By David Nash, Esq., Director of Legal Education and National Outreach and John Farinella, Esq., NJPSA Legal Counsel
What happens when a child shares sensitive information regarding sexual orientation or gender identity with a school counselor or other school personnel that a parent is not yet aware of? What if Immigrations and Customs Enforcement officers demand access to student information? What rights do parents have to access and review their child’s records and demand changes?
In light of shifting federal priorities, increasing litigation and heightened federal enforcement efforts, many school officials are confused about how to respond to these and other related questions regarding access to student information. In this article, we review key aspects of the Family Educational Rights and Privacy Act (FERPA), the Protection of Pupil Rights Amendment (PPRA), related state laws, and key legal considerations for school districts moving forward. That confusion was heightened by a recent letter from the Secretary of Education which is discussed below in order to clarify legal obligations for school officials.
March 28 Dear Colleague Letter
On March 28, 2025, the Secretary of Education, Linda McMahon, issued a letter to all Chief State School Officers and school district superintendents along with guidance from the Student Privacy Policy Office (SPPO). The letter from Secretary McMahon focused heavily on perceived efforts by school officials to “evade or misapply” the Family Educational Rights and Privacy Act (FERPA) and Protection of Pupil Records Amendment (PPRA) to keep parents in the dark in order to pursue indoctrination of children, citing efforts to promote” gender ideology” and “critical race theory.” Secretary McMahon announced “a revitalized effort to make FEPRA and PPRA the source of proactive, effective checks on schools that try to keep parents in the dark.”
The accompanying letter from SPPO, which has direct responsibility for overseeing FERPA and PPRA, provided more specific guidance on district legal obligations and priority concerns that the office intends to address. As noted in the SPPO letter, “FERPA protects the privacy interests and access rights of parents and students in education records maintained by educational agencies and institutions or by persons acting for such agencies or institutions. PPRA affords parents and students with rights concerning specified marketing activities, the administration or distribution of certain surveys to students, the administration of certain physical examinations or screenings to students, and parental access to certain instructional materials including ones used as part of a student’s educational curriculum.”
The priority concerns identified in the SPPO letter include:
- Parental Right to Inspect and Review Education Records;
- Safety of Students;
- Annual Notification of Parental Rights;
- Military Recruiters; and
- Assurance of Compliance.
What is a Student Record Under FERPA and NJ Law?
FERPA recognizes three types of student records that have various levels of protection – personally identifiable information, directory information, and education records.
“Personally identifiable information” is a FERPA term referring to identifiable information that is maintained in education records and includes direct identifiers, such as a student’s name or identification number, indirect identifiers, such as a student’s date of birth, or other information which can be used to distinguish or trace an individual’s identity either directly or indirectly through linkages with other information. FERPA includes strong protections for personally identifiable information of students, except for directory information which includes a lesser level of protection.
Under FERPA, directory information is a subset of personally identifiable information and is defined as “information contained in an education record of a student that would not generally be considered harmful or an invasion of privacy if disclosed.” This includes such items as a list of students’ names, addresses, and telephone numbers, and also includes a student ID number (including electronic identifiers) provided it cannot be used to gain access to education records. Directory information, however, does not include a student’s Social Security number nor can the Social Security number be used to confirm directory information. Under FERPA, school districts must provide annual notice to parents of their right to opt out of the sharing of directory information if they so choose, along with notice of other rights available to parents under FERPA.
FERPA defines “education records” as “records, files, documents, and other materials” that are “maintained by an educational agency or institution, or by a person acting for such agency or institution.”
Under New Jersey law, “Student Record” means any information related to an individual student gathered within or outside the school district and maintained within the school district, regardless of the physical form in which it is maintained. Essential in this definition is the idea that any information that is maintained for the purpose of second party review is considered a student record. Therefore, information recorded by any certified school personnel solely as a memory aid, not for the use of a second party, is excluded from this definition. See N.J.A.C. 6A:32-2.1. Note that even electronic communications with personal devices can create student records. For example, two staff members messaging each other about a student’s academic struggles or behavior issues would be considered a student record.
