in § 99.31(a)(3) must use a written   records from further disclosure (except
agreement to designate any authorized        back to the disclosing entity) and
representative, other than an employee.      unauthorized use, including limiting use
The written agreement must –                 of personally identifiable information
                                             from education records to only
(i) Designate the individual or entity as    authorized representatives with
an authorized representative;                legitimate interests in the audit or
                                             evaluation of a Federal- or State-
(ii) Specify –                               supported education program or for
                                             compliance or enforcement of Federal
(A) The personally identifiable              legal requirements related to these
information from education records to be     programs.
disclosed;
                                             (b) Information that is collected under
(B) That the purpose for which the           paragraph (a) of this section must –
personally identifiable information from
education records is disclosed to the        (1) Be protected in a manner that does
authorized representative is to carry out    not permit personal identification of
an audit or evaluation of Federal- or        individuals by anyone other than the
State-supported education programs, or       State or local educational authority or
to enforce or to comply with Federal         agency headed by an official listed in
legal requirements that relate to those      § 99.31(a)(3) and their authorized
programs; and                                representatives, except that the State or
                                             local educational authority or agency
(C) A description of the activity with       headed by an official listed in
sufficient specificity to make clear that    § 99.31(a)(3) may make further
the work falls within the exception of       disclosures of personally identifiable
§ 99.31(a)(3), including a description of    information from education records on
how the personally identifiable              behalf of the educational agency or
information from education records will      institution in accordance with the
be used;                                     requirements of § 99.33(b); and

(iii) Require the authorized                 (2) Be destroyed when no longer needed
representative to destroy personally         for the purposes listed in paragraph (a)
identifiable information from education      of this section.
records when the information is no
longer needed for the purpose specified;     (c) Paragraph (b) of this section does not
                                             apply if:
(iv) Specify the time period in which the
information must be destroyed; and           (1) The parent or eligible student has
                                             given written consent for the disclosure
(v) Establish policies and procedures,       under § 99.30; or
consistent with the Act and other Federal
and State confidentiality and privacy



                                                                                       23
(2) The collection of personally             officials in other schools who have been
identifiable information is specifically     determined to have legitimate
authorized by Federal law.                   educational interests in the behavior of
                                             the student.
(Authority: 20 U.S.C.1232g(b)(1)(C),
(b)(3), and (b)(5))                          (c) In making a determination under
                                             paragraph (a) of this section, an
§ 99.36 What conditions apply to             educational agency or institution may
disclosure of information in health and      take into account the totality of the
safety emergencies?                          circumstances pertaining to a threat to
                                             the health or safety of a student or other
(a) An educational agency or institution     individuals. If the educational agency or
may disclose personally identifiable         institution determines that there is an
information from an education record to      articulable and significant threat to the
appropriate parties, including parents of    health or safety of a student or other
an eligible student, in connection with an   individuals, it may disclose information
emergency if knowledge of the                from education records to any person
information is necessary to protect the      whose knowledge of the information is
health or safety of the student or other     necessary to protect the health or safety
individuals.                                 of the student or other individuals. If,
                                             based on the information available at the
(b) Nothing in the Act or this part shall    time of the determination, there is a
prevent an educational agency or             rational basis for the determination, the
institution from-                            Department will not substitute its
                                             judgment for that of the educational
(1) Including in the education records of    agency or institution in evaluating the
a student appropriate information            circumstances and making its
concerning disciplinary action taken         determination.
against the student for conduct that
posed a significant risk to the safety       (Authority: 20 U.S.C. 1232g (b)(1)(I)
or well-being of that student, other         and (h))
students, or other members of the school
community;                                   § 99.37 What conditions apply to
                                             disclosing directory information?
(2) Disclosing appropriate information
maintained under paragraph (b)(1) of         (a) An educational agency or institution
this section to teachers and school          may disclose directory information if it
officials within the agency or institution   has given public notice to parents of
who the agency or institution has            students in attendance and eligible
determined have legitimate educational       students in attendance at the agency
interests in the behavior of the             or institution of:
student; or
                                             (1) The types of personally identifiable
(3) Disclosing appropriate information       information that the agency or institution
maintained under paragraph (b)(1) of         has designated as directory information;
this section to teachers and school



