No. 00-1073 

In the Supreme Court of the United States 

OWASSO INDEPENDENT SCHOOL DISTRICT NO. I-011, 

AKA OWASSO PUBLIC SCHOOLS, ET AL., PETITIONERS 

v. 
KRISTJA J. FALVO, PARENT AND NEXT FRIEND 
OF HER MINOR CHILDREN, ELIZABETH PLETAN, 
PHILIP PLETAN AND ERICA PLETAN 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE TENTH CIRCUIT 

BRIEF FOR THE UNITED STATES 
AS AMICUS CURIAE SUPPORTING PETITIONERS 

THEODORE B. OLSON 

Solicitor General 

Counsel of Record 

STUART E. SCHIFFER 

Acting Assistant Attorney 

General 

EDWIN S. KNEEDLER 

Deputy Solicitor General 

BETH S. BRINKMANN 

Assistant to the Solicitor 

General 

MARK B. STERN 
COLETTE G. MATZZIE 

Attorneys 

Department of Justice 
Washington, D.C. 20530-0001 
(202) 514-2217 

QUESTION PRESENTED 

The Family Educational Rights and Privacy Act of 1974 
(FERPA), 20 U.S.C. 1232g(b)(1) (1994 & Supp. V 1999), pro- 
hibits the furnishing of federal funds to an educational insti- 
tution that has a policy or practice of releasing, without pa- 
rental consent, students’ “education records,” which are de- 
fined by FERPA as “those records, files, documents, and 
other materials which—(i) contain information directly re- 
lated to a student; and (ii) are maintained by an educational 
agency or institution or by a person acting for such agency or 
institution.” 20 U.S.C. 1232g(a)(4)(A). The question pre- 
sented is: 

Whether allowing students to grade each other’s home- 
work and tests as their teacher goes over the correct ans- 
wers aloud in class violates FERPA’s prohibition against the 
release of “education records.” 

(I) 

TABLE OF CONTENTS 

Page 

Interest of the United States ...................................................... 
1 

Statement ........................................................................................ 2 

1. Statutory framework ....................................................... 

2 

2. Factual and procedural background ............................. 
4 

Summary of argument .................................................................. 
8 

Argument: 
“Education records” covered by the Family Educa- 
tional Rights and Privacy Act consist of documents 
retained or preserved as institutional records, not 
student homework or classroom work .............................. 
11 

A. FERPA’s definition of “education records” is 
most naturally read as referring to records that 
are retained or preserved as institutional 
records .............................................................................. 12 

B. The structure of FERPA confirms that the 
term “education records” means institutional 
records, not student homework or classroom 
work ................................................................................... 16 

C. The statutory history of FERPA and the pro- 
blems identified in the record before Congress 
confirm its focus on institutional records .................... 

20 

Conclusion ....................................................................................... 28 

Appendix ......................................................................................... 1a 

TABLE OF AUTHORITIES 

Cases: 

Chevron U.S.A. Inc. v. Natural Res. Def. Council, 

Inc., 467 U.S. 837 (1984) ...................................................... 

6 

Christensen v. Harris County, 529 U.S. 576 

(2000) ........................................................................................ 6 

Fay v. South Colonie Cent. Sch. Dist., 802 F.2d 

21 (2d Cir. 1986) ..................................................................... 

5 

Jarecki v. G.D. Searle & Co., 367 U.S. 303 (1961) ............ 13 

(III) 

IV 

Cases—Continued: Page 

Norfolk & W. Ry. v. American Train Dispatchers’ 

Ass’n, 499 U.S. 117 (1991) ................................................... 

13 

Tarka v. Cunningham, 917 F.2d 890 (5th Cir. 1990) ...... 

5 

United States v. Riverside Bayview Homes, Inc., 

474 U.S. 121 (1985) ................................................................ 

6 

Constitution, statutes and regulations: 

U.S. Const. Amend. XIV ......................................................... 

6 

Act of Dec. 31, 1974, Pub. L. No. 93-568, § 2(a)-(b), 88 

Stat. 1858: 

88 Stat. 1858-1862 ............................................................. 

22 

88 Stat. 1859-1860 ............................................................. 

23 

Campus Sex Crimes Prevention Act, Pub. L. No. 106- 

386, Div. B, Tit. VI, § 1601(d), 114 Stat. 1538 ................... 

12 

Education Amendments of 1974, Pub. L. No. 93-380, 

§ 513(a), 88 Stat. 571: 

88 Stat. 571 ......................................................................... 

20 

88 Stat. 572 ....................................................................... 

10, 21 

Family Educational Rights and Privacy Act of 1974, 

20 U.S.C. 1232g et seq.: 

20 U.S.C. 1232g (1994 & Supp. V 1999) ......................... 

12 

20 U.S.C. 1232g(a)(1)(A) ....................................... 

3, 17, 19, 1a 

20 U.S.C. 1232g(a)(1)(B) .................................................. 

3, 1a 

20 U.S.C. 1232g(a)(2) .............................................. 

4, 8, 17, 3a 

20 U.S.C. 1232g(a)(3) ........................................................ 

2, 3a 

20 U.S.C. 1232g(a)(4)(A) ............................................ 

4, 11, 3a 

20 U.S.C. 1232g(a)(4)(A)(i) ............................................ 

12, 3a 

20 U.S.C. 1232g(a)(4)(A)(ii) ....................................... 

7, 12, 4a 

20 U.S.C. 1232g(a)(4)(B)(i) ........................... 

4, 15, 16, 28, 4a 

20 U.S.C. 1232g(a)(4)(B)(ii)-(iv) ...................................... 

4 

20 U.S.C. 1232g(a)(5) ........................................................ 

2, 5a 

20 U.S.C. 1232g(b)(1) (1994 & Supp. V 1999) ......... 

2, 19, 6a 

20 U.S.C. 1232g(b)(1)(A) .................................................. 

16, 6a 

20 U.S.C. 1232g(b)(1)(A)-(J) (1994 & Supp. V 

1999) ................................................................................. 3 

V 

Statutes and regulations—Continued: 
Page 

20 U.S.C. 1232g(b)(2) .................................................. 

2, 19, 9a 

20 U.S.C. 1232g(b)(4)(A) ........................... 

3, 8, 9, 16, 17, 10a 

20 U.S.C. 1232g(b)(6)(A) (Supp. V 1999) .................. 

3, 11a 

20 U.S.C. 1232g(c) ......................................................... 

27, 12a 

20 U.S.C. 1232g(d) ............................................................. 

2, 12a 

20 U.S.C. 1232g(f) ....................................................... 

1, 5, 13a 

20 U.S.C. 1232g(g) ............................................................. 

1, 13a 

20 U.S.C. 1232g note ......................................................... 

22 

Privacy Act of 1974, 5 U.S.C. 552a(a)(3) ............................... 

6 

20 U.S.C. 1232a .......................................................................... 

18 

42 U.S.C. 1983 (1994 & Supp. V 1999) ................................... 

5 

34 C.F.R. Pt. 99: 

Section 99.1 ............................................................................. 

2 

Section 99.3 ............................................................................. 

2 

Section 99.22 ........................................................................... 

17 

Section 99.32 ........................................................................... 

3, 17 

Miscellaneous: 

Sarah C. Carey, Students, Parents and the School 

Record Prison: A Legal Strategy for Preventing 

Abuse, reprinted in 3 J.L. & Educ. 365 (July 1974) ........ 

26 

120 Cong. Rec. (1974): 

p. 9369 ...................................................................................... 

25 

pp. 9369-9370 .......................................................................... 

24 

p. 9370 ...................................................................................... 

25 

pp. 9633-9635 .......................................................................... 

24 

p. 9634 ...................................................................................... 

25, 26 

pp. 9645-9646 .......................................................................... 

24 

pp. 9928-9930 .......................................................................... 

26 

p. 9929 ...................................................................................... 

26 

pp. 10,142-10,144 .................................................................... 

26 

p. 13,951 ................................................................................... 

26, 27 

p. 13,952 ................................................................................... 

25, 27 

p. 13,953 ................................................................................... 

26 

p. 13,954 ................................................................................... 

26, 27 

p. 14,580 ................................................................................... 24, 26 

VI 

Miscellaneous—Continued: Page 

pp. 14,580-14,581 .................................................................... 

