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1 E. Rick Buell, II (SBN 63924) ee op op gm ee
LAW OFFICES OF E. RICK BUELL, II ee | mm 3
2 700 Larkspur Landing Circle, Suite 175 a) ante wy,
Larkspur CA 94939 ALAMEDA COLT Y
3 Tel: (415) 464-2011 tang :
Fax: (415) 464-2012 Alls 2 0 2003
4 email: rbuell@buell-law.us ee
5 Aitomeys for Plaintiff
6 GWEN R. SYKES
7 SUPERIOR COURT OF THE STATE OF CALIFORNIA
8 COUNTY OF ALAMEDA
‘BY FAX
10 GWEN R. SYKES ) Case No. RG03106646
11 Plaintiff, } FEDERAL AUTHORITIES IN SUPPORT
vs. OF PLAINTIFF’S MOTION TO QUASH
12 SUBPOENA [UC BERKELEY—-OFFICE
DOUGLAS SYKES et.al. OF REGISTRAR]
13 ,
Defendant. Date: October 3, 2003
14 Time: 9:00 a.m.
Dept.: 31
15 Trail Date: Not assigned.
16 }
17
18 Attached hereto is a copy of 20 U.S.C.A. 1232g.
19
20 DATED: August 20, 2003 LAW OFFICES OF E. RICK BUELL, II
Legal
Filed By
One
LPS
bo
E. Rick Buell, 0
ATTORNEY FOR GWEN R. SYKES
BH
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NWA NH
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FEDERAL AUTHORITIES INSUPPORT OF PLAINTIPE'S
MOTION TO QUASH SUBPOENA [UC BERKELBY-OFFICE OFREGISTRAR}
“1.
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20 USCA § 1232 ad Page 2
20 U.S.C.A. § 12322
[r
UNITED STATES CODE ANNOTATED
TITLE 20.EDUCATION
CHAPTER 31--GENERAL PROVISIONS CONCERNING EDUCATION
SUBCHAPTER II--GENERAL REQUIREMENTS AND CONDITIONS CONCERNING OPERATION
ist! IN PE
PART 4--RECORDS: PRIVACY: LIMITATION ON WITHHOLDING FEDE RAL FUNDS
Copr. © West Group 2003. No claim toOrig. U.S, Govt. Warks.
Current through P.L. 108-71, approved 08-14-03
§ 1232¢. Family educational and privacy rights
(a)Conditions foravailabilityof funds to educational agencies or institutions,inspection and review ofeducation
records; specificinformation tobe made available;procedure for access toeducation records;reasonableness of
time forsuch access; hearings; writtenexplanations by parents; definitions
(1)(A) No funds shallbe made available under any applicable program to any educational agency or institution
which. has a policy of denying, or which effectivelyprevents, the parents of students who are or have been in.
attendance ata school of such agency or atsuch institution,
asthe case may be, theright toinspect and review the
education records of theirchildren. If any material or document in the education record of a student includes
information on more than one student,the parents ofone ofsuch students shallhave theright toinspect and review
only such part ofsuch material or document as relatesto such studentor to be informed of the specificinformation,
contained in such part of such material. Esch educational agency or institution shall establish appropriate
procedures forthe granting of a request by parents for access to the education records of their childrenwithin 4
reasonable period oftime, but inno case more thanforty-fivedays afterthe requesthas been made.
(B) No funds under any applicable program shal]be made available to any State educational agency (whether or
nat thatagency is an educational agency or institution
under thissection)thathas a policy of denying, oreffectively
prevents, the parents of students the right to inspect and review the education records maintained by the State
educational agency on theirchildren who areor have been inattendance at any school of an educational agency or
institution
that issubjectto theprovisions of thissection.
(C) The firstsentence of subparagraph (A) shallnot operate to make available to students in institutionsof
postsecondary education thefollowing materials:
(i)financialrecords ofthe parents ofthe studentor any information contained therein;
(ii)confidentiallettersand statements of recommendation, which were placed inthe education records prior to
January 1, 1975, ifsuch lettersor statements are not used forpurposes o ther thanthose for which they were
specificallyintended;
(ili)
if thestudent has signed a waiver ofthe student'sright ofaccess under thissubsection in accordance with
subparagraph (D),confidentialrecommendations--
(J)respecting adrnissionto any educational agency or institution,
(QD respecting anapplication for employment, and
(UD) respectingthe receipt ofan honor or honorary recognition.
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20 USCA § 1232g . Page 3
20US.CA.§ 1232g
(D) A student or a person applying for admission may waive his right of access to confidentialstatements
described inclause (iii)ofsubparagraph (C), except thatsuch waiver shall apply torecommendations only if(i)the
student is,upon request,notified of thenames ofall persons making confidential recommendations and (ii)such
recommendations are used solelyfor thepurpose forwhich they were specificallyintended. Such waivers may not
be required asa condition for admission to,receipt offinancialaid from, or receiptof any other servicesor benefits
from such agency orinstitution,
(2) No funds shallbe made available under any applicable program to any educational agency orinstitutionunless
the parents of studentawho are or have been in attendance ata school of such agency or at such institutionare
provided an opportunity for a hearingby such agency or institution,
inaccordance with regulations ofthe Secretary,
to challenge the contentof such student'seducation records, inorder to insure thatthe records are not inaccurate,
misleading, or otherwise in violation of the privacy rightsof students,and to provide an,opportunity for the
correction or deletionof any such inaccurate,misleading or otherwise inappropriate data contained thereinand to
insertintosuch records a writtenexplanation of theparents respecting thecontent of such records.