                                                                                     24
(2) A parent's or eligible student's right    directory information in the public
to refuse to let the agency or institution    notice provided under paragraph (a)(1)
designate any or all of those types of        of this section.
information about the student designated
as directory information; and                 (d) In its public notice to parents and
                                              eligible students in attendance at the
(3) The period of time within which a         agency or institution that is described in
parent or eligible student has to notify      paragraph (a) of this section, an
the agency or institution in writing that     educational agency or institution may
he or she does not want any or all of         specify that disclosure of directory
those types of information about the          information will be limited to specific
student designated as directory               parties, for specific purposes, or both.
information.                                  When an educational agency or
                                              institution specifies that disclosure of
(b) An educational agency or institution      directory information will be limited to
may disclose directory information about      specific parties, for specific purposes, or
former students without complying with        both, the educational agency or
the notice and opt out conditions in          institution must limit its directory
paragraph (a) of this section. However,       information disclosures to those
the agency or institution must continue       specified in its public notice that is
to honor any valid request to opt out of      described in paragraph (a) of this
the disclosure of directory information       section.
made while a student was in attendance
unless the student rescinds the opt out       (e) An educational agency or institution
request.                                      may not disclose or confirm directory
                                              information without meeting the written
(c) A parent or eligible student may not      consent requirements in § 99.30 if a
use the right under paragraph (a)(2) of       student’s social security number or other
this section to opt out of directory          non-directory information is used alone
information disclosures to –                  or combined with other data elements to
                                              identify or help identify the student or
(1) Prevent an educational agency or          the student’s records.
institution from disclosing or requiring a
student to disclose the student’s name,       (Authority: 20 U.S.C. 1232g (a)(5) (A)
identifier, or institutional e-mail address   and (B))
in a class in which the student is
enrolled; or                                  § 99.38 What conditions apply to
                                              disclosure of information as permitted
(2) Prevent an educational agency or          by State statute adopted after
institution from requiring a student to       November 19, 1974, concerning the
wear, to display publicly, or to disclose a   juvenile justice system?
student ID card or badge that exhibits
information that may be designated as         (a) If reporting or disclosure allowed by
directory information under § 99.3 and        State statute concerns the juvenile justice
that has been properly designated by the      system and the system's ability to
educational agency or institution as



                                                                                       25
effectively serve, prior to adjudication,
the student whose records are released,      "Alleged perpetrator of a nonforcible sex
an educational agency or institution may     offense" means a student who is alleged
disclose education records under             to have committed acts that, if proven,
§ 99.31(a)(5)(i)(B).                         would constitute statutory rape or incest.
                                             These offenses are defined in appendix
(b) The officials and authorities to whom    A to this part.
the records are disclosed shall certify in
writing to the educational agency or         "Final results" means a decision or
institution that the information will not    determination, made by an honor court
be disclosed to any other party, except as   or council, committee, commission, or
provided under State law, without the        other entity authorized to resolve
prior written consent of the parent of       disciplinary matters within the
the student.                                 institution. The disclosure of final results
                                             must include only the name of the
(Authority: 20 U.S.C. 1232g((b)(1)(J))       student, the violation committed, and
                                             any sanction imposed by the institution
§ 99.39 What definitions apply to the        against the student.
nonconsensual disclosure of records by       "Sanction imposed" means a description
postsecondary educational institutions       of the disciplinary action taken by the
in connection with disciplinary              institution, the date of its imposition, and
proceedings concerning crimes of             its duration.
violence or nonforcible sex offenses?
                                             "Violation committed" means the
As used in this part:                        institutional rules or code sections that
                                             were violated and any essential findings
"Alleged perpetrator of a crime of           supporting the institution's conclusion
violence" is a student who is alleged to     that the violation was committed.
have committed acts that would, if
proven, constitute any of the                (Authority: 20 U.S.C.1232g (b)(6))
following offenses or attempts to
commit the following offenses that are       Subpart E-What are the
defined in appendix A to this part:          Enforcement Procedures?
Arson                                        § 99.60 What functions has the
Assault offenses                             Secretary delegated to the Office and to
Burglary                                     the Office of Administrative Law
Criminal homicide-manslaughter               Judges?
by negligence
Criminal homicide-murder and                 (a) For the purposes of this subpart,
nonnegligent manslaughter                    "Office" means the Family Policy
Destruction/damage/vandalism of              Compliance Office, U.S.
property                                     Department of Education.
Kidnapping/abduction
Robbery                                      (b) The Secretary designates the Office
Forcible sex offenses                        to:


                                                                                      26
                                              (Authority: 20 U.S.C. 1232g (f))
(1) Investigate, process, and review
complaints and violations under the Act       § 99.62 What information must an
and this part; and                            educational agency or institution or
                                              other recipient of Department funds
(2) Provide technical assistance to           submit to the Office?
ensure compliance with the Act and this
part.                                         The Office may require an educational
                                              agency or institution, other recipient of
(c) The Secretary designates the Office       Department funds under any program
of Administrative Law Judges to act as        administered by the Secretary to which
the Review Board required under the Act       personally identifiable information from
to enforce the Act with respect to all        education records is non-consensually
applicable programs. The term                 disclosed, or any third party outside of
"applicable program" is defined in            an educational agency or institution to
section 400 of the General Education          which personally identifiable
Provisions Act.                               information from education records is
                                              non-consensually disclosed to submit
(Authority: 20 U.S.C. 1232g (f) and (g),      reports, information on policies and
1234))                                        procedures, annual notifications, training
                                              materials, or other information necessary
§ 99.61 What responsibility does an           to carry out the Office’s enforcement
educational agency or institution, a          responsibilities under the Act or this
recipient of Department funds, or a           part.
third party outside of an educational
agency or institution have concerning         (Authority: 20 U.S.C. 1232g(b)(4)(B),
conflict with State or local laws?            (f), and (g))

If an educational agency or institution       § 99.63 Where are complaints filed?
determines that it cannot comply with
the Act or this part due to a conflict with   A parent or eligible student may file a
State or local law, it must notify the        written complaint with the Office
Office within 45 days, giving the text        regarding an alleged violation under the
and citation of the conflicting law. If       Act and this part. The Office's address
another recipient of Department funds         is: Family Policy Compliance
under any program administered by the         Office, U.S. Department of Education,
Secretary or a third party to which           400 Maryland Avenue, S.W.,
personally identifiable information from      Washington, DC 20202.
education records has been non-
consensually disclosed determines that it     (Authority: 20 U.S.C. 1232g(g))
cannot comply with the Act or this part
due to a conflict with State or local law,    § 99.64 What is the investigation
it also must notify the Office within 45      procedure?
days, giving the text and citation of the
conflicting law.                              (a) A complaint must contain specific
                                              allegations of fact giving reasonable
                                              cause to believe that a violation of the


                                                                                         27
Act or this part has occurred. A               or reasonably should have known of the
complaint does not have to allege that a       alleged violation.
violation is based on a policy or practice
of the educational agency or institution,      (d) The Office may extend the time limit
other recipient of Department funds            in this section for good cause shown.
under any program administered by the
Secretary, or any third party outside of       (Authority: 20 U.S.C. 1232g(b)(4)(B),
an educational agency or institution.          (f) and (g))

(b) The Office investigates a timely           § 99.65 What is the content of the
complaint filed by a parent or eligible        notice of investigation issued by the
student, or conducts its own                   Office?
investigation when no complaint has
been filed or a complaint has been             (a) The Office notifies in writing the
withdrawn, to determine whether an             complainant, if any, and the educational
educational agency or institution or other     agency or institution, the recipient of
recipient of Department funds under any        Department funds under any program
program administered by the Secretary          administered by the Secretary, or the
has failed to comply with a provision of       third party outside of an educational
the Act or this part. If the Office            agency or institution if it initiates an
determines that an educational agency or       investigation under § 99.64(b). The
institution or other recipient of              written notice –
Department funds under any program
administered by the Secretary has failed       (1) Includes the substance of the
to comply with a provision of the Act or       allegations against the educational
this part, it may also determine whether       agency or institution, other recipient, or
the failure to comply is based on a policy     third party; and
or practice of the agency or institution or
other recipient. The Office also               (2) Directs the agency or institution,
investigates a timely complaint filed by a     other recipient, or third party to submit a
parent or eligible student, or conducts its    written response and other relevant
own investigation when no complaint            information, as set forth in § 99.62,
has been filed or a complaint has been         within a specified period of time,
withdrawn, to determine whether a third        including information about its policies
party outside of the educational agency        and practices regarding education
or institution has failed to comply with       records.
the provisions of § 99.31(a)(6)(iii)(B) or
has improperly redisclosed personally          (b) The Office notifies the complainant
identifiable information from education        if it does not initiate an investigation
records in violation of § 99.33.               because the complaint fails to meet the
                                               requirements of § 99.64.
(c) A timely complaint is defined as an
allegation of a violation of the Act that is   (Authority: 20 U.S.C. 1232g(g))
submitted to the Office within 180 days
of the date of the alleged violation           § 99.66 What are the responsibilities of
or of the date that the complainant knew       the Office in the enforcement process?