The March 28 SPPO letter cautioned districts that if a parent requests to see their child’s education records, school officials must make all records available, and cannot subvert the law by maintaining information in another place other than the student’s cumulative file. For example, if a school district had developed a gender support plan for a student that information would be considered part of the education record, regardless of whether it was maintained in the student’s official student record or not. The letter correctly noted that “FERPA does not distinguish between a student’s ‘official student record’ or ‘cumulative file.’ Rather, all information, with certain statutory exceptions, that is directly related to a student and maintained by an educational agency or institution, is part of the student’s ‘education records’ to which parents have a right to inspect and review.”
It is important to stress that both federal and state law recognize that a school officials’ personal notes, used solely as a memory aid, are not considered student records. “Records which are kept in the sole possession of the maker of the records, are used only as a personal memory aid, and are not accessible or revealed to any other person except a temporary substitute for the maker of the records.” Thus, the notes maintained by a school counselor working with a specific student, if not accessible or revealed to others, would be excluded from the definition of student records and would not be subject to inspection by a parent or others, absent a court order. See What records are exempted from FERPA? | Protecting Student Privacy.
Who Has Access to Student Records?
For a detailed description of who has access to student records and the conditions required, see A Parent Guide to the Family Educational Rights and Privacy Act (FERPA) and N.J.A.C. 6A:32-7.5. Generally speaking, access is limited to the following:
- Parents of a dependent student;
- School officials with a legitimate educational interest;
- The school/school district where the student seeks or intends to enroll;
- To those requesting Directory Information provided the parent has been provided notice of their rights to opt out of sharing such information and has not opted out;
- To authorized representatives of, among others, State and local educational authorities, such as a State department of education, in connection with an audit or evaluation of Federal- or State-supported education programs, or for the enforcement of or compliance with Federal legal requirements that relate to those programs;
- To a representative of a State or local child welfare agency or Tribal organization
- regarding a child in foster care;
- To State and local officials or authorities pursuant to a State statute concerning the juvenile justice system and the system’s ability to effectively serve the student whose records are being disclosed;
- To organizations conducting studies for, or on behalf of, the school for specified purposes including improving instruction;
- To comply with a judicial order or a lawfully issued subpoena; and
- In connection with a health or safety emergency.
Parental Rights: Access and Inspection versus Notice of New Information
As noted in the March 28 SPPO letter, “FERPA does not provide an affirmative obligation for school officials to inform” parents about information in the student’s educational record. That means that a school district does not have an obligation to proactively inform a parent every time new information is added to a student record. That is a critical point, and means, for example, that a school district has no obligation under FERPA to notify a parent when a student confides in a school official about that student’s gender identity or sexual orientation, or a myriad of other sensitive matters. Of course, other state and federal laws do require reporting of some information that school officials may learn regarding a student, such as information that the student may have been bullied or may have violated the district code of student conduct.
However, when a parent does request access to the student record, such access must be provided. That access must be provided within 45 days of the request. A school official is required to be present as the parent or guardian is reviewing the student record. Upon request, copies of records must also be provided, and the district may charge reasonable fees.
As noted in the March 28 SPPO letter, in some instances, a parent may have the right to access some limited information regarding other students, such as when it is necessary to protect health and safety. For example, if a student has threatened another student and the district is requiring that the two students not have contact with each other in school, parents must be notified and may know the name of the other student. In addition, if the school has video footage that is relevant to a student disciplinary matter a parent would have the right to view the video even if other students are recognizable in the video. See In Re Wachter, in which a Pennsylvania school district was advised by the U.S. Department of Education Office of the Chief Privacy Officer that a parent had a right to inspect video footage showing her son’s role in a hazing incident, even though the parents of other students did not consent to disclosure of their child’s images in the video. See also Letter to Anonymous, August 2017 regarding limited information sharing about the offending student when a student is the victim of harassment based on a protected class under federal law.
New Jersey law also specifically recognizes that some situations may arise where the parent of one child is entitled to see information about another child. See N.J.A.C. 6A:32-7.1(f), which provides that “[t]he parent or adult student shall have access to his or her own records and have access to or be specifically informed about only that portion of another student’s record that contains information about his or her child or himself or herself.”