(3) For the purposes of this sectionthe term "educational agency or institution"means any public or private
agency or institution
which isthe recipientof funds undex any applicableprogram.
(4)(A) For thepurposes of thissection,the term "education records" means, except ag may be provided otherwise
insubparagraph (B),those records, files,
documents, and othermaterials which--
(i)contain information directlyrelatedto astudent; and
(ii)aremaintained by an educational agency orinstitutionorby a person acting forsuch agency orinstitution.
(B) The tenn “education records" does not include--
(i) records of instructional,supervisory, and adniinistrativepersonnel and educational personnel ancillary
theretowhich arein the solepossession of the maker thereof and which are not accessibleor revealed toany other
person except a substitute;
(ii)records maintained by a law enforcement unit of theeducational agency or institution
that were created by
thatlaw enforcement unitfor thepurpose oflaw enforcement;
(ili)inthe case of persons who are employed by an educational agency or institutionbut who are not in
attendance at such agency or institution,
records made and maintained inthe normal course of business which
relateexclusively to such person inthat person's capacityas an employee and are not available foruse for any
otherpurpose; or
(lv)records on a student who is eighteen years ofage or older, oris attending an institution
of postsecondary
education, which are made or maintained by a physician, psychiatrist,psychologist, or other recognized
professional or paraprofessional acting in his professional or paraprofessional capacity, or assisting in that
capacity, and which are made, maintained, or used only in connection with the provision of treatment to the
student,and are not availableto anyone otherthan persons providing such treatment, except thatsuch records can
be personallyreviewed by a physician or otherappropriate professionalof thestudent'schoice.
(5)(A) For the purposes of this section the term “directory information” relatingto a student includes the
following: the student'sname, address, telephone listing,dateand place of birth,major ticld ofstudy, participation
in officially
recognized activities
and sports,weight and heightof members of athleticteams, dates ofattendance,
degrees and awards received, and the most recentprevious educational agency orinstitutionattended by thestudent.
(B) Any educational agency or institutionmaking public directoryinformation shallgive public notice of the
categories of information which ithas designated as suchinformation with respect to each student attendingthe
institutionoragency and shallallow a reasonable period oftime aftersuch notice has been given for a parent to
inform the institutionor agency thatany or allof the information designated should not be released without the
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20 USCA §
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20US.C.A. § 1232g
parent'sprior consent.
(6) For the purposes of this section,the term "student" includes any person with respect to whom an educational
agency or institutionmaintains education records or personally identifiableinformation, but does not include a
person who has not been in attendance at such agency or institution.
pse of education records; parental consent requirement, exceptions; compliance with judicial ordersand
. subpoenas; audit and evaluation of federally-supported education programs; recordkeeping
(1) Ng funds shallbe made availableunder any applicable program toany educational agency orinstitutionwhich
as 9/policy
or practice of permitting the release of education records (or personally identifiableinformation
‘contained thereinother than directory information, as defined in paragraph (5)of subsection (a) of thissection) of
aents without the writtenconsent of theirparents to any individual,agency, or organization, other than to the
ollowing--
(A) other school officials,
including teachers within the educational institutionorlocal educational agency, who
have been determined by such agency or institutionto have legitimate educational interests,including the
educationa) interestsof thechild forwhom consent would otherwise be required;
(B) officialsof other schools or schoo] systems inwhich the student seeks or intends to enroll,upon condition
that the student's parents be notified of the transfer,receive a copy of the record if desired, and have an
opportunity fora hearing to challenge the content ofthe record;
(C) (i)authorized representativesof (I)the Comptroller General]of the United States, (ID theSecretary, or (11D)
State educational authorities,under the conditions set forthin paragraph (3),or (ii)authorized representatives of
the Attorney General for law enforcement purposes under the same conditions as apply to the Secretary under
paragraph (3);
(D) inconnection with a student'sapplication for,or receiptof,financialaid;
(E) State and loca] officialsor authoritiesto whom such information is specificallyallowed tabe reported or
disclosed pursuant toState statuteadopted--
(i)before November 19,1974, ifthe allowed reporting or disclosureconcerns thejuvenile justice system and
such system's abilityto effectivelyserve thestudent whose records are released,or
(ii)afterNovember 19, 1974, if--
(I)the allowed reporting or disclosurec oncems the juvenile j ustice
sy stem and such sy stems abilityto
effectivelyserve, priorto adjudication,the student whose records arereleased; and
(ID)the officialsand authoritiestaowhom such information isdisclosed certifyin writing tothe educational
agency or institutionthatthe information willnot be disclosed to any other party except as provided under
Statelaw without the priorwritten consent of theparent of thestudent. [FN1]
(F) organizations conducting studies for,or on behalf of,educational agencies or institutionsfor thepurpose of
developing, validating, or administering predictive tests,administering student aid programs, and improving
instruction,if such studies are conducted in such a manner as will not permit the personal identificationof
students and theirparents by persons other than representativesof such organizations and such information will be
destroyed when no longer needed for thepurpose forwhich itisconducted;
(G) accrediting organizations inorder to carry outtheiraccrediting functions;
(A) parents of adependent student of such parents,as defined in section 152 ofTitle 26,
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20U.S.C.A. § 1232¢
(I) subject to regulations of the Secretary, iniconnection with an emergency, appropriate persons if the
knowledge of such information isnecessary to protectthe healthor safetyaf the studentor otherpersons; and
(J)(i)theentity orpersons designated ina Federal grand jury subpoena, in which casethe court shallorder, for
good cause shown, theeducational agency or institution(and any officer,director,employee, agent, or attomey
for such agency oy institution)
on which the subpoena is served, tonot disclose to any person the existence or
contents ofthe subpoena orany information furnishedto thegrand jury inresponse tothe subpoena; and
(ii)theentityor persons designated in any other subpoena issuedfor a Jaw enforcement purpose, inwhich case
the courtor other issuingagency may order,for good cause shown, theeducational agency or institution
(and any
officer,director,employee, agent,or attorney forsuch agency or institution)
on which the subpoena isserved, to
not discloseto any person the existenceor contents of thesubpoena or any information furnished inresponse to
the subpoena.