21 

pp. 14,581-14,582 .................................................................... 

27 

p. 14,582 ................................................................................... 

25 

p. 14,584 ................................................................................... 

21 

p. 14,588 ................................................................................... 

21 

p. 14,589 ................................................................................... 

21 

p. 14,594 ................................................................................... 

21 

p. 14,595 ................................................................................... 

27 

p. 17,718 .................................................................................... 

26 

p. 24,586 ................................................................................... 

21 

p. 26,106 ................................................................................... 

21 

p. 26,116 ................................................................................... 

21 

p. 26,125 ................................................................................... 

21 

pp. 36,528-36,531 .................................................................... 

24 

pp. 36,528-36,535 .................................................................... 

21 

p. 36,533 ................................................................................... 

22 

pp. 39,858-39,859 .................................................................... 

23 

p. 39,862 .................................................................. 

8, 9, 15, 18, 23 

pp. 39,862-39,863 .................................................................... 

23 

p. 40,549 ................................................................................... 

23 

p. 41,392 ................................................................................... 

23 

p. 41,394 ................................................................................... 

23 

121 Cong. Rec. 13,990 (1975) ................................................... 

25 

Diane Divoky, Cumulative Records: Assault on 

Privacy, Learning (Sept. 1973) ........................................... 

24 

Diane Divoky, How Secret School Records Can Hurt 

Your Child, Parade Magazine (Mar. 31, 1974) ................. 

26 

40 Fed. Reg. (1975): 

p. 1208 ...................................................................................... 

23 

p. 1211 ...................................................................................... 
13 

H.R. Conf. Rep. No. 1211, 93d Cong., 2d Sess. (1974) ........ 
21 

Letter from LeRoy S. Rooker, Director, Family 

Policy Compliance Office, to Mr. Andrew Marko 
(June 25, 1998) ........................................................................ 28 

VII 

Miscellaneous—Continued: Page 

Letter from LeRoy S. Rooker, Director, Family 

Policy Compliance Office, to Mr. Julio Almanza 
(Jan. 28, 2000) ......................................................................... 
28 

Random House Dictionary of the English Language 
(2d ed. 1987) ............................................................................ 
13 

J. William Rioux & Stuart A. Sandow, Children, 

Parents and School Records (May 1974) .......................... 

26 

Russell Sage Foundation, Guidelines for the Collection, 

Maintenance & Dissemination of Pupil Records 
(1970) ........................................................................................ 25 

S. Conf. Rep. No. 1026, 93d Cong., 2d Sess. (1974) ............. 

21 

S. Conf. Rep. No. 1409, 93d Cong., 2d Sess. (1974) ............. 
23 

Webster’s Third New International Dictionary: 
(1993) ........................................................................................ 13 

In the Supreme Court of the United States 

No. 00-1073 
OWASSO INDEPENDENT SCHOOL DISTRICT NO. I-011, 

AKA OWASSO PUBLIC SCHOOLS, ET AL., PETITIONERS 

v. 

KRISTJA J. FALVO, PARENT AND NEXT FRIEND 
OF HER MINOR CHILDREN, ELIZABETH PLETAN, 
PHILIP PLETAN AND ERICA PLETAN 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE TENTH CIRCUIT 

BRIEF FOR THE UNITED STATES 
AS AMICUS CURIAE SUPPORTING PETITIONERS 

INTEREST OF THE UNITED STATES 

This suit was filed by respondent, the parent of three 
students in the petitioner school district, alleging that peti- 
tioners violated the prohibition against release of her child- 
ren’s “education records” under the Family Educational 
Rights and Privacy Act of 1974 (FERPA), 20 U.S.C. 1232g(f). 
FERPA applies to schools and educational agencies that re- 
ceive financial assistance under federal education programs 
administered by the Secretary of Education. FERPA di- 
rects the Secretary of Education to “take appropriate ac- 
tions to enforce” FERPA and to investigate, review, and ad- 
judicate alleged violations of the statute. 20 U.S.C. 1232g(g). 
At the Court’s invitation, the United States filed a brief as 
amicus curiae at the petition stage of this case. 

(1) 

2 

STATEMENT 

1. Statutory framework 

In 1974, Congress enacted the Family Educational Rights 
and Privacy Act (FERPA), 20 U.S.C. 1232g(b)(1) (1994 & 
Supp. V 1999) to provide parents with access to their child- 
ren’s “education records” and to protect the children’s rights 
of privacy by limiting the release of such records without 
parental consent.1 FERPA requires schools and educational 
agencies to comply with its requirements as a condition to 
receiving financial assistance under federal education pro- 
grams administered by the Secretary of Education. See 20 
U.S.C. 1232g(a)(3); 34 C.F.R. 99.1. 

FERPA first provides that “[n]o funds shall be made 
available under any applicable program to any educational 
agency or institution which has a policy or practice of per- 
mitting the release of education records (or personally 
identifiable information contained therein other than direc- 
tory information, as defined in [20 U.S.C. 1232g(a)(5)2]) of 
students without the written consent of their parents,” ex- 
cept in certain statutorily specified circumstances. 20 U.S.C. 
1232g(b)(1) (1994 & Supp. V 1999); see also 20 U.S.C. 
1232g(b)(2). The statute allows release of “education re- 
cords,” without parental consent, to other teachers and 
school officials who have been determined by the institution 
to have legitimate educational interests, officials of other 
schools in which the student seeks to enroll, certain state and 
federal educational and law enforcement officials, persons 

1 In the case of a student who has reached age 18 or “is attending an 
institution of postsecondary education,” the rights accorded by FERPA 
belong to the student rather than the parents. See 20 U.S.C. 1232g(d). 

2 “[D]irectory information” includes such information as the student’s 
name, address, date and place of birth, major field of study, participation 
in officially recognized activities and sports, dates of attendance, and 
degrees and awards received. 20 U.S.C. 1232g(a)(5); 34 C.F.R. 99.3. 

3 

designated in a subpoena for law enforcement purposes, vic- 
tims of certain crimes at a postsecondary institution, and 
educational testing, financial aid, and accrediting organi- 
zations. 20 U.S.C. 1232g(b)(1)(A)-(J) (1994 & Supp. V 1999); 
20 U.S.C. 1232g(b)(6)(A) (Supp. V 1999). The institution 
must “maintain a record, kept with the education records of 
each student,” that identifies each organization, agency, and 
individual (except other school officials, including teachers of 
the same school or local education agency) that requests or 
obtains access to the education records and specification of 
their legitimate interest in obtaining such information. 20 
U.S.C. 1232g(b)(4)(A); see 34 C.F.R. 99.32. 

FERPA also requires a school to make “education re- 
cords” of students available to their parents for inspection 
and review. Thus, FERPA specifies that “[n]o funds shall be 
made available under any applicable program to any edu- 
cational agency or institution which has a policy of denying, 
or which effectively prevents, the parents of students who 
are or have been in attendance at a school of such agency or 
at such institution . . . the right to inspect and review the 
education records of their children.” 20 U.S.C. 1232g(a)(1) 
(A); see also 20 U.S.C. 1232g(a)(1)(B) (applying inspection 
and review requirements to State educational agencies). 

Finally, schools that receive federal financial assistance 
under federal education programs administered by the 
Secretary of Education must also provide parents an oppor- 
tunity to challenge the accuracy of their child’s “education 
records.” Parents must be afforded a hearing “to challenge 
the content of such student’s education records, in order to 
insure that the records are not inaccurate, misleading, or 
otherwise in violation of the privacy rights of students, and 
to provide an opportunity for the correction or deletion of 
any such inaccurate, misleading or otherwise inappropriate 
data contained therein and to insert into such records a 

4 

written explanation of the parents respecting the content of 
such records.” 20 U.S.C. 1232g(a)(2). 

The term “education records” is defined by FERPA to 
mean: 
those records, files, documents, and other materials 
which– 

(i) contain information directly related to a student; 
and 

(ii) are maintained by an educational agency or 
institution or by a person acting for such agency or 
institution. 

20 U.S.C. 1232g(a)(4)(A). FERPA excludes from that defini- 
tion several specific categories of records. The first excep- 
tion is for “records of instructional, supervisory, and admini- 
strative personnel and educational personnel ancillary there- 
to which are in the sole possession of the maker thereof and 
which are not accessible or revealed to any other person 
except a substitute.” 20 U.S.C. 1232g(a)(4)(B)(i). Other ex- 
ceptions cover certain law enforcement, employment, and 
medical records. 20 U.S.C. 1232g(a)(4)(B)(ii) - (iv). 