Access to Records for Immigration Enforcement Purposes
On January 20th, the current federal administration rescinded prior guidance that had generally prohibited immigration enforcement efforts at public schools and in other sensitive areas. In response to this and other heightened concerns around immigration enforcement and the impact on public schools, the New Jersey Department of Education issued comprehensive guidance to school districts on January 22, 2025. See School-Related State and Federal Requirements Pertaining to Immigrant Students and Families.
As a preliminary matter, it is important to stress that school officials are prohibited from requiring proof of citizenship under the U.S. Supreme Court decision in Plyler v. Doe (1982). Given that Plyler continues to be the law of the land, school officials should never be collecting or maintaining information related to the citizenship status of a student or their family members.
The NJDOE guidance provides detailed information on responding if individuals purporting to be ICE officials were to appear at a school site and seek access to either student records or to students. As the guidance stresses, school officials should ensure that processes are in place to prevent unfettered access to students or records until such time as the school district is able to verify the identity of the individuals involved and whether or not there is a legal basis for accessing the students and/or student records. Generally speaking, ICE officials would be required to produce a judicially-issued warrant or court order, or establish the existence of exigent circumstances, before being granted such access. The school district should have procedures in place to verify the authenticity of any documentation produced and that a sufficient legal basis exists to allow access. See Primer – Undocumented Students – NJPSA Legal Department – NJPSA and FEA
ICE officials could, however, have the right to directory information, unless the parent has opted out of the sharing of such information. Along those lines, it would be prudent for school districts to consider proactively reminding all parents of their rights to opt out of the sharing of directory information. That notice must be done at least once annually, but can be provided more than once.
Note that other situations may require information sharing with state or local law enforcement officials. For a detailed review of the law regarding this, see the Uniform State Memorandum of Agreement Between Education and Law Enforcement Officials (MOA).
Proactively Addressing Foreseeable Issues
Issue: Some school staff members may be confused about their obligations and share information regarding gender identity with parents even though the student has asked that the information not be shared.
Response: School leaders should remind school district employees of the ongoing legal obligation under the New Jersey Law Against Discrimination to not automatically share information regarding gender identity in opposition to the student’s wishes absent other reporting obligations requiring the release of that information.
Issue: A parent may request to inspect their child’s education records and school officials may mistakenly believe that written documentation related to gender identity that is not a memory aid cannot be shared with the parent.
Response: If written documentation exists in school regarding a student’s gender identity that has been seen by more than one staff member that information must be made available if a parent requests to review their child’s education records.
Issue: ICE officials may produce an administrative warrant and demand access to students or student records.
Response: An administrative warrant is not sufficient to grant access to students or student records. Any documentation produced by ICE officials should be reviewed by the superintendent and school board attorney to determine whether it is a judicially issued warrant that must be honored.
Issue: ICE officials may demand access to directory information.
Response: Unless a parent has opted out of the sharing of directory information, that information must be provided. School districts should ensure that all parents understand their rights related to directory information.
Issue: Students in various marginalized communities, including students in the LGBTQIA+ community and multilingual learners, may be experiencing increased anxiety and potentially reduced attendance at school.
Response: School officials should engage in proactive measures to ensure a school climate that is safe and affirming and conducive to learning for all students. Schools should proactively consider accessing available resources to support student mental health. For additional information, see the NJDOEs website and resources here – Mental Health.
For additional Information on FERPA and PPRA see the following:
Annual FERPA and PPRA Notices: Annual Notices | Protecting Student Privacy
Parent Guide to FERPA – A Parent Guide to the Family Educational Rights and Privacy Act (FERPA)
FAQs on FERPA – Frequently Asked Questions | Protecting Student Privacy
FAQ on photos and videos under FERPA – FAQs on Photos and Videos under FERPA | Protecting Student Privacy
Moving Forward
As school districts seek to move forward and navigate this challenging environment, it is important that school leaders take the time to understand what has and hasn’t changed in state and federal law. School leaders should identify and address the professional learning needs for all staff members given the potential confusion that may exist. School leaders should continue to protect the privacy rights of students, ensure appropriate access to student information, and proactively support all students, including students in marginalized populations who may be fearful or confused and need assurance that schools remain a safe and affirming environment for all students.