Nothing insubparagraph (E) ofthisparagraph shallprevent a Statefrom further limitingthenumber ortype of State
of localofficials
who will continue tohave access thereunder,
(2) No funds shallbe made available under any applicableprogram to any educational agency or institutionwhich
has a policy or practice ofreleasing, or providing access to,any personally identifiableinformation in education
records otherthan directoryinformation, or as ispermittedunder paragraph (1)of thissubsection, unless--
(A) there iswritten consent from the student'sparents specifying records tobe released,the reasons for such
release,and towhorn, and with a copy of the records to be released to thestudent's parents and the student if
desiredby the parents,or
(B) except as provided in paragraph (1)(J),
such information isfurnished in compliance with judicialorder, or
pursuant to any lewfully issued subpoena, upon condition thatparents and the students arenotified of allsuch
orders orsubpoenas in advance of thecompliance therewith by theeducational institutionoragency.
(3)Nothing coptained in thissection shallpreclude authorized representatives of(A) the Comptroller General of
the United States, (B) the Secretary, or (C) State educational authoritiesfrom having access to student or other
records which may be necessary in connection with the audit and evaluation of Federally-supported education
programs, orin connection with theenforcement of the Federal legalrequirements which relateto such programs:
Provided, That except when collectionof personally identifiableinformation is specificallyauthorized by Federal
law, any data collected by such officialsshall be protected in a manner which will not permit the personal
identification
of students and theirparents by otherthan those officials,
and such personally identifiable
data shallbe
destroyed when no longer needed for such audit,evaluation,and enforcement ofFederal legal requirements.
(4)(A) Each educational agency or institution
shall maintain a record, kept withthe education records of each
student, which will indicateall individuals (other than those specified in paragraph (1)(A) of this subsection),
agencies, ororganizations which have requested or obtained accessto a student'seducation records maintained by
such educational agency or institution,and which will indicatespecificallythe legitimate interestthat each such
person, agency, or organization has in obtaining thisinformation. Such record ofaccess shall be available only to
parents,to the school officialand hisassistantswho are responsiblefor the custody of such records,and topersons
or organizations authorized in,and under the conditions of,clauses (A) and (C) of paragraph (1) as a means of
auditingthe operation ofthe system.
(B) With respect tothis subsection,personal information shallonly be transferredto a thirdparty on thecondition
thatsuch party willnot permit any other party tohave accessto such information without the written consent ofthe
parents ofthe student.Ifa thirdparty outside the educationalagency or institution
permits access to information in
violationof paragraph (2)(A), orfailsto destroyinformation in violationof paragraph (1)(F),the educational agency
or institution
shallbe prohibited from permitting access to information from education records to thatthirdparty for
a period ofnat lessthan fiveyears.
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20 US.CA. § 1232¢
(5)Nothing in thissection shallbe construed to prohibitState and local educational officialsfrom having access
to studentor other records which may be necessary inconnection with theaudit and evaluation of any federally or
State supported education program or in connection with the enforcement of the Federal legalrequirements which
relatetoany such program, subject tothe conditionsspecified inthe proviso inparagraph (3).
(6)(A) Nothing in this section shall be constmed to prohibit an institutionof postsecondary education from
disclosing,to an alleged victim of any crime of violence (as thatterm isdefined in section 16 of Title 18), or a
nonforcible sex offense, the finalresultsof any disciplinaryproceeding conducted by such institutionagainst the
alleged perpetratorofsuch crime oroffense with respectto such crime or offense.
.(B) Nothing inthissection shallbe construed to prohibitan institution
of postsecondary education from disclosing
the finalresultsof any disciplinaryproceeding conducted by such institutionagainst a student who isan alleged
perpetratorof any crime of violence (asthatterm is defined insection 16 ofTitle 18),or anonforcible sex offense,if
the institution
determines as a resultof that disciplinaryproceeding thatthe student committed a violation of the
institution's
rulesor policieswith reapectto such crime or offense.
(C) For thepurpose ofthisparagraph, the finalresultsofany disciplinaryproceeding--
(i)shall include only the name of the student, the violation committed, and any sanction imposed by the
institution
on that student; and
(ii)may include the name ofany otherstudent,such asa victim orwitness, only with thewritten consent of that
otherstudent.
(7)(A) Nothing in thissection may be construed toprohibit aneducational institutionfrom disclosing information
provided to the institution
under section 14071 of Title42 conceming registeredsex offenders who are required to
registerunder such section.
