Teachers often wear many hats, and a teacher’s authority to access student records shifts in these different roles. A teacher acting in the capacity of a union representative typically does not have authority to access student education records without parental consent.
The Family Educational Rights and Privacy Act (FERPA) defines “education records” as records, files, documents, and other materials that contain information directly related to a student that are maintained by an educational agency or institution or by a person acting for the agency or institution. FERPA grants students’ parents/guardians, or students 18 or over (an “eligible student”), three primary rights with respect to education records:
- to inspect and review education records;
- to seek amendment of education records believed to be inaccurate or misleading; and
- to consent to disclosure of personally identifiable information (PII) from education records, unless a consent exception applies.
FERPA’s PII definition includes “information that would make the student’s identity easily traceable.” FERPA requires that a consent for record disclosure be in writing, specify the records that may be disclosed, state the disclosure’s purpose, and identify the parties or class of parties to whom the disclosure may be made.
There are exceptions to FERPA’s consent requirement. For example, education records may be shared internally among school employees who have a “legitimate educational interest” in the records. 34 CFR 99.31(a)(1). Under FERPA, a school employee has a “legitimate educational interest” if the employee needs to review an education record in order to fulfill his or her professional responsibility. This exception generally encompasses teachers in the course of their work as teachers; however, it does not apply to teachers acting as union representatives.
The U.S. Department of Education’s Student Privacy Policy Office (SPPO) is responsible for FERPA administration and enforcement. The SPPO has stated in numerous guidance documents that union representatives are not school officials for FERPA purposes. Unions are independent entities that represent teachers’ interests. For this reason, union representatives —even if they are teachers—are not considered school officials under the FERPA exception. If union representatives request access to education records, FERPA requires that appropriate consent be obtained unless a FERPA disclosure exception applies, which is unlikely.
Similarly, teachers acting as union representatives for employee disciplinary meetings are not allowed to access student records during the meeting. Redacting the student’s name is not enough because if the union representative is a fellow teacher, the remaining information could still be PII and they may be able to reasonably guess the identity of the student in question.
School officials should be alert to FERPA issues when the line between teacher and union representative becomes blurred. For Thrun Policy Service subscribers, FERPA is addressed in Policy 4204 (Confidentiality of Student Information) and Policy 5309 (Student Records and Directory Information).