2. Factual and procedural background. 

a. Respondent Kristja Falvo is the mother of three child- 
ren who are enrolled in petitioner Owasso Independent 
School District No. I-011, in a suburb of Tulsa, Oklahoma. 
During the 1997-1998 and 1998-1999 school years, respon- 
dent objected to the practice of teachers in her children’s 
classes having students grade one another’s homework and 
tests while the teacher went over the correct answers in 
class and, after the students received back their own papers, 
having the students call out their grades to the teacher. Pet. 
App. A3, B2. Respondent complained about the practice to 
school counselors and to the school district superintendent, 
claiming that it “severely embarrassed her children by 

5 

allowing other students to learn their grades.” Id. at A3. 
Respondent was informed that her children had the option of 
reporting their grades to the teacher confidentially, but the 
school district declined to prohibit the student grading of 
schoolwork. Id. at A3-A4. 

b. In October 1998, respondent filed the instant action in 
the United States District Court for the Northern District of 
Oklahoma, under 42 U.S.C. 1983 (1994 & Supp. V 1999). She 
alleged that the challenged grading practice violated 
FERPA and sought damages and declaratory and injunctive 
relief against the Owasso School District and various school 
and school district officials. Pet. App. A4. 

The district court, ruling on cross-motions for summary 
judgment, entered judgment for petitioners. Pet. App. B1- 
B6.3 The district court held that allowing a student to grade 
the paper of another student and to have students call out 
their grades in class does not violate FERPA. Id. at B2-B4. 
The court relied (id. at B2-B3) on the Department of Edu- 
cation’s interpretation of FERPA set forth in a letter dated 
July 15, 1993, from the Department’s Family Policy Com- 
pliance Office (see id. at F3-F6) that FERPA does not pro- 
hibit the practices at issue here. The court noted that the 
Department of Education is the agency charged with enforc- 
ing FERPA, see 20 U.S.C. 1232g(f) and, as such, its inter- 
pretation of the statute “is entitled to deference if it is 

3 On October 16, 1998, in an order denying respondent’s request for a 
temporary restraining order, the court stated that, for purposes of that 
motion, it was following the holdings of two other circuits that a plaintiff 
may bring a FERPA claim under 42 U.S.C. 1983 (1994 & Supp. V 1999). 
See Pet. App. C4 (citing Fay v. South Colonie Cent. Sch. Dist., 802 F.2d 21 
(2d Cir. 1986); Tarka v. Cunningham, 917 F.2d 890 (5th Cir. 1990)). Peti- 
tioners did not raise that issue on appeal, but the court of appeals ad- 
dressed the issue sua sponte and reached the same conclusion as the 
district court. Pet. App. A10-A16. Petitioners did not seek review of that 
ruling in their certiorari petition. 

6 

reasonable and not in conflict with the expressed intent of 
Congress.” Pet. App. B3 (quoting United States v. Riverside 
Bayview Homes, Inc., 474 U.S. 121, 131 (1985)). The court 
rejected respondent’s contention that it should adopt the 
definition of “maintain” in the Privacy Act of 1974, 5 U.S.C. 
552a(a)(3), which includes “collect,” “use,” and “disseminate” 
material. The court emphasized that Congress did not 
choose to incorporate that special definition into FERPA. 
The court instead construed “maintain” in accordance with 
its ordinary meaning of “preserve” or “retain” and held that 
the Department of Education’s interpretation of FERPA 
was reasonable in light of that construction and did not con- 
flict with the expressed intent of Congress. Pet. App. B4.4 

c. The court of appeals reversed the judgment of the dis- 
trict court on the FERPA claim. The court first concluded 
that the terms “education records” and “maintain” are “clear 
from the statute itself ” and that deference therefore was not 
due the Department of Education’s interpretation under 
Chevron U.S.A. Inc. v. Natural Resources Defense Council, 
Inc., 467 U.S. 837, 842-844 (1984). Pet. App. A18-A19. The 
court further held that, in any event, Chevron deference was 
not owed to that interpretation because it was contained in 
an opinion letter. Id. at A19 (citing Christensen v. Harris 
County, 529 U.S. 576, 586-587 (2000)). The court recognized 
that such an interpretive letter is “ ‘entitled to respect’ 
under * * * Skidmore v. Swift & Co., 323 U.S. 134, 140 
(1944),” but the court found the letter to have minimal per- 
suasive power under Skidmore. Id. at A19-A20. 

4 The district court also rejected respondent’s contention that the 
grading practices violated the Fourteenth Amendment, holding that a stu- 
dent’s “interim tests and homework assignments” “are not ‘highly per- 
sonal’ matters worthy of constitutional protection.” Pet. App. B5. The 
court of appeals affirmed that ruling, id. at A6-A10, and it is not at issue 
here. 

7 

Turning to its own analysis of the statutory terms, the 
court stated that the only disagreement was over whether 
the grades placed by one student on the paper of another are 
“maintained . . . by a person acting for [an educational] 
agency or institution,” for purposes of the second element of 
the statutory definition of the term “education records.” 20 
U.S.C. 1232g(a)(4)(A)(ii). Pet. App. A21. The court noted 
that at least some of the grades that are reported to the 
teacher are then recorded in the teacher’s grade book. The 
court concluded that the grades become education records at 
least at that time because, in its view, a teacher’s grade book 
and the grades it contains are “maintained . . . by a person 
acting for” an educational institution and therefore are 
“education records.” Pet. App. A21-A24. The court then 
concluded that the grades are also “maintained . . . by a 
person acting for” the school, and therefore are “education 
records,” even at what the court acknowledged to be “the 
more preliminary stage when one student simply writes the 
grade of a fellow student on homework and test papers.” Id. 
at A24. The court reasoned that when one student writes 
the grade of another student on the homework or test, the 
correcting student is a “person acting for [an educational] 
agency or institution.” Ibid. (quoting 20 U.S.C. 1232g(a)(4) 
(A)(ii)). And the court held that the student is “maintain- 
[ing]” the grade by marking the homework or test paper, 
“because the student is preserving the grade until the time it 
is reported to the teacher for further use.” Ibid. 

The court rejected petitioners’ submission that other pro- 
visions of FERPA demonstrate that Congress did not intend 
to include in the definition of “education records” the student 
grading of other students’ work under the auspices of an 
individual teacher. Pet. App. A25-A26. Petitioners argued 
that a broad definition of “education records” that includes 
student work graded by another student is inconsistent with 
the statutory requirement that educational institutions pro- 

8 

vide parents with a right to a hearing to challenge education 
records, 20 U.S.C. 1232g(a)(2), and maintain a record of all 
persons who have requested or obtained access to a stu- 
dent’s education records, 20 U.S.C. 1232g(b)(4)(A). The 
court explained that “Congress could have sensibly intended 
to provide parents a means to challenge the accuracy of 
grades on individual homework and test papers,” Pet. App. 
A26, and that schools could continue the practice of having a 
central custodian keep records of who was granted access 
even though such papers remain under the individual 
teacher’s classroom supervision, id. at A27-A28.5 

d. On October 4, 2000, the court entered an order deny- 
ing petitioners’ petition for rehearing and suggestion for en 
banc review. Pet. App. D1-D6. 

Four judges dissented from the denial of rehearing en 
banc. Pet. App. D2-D6. Those judges questioned how 
grades on individual student papers could be education re- 
cords when, in their view, even a teacher’s grade book is nor- 
mally not an education record, except in limited circum- 
stances. Ibid. They also expressed the view that it “seem[s] 
impossible, if not implausible,” that a school must provide 
the right to a hearing to challenge each of the “thousands of 
grades a student might receive over time” and maintain a 
record of access to each such grade. Pet. App. D5. (citing 
120 Cong. Rec. 39,862 (1974)). 

SUMMARY OF ARGUMENT 

A. The definition of “education records” in FERPA is 
most naturally read as referring to records that are retained 
or preserved as institutional records, but not student home- 
work or classroom work. Several features of the statutory 

5 The court of appeals held that the individual petitioners were enitled 
to qualified immunity from liability for money damages because it was not 
clearly established that the challenged grading practice violated FERPA. 
Pet. App. A2-A3; A29-A32. 