(8B)The Secretary shall take appropriate steps to notify educational institutions
that disclosure of information
described insubparagraph (A) ispermitted,
_ (c)Surveys ordata-gathering activities;regujations
Not later
than 240 days afterOctober 20, 1994, the Secretaryshall adopt appropriateregulations or procedures,or
identifyexisting regulations or procedures, which protect the rightsof privacy of students and their families in
connection with any surveys or data-gathering activitiesconducted, assisted,or authorized by theSeoretary or an
administrativehead of an education agency. Regulations established under thissubsection shall includeprovisions
controllingthe use, dissemination, and protection of such data. No survey or data-gathering activitiesshallbe
conducted by the Secretary,or an administrative head of an education agency under an applicable program, unless
such activities
are authorized by law.
(d)Stydents’ ratherthan parents’permission or consent
For thepurposes of thissection, whenever a student has attained cighteen years of age, or is attending an
institution
of postsecondary education, thepermission or consent required ofand thenghts accorded to theparents
of thestudent shallthereafteronly be requiredof and accorded to thestudent.
(e)Informing parentsor students ofrightsunder thissection
No funds shallbe made availableunder any applicable program to any educational agency or institution
unless
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20 U.S.C.A. § 1232¢
‘guch agency or institution
effectively informs the parentsof students, orthe students, ifthey are eighteen years of
age or older,orare attending an institution
of postsecondary education, ofthe rightsaccorded them by thissection.
(f)Enforcement; termination of assistance
The Secretaryshall take appropriate actionsto enforce thissection and to deal with violationsof thissection, in
accordance with thischapter, except thataction toterminate assistancemay be taken only if the
Secretary finds there
has been a failure to comply with thissection, and he has determined that compliance cannot be secured by
voluntary means. ;
(g)Office and review board; creation; functions
The Secretary shallestablish ordesignate an officeand review board within the Department forthe purpose of
investigating,processing,reviewing, and adjudicating violationsof thissection and complaints which may be filed
concerning alleged violationsof this section. Except for theconduct of hearings, none of the functions of the
Secretary under thissectionshall be cartiedout inany of theregional officesof such Department.
(h)Disciplinary records; disclosure
Nothing in thissection shallprohibitan educational agency or institution
from--
(1) including appropriate information in the education record of any student concerning disciplinaryaction
taken againstsuch student for conduct thatposed a significantriskto thesafety orwell-being of thatstudent,other
students,or othermembers of theschool community; or
(2)disclosing such information to teachers and school officials,
including teachers and school officialsinother
schools,who have legitimate educational interests
in thebehavior of the student.
(#)Drug and alcohol violation disclosures
(1)In general
Nothing inthis Act or the Higher Education Act of 1965 (20 U.S.C.A, § 1001 etseq.) shallbe construed to
prohibitan institutionof higher education from disclosing,to a parent orlegal guardian of a student,information
regarding any violationof any Federal, State,orlocal law,or of any ruleor policy ofthe institution,
governing the
use or possession of alcohol ora controlled substance, regardlessof whether that information ia contained inthe
student'seducation records,if-- .
(A) thestudent isunder the age of 21; and
(B) the institution
determines that thestudent has comunitted a disciplinaryviolationwith respect to such use
OFpossession.
(2)State law regarding disclosure
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~f "USCA 12328 . © ©
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20U.S.C.A. § 1232¢
Nothing inparagraph (1)shall be construed tosupersede any provision ofState Jaw thatprohibits an institution
ofhigher education from making thedisclosure described insubsection (a)of thissection.
(j)Investigationand prosecution of terrorism
(1)In general
Notwithstanding subsections (a)through (i)or any provision of Statelaw, theAttomey General (or any Federal
officeror employee, in a position not lower than an AssistantAttomey General, designated by the Attorney _
General) may subynita written application to a court ofcompetent jurisdictionfor an ex parteorder requiring an.
educational agency or institution
to permit the Attorney General (orhisdesignee) to--
(A) collecteducation records inthe possession ofthe educational agency or institutionthatare relevantto an
authorized investigationor prosecution of an offense listedin section 23326(¢)(5)(B) ofTitle 18, oran actof
domestic ar internationalterrorismas defined insection 2331 of thattitle;and
(B) for officialpurposes related to the investigationor prosecution, of an offense desoribed inparagraph
(1)(A), retain,disseminate, and use (including as evidence at trialor in other administrative or judicial
proceedings) such records, consistentwith such guidelinesas the Attorney General, afterconsultation with the
Secretary,shallissue toprotect confidentiality.
(2)Application and approval
(A) In general
An applicationunder paragraph (1) shallcertifythat thereare specific and articulablefactsgiving reason to
believe thattheeducation records are likelyto containinformation described in paragraph (1)(A}.
(8) The court shallissue an order described in paragraph (1)if the court findsthat the applicationfor the
order includesthe certification
described in subparagraph (A).
(3)Protection of educationalagency or institution
An educationalagency or institution
that,in good faith,produces education records in accordance with an order
issuedunder thissubsection shallnotbe liableto any person forthat production.
