“They won’t let me see my kid’s records. Where do I file the lawsuit?”

Parents who believe that a school district has violated FERPA run into a problem when they sue.  The U.S. Supreme Court held in 2002 that there is no “private right of action” under FERPA.  Gonzaga University v. Doe.  That means that even if the school has violated FERPA, you will get nowhere with a lawsuit over the issue.   Instead, the disgruntled parent should file a complaint with the Department of Education.

That was the hard lesson in a case recently decided by the Texas Court of Appeals. The suit was filed by a parent in Eanes ISD who had been in a dispute with the school over the treatment of his daughter by the soccer coach.  He eventually filed suit to seek access to certain records that the district withheld.

The Court of Appeals made three important rulings. First, the district reasonably anticipated litigation over the issue. This would normally authorize the district to withhold the documents even when they are requested under the Public Information Act.

Second, if the withheld records were “education records” under FERPA, then the parent would have access to them, despite the “anticipated litigation” rule.  The parental right of access is a trump card that overrides PIA exceptions.

Third, the school district interprets FERPA, and its interpretation cannot be overturned by the Attorney General or the courts.  Thus if the parent believes that he is entitled to records that the district is withholding, a lawsuit is not the appropriate remedy.  Key Quotes:

However, neither this Court, nor the trial court, nor OAG [Office of the Attorney General] is the proper entity to interpret FERPA and its application to EISD’s records—it is EISD that must make FERPA determinations.

FERPA creates no private right of action.

If [the parent] believes that EISD has not complied with FERPA, he may file a complaint with the DOE, but he may not ask us to enforce FERPA by second-guessing EISD’s FERPA determination.

The case is B.W.B. v. Eanes ISD, decided by the Texas Court of Appeals, Third District, in Austin on January 10, 2018.


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