9 

definition—its use of the terms “records,” “maintained,” and 
“educational agency or institution or * * * person acting 
for such agency or institution”—demonstrate that Congress 
addressed FERPA to records that are maintained as an 
institutional matter by school officials. Student work like 
the homework and classroom tests at issue in this case are 
typically not kept by the teacher, let alone maintained as 
a school record. The fact that a particular classroom practice 
may disclose a grade given on a particular homework or 
classroom assignment does not mean that the practice 
violates FERPA. FERPA does not invalidate such common 
and longstanding teaching methods. 

B. The structure of the Act also demonstrates that stu- 
dent homework and classroom work are not included in 
FERPA’s definition of “education records.” The Act’s re- 
quirement that schools maintain a record of persons who 
have sought or obtained access to education records, and the 
interest of those persons in such information, confirms that 
student work is not covered. That section refers to “the 
school official and his assistants who are responsible for the 
custody of such records,” thereby addressing records that 
are maintained on an institutional basis, not student work 
that teachers have in their separate classrooms. 20 U.S.C. 
1232g(b)(4)(A). Also, if student homework were considered 
to be education records under FERPA, the Act’s require- 
ment that schools afford parents the right to inspect home- 
work and classroom work, as well as a right to challenge the 
content of such papers, would have constituted a major 
departure from ordinary education practices. There is no 
indication that Congress intended such a change. That re- 
sult also would be contrary to the manifest congressional 
intent that parents not be granted a right to challenge the 
substance of the grades given a student, but only “the ac- 
curacy of institutional records which record the grade which 
was actually given.” 120 Cong. Rec. 39,862 (1974) (Joint 

10 

Statement of sponsors of amendment that added definition of 
“education records”). Moreover, FERPA’s overall focus on 
policies and practices of educational agencies and institutions 
indicates that Congress did not intend to interfere with the 
varying pedagogical judgments made by individual teachers 
regarding the handling and use of homework and other 
student work in the classroom. 

C. The statutory history of FERPA confirms that Con- 
gress intended that the Act apply to institutional records, 
not student work. As originally enacted, FERPA did not 
use the term “education records,” but instead used three 
different descriptions to identify the materials that were 
subject to the three provisions regarding parental access, 
the right to a hearing, and the prohibition against release 
without parental consent. The most expansive description 
referred to “official records,” including the material “incor- 
porated into each student’s cumulative record folder.” Edu- 
cation Amendments of 1974, Pub. L. No. 93-380, 88 Stat. 572. 
Congress subsequently enacted the definition of “education 
records” and inserted that term in place of the earlier 
descriptions of covered records. The statements on the floor 
of both the Senate and the House, as well as the Conference 
Reports, relating to FERPA both as originally enacted, and 
as amended by the insertion of the term “education records,” 
all refer to “institutional records,” “school records,” and sim- 
ilar descriptions of the records at issue, but not to student 
homework or classroom work. Likewise, the concerns iden- 
tified in the legislative record before Congress demonstrate 
that FERPA was addressed to institutional records, not stu- 
dent homework and classroom assignments. 

11 

ARGUMENT 

“EDUCATION RECORDS” COVERED BY THE FAMILY 
EDUCATIONAL RIGHTS AND PRIVACY ACT CON- 
SIST OF DOCUMENTS RETAINED OR PRESERVED 

AS INSTITUTIONAL RECORDS, NOT STUDENT 
HOMEWORK OR CLASSROOM WORK 

The term “education records” in FERPA, 20 U.S.C. 
1232g(a)(4)(A), refers to materials that are preserved or 
retained by an educational agency or institution, or someone 
acting for such agency or institution, as an institutional or 
official record of a student. That term does not include 
student work that is created, used, or kept in the classroom 
and is not made part of a student’s institutional record. 
FERPA therefore does not prohibit such common and long- 
standing classroom practices as students’ grading other 
students’ homework or classroom work or students’ calling 
out their grades in class on homework and classroom work. 
That conclusion is supported by the text of the statutory de- 
finition of “education records,” numerous other provisions of 
FERPA that use the term “education records” or are other- 
wise worded in a way that refers to institutional records, 
FERPA’s statutory history, and the legislative record be- 
fore Congress.6 

6 Although the Department of Education previously has expressed a 
view of “education records” that includes student work once it is collected 
by the teacher (see note 17, infra), we have concluded, on the basis of our 
review of the relevant statutory materials, as discussed below, that 
FERPA does not reach student work unless they are maintained as 
institutional records of the school. 

12 

A. FERPA’s Definition Of “Education Records” Is Most 

Naturally Read As Referring To Records That Are Re- 
tained Or Preserved As Institutional Records 

1. FERPA defines “education records” as the “records, 
files, documents, and other materials” containing information 
related to a student that “are maintained by an educational 
agency or institution or by a person acting for such agency or 
institution.” 20 U.S.C. 1232g(a)(4)(A)(i) and (ii). See App., 
infra, 3a-4a.7 By defining the statute’s scope in terms of 
records “maintained” by “an educational agency or insti- 
tution,” or by “a person acting for such agency or institu- 
tion,” Congress addressed FERPA to records that are main- 
tained, as an institutional matter, by school officials, and 
that therefore are of some lasting significance outside the 
classroom. By contrast, the definition’s text is not naturally 
read to encompass materials that are handled by numerous 
individual teachers as part of the ongoing educational pro- 
cess in their separate classrooms. It follows that the home- 
work and classroom assignments of students are outside 
FERPA’s focus on institutional records. 

Other features of the statutory definition point in the 
same direction. The list of items in the definition—“records, 
files, documents, and other materials”—connote in this 
setting the school’s documentation of a student’s perfor- 
mance, not the actual performance (i.e., the student’s work 
product, such as homework and classroom assignments) 
itself. The word “record” means “evidence, knowledge, or 
information remaining in permanent form”; “an account 
in writing or print * * * or in some other permanent form 

* * * intended to perpetuate a knowledge of acts or 

7 Section 1232g of Title 20 of the United States Code is reproduced in 
full, as now in effect as amended by the Campus Sex Crimes Prevention 
Act, Pub. L. No. 106-386, Div. B, Tit. VI, §1601(d), 114 Stat. 1538, at App., 
infra, 1a-15a. 

13 

events”; or “something that serves to record.” Webster’s 
Third New International Dictionary (Webster’s) 1898 (1993) 
(defs. 1c(1) and (2), 2). The words “files” and “documents” 
are naturally associated with institutional records but not 
with a student’s homework, classroom assignments, artwork, 
and the like. 

The final term in the definition—“materials”—is a generic 
term that should be understood to take its basic content 
from the other words in the series. See Norfolk & W. Ry. v. 
American Train Dispatchers’ Ass’n, 499 U.S. 117, 129 (1991) 
(discussing the maxim “ejusdem generis,” which indicates 
that “when a general term follows a specific one, the general 
term should be understood as a reference to subjects akin to 
the one with specific enumeration”); Jarecki v. G.D. Searle 
& Co., 367 U.S. 303, 307 (1961) (explaining that the maxim 
“noscitur a sociis,” which means that “a word is known by 
the company it keeps,” “is often wisely applied where a word 
is capable of many meanings in order to avoid the giving of 
unintended breadth to the Acts of Congress”). Thus, the 
term “materials,” read in this context and in light of stan- 
dard tools of statutory construction, should be read to refer 
to data of a nature similar to “records,” “files,” and “docu- 
ments,” although the term presumably was intended to be 
expansive in identifying the form such records may take 
(e.g., data stored permanently on computers on behalf of the 
institution). See 40 Fed. Reg. 1211 (1975) (explaining that, 
under FERPA, the “term ‘record’ is defined broadly to in- 
clude all information and data maintained on a student in any 
medium”). 

That conclusion is further reinforced by the ordinary 
meaning of “maintain,” which is “to keep in existence or con- 
tinuance; preserve; retain.” Random House Dictionary of 
the English Language 1160 (2d ed. 1987); see also Webster’s 
1362 (maintain: “1: to keep in a state of repair, efficiency, or 
validity: preserve from failure or decline”). FERPA’s use of 

14 

the term “maintained”—in conjunction with “records,” 
“files,” “documents,” and “institution”—in the definition of 
“education records” thus further supports an interpretation 
that refers to the official or permanent records that are 
retained by an institution, not student work that is handled 
by other students or the teacher or that is kept by the 
teacher in the classroom. 