(4)Record-keeping
Subsection (b)(4) of thissection does not apply to education records subject to a court order under this
subsection. ;
CREDIT(S)
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Preview
“ “e eo wnwn BB/2a/28aa 49.35 4154642012 BUELL BERNER 1 E. Rick Buell, II (SBN 63924) ee op op gm ee LAW OFFICES OF E. RICK BUELL, II ee | mm 3 2 700 Larkspur Landing Circle, Suite 175 a) ante wy, Larkspur CA 94939 ALAMEDA COLT Y 3 Tel: (415) 464-2011 tang : Fax: (415) 464-2012 Alls 2 0 2003 4 email: rbuell@buell-law.us ee 5 Aitomeys for Plaintiff 6 GWEN R. SYKES 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 COUNTY OF ALAMEDA ‘BY FAX 10 GWEN R. SYKES ) Case No. RG03106646 11 Plaintiff, } FEDERAL AUTHORITIES IN SUPPORT vs. OF PLAINTIFF’S MOTION TO QUASH 12 SUBPOENA [UC BERKELEY—-OFFICE DOUGLAS SYKES et.al. OF REGISTRAR] 13 , Defendant. Date: October 3, 2003 14 Time: 9:00 a.m. Dept.: 31 15 Trail Date: Not assigned. 16 } 17 18 Attached hereto is a copy of 20 U.S.C.A. 1232g. 19 20 DATED: August 20, 2003 LAW OFFICES OF E. RICK BUELL, II Legal Filed By One LPS bo E. Rick Buell, 0 ATTORNEY FOR GWEN R. SYKES BH hk NWA NH Me Ny YY KY o FEDERAL AUTHORITIES INSUPPORT OF PLAINTIPE'S MOTION TO QUASH SUBPOENA [UC BERKELBY-OFFICE OFREGISTRAR} “1. 26 2843 @9:52 4154642612 PAGE.@7 AUG Py; 88/20/2883 @9:39 4154642012 BUELL BERNER PAGE ae 20 USCA § 1232 ad Page 2 20 U.S.C.A. § 12322 [r UNITED STATES CODE ANNOTATED TITLE 20.EDUCATION CHAPTER 31--GENERAL PROVISIONS CONCERNING EDUCATION SUBCHAPTER II--GENERAL REQUIREMENTS AND CONDITIONS CONCERNING OPERATION ist! IN PE PART 4--RECORDS: PRIVACY: LIMITATION ON WITHHOLDING FEDE RAL FUNDS Copr. © West Group 2003. No claim toOrig. U.S, Govt. Warks. Current through P.L. 108-71, approved 08-14-03 § 1232¢. Family educational and privacy rights (a)Conditions foravailabilityof funds to educational agencies or institutions,inspection and review ofeducation records; specificinformation tobe made available;procedure for access toeducation records;reasonableness of time forsuch access; hearings; writtenexplanations by parents; definitions (1)(A) No funds shallbe made available under any applicable program to any educational agency or institution which. has a policy of denying, or which effectivelyprevents, the parents of students who are or have been in. attendance ata school of such agency or atsuch institution, asthe case may be, theright toinspect and review the education records of theirchildren. If any material or document in the education record of a student includes information on more than one student,the parents ofone ofsuch students shallhave theright toinspect and review only such part ofsuch material or document as relatesto such studentor to be informed of the specificinformation, contained in such part of such material. Esch educational agency or institution shall establish appropriate procedures forthe granting of a request by parents for access to the education records of their childrenwithin 4 reasonable period oftime, but inno case more thanforty-fivedays afterthe requesthas been made. (B) No funds under any applicable program shal]be made available to any State educational agency (whether or nat thatagency is an educational agency or institution under thissection)thathas a policy of denying, oreffectively prevents, the parents of students the right to inspect and review the education records maintained by the State educational agency on theirchildren who areor have been inattendance at any school of an educational agency or institution that issubjectto theprovisions of thissection. (C) The firstsentence of subparagraph (A) shallnot operate to make available to students in institutionsof postsecondary education thefollowing materials: (i)financialrecords ofthe parents ofthe studentor any information contained therein; (ii)confidentiallettersand statements of recommendation, which were placed inthe education records prior to January 1, 1975, ifsuch lettersor statements are not used forpurposes o ther thanthose for which they were specificallyintended; (ili) if thestudent has signed a waiver ofthe student'sright ofaccess under thissubsection in accordance with subparagraph (D),confidentialrecommendations-- (J)respecting adrnissionto any educational agency or institution, (QD respecting anapplication for employment, and (UD) respectingthe receipt ofan honor or honorary recognition. Copr. & West 2003 No Claim to Orig.U.S. Govt. Works AUG 28 280803 89:52 4154642612 PAGE.@8 / 88/20/2083 89:39 4154642812 BUELL BERNER PAGE &9 20 USCA § 1232g . Page 3 20US.CA.§ 1232g (D) A student or a person applying for admission may waive his right of access to confidentialstatements described inclause (iii)ofsubparagraph (C), except thatsuch waiver shall apply torecommendations only if(i)the student is,upon request,notified of thenames ofall persons making confidential recommendations and (ii)such recommendations are used solelyfor thepurpose forwhich they were specificallyintended. Such waivers may not be required asa condition for admission to,receipt offinancialaid from, or receiptof any other servicesor benefits from such agency orinstitution, (2) No funds shallbe made available under any applicable program to any educational agency orinstitutionunless the parents of studentawho are or have been in attendance ata school of such agency or at such institutionare provided an opportunity for a hearingby such agency or institution, inaccordance with regulations ofthe Secretary, to challenge the contentof such student'seducation records, inorder to insure thatthe records are not inaccurate, misleading, or otherwise in violation of the privacy rightsof students,and to provide an,opportunity for the correction or deletionof any such inaccurate,misleading or otherwise inappropriate data contained thereinand to insertintosuch records a writtenexplanation of theparents respecting thecontent of such records. (3) For the purposes of this sectionthe term "educational agency or institution"means any public or private agency or institution which isthe recipientof funds undex any applicableprogram. (4)(A) For thepurposes of thissection,the term "education records" means, except ag may be provided otherwise insubparagraph (B),those records, files, documents, and othermaterials which-- (i)contain information directlyrelatedto astudent; and (ii)aremaintained by an educational agency orinstitutionorby