Can board members have access to student records? 

Wallace Hall, a member of the UT Board of Regents, has asked for an opinion from the Attorney General about his right of access to records held by UT. Citing earlier AG Opinions, Regent Hall claims “an inherent right of access” to records held by the university.  It may turn out that the AG will not respond to Mr. Hall’s request. The Board as a whole has filed a brief with the AG, asserting that Mr. Hall, as an individual member of the Board, does not have the authority to obtain an official opinion from the AG.

We shall see what happens.   But let’s dive into this issue of board member access to records.  After all, it comes up not just in higher ed, but also with school board members.

Those earlier opinions citing “an inherent right of access” were drawing a distinction between the access of a board member vs. a member of the general public.  They were not specifically addressing the issue of student records.   Some of the records sought by Mr. Hall are “student records.”  This complicates the issue.

The “inherent right of access” cited by board members  is based on state law—the Public Information Act.  Access to student records, however, is governed by federal law—the Family Educational Rights and Privacy Act (FERPA).  Under FERPA, as any good teacher knows, student records can be disclosed to a school official only if that official has a “legitimate educational interest” in the records.  Thus not every teacher has access to all of the student records kept by the school district.

Consider the following hypothetical.  You are a teacher.  You are losing sleep due to the kid who lives next door who is practicing on his new drum set every night until midnight or later.  The aspiring percussionist goes to your school, but is not in your class.  But you are curious about him.   You’d like to find out how he’s doing in school. Perhaps there is information there that you can use to persuade his parents that he ought to knock off the drums a little earlier.  You go to the principal’s office and ask to review his records.

The principal should decline your request.  You may have a “legitimate interest” in learning more about this kid who is robbing you of sleep, but it is not a legitimate “educational” interest.  If your district has adopted TASB Policies, you should look at Policy FL (Local). It will include a definition of “legitimate educational interest.”   Most policies say that the term means that you are 1) working with that student; 2) considering disciplinary or academic action, or an IEP for the student; 3) compiling statistical data; 4) reviewing records to fulfill your professional responsibility; or 5) investigating or evaluating programs.  Checking out the Ringo Starr wannabe does not fit into any of those.

No doubt Regent Hall will argue that he is seeking student records to fulfill his professional responsibility and/or investigating programs. We shall see how Attorney General Paxton responds….if in fact he does. If he does issue an opinion, it will have to address both state law as well as FERPA.  Look for the AG’s Opinion in a future Daily Dawg!