2. Under this interpretation of the statutory definition, 
FERPA applies, for example, to final course grades, student 
grade point averages, standardized test scores, attendance 
records, intelligence tests, psychological tests, aptitude 
and vocational tests, counseling records, career assessments, 
health and family history records, records of disciplinary 
proceedings and actions, and individualized education plans, 
because they are part of the institutional record of the stu- 
dent. FERPA does not, however, apply to the handling of 
the work product of students themselves, such as routine 
homework assignments or tests and other classroom activi- 
ies, or to regulate or interfere with the ability of a school or 
teacher to carry out educational activities and functions. 

The student homework and classroom tests at issue in this 
case, like many other assignments, often are not kept even 
by the teacher. Instead, such work is often returned to the 
students (or their parents), although actual practices may 
vary widely. For example, a teacher may have possession of 
student work (for reviewing or grading) before returning it 
to a student; a teacher may have other students grade stu- 
dent work; or a teacher may grade and keep student work in 
a file to review it with parents at a conference or to help the 
student or teacher assess the student’s progress over the 
course of the school year. In none of those instances is 
the teacher “maintaining” “records,” however, because the 
teacher does not retain or preserve the student work on a 
more permanent basis. A fortiori the teacher’s possession of 
the student work at various times during the school year 

15 

does not constitute “maintaining” of the work as a docu- 
mentation of the student’s performance by the institution.8 

The fact that a particular classroom practice may disclose 
a grade given on a particular homework or classroom assign- 
ment does not mean that the practice violates FERPA. 
Many educational practices inevitably reveal aspects of a 
student’s academic abilities and are weighed as a part of a 
student’s final course evaluation, including, for example, the 
public display of science projects, the posting of a classroom 
chart that records the number of books read by each student 
throughout the school year, students’ handing back graded 
homework and classroom assignments, and teachers’ posting 
of homework or classroom assignments. FERPA does not 
invalidate such common and longstanding teaching methods.9 

8 Of course, if student homework and classroom work were, in fact, 
maintained as part of the institutional records of the school, they would be 
education records. For example, if a copy of a student’s work is placed in a 
school’s cumulative file concerning the student as an example of academic 
performance, that copy would be an education record. Or, if a school’s 
final evaluation of a student in an art course consisted of a portfolio of 
selected pieces of the student’s work and that portfolio was retained in the 
institution’s records about the student, those pieces, too, would be edu- 
cation records. This case, however, does not involve such a practice. 

9 The court of appeals erred in assuming (Pet. App. A21-A24) that a 
teacher’s grade book is an education record under FERPA. FERPA 
excludes from the definition of “education records” the records of instruc- 
tional personnel that are in the “sole possession of the maker thereof ” and 
are “not accessible or revealed to any other person except a substitute.” 
20 U.S.C. 1232g(a)(4)(B)(i). That exception applies to teacher grade books 
that are revealed only in the limited manner it allows, which presumably 
would include most teacher grade books. See 120 Cong. Rec. 39,862 (1974) 
(describing statutory exception for “[t]he private notes and other materi- 
als, such as a teacher’s daily record book, created by individual school per- 
sonnel (such as teachers, deans, doctors, etc.) as memory aides”). 

Under FERPA, if a teacher discloses his or her grade book to someone 
other than a substitute, the grade book would then become an education 
record. The teacher’s disclosure of the grade book would not violate 

16 

B. The Structure Of FERPA Confirms That The Term 

“Education Records” Means Institutional Records, 

Not Student Homework Or Classroom Work 

1. The meaning of “education records” as revealed in 
several respects by the statutory definition of that term is 
reinforced by a number of other provisions of the Act. The 
first is the provision that requires educational agencies and 
institutions to maintain a record of the individuals and en- 
tities (other than certain officials and teachers in the same 
school or school district) who request or obtain access to a 
student’s “education records maintained by such educational 
agency or institution,” 20 U.S.C. 1232g(b)(4)(A), thus reiter- 
ating the focus on institutional records, not classroom work. 
In addition, that section directs that the access records, 
which are to be “kept with the education records of each stu- 
dent,” may be made available only to parents, school audi- 
tors, and “the school official and his assistants who are 
responsible for the custody of such records.” Ibid. (emphasis 
added). By describing a “school official” and “his assistants” 
as the personnel responsible for the custody of education 
records, Section 1232g(b)(4)(A) underscores that “education 
records” means those records that are maintained on an 
institutional basis, not student work that individual teachers 
may have in their separate classrooms. 

FERPA, however, if it was made to another school official or teacher of 
the same school or school district who has been determined by the insti- 
tution “to have legitimate educational interests, including the educational 
interests of the child for whom consent would otherwise be required.” 20 
U.S.C. 1232g(b)(1)(A) (allowing disclosure, without parental consent, of 
education records to such officials and teachers). By contrast, disclosure 
of a class roster listing grades from a teacher’s grade book would violate 
FERPA because the disclosure would remove the grade book from the 
“sole possession” exception of Section 1232g(a)(4)(B)(i) and such disclosure 
of education records is not authorized under FERPA. 

17 

2. The structure of FERPA’s provisions regarding pa- 
rental inspection, hearings, and correction of records also 
demonstrate that Congress could not have intended for 
FERPA to apply to student homework and classroom as- 
signments. The designation of a document as an education 
record under FERPA means not only that it is subject to re- 
strictions against release without parental consent, but also 
that parents have a right to inspect and review the record, a 
right to a hearing to challenge the content of the record to 
ensure that it is not inaccurate, misleading, or otherwise in 
violation of the privacy rights of the student, and a right to 
insert a written explanation by the parents regarding the 
content of the records. 20 U.S.C. 1232g(a)(1)(A) and (2). In 
addition, as discussed above, a school must maintain a record 
of those who request or obtain access to an education record. 
20 U.S.C. 1232g(b)(4)(A); 34 C.F.R. 99.32. 

That FERPA grants such extensive procedural rights 
strongly supports the conclusion that the “education re- 
cords” to which those rights attach consist only of the 
materials, typically permanent in nature, that are part of a 
school’s institutional records pertaining to a student and 
therefore have the potential for the sort of lasting impact on 
the student that would warrant the formal procedural pro- 
tections. As suggested by the judges who dissented from 
denial of rehearing en banc, it “seem[s] impossible, if not 
implausible,” that all schools throughout the country must 
provide the right to a hearing to challenge each of the “thou- 
sands of grades a student might receive over time” and 
maintain a record of access to each piece of homework and 
classroom work. Pet. App. D5; see 34 C.F.R. 99.22 (explaini- 
ng that minimum requirements for a hearing include that it 
be conducted by an individual, who may or may not be an 
official of the school, so long as he or she does not have a 
direct interest in the outcome, and that parents may present 

18 

evidence and be assisted or represented by another in- 
dividual, including an attorney). 

Imposing on schools throughout the nation the burden and 
cost of the procedural requirements for parental inspection, 
hearings, correction of records, and documentation of access 
with regard to every student homework assignment and 
classroom exercise would have constituted a major and in- 
trusive departure from ordinary educational practices. 
There is no indication that Congress intended that the enact- 
ment of FERPA, including its definition of “education re- 
cords,” would have that effect. To the contrary, when Con- 
gress enacted the definition of “education records,” the 
accompanying Joint Statement by Senators Buckley and 
Pell, the proponents of the amendment in the Senate, ex- 
plicitly stated that the amendment was “not intended to 
overturn established standards and procedures for the 
challenge of substantive decisions made by the institution.” 
120 Cong. Rec. 39,862 (1974). The Joint Statement em- 
phasized: 

There has been much concern that the right to a hearing 
will permit a parent or student to contest the grade 
given the student’s performance in a course. That is not 
intended. It is intended only that there be procedures to 
challenge the accuracy of institutional records which 
record the grade which was actually given.” 