                                                                                        28
(a) The Office reviews a complaint, if         identifiable information from education
any, information submitted by the              records in violation of § 99.33, the
educational agency or institution, other       Office’s notice of findings issued under
recipient of Department funds under any        paragraph (b) of this section –
program administered by the Secretary,
or third party outside of an educational       (1) Includes a statement of the specific
agency or institution, and any other           steps that the third party outside of the
relevant information. The Office may           educational agency or institution must
permit the parties to submit further           take to comply; and
written or oral arguments or information.
                                               (2) Provides a reasonable period of
(b) Following its investigation, the           time, given all of the circumstances of
Office provides to the complainant, if         the case, during which the third party
any, and the educational agency or             may comply voluntarily.
institution, other recipient, or third party
a written notice of its findings and the       (Authority: 20 U.S.C. 1232g(b)(4)(B),
basis for its findings.                        (f), and (g))

(c) If the Office finds that an                § 99.67 How does the Secretary enforce
educational agency or institution or other     decisions?
recipient has not complied with a
provision of the Act or this part, it may      (a) If an educational agency or
also find that the failure to comply was       institution or other recipient of
based on a policy or practice of the           Department funds under any program
agency or institution or other recipient.      administered by the Secretary does not
A notice of findings issued under              comply during the period of time set
paragraph (b) of this section to an            under § 99.66(c), the Secretary may take
educational agency or institution, or          any legally available enforcement action
other recipient that has not complied          in accordance with the Act, including,
with a provision of the Act or this part –     but not limited to, the following
                                               enforcement actions available in
(1) Includes a statement of the specific       accordance with part D of the General
steps that the agency or institution or        Education Provisions Act –
other recipient must take to comply; and
                                               (1) Withhold further payments under
(2) Provides a reasonable period of            any applicable program;
time, given all of the circumstances of
the case, during which the educational         (2) Issue a complaint to compel
agency or institution or other recipient       compliance through a cease and desist
may comply voluntarily.                        order; or

(d) If the Office finds that a third party     (3) Terminate eligibility to receive
outside of an educational agency or            funding under any applicable program.
institution has not complied with the
provisions of § 99.31(a)(6)(iii)(B) or has     (b) If, after an investigation under
improperly redisclosed personally



                                                                                         29
§ 99.66, the Secretary finds that an           educational agency or institution from
educational agency or institution, other       which the personally identifiable
recipient, or third party has complied         information originated may not allow the
voluntarily with the Act or this part, the     third party found to be responsible for
Secretary provides the complainant and         the violation access to personally
the agency or institution, other recipient,    identifiable information from education
or third party with written notice of the      records for at least five years.
decision and the basis for the decision.
                                               (Authority: 20 U.S.C. 1232g(b)(4)(B)
(c) If the Office finds that a third party,    and (f); 20 U.S.C. 1234c)
outside the educational agency or
institution, violates § 99.31(a)(6)(iii)(B),   Appendix A to Part 99 - Crimes
then the educational agency or                 of Violence Definitions
institution from which the personally
identifiable information originated may        Arson
not allow the third party found to be          Any willful or malicious burning or
responsible for the violation of               attempt to burn, with or without intent to
§ 99.31(a)(6)(iii)(B) access to personally     defraud, a dwelling house, public
identifiable information from education        building, motor vehicle or aircraft,
records for at least five years.               personal property of another, etc.
(d) If the Office finds that a State or        Assault Offenses
local educational authority, a Federal         An unlawful attack by one person upon
agency headed by an official listed in         another.
§ 99.31(a)(3), or an authorized
representative of a State or local             (NOTE: By definition there can be no
educational authority or a Federal             "attempted" assaults, only "completed"
agency headed by an official listed in         assaults.)
§ 99.31(a)(3), improperly rediscloses
personally identifiable information from       (ii) Aggravated Assault
education records, then the educational        An unlawful attack by one person upon
agency or institution from which the           another for the purpose of inflicting
personally identifiable information            severe or aggravated bodily injury. This
originated may not allow the third party       type of assault usually is accompanied
found to be responsible for the improper       by the use of a weapon or by means
redisclosure access to personally              likely to produce death or great bodily
identifiable information from education        harm. (It is not necessary that injury
records for at least five years.               result from an aggravated assault when a
                                               gun, knife, or other weapon is used
(e) If the Office finds that a third party,    which could and probably would result
outside the educational agency or              in serious injury if the crime were
institution, improperly rediscloses            successfully completed.)
personally identifiable information from
education records in violation of § 99.33      (b) Simple Assault
or fails to provide the notification           An unlawful physical attack by one
required under § 99.33(b)(2), then the         person upon another where neither the


