August 26, 2015
Oftentimes we at GLAD hear from parents of LGBTQ youth who have been told that the school cannot disclose any disciplinary steps they have taken against a student who bullied their child because of “FERPA.” FERPA, or the Family Educational Rights and Privacy Act, is a federal law that protects the privacy of student education records. In so doing, it prevents schools from disclosing student education records to third parties without the consent of the student’s parent. Schools cite this prohibition to justify not telling the parents of students who have been discriminated what the outcome of the school’s involvement has been. But this is not the end of the story.
First, at least one federal appeals court in Jensen v. Reeves, has held that FERPA does not prohibit disclosures of this kind in a situation where a target student’s parents want to know the outcome of the school’s investigation and what disciplinary action the school has taken against the perpetrating student. Informing schools of this decision may prove effective in learning of any disciplinary action the school has taken.
Second, the perpetrating students’ parents can give permission for the school to disclose the information. Either you can ask or the school can. True, those parents may withhold consent. But they may not, especially if they are trying to ease tensions among the students.
In addition, there are several exceptions to FERPA that, in certain circumstances, would allow schools to disclose disciplinary action to the target student’s parents (or directly to the student if they are over 18 years old or attend a postsecondary school):
- The first applies to all kinds of schools and arises where Title IX, the federal law that prohibits discrimination on the basis of sex in education programs, authorizes disclosures, as these override FERPA’s protections. Title IX authorizes disclosures to the target student’s parents when the disciplinary action directly relates to the target student, such as where the school has ordered the bully to stay away from the student, the school has prohibited the bully from attending school for a period of time, or the school has transferred the bully to another class. While you will not know whether your child is directly related, you should inform the school of this exception and ask whether the school has taken any of these actions or if the disciplinary action otherwise relates to your child.
- The second exception applies only to postsecondary schools such as colleges or universities. If the offending student has committed a crime of violence or a “non-forcible sex offense,” the school can disclose the outcome of the investigation to the target student. This means the student can learn the name of the perpetrator, the offense committed, and any disciplinary action the school has taken against the perpetrator.
You can also side-step the FERPA roadblock entirely. First, ask your school what the typical action or range of discipline is for the offense the student committed. Once you have that answer, you can follow up with questions to confirm the school handled this situation consistently with similar situations.
Second, you can ask your school what the possible discipline is for a next offense. This will get the school thinking and committed to a course of action should bullying continue.
Finally, you can ask what the school is doing to make sure the perpetrator will not bully your child in the future and/or what the school will do to keep your child safe.
As always, if you think your school is not protecting against anti-LGBTQ or HIV+ bullying, contact GLAD Answers. For more information on bullying in school, check out our resources at www.glad/org/youth/bullying and www.glad.org/youth/school.