Ibid. (emphasis added); see ibid. (stating that hearing pro- 
cedures must be adapted to different circumstances and 
noting that “[i]t is not the intent of the Amendment to bur- 
den schools with onerous hearing procedures”). See also 20 
U.S.C. 1232a (stating that no provision of any federal edu- 
cational program shall be construed to authorize federal 
exercise of “direction, supervision, or control over the curri- 
culum, program of instruction, administration, or personnel 
of any educational institution, school, or school system”). 

19 

To be sure, in connection with a hearing concerning a stu- 
dent’s course grade (which is an education record when 
entered in the student’s institutional file), the parents might 
bring with them any homework or classroom assignments 
that have been returned to the student, in an effort to sup- 
port their view that the course grade was inaccurately re- 
corded in the school’s institutional records. Parents might 
also ask to see any of their child’s coursework that the 
teacher may still have in the classroom. But such ancillary 
reference to the student’s work for evidentiary purposes 
does not transform the student work itself into “education 
records” under FERPA. 

3. The wording of FERPA’s substantive restrictions also 
shows that Congress focused on the policies and practices 
of schools and educational agencies, not the conduct of in- 
dividual teachers. For example, the statutory provision 
regarding inspection and review of education records states 
that “[n]o funds shall be made available under any applicable 
program to any educational agency or institution which has a 
policy of denying, or which effectively prevents,” parents 
from inspecting and reviewing their child’s education re- 
cords. 20 U.S.C. 1232g(a)(1)(A). Similarly, the provisions re- 
stricting the release of education records without parental 
consent are directed at “any educational agency or insti- 
tution which has a policy or practice of permitting the re- 
lease of education records” or of “releasing, or providing 
access to,” personally identifiable information in education 
records. 20 U.S.C. 1232g(b)(1) and (2) (1994 & Supp. V 1999). 
The policies and practices of a school district or school 
typically apply on a school-wide basis to the content and 
handling of institutional records containing such materials as 
student transcripts, standardized test scores, student health 
records, counselors’ notes, and the like that are maintained 
by the school. By contrast, a teacher’s own handling of stu- 
dent homework or classroom work that the teacher has 

20 

assigned in the exercise of his or her professional judgment 
typically depends on the teacher’s view of the educational 
benefits of a variety of practices, e.g., whether to grade cer- 
tain assignments, whether to review certain student work 
individually or in a group, whether to post certain work, 
whether to keep certain work in the classroom for the stu- 
dent or teacher to review during the school year, etc. 
FERPA’s focus on policies and practices of the institution 
indicates that Congress did not intend to interfere with 
those kinds of pedagogical judgments made by individual 
teachers. 

10 

C. The Statutory History Of FERPA And The Problems 

Identified In The Record Before Congress Confirm Its 

Focus On Institutional Records 

1. Congress enacted FERPA on August 21, 1974, as Sec- 
tion 513(a) of the Education Amendments of 1974, Pub. L. 
No. 93-380, 88 Stat. 571. As initially enacted, FERPA did 
not use the term “education records” or contain a definition 
of that term. Instead, it used three different descriptions to 
identify the materials that were subject to the three 
statutory provisions regarding parental access, the right to a 
hearing, and the prohibition against release without parental 
consent. Significantly, the most expansive description of 
covered records provided parents a right to inspect “any and 
all official records, files, and data directly related to their 
children, including all material that is incorporated into each 
student’s cumulative record folder, and intended for school 

10 Even if a school district had a policy of requiring teachers to keep 
certain student work in the classroom or in the teachers’ own files during 
the course, term, or school year, that policy would not necessarily convert 
the work of the students into institutional or official records of the school. 
Such a school district policy might be directed to the pedagogical and pro- 
fessional practices of the individual teacher in the classroom, not to the 
official recordkeeping functions of the school district itself. 

21 

use or to be available to parties outside the school or school 
system, and specifically including, but not necessarily limited 
to, identifying data, academic work completed, level of 
achievement (grades, standardized achievement test scores), 
attendance data, scores on standardized intelligence, 
aptitude, and psychological tests, interest inventory results, 
health data, family background information, teacher or 
counselor ratings and observations, and verified reports of 
serious or recurrent behavior patterns.” Id. at 572 
(emphasis added); see also ibid. (providing parents with the 
right to a hearing to challenge the content of “their child’s 
school records” and prohibiting release, without parental 
consent (except in limited circumstances), of “personally 
identifiable records or files”) (emphasis added); see also, e.g., 
120 Cong. Rec. at 14,580-14,581, 14,584, 14,588, 14,589, 14,594 
(discussion of FERPA in the Senate, referring to “school 
records”); id. at 26,106, 26,116, 26,125 (discussion of FERPA 
during House debate on the Conference Report, referring to 
“school files,” “official records,” “cumulative record folder,” 
and “school records”); S. Conf. Rep. No. 1026, 93d Cong., 2d 
Sess. 186 (1974) (discussing parental rights under FERPA 
“to inspect their children’s files and * * * to a hearing to 
contest their child’s ‘school records’”); 120 Cong. Rec. at 
24,586 (H.R. Conf. Rep. No. 1211, 93d Cong., 2d Sess. (1974) 
(same)). 

Thus, the subject of FERPA as originally enacted was 
institutional records, not a student’s homework or classroom 
assignments. Questions nevertheless soon arose about 
FERPA’s scope and operation. A few months later, on 
FERPA’s effective date (November 19, 1974), various docu- 
ments relating to FERPA were inserted into the Con- 
gressional Record by Senator Buckley, one of the principal 
sponsors of the law. See 120 Cong. Rec. at 36,528-36,535. 
One of those documents was a series of questions and ans- 
wers that addressed concerns regarding FERPA, including 

22 

an inquiry about the breadth of the statutory term “any and 
all official records, files, and data,” which described the 
materials to which parents were guaranteed access. This 
document stated that FERPA applied to “official records or 
files or data” that were “‘intended for school use or to be 
available to parties outside the school or school system,’ ” id. 
at 36,533 (quoting statute), and explained that “[r]ecords 
‘intended for school use’ should generally include those 
established by an office or a division of the school for the use 
of that office or division,” ibid. The document further em- 
phasized that “[t]he definition of the words ‘official’ and 
‘intended for school use’ are of major importance,” that regu- 
lations were being developed, that consideration may pro- 
perly be given to the “use to which the files are put,” and 
that the law should be implemented “with an attitude of rea- 
sonableness.” Ibid. 

The question-and-answer document submitted by Senator 
Buckley also addressed the question whether FERPA re- 
quired a school to provide a hearing to a student who wished 
to challenge a grade received on an essay. 120 Cong. Rec. at 
36,533. The response dismissed that concern as “another red 
herring,” explaining that “[t]he question of a grade is a 
matter to be taken up with the teacher involved, and per- 
haps the department chairman,” and that hearings are for 
instances of “erroneous information (as a grade incorrectly 
recorded), anecdotal comments or evaluations by teachers, 
or personal information on the student or parents which 
probably has no business being in such a file.” Ibid. 

Against that backdrop, on December 19, 1974, Congress 
enacted an amendment, retroactive to the original effective 
date, 

11 to resolve ambiguities that had been identified in 
FERPA, including “[c]larifying the definition of the 

11 See Act of Dec. 31, 1974, Pub. L. No. 93-568, § 2(a) and (b), 88 Stat. 
1858-1862; 20 U.S.C. 1232g note. 

23 

education records involved.” 120 Cong. Rec. at 41,392; id. at 
40,459. As part of that amendment, Congress added the 
definition of “education records,” and inserted that term in 
place of the list of materials to which parents were accorded 
a right of access, and in place of the description of the re- 
cords that were to be subject to challenge, the right to a 
hearing, and not to be released without parental consent. 88 
Stat. 1859-1860. The Conference Report stated that 
FERPA, as originally enacted, “contain[ed] a laundry list of 
items which are to be available to parents and students” and 
made “inconsistent references to ‘personally identifiable 
information, school records,’ etc.,” and explained that the 
new amendment “uses the generic designation, ‘education 
records’ and defines that term.” S. Conf. Rep. No. 1409, 93d 
Cong., 2d Sess. 10 (1974); 120 Cong. Rec. at 40,549 (same). 