                                                                                       30
offender displays a weapon, nor the         consent of his or her custodial parent(s)
victim suffers obvious severe or            or legal guardian.
aggravated bodily injury involving
apparent broken bones, loss of teeth,       (NOTE: Kidnapping/Abduction includes
possible internal injury, severe            hostage taking.)
laceration, or loss of consciousness.
                                            Robbery
(c) Intimidation                            The taking of, or attempting to take,
To unlawfully place another person in       anything of value under confrontational
reasonable fear of bodily harm through      circumstances from the control, custody,
the use of threatening words or other       or care of a person or persons by force or
conduct, or both, but without displaying    threat of force or violence or by putting
a weapon or subjecting the victim to        the victim in fear.
actual physical attack.
                                            (NOTE: Carjackings are robbery
(NOTE: This offense includes stalking.)     offenses where a motor vehicle is taken
                                            through force or threat of force.)
Burglary
The unlawful entry into a building or       Sex Offences, Forcible
other structure with the intent to commit   Any sexual act directed against another
a felony or a theft.                        person, forcibly or against that person's
                                            will, or both; or not forcibly or against
Criminal Homicide-Manslaughter by           the person's will where the victim is
Negligence                                  incapable of giving consent.
The killing of another person through
gross negligence.                           (a)Forcible Rape (Except "Statutory
                                            Rape")
Criminal Homicide-Murder and                The carnal knowledge of a person,
Nonnegligent Manslaughter                   forcibly or against that person's will, or
The willful (nonnegligent) killing of one   both; or not forcibly or against the
human being by another.                     person's will where the victim is
                                            incapable of giving consent because of
Destruction/Damage/Vandalism of             his or her temporary or permanent
Property                                    mental or physical incapacity (or
To willfully or maliciously destroy,        because of his or her youth).
damage, deface, or otherwise injure real
or personal property without the consent    (b) Forcible Sodomy
of the owner or the person having           Oral or anal sexual intercourse with
custody or control of it.                   another person, forcibly or against that
                                            person's will, or both; or not forcibly or
Kidnapping/Abduction                        against the person's will where the
The unlawful seizure, transportation, or    victim is incapable of giving consent
detention of a person, or any               because of his or her youth or because of
combination of these actions, against his   his or her temporary or permanent
or her will, or of a minor without the      mental or physical incapacity.




                                                                                     31
(b) Sexual Assault With An Object              person who is under the statutory age of
To use an object or instrument to              consent.
unlawfully penetrate, however slightly,
the genital or anal opening of the body        (Authority: 20 U.S.C. 1232g(b)(6) and
of another person, forcibly or against         18 U.S.C. 16)
that person's will, or both; or not forcibly
or against the person’s will where the         [This is not an official version of the
victim is incapable of giving consent          regulations. These regulations are
because of his or her youth or because of      codified in 34 CFR Part 99.]
his or her temporary or permanent
mental or physical incapacity.                 [Updated January 2012.]

(NOTE: An "object" or "instrument" is
anything used by the offender other than
the offender's genitalia. Examples are a
finger, bottle, handgun, stick, etc..)

(d) Forcible Fondling.
The touching of the private body parts of
another person for the purpose of sexual
gratification, forcibly or against that
person's will, or both; or not forcibly or
against the person's will where the
victim is incapable of giving consent
because of his or her youth or because of
his or her temporary or permanent
mental or physical incapacity.

(NOTE: Forcible Fondling includes
"Indecent Liberties" and "Child
Molesting.")

Nonforcible Sex Offenses
(Except "Prostitution Offenses'')
Unlawful, nonforcible sexual
intercourse.

(a) Incest
Nonforcible sexual intercourse between
persons who are related to each other
within the degrees wherein marriage is
prohibited by law.

(b)Statutory Rape
Nonforcible sexual intercourse with a




                                                                                         32

				
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