Aug 012015
 August 1, 2015  Youth & Schools

As most of this site’s readers know by now, FERPA is the federal law protecting students’ education records and it gives parents the right to inspect their child’s records. At age 18, the access rights generally transfer to the student.  As a parent, and as a long-time advocate for the disability community, I have often filed requests under FERPA or taught parents how to file such requests.

But there’s another law parents can also use to access their children’s records: the Freedom of Information Act (FOIA). And one of the things I’ve always done in records requests is to cite FERPA, FOIA, and the state’s Freedom of Information law in my requests so that if the district tries to claim exemption under one of the laws, they still have to comply under another law.

While both FERPA and FOIA provide rights, there are important differences: under FERPA, the school district cannot charge you to inspect your child’s records. They can charge you a nominal fee to reproduce the records if you want copies, but they can’t charge you to just inspect them on their premises. And if you live far away, they may have to provide you with copies for free so as to fulfill their obligation to make the records accessible to you.

Under FERPA, a district or covered school has 45 days to produce the records, but if they don’t, your options are limited. You can file a complaint with the U.S. Education Department, but there’s no private cause of action under FERPA that would allow you to sue. Could the government withhold all federal funds to the district or post-secondary institution if they are found to have violated FERPA? Yes, but it’s never happened and is unlikely to happen.

Under FOIA, the district or school can charge you just to compile the records to comply with your request, and you can appeal (and sue) if they don’t produce the records that you believe are relevant to your request. FOIA also requires a faster response (20 days), although I’ve seen many districts repeatedly grant themselves extensions to reply (yes, I’m looking at YOU, NYC Department of Education).

All of that is general background to what happened to Sherry Smith, a mother in Goodrich, Michigan. As reported by C.R. Denning on Reason this week:

When she filed a FOIA request for educational records related to her son, Mitchell, the school system told her there would be a hefty price tag—to wit, $77,718.75.

Mitchell has an intellectual disability, which means the state will pay for his education until he turns 26. Having just finished high school, he and his family found a program at a local college they felt was just right for him.

“They would continue special services, life skills, employment skills, all the services that he needed and that he was receiving throughout his entire K–12 school career,” says Sherry, “and it includes the academic component, which Mitchell strongly desires.” Even more important was that Mitchell would be mainstreamed—”participating fully in his general-ed classes along with his peers,” as Sherry put it.

But Goodrich Area Schools denied the Smiths’ request, instead recommending placement in a segregated program. Since Mitchell had been mainstreamed since kindergarten, the Smiths couldn’t understand the school system’s decision.

In hopes of gaining some insight, Sherry filed a FOIA request asking for any email communication regarding her son. The school system’s response? Per a letter from Superintendent Michelle Imbrunone, which Sherry provided to Reason:

Goodrich Area Schools believes the total cost to fulfill this FOIA will be $77,718.75…It will be necessary to hire someone to assist us with sorting through the email content you have requested. The current estimate is that it may require up to 4,687.5 hours at the current clerical hourly employee rate of $16.58 per hour.

So this was a situation in which a parent wanted to understand a district’s recommended placement and program for her child. And she may have wanted to challenge that recommendation through the due process rights embedded in federal and state special education laws. But to be an effective advocate for her child, she needed the records. And the stakes were high: if she didn’t obtain the records, then her son might wind up in a program that might not be the appropriate program for him.

It is a predicament many of us have found ourselves in. As parents of special needs children, we need to stay informed and inspect our children’s records so that we can ensure they get the help they both need and are entitled to.  And occasionally, we run up against a school district that ignores or has a somewhat casual approach to their responsibility to allow us timely access to our children’s records. In this case, the district didn’t ignore the request, but came up with an estimate of costs that would be prohibitive.  Even if their estimate was a good-faith estimate, it would effectively abridge the parent’s rights under FERPA – but she hadn’t filed under FERPA. She had filed under FOIA.

Ms. Smith wisely retained an attorney, who withdrew her request and re-filed under both FOIA and FERPA. And when the district failed to comply under FOIA’s deadline of July 22nd, the attorney filed suit under FOIA.

Denning reports that on July 29, Ms. Smith’s attorney received hundreds of pages of emails from the school district.

It seems 4,600 hours to complete the FOIA request was a bit of an overstatement. “There was no charge either,” he writes.

It is not clear from the story whether Ms. Smith’s attorney charged her for his services or represented her pro bono and just charged her costs like court filing fees. But not every parent can afford to retain an attorney and it shouldn’t cost parents to inspect their children’s education records.

If you file, cite FERPA and FOIA in your request, even if you have to send two copies of the request (one to the FERPA compliance office and one to the FOIA compliance office).  Be prepared to pay a nominal per page fee for copying if you want hard copies of the records, or request that all responsive records be provided in electronic format (such as on a CD). The school may charge you for burning records onto a CD, but in my experience, that’s usually no more than $15, and they will provide you with an estimate of cost first.

Good luck, and as always, know your rights.

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