The Joint Statement presented by Senators Buckley and 
Pell, the proponents of the amendment, similarly explained 
that use of the generic term “ ‘education records,’ elimi- 
nat[ed] the long list of illustrative examples” contained in 
FERPA as originally enacted. 120 Cong. Rec. at 39,862. 
Consistent with the manifest intent of Congress simply to 
clarify the meaning of “education records” covered by the 
Act, the Joint Statement and other statements by Members 
of Congress during the debate on the amendment refer to 
“institutional records,” “school records,” and “documents 

* * * used by the institution in making institutional de- 
cisions concerning a student.” See, e.g., id. at 39,858-39,859, 
39,862-39,863, 41,394. There is, by contrast, no indication in 
the legislative history that Congress intended to depart from 
the focus of FERPA as originally enacted on “official” re- 
cords, the student’s “cumulative file,” and “school records.” 
See also 40 Fed. Reg. at 1208 (Secretary’s notice of proposed 
rulemaking to promulgate regulations to implement FERPA 
provisions that establish certain rights regarding students’ 
“official records”). 

24 

2. The legislative record before Congress at the time 
FERPA was enacted also supports the conclusion that Con- 
gress intended FERPA to apply to institutional records of 
students, not to student homework or classroom assign- 
ments. That record demonstrates that Congress was con- 
cerned with the rapid expansion of information included in 
students’ institutional records and the potential for misuse of 
such information by schools, employers, and government 
agencies, to which such information was regularly released. 
Senator Buckley explained that “[w]hen parents and stu- 
dents are not allowed to inspect school records and make 
corrections, numerous erroneous and harmful material[s] can 
creep into the records. Such inaccurate materials can have 
devastatingly negative effects on the academic future and 
job prospects of an innocent, unaware student.” 120 Cong. 
Rec. at 14,580. 

Representative Kemp had raised concerns about protect- 
ing the privacy rights of parents and students in school 
records, citing an article that traced the “growth of student 
records into an all-inclusive dossier.” The article discussed 
instances in which parents were unable to gain access to 
schools files and reported occasions on which schools had 
disclosed files that contained misleading or inappropriate 
information about a student or his family. 120 Cong. Rec. at 
9369-9370; see also id. at 9633-9635, 9645-9646) (reproducing 
Diane Divoky, Cumulative Records: Assault on Privacy, 
Learning (Sept. 1973)); id. at 36,528-36,531 (same)). Repre- 
sentative Kemp quoted the article’s description of a typical 
student record compiled in the New York City school 
system—a description limited to the official school file—and 
spoke of the “potential misuse by disclosure of extensive 

25 

information about pupils, maintained in the various public 
and private school systems.” Id. at 9369. 

12 

The article discussed by Representative Kemp also re- 
ferred to a survey by the Russell Sage Foundation, which 
had found that “the [school] systems maintained[,] as part of 
their permanent files” a wide range of information on stu- 
dents; that such information was accessible to federal law 
enforcement offices in more than half the school systems; but 
that parents had access to the whole file in less than ten per- 
cent of the systems. 120 Cong. Rec. at 9634. The article then 
summarized proposed record-keeping guidelines (developed 
by the Russell Sage Foundation as a result of the survey) 
that recommended: no collection of data from students with- 
out parental consent; maintenance of only basic data on a 
permanent record card, with other information periodically 
reviewed and destroyed where appropriate; verification of 
the accuracy of the data in pupil records; parental access to 
their child’s whole record, “including the right to challenge 
the accuracy of the information found therein”; and no access 
to pupil data, without parental consent, by persons other 
than school personnel who deal with the child. Ibid. 

13 

12 That New York City school record contained a wide range of materi- 
als, including grades, standardized test scores, and health records, as well 
as an “anecdotal file” by teachers on student behavior, and reports by 
counselors, psychologists, and social workers. 120 Cong. Rec. at 9370. 

13 The Russell Sage Foundation’s publication, Guidelines for the Col- 
lection, Maintenance & Dissemination of Pupil Records (1970) (Guide- 
lines), was discussed elsewhere in the legislative record. See, e.g., 120 
Cong. Rec. at 13,952; 14,582. 

The Guidelines’ discussion of pupil records 

focuses on “school records.” Guidelines 13-14, 26-27, 32, 36-37. The only 
reference to student work is a reference to “[w]ork samples” as one type 
of information that may be contained in pupil records. Id. at 48 (emphasis 
added); see also id. at 20-21, 48. In a speech in 1975, Senator Buckley 
explained that the recommendations in the Guidelines “in large part 
formed the basis” of the amendment that he proposed and that became 
FERPA. See 121 Cong. Rec. 13,990 (1975). 

26 

Neither Representative Kemp nor the article made any 
mention of homework or classroom work as a subject of 
concern. The article noted only that “samples of student 
work” (120 Cong. Rec. at 9634) are sometimes included by 
schools in their permanent files on students—where they 
would be “education records.” 

14 

When Senator Buckley thereafter introduced FERPA on 
the floor of the Senate (as an amendment to the Education 
Amendments of 1974), he spoke of the problems posed by 
“secret school records” and cited a similar article by the 
same author. 120 Cong. Rec. at 13,951; see also id. at 13,953 
(reproducing Diane Divoky, How Secret School Records Can 
Hurt Your Child, Parade Magazine (Mar. 31, 1974)). That 
article expressed concerns about student records that in- 
clude not just “hard data, such as IQ scores, medical records, 
and grades,” but also “soft data,” such as teacher anecdotes, 
notes on parent interviews, and disciplinary reports that are 
“routinely filed away in school offices or stored in computer 
data banks.” 120 Cong. Rec. at 13,953; see also id. at 13,954, 
14,580, 17,718 (citing a handbook prepared by the National 
Committee for Citizens in Education, J. William Rioux & 
Stuart A. Sandow, Children, Parents and School Records 
(May 1974), that addressed official, institutional files). 

15 

14 Representative Kemp also entered into the Congressional Record a 
research paper that discussed strategies for preventing abuses of 
information contained in “school records.” See 120 Cong. Rec. at 9928- 
9930, 9985-9987, 10,142-10,144 (reproducing Sarah C. Carey, Students, 
Parents and the School Record Prison: A Legal Strategy for Preventing 
Abuse, reprinted in 3 J.L. & Educ. 365 (July 1974)). The article discussed 
students’ “permanent file[s]” and criticized the “voluminous and subjec- 
tive or unverifiable material that goes into a child’s file in many school 
systems.” Id. at 9929. 

15 The congressional debates on FERPA also addressed concerns about 
students being subjected to psychological and other testing without 
parental consent (e.g., 120 Cong. Rec. at 13,951), and the gathering of data 

27 

Neither Senator Buckley nor the article expressed any con- 
cern about student homework or classroom work. 

16 

Thus, the legislative record demonstrates that Congress 
was concerned that institutional records maintained by 
schools on students contained too much misleading and 
inappropriate information that parents could not review, and 
that such information was being disclosed by schools to 
other people making decisions about the student, such as 
employers and government agencies. Congress enacted 
FERPA to respond to those concerns and, accordingly, ad- 
dressed the statute’s protections to institutional records. 

17 

from students, including by federal agencies, through questionnaires 
about very personal habits of the students and their families (e.g., ibid.). 
The provision introduced to address the first concern was defeated on the 
Senate floor, id. at 14,595, but the provision addressing the second concern 
was enacted as part of FERPA, see 20 U.S.C. 1232g(c). 

16 Senator Buckley also had printed in the Congressional Record 
several sample “parental consent” forms to demonstrate that parental 
consent requirements would not cause undue problems. See 120 Cong. 
Rec. at 13,952, 13,954; see also id. at 14,581-14,582. The sample forms were 
from the Russell Sage Foundation Guidelines, see note 13, supra, and 
referred to “permanent pupil records” that included materials such as the 
official administrative record, standardized test scores, teacher and 
counselor observations, and family background data. 120 Cong. Rec. at 
13,954. 

17 The Department of Education, in a letter issued by its Family Policy 
Compliance Office (FPCO) in 1993, expressed the view that FERPA does 
not “prohibit teachers from allowing students to grade a test or homework 
assignment of another student or from calling out that grade in class.” 
Pet. App. F4. On the other hand, a recent review of FPCO’s files reveals 
that on a number of occasions the Department has issued technical 
assistance letters and letters of findings that conclude that the term 
“education records” includes student work once it is collected by a teacher. 
Although that analysis does not contradict the conclusion that the practice 
at issue in this case does not violate FERPA, such a practice would have 
been perceived by FPCO to violate FERPA if the teacher had collected 
the student work and then handed the work back for students to correct 

28 

CONCLUSION 

The judgment of the court of appeals should be reversed. 

