As you may know if you have been reading my 2 Things: Special Education Law Tips Newsletter, there are laws which grant access rights to parents of their student’s educational records. This is especially true when the student is a child with a disability. Such rights are granted by the Family Educational Rights and Privacy Act (FERPA) and its regulations (20 U.S.C. §§1232g and 1232h and 34 C.F.R. §99.1 et seq.), by the Individuals with Disabilities Education Act (IDEA) and its regulations (20 U.S.C. §1415(b)(1)), and usually also by state laws and regulations (for example, in New Jersey it is the Special Education Code N.J.A.C. 6A:14-2.9).
But schools and their lawyers put up roadblocks to parents trying to review their child’s file. First, often they do not even inform the parents that they have the right to review those records, even though the law says they must tell the parents of such right. See 34 C.F.R. §99.7(a). Second, schools and/or their attorneys play games with the definition of “education records” so as to block parents from seeing ALL of their child’s file, even though “education records” is clearly defined by the laws. See 34 C.F.R. §99.3 Education Records. That definition has very few exceptions, so essentially everything “maintained by an educational agency or institution or by a party acting for the agency or institution” that is “directly related to a student” must be produced to the parent. 34 C.F.R. §99.3 Education Records.
There are some other delay tactics that schools will play, but from my perspective the most aggravating one is that the schools and/or their counsel take the position that I, as the attorney for the parent(s), may not review the records; that it must be done by the parents themselves. This is an inaccurate statement of the law and purely meant to obstruct this right. Most state laws permit the access and review of the records by a “designated representative” of the parent, e.g. the parent’s attorney. See e.g. N.J.A.C. 6A:14-2.9(b). I can understand the precaution if a neighbor wants to review the records, in which case a school should make sure that such neighbor has the consent of the parent. But when an attorney has already represented in writing that he/she is counsel for the parent, he/she is, by the nature of being an attorney-at-law, the legal designated representative of the parent.
This is the type of nonsense that needs to STOP in special education cases. This is a source of my anger at the legal profession because it reeks of a lawyer trying to rack up fees instead of having his/her client obey the law. It is no wonder that parents are so frustrated and annoyed by schools anymore, because it just seems like schools would prefer to play a litigation game rather than do the right thing for a child’s education. IMHO, of course.