West Virginia Board of Education Policy 4350
provides legal guidance on the issues of the collection,
maintenance, and disclosure of student data ("Policy
4350"). Most, if not all, West Virginia county boards of
education have a policy in place that mirrors Policy 4350. Policy
4350, among other things, sets "forth the conditions governing
the protection of privacy and access of parents and students as it
relates to the collection, maintenance, disclosure and destruction
of educational records by agencies and institutions under the
general supervision of the West Virginia Board of
Education."
Policy 4350 broadly defines educational records as "those
records that are directly related to a student and are collected,
maintained or disclosed by an educational agency or institution or
by a party acting for the agency or institution." Some
educational records under Policy 4350, specifically "directory
information," are subject to disclosure without the specific
consent of the parent or eligible student. "Directory
information" often includes a student's name, address,
telephone listing, date and place of birth, major field of study,
participation in officially recognized activities and sports,
weight and height of members of athletic teams, dates of
attendance, degrees and awards received, and the most recent
previous educational agency or institution attended by the
student.
On the other hand, the majority of educational records must be kept
confidential, and parents have the right to inspect these records.
Examples of educational records that fall under this category
are:
- grades and test scores1;
- special education records;
- disciplinary records;
- West Virginia Department of Education data;
- personally identifiable information such as a student's ID code, Social Security Number; and
- video surveillance (bus videos)2
The issue that often arises for a county board of education is
what rights do birth parents have in accessing their child's
educational records, especially when these parents are separated?
Policy 4350 provides full rights to either parent,
unless a court order, state statute, or legally binding document
specifically says otherwise. In other words, although one parent
may have the decision making authority as it relates to the
child's education (or even full custody), unless a court order
specifically indicates that the other parent is not to be provided
access to the child's educational records, both birth parents
have full rights to access the child's educational records.
This does not mean that both parents have the ability to make
decisions as it relates to the child's education, but both have
access to the child's educational records.
The issue that often arises for a county board of education is what
rights do stepparents have in accessing a child's educational
records? Although Policy 4350 is silent on the term stepparent, the
Family Educational Rights and Privacy Act
("FERPA") is helpful. The term parent is defined as a
guardian, or an individual acting as a parent in the absence of a
parent or a guardian. In particular, it has been determined under
FERPA that a parent is absent if s/he is not present in the
day-to-day home environment of the child. Accordingly, a
stepparent has the rights, under FERPA, to educational records
where the stepparent is present on a day-to-day basis with the
natural parent and child and the other parent is absent from the
home. As such, stepparents have the same rights as birth
parents. Conversely, a stepparent who is not present on a
day-to-day basis in the home of the child does not have rights
under Policy 4350 or FERPA with respect to the child's
educational records.
Footnotes
1. Falvo v. Owasso Independent School District, 288 F. 3d 1236 (10th Cir. 2002), ruled that when students in a class grade each others work, that such grades written on the work and reported to each other are "educational records".
2. Grimes v. Monongalia County Bd. of Educ., Civil Action No. 05-C-322, ruled that a bus video on a school bus was an educational record and not subject to release under the Freedom of Information Act.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.