Respectfully submitted. 

THEODORE B. OLSON 

Solicitor General 

STUART E. SCHIFFER 

Acting Assistant Attorney 

General 

EDWIN S. KNEEDLER 

Deputy Solicitor General 

BETH S. BRINKMANN 

Assistant to the Solicitor 

General 

MARK B. STERN 
COLETTE G. MATZZIE 

Attorneys 

AUGUST 2001 

the work of other students. See Letter from LeRoy S. Rooker, Director, 
Family Policy Compliance Office, to Mr. Julio Almanza (Jan. 28, 2000). To 
the extent these and related letters may be regarded as inconsistent with 
the position set forth in this brief (e.g., treating teacher grade books as 
education records that are not covered by the “sole possession” exception, 
20 U.S.C. 1232g(a)(4)(B)(i), see Letter from LeRoy S. Rooker, Director, 
Family Policy Compliance Office, to Mr. Andrew Marko (June 25, 1998)), 
this brief represents the position of the United States on the issue. 

The brief filed at the petition stage in response to the Court’s invitation 
stated (at 13-14, 17-19) that, in response to the court of appeals’ decision in 
this case, the Department of Education had determined that it would issue 
regulations or formal guidance setting forth a more detailed analysis of the 
meaning of “education records” under FERPA and the application of 
FERPA to a variety of practices, including the grading practice at issue in 
this case. In light of the Court’s decision to review this case, however, the 
Department determined that since the Court would be addressing the 
applicability of FERPA to the education practice at issue in this case and 
perhaps the meaning of “education records” more broadly, it would not at 
this time issue such regulations or guidance. Accordingly, this brief 
represents the position of the United States in this case. 

APPENDIX 

Section 1232g of Title 20 of the United States Code 
provides: 

§ 1232g. 

Family educational and privacy rights 

(a) Conditions for availability of funds to educational 

agencies or institutions; inspection and review of 
education records; specific information to be 
made available; procedure for access to education 

records; reasonableness of time for such access; 
hearings; written explanations by parents; defini- 
tions 

(1)(A) No funds shall be made available under any 
applicable program to any educational agency or institution 
which has a policy of denying, or which effectively prevents, 
the parents of students who are or have been in attendance 
at a school of such agency or at such institution, as the case 
may be, the right to inspect and review the education 
records of their children. If any material or document in the 
education record of a student includes information on more 
than one student, the parents of one of such students shall 
have the right to inspect and review only such part of such 
material or document as relates to such student or to be 
informed of the specific information contained in such part of 
such material. Each educational agency or institution shall 
establish appropriate procedures for the granting of a 
request by parents for access to the education records of 
their children within a reasonable period of time, but in no 
case more than forty-five days after the request has been 
made. 

(B) No funds under any applicable program shall be 
made available to any State educational agency (whether or 
not that agency is an educational agency or institution under 

(1a) 

2a 

this section) that has a policy of denying, or effectively 
prevents, the parents of students the right to inspect and 
review the education records maintained by the State 
educational agency on their children who are or have been in 
attendance at any school of an educational agency or 
institution that is subject to the provisions of this section. 

(C) The first sentence of subparagraph (A) shall not 
operate to make available to students in institutions of 
postsecondary education the following materials: 

(i) financial records of the parents of the student or 
any information contained therein; 

(ii) confidential letters and statements of recom- 
mendation, which were placed in the education records 
prior to January 1, 1975, if such letters or statements are 
not used for purposes other than those for which they 
were specifically intended; 

(iii) if the student has signed a waiver of the student’s 
right of access under this subsection in accordance with 
subparagraph (D), confidential recommendations— 

(I) respecting admission to any educational 
agency or institution, 

(II) respecting an application for employment, 
and 

(III) respecting the receipt of an honor or 
honorary recognition. 

(D) A student or a person applying for admission may 
waive his right of access to confidential statements described 
in clause (iii) of subparagraph (C), except that such waiver 
shall apply to recommendations only if (i) the student is, 

3a 

upon request, notified of the names of all persons making 
confidential recommendations and (ii) such recommendations 
are used solely for the purpose for which they were 
specifically intended. Such waivers may not be required as a 
condition for admission to, receipt of financial aid from, or 
receipt of any other services or benefits from such agency or 
institution. 

(2) No funds shall be made available under any applicable 
program to any educational agency or institution unless the 
parents of students who are or have been in attendance at a 
school of such agency or at such institution are provided an 
opportunity for a hearing by such agency or institution, in 
accordance with regulations of the Secretary, to challenge 
the content of such student’s education records, in order to 
insure that the records are not inaccurate, misleading, or 
otherwise in violation of the privacy rights of students, and 
to provide an opportunity for the correction or deletion of 
any such inaccurate, misleading or otherwise inappropriate 
data contained therein and to insert into such records a 
written explanation of the parents respecting the content of 
such records. 

(3) For the purposes of this section the term “educational 
agency or institution” means any public or private agency or 
institution which is the recipient of funds under any 
applicable program. 

(4)(A) For the purposes of this section, the term “edu- 
cation records” means, except as may be provided otherwise 
in subparagraph (B), those records, files, documents, and 
other materials which— 

(i) contain information directly related to a student; 
and 

4a 

(ii) are maintained by an educational agency or 
institution or by a person acting for such agency or 
institution. 

(B) The term “education records” does not include— 

(i) records of instructional, supervisory, and 
administrative personnel and educational personnel 
ancillary thereto which are in the sole possession of the 
maker thereof and which are not accessible or revealed to 
any other person except a substitute; 

(ii) records maintained by a law enforcement unit of 
the educational agency or institution that were created by 
that law enforcement unit for the purpose of law 
enforcement; 

(iii) in the case of persons who are employed by an 
educational agency or institution but who are not in 
attendance at such agency or institution, records made 
and maintained in the normal course of business which 
relate exclusively to such person in that person’s capacity 
as an employee and are not available for use for any other 
purpose; or 

(iv) records on a student who is eighteen years of 
age or older, or is attending an institution of post- 
secondary 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 con- 
nection with the provision of treatment to the student, 
and are not available to anyone other than persons pro- 
viding such treatment, except that such records can be 

5a 

personally reviewed by a physician or other appropriate 
professional of the student’s choice. 

(5)(A) For the purposes of this section the term “direc- 
tory information” relating to a student includes the follow- 
ing: the student’s name, address, telephone listing, date and 
place of birth, major field of study, participation in officially 
recognized activities and sports, weight and height of 
members of athletic teams, dates of attendance, degrees and 
awards received, and the most recent previous educational 
agency or institution attended by the student. 

(B) Any educational agency or institution making public 
directory information shall give public notice of the cate- 
gories of information which it has designated as such 
information with respect to each student attending the insti- 
tution or agency and shall allow a reasonable period of time 
after such notice has been given for a parent to inform the 
institution or agency that any or all of the information 
designated should not be released without the parent’s prior 
consent. 

(6) For the purposes of this section, the term “student” 
includes any person with respect to whom an educational 
agency or institution maintains education records or per- 
sonally identifiable information, but does not include a per- 
son who has not been in attendance at such agency or 
institution. 

6a 

(b) Release of education records; parental consent 
requirement; exceptions; compliance with judicial 

orders and subpoenas; audit and evaluation of 
federally-supported education programs; record- 
keeping 

(1) No funds shall be made available under any 
applicable program to any educational agency or institution 
which has a policy or practice of permitting the release of 
education records (or personally identifiable information 
contained therein other than directory information, as de- 
fined in paragraph (5) of subsection (a) of this section) of 
students without the written consent of their parents to any 
individual, agency, or organization, other than to the 
following— 

(A) other school officials, including teachers within the 
educational institution or local educational agency, who have 
been determined by such agency or institution to have 
legitimate educational interests, including the educational 
interests of the child for whom consent would otherwise be 
required; 

(B) officials of other schools or school systems in which 
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 for a 
hearing to challenge the content of the record; 

(C)(i) authorized representatives of (I) the Comptroller 
General of the United States, (II) the Secretary, or (III) 
State educational authorities