a person acting forsuch agency orinstitution. (B) The tenn “education records" does not include-- (i) records of instructional,supervisory, and adniinistrativepersonnel and educational personnel ancillary theretowhich arein the solepossession of the maker thereof and which are not accessibleor revealed toany other person except a substitute; (ii)records maintained by a law enforcement unit of theeducational agency or institution that were created by thatlaw enforcement unitfor thepurpose oflaw enforcement; (ili)inthe case of persons who are employed by an educational agency or institutionbut who are not in attendance at such agency or institution, records made and maintained inthe normal course of business which relateexclusively to such person inthat person's capacityas an employee and are not available foruse for any otherpurpose; or (lv)records on a student who is eighteen years ofage or older, oris attending an institution of postsecondary education, which are made or maintained by a physician, psychiatrist,psychologist, or other recognized professional or paraprofessional acting in his professional or paraprofessional capacity, or assisting in that capacity, and which are made, maintained, or used only in connection with the provision of treatment to the student,and are not availableto anyone otherthan persons providing such treatment, except thatsuch records can be personallyreviewed by a physician or otherappropriate professionalof thestudent'schoice. (5)(A) For the purposes of this section the term “directory information” relatingto a student includes the following: the student'sname, address, telephone listing,dateand place of birth,major ticld ofstudy, participation in officially recognized activities and sports,weight and heightof members of athleticteams, dates ofattendance, degrees and awards received, and the most recentprevious educational agency orinstitutionattended by thestudent. (B) Any educational agency or institutionmaking public directoryinformation shallgive public notice of the categories of information which ithas designated as suchinformation with respect to each student attendingthe institutionoragency and shallallow a reasonable period oftime aftersuch notice has been given for a parent to inform the institutionor agency thatany or allof the information designated should not be released without the Copr. © West 2003 No Claim to Orig.U.S. Govt. Works AUG 20 20803 @3:53 4154642012 PAGE.@3 Whwr'osi20/2003 29:39 © 4154642012 BUELL BERNER PAGE 18 wa 20 USCA § _ 1232g .@ @ Page 4 20US.C.A. § 1232g parent'sprior consent. (6) For the purposes of this section,the term "student" includes any person with respect to whom an educational agency or institutionmaintains education records or personally identifiableinformation, but does not include a person who has not been in attendance at such agency or institution. pse of education records; parental consent requirement, exceptions; compliance with judicial ordersand . subpoenas; audit and evaluation of federally-supported education programs; recordkeeping (1) Ng funds shallbe made availableunder any applicable program toany educational agency orinstitutionwhich as 9/policy or practice of permitting the release of education records (or personally identifiableinformation ‘contained thereinother than directory information, as defined in paragraph (5)of subsection (a) of thissection) of aents without the writtenconsent of theirparents to any individual,agency, or organization, other than to the ollowing-- (A) other school officials, including teachers within the educational institutionorlocal educational agency, who have been determined by such agency or institutionto have legitimate educational interests,including the educationa) interestsof thechild forwhom consent would otherwise be required; (B) officialsof other schools or schoo] systems inwhich the student seeks or intends to enroll,upon condition that the student's parents be notified of the transfer,receive a copy of the record if desired, and have an opportunity fora hearing to challenge the content ofthe record; (C) (i)authorized representativesof (I)the Comptroller General]of the United States, (ID theSecretary, or (11D) State educational authorities,under the conditions set forthin paragraph (3),or (ii)authorized representatives of the Attorney General for law enforcement purposes under the same conditions as apply to the Secretary under paragraph (3); (D) inconnection with a student'sapplication for,or receiptof,financialaid; (E) State and loca] officialsor authoritiesto whom such information is specificallyallowed tabe reported or disclosed pursuant toState statuteadopted-- (i)before November 19,1974, ifthe allowed reporting or disclosureconcerns thejuvenile justice system and such system's abilityto effectivelyserve thestudent whose records are released,or (ii)afterNovember 19, 1974, if-- (I)the allowed reporting or disclosurec oncems the juvenile j ustice sy stem and such sy stems abilityto effectivelyserve, priorto adjudication,the student whose records arereleased; and (ID)the officialsand authoritiestaowhom such information isdisclosed certifyin writing tothe educational agency or institutionthatthe information willnot be disclosed to any other party except as provided under Statelaw without the priorwritten consent of theparent of thestudent. [FN1] (F) organizations conducting studies for,or on behalf of,educational agencies or institutionsfor thepurpose of developing, validating, or administering predictive tests,administering student aid programs, and improving instruction,if such studies are conducted in such a manner as will not permit the personal identificationof students and theirparents by persons other than representativesof such organizations and such information will be destroyed when no longer needed for thepurpose forwhich itisconducted; (G) accrediting organizations inorder to carry outtheiraccrediting functions; (A) parents of adependent student of such parents,as defined in section 152 ofTitle 26, Copr. © West 2003 No Claim to Orig.U.S. Govt, Works 4154642612 PAGE. 16 QUG 2@ 2803 89:53 rl 88/28/2803 49:39 4154642812 BUELL BERNER . PAGE 11 20 USCA § 12322 Page 5 20U.S.C.A. § 1232¢ (I) subject to regulations of the Secretary, iniconnection with an emergency, appropriate persons if the knowledge of such information isnecessary to protectthe healthor safetyaf the studentor otherpersons; and (J)(i)theentity orpersons designated ina Federal grand jury subpoena, in which casethe court shallorder, for good cause shown, theeducational agency or institution(and any officer,director,employee, agent, or attomey for such agency oy institution) on which the subpoena is served, tonot disclose to any person the existence or contents ofthe subpoena orany information furnishedto thegrand jury inresponse tothe subpoena; and (ii)theentityor persons designated in any other subpoena issuedfor a Jaw enforcement purpose, inwhich case the courtor other issuingagency may order,for good cause shown, theeducational agency or institution (and any officer,director,employee, agent,or attorney forsuch agency or institution) on which the subpoena isserved, to not discloseto any person the existenceor contents of thesubpoena or any information furnished inresponse to the subpoena. Nothing insubparagraph (E) ofthisparagraph shallprevent a Statefrom further limitingthenumber ortype of State of localofficials who will continue tohave access thereunder, (2) No funds shallbe made available under any applicableprogram to any educational agency or institutionwhich has a policy or practice ofreleasing, or providing access to,any personally identifiableinformation in education records otherthan directoryinformation, or as ispermittedunder paragraph (1)of thissubsection, unless-- (A) there iswritten consent from the student'sparents specifying records tobe released,the reasons for such release,and towhorn, and with a copy of the records to be released to thestudent's parents and the student if desiredby the parents,or (B) except as provided in paragraph (1)(J), such information isfurnished in compliance with judicialorder, or pursuant to any lewfully issued subpoena, upon condition thatparents and the students arenotified of allsuch orders orsubpoenas in advance of thecompliance therewith by theeducational institutionoragency. (3)Nothing coptained in thissection shallpreclude authorized representatives of(A) the Comptroller General of the United States, (B) the Secretary, or (C) State educational authoritiesfrom having access to student or other records which may be necessary in connection with the audit and evaluation of Federally-supported education programs, orin connection with theenforcement of the Federal legalrequirements which relateto such programs: Provided, That except when collectionof personally identifiableinformation is specificallyauthorized by Federal law, any data collected by such officialsshall be protected in a manner which will not permit the personal identification of students and theirparents by otherthan those officials, and such personally identifiable data shallbe destroyed when no longer needed for such audit,evaluation,and enforcement ofFederal legal requirements. (4)(A) Each educational agency or institution shall maintain a record, kept withthe education records of each student, which will indicateall individuals (other than those specified in paragraph (1)(A) of this subsection), agencies, ororganizations which have requested or obtained accessto a student'seducation records maintained by such educational agency or institution,and which will indicatespecificallythe legitimate interestthat each such person, agency, or organization has in obtaining thisinformation. Such record ofaccess shall be available only to parents,to the school officialand hisassistantswho are responsiblefor the custody of such records,and topersons or organizations authorized in,and under the conditions of,clauses (A) and (C) of paragraph (1) as a means of auditingthe operation ofthe system. (B) With respect tothis subsection,personal information shallonly be transferredto a thirdparty on thecondition thatsuch party willnot permit any other party tohave accessto such information without the written consent ofthe parents ofthe student.Ifa thirdparty outside the educationalagency or institution permits access to information in violationof paragraph (2)(A), orfailsto destroyinformation in violationof paragraph (1)(F),the educational agency or institution shallbe prohibited from permitting access to information from education records to thatthirdparty for a period ofnat lessthan fiveyears. Copr. @ West 2003 No Claim to Orig.U.S. Gove. Works AUG 286 2063 49:54 4154642012 PAGE.11 Pr 68/26/2683 69:39 4154642812 BUELL BERNER PAGE 12 A 20 USCA § 1232¢ Page 6 20 US.CA. § 1232¢ (5)Nothing in thissection shallbe construed to prohibitState and local educational officialsfrom having access to studentor other records which may be necessary inconnection with theaudit and evaluation of any federally or State supported education program or in connection with the enforcement of the Federal legalrequirements which relatetoany such program, subject tothe conditionsspecified inthe proviso inparagraph (3). (6)(A) Nothing in this section shall be constmed to prohibit an institutionof postsecondary education from disclosing,to an alleged victim of any crime of violence (as thatterm isdefined in section 16 of Title 18), or a nonforcible sex offense, the finalresultsof any disciplinaryproceeding conducted by such institutionagainst the alleged perpetratorofsuch crime oroffense with respectto such crime or offense. .(B) Nothing inthissection shallbe construed to prohibitan institution of postsecondary education from disclosing the finalresultsof any disciplinaryproceeding conducted by such institutionagainst a student who isan alleged perpetratorof any crime of violence (asthatterm is defined insection 16 ofTitle 18),or anonforcible sex offense,if the institution determines as a resultof that disciplinaryproceeding thatthe student committed a violation of the institution's rulesor policieswith reapectto such crime or offense. (C) For thepurpose ofthisparagraph, the finalresultsofany disciplinaryproceeding-- (i)shall include only the name of the student, the violation committed, and any sanction imposed by the institution on that student; and (ii)may include the name ofany otherstudent,such asa victim orwitness, only with thewritten consent of that otherstudent. (7)(A) Nothing in thissection may be construed toprohibit aneducational institutionfrom disclosing information provided to the institution under section 14071 of Title42 conceming registeredsex offenders who are required to registerunder such section. (8B)The Secretary shall take appropriate steps to notify educational institutions that disclosure of information described insubparagraph (A) ispermitted, _ (c)Surveys ordata-gathering activities;regujations Not later than 240 days afterOctober 20, 1994, the Secretaryshall adopt appropriateregulations or procedures,or identifyexisting regulations or procedures, which protect the rightsof privacy of students and their families in connection with any surveys or data-gathering activitiesconducted, assisted,or authorized by theSeoretary or an administrativehead of an education agency. Regulations established under thissubsection shall includeprovisions controllingthe use, dissemination, and protection of such data. No survey or data-gathering activitiesshallbe conducted by the Secretary,or an administrative head of an education agency under an applicable program, unless such activities are authorized by law. (d)Stydents’ ratherthan parents’permission or consent For thepurposes of thissection, whenever a student has attained cighteen years of age, or is attending an institution of postsecondary education, thepermission or consent required ofand thenghts accorded to theparents of thestudent shallthereafteronly be requiredof and accorded to thestudent. (e)Informing parentsor students ofrightsunder thissection No funds shallbe made availableunder any applicable program to any educational agency or institution unless Copr. ® West 2003 No Claim to Orig.U.S. Govt. Works AUG 28 2083 @9:54 4154642612 PAGE.12 iia 29:39 4154642812 BUELL BERNER PAGE 13 a . Yd 9 20 USCA § 1232g Page 7 20 U.S.C.A. § 1232¢ ‘guch agency or institution effectively informs the parentsof students, orthe students, ifthey are eighteen years of age or older,orare attending an institution of postsecondary education, ofthe rightsaccorded them by thissection. (f)Enforcement; termination of assistance The Secretaryshall take appropriate actionsto enforce thissection and to deal with violationsof thissection, in accordance with thischapter, except thataction toterminate assistancemay be taken only if the Secretary finds there has been a failure to comply with thissection, and he has determined that compliance cannot be secured by voluntary means. ; (g)Office and review board; creation; functions The Secretary shallestablish ordesignate an officeand review board within the Department forthe purpose of investigating,processing,reviewing, and adjudicating violationsof thissection and complaints which may be filed concerning alleged violationsof this section. Except for theconduct of hearings, none of the functions of the Secretary under thissectionshall be cartiedout inany of theregional officesof such Department. (h)Disciplinary records; disclosure Nothing in thissection shallprohibitan educational agency or institution from-- (1) including appropriate information in the education record of any student concerning disciplinaryaction taken againstsuch student for conduct thatposed a significantriskto thesafety orwell-being of thatstudent,other students,or othermembers of theschool community; or (2)disclosing such information to teachers and school officials, including teachers and school officialsinother schools,who have legitimate educational interests in thebehavior of the student. (#)Drug and alcohol violation disclosures (1)In general Nothing inthis Act or the Higher Education Act of 1965 (20 U.S.C.A, § 1001 etseq.) shallbe construed to prohibitan institutionof higher education from disclosing,to a parent orlegal guardian of a student,information regarding any violationof any Federal, State,orlocal law,or of any ruleor policy ofthe institution, governing the use or possession of alcohol ora controlled substance, regardlessof whether that information ia contained inthe student'seducation records,if-- . (A) thestudent isunder the age of 21; and (B) the institution determines that thestudent has comunitted a disciplinaryviolationwith respect to such use OFpossession. (2)State law regarding disclosure Copr. © West 2003 No Claim to Orig.U.S. Govt. Works AUG 2@ 2603 89:55 4154642012 PAGE.13 22/20/2008 Q9:39 . 41S4642a12 BUELL BERNER PAGE 14 ~f "USCA 12328 . © © . Page 8 20U.S.C.A. § 1232¢ Nothing inparagraph (1)shall be construed tosupersede any provision ofState Jaw thatprohibits an institution ofhigher education from making thedisclosure described insubsection (a)of thissection. (j)Investigationand prosecution of terrorism (1)In general Notwithstanding subsections (a)through (i)or any provision of Statelaw, theAttomey General (or any Federal officeror employee, in a position not lower than an AssistantAttomey General, designated by the Attorney _ General) may subynita written application to a court ofcompetent jurisdictionfor an ex parteorder requiring an. educational agency or institution to permit the Attorney General (orhisdesignee) to-- (A) collecteducation records inthe possession ofthe educational agency or institutionthatare relevantto an authorized investigationor prosecution of an offense listedin section 23326(¢)(5)(B) ofTitle 18, oran actof domestic ar internationalterrorismas defined insection 2331 of thattitle;and (B) for officialpurposes related to the investigationor prosecution, of an offense desoribed inparagraph (1)(A), retain,disseminate, and use (including as evidence at trialor in other administrative or judicial proceedings) such records, consistentwith such guidelinesas the Attorney General, afterconsultation with the Secretary,shallissue toprotect confidentiality. (2)Application and approval (A) In general An applicationunder paragraph (1) shallcertifythat thereare specific and articulablefactsgiving reason to believe thattheeducation records are likelyto containinformation described in paragraph (1)(A}. (8) The court shallissue an order described in paragraph (1)if the court findsthat the applicationfor the order includesthe certification described in subparagraph (A). (3)Protection of educationalagency or institution An educationalagency or institution that,in good faith,produces education records in accordance with an order issuedunder thissubsection shallnotbe liableto any person forthat production. (4)Record-keeping Subsection (b)(4) of thissection does not apply to education records subject to a court order under this subsection. ; CREDIT(S) Copr. © West 2003 No Claim to Orig.U.S. Govt. Works @9:55 4154642012 PAGE.14 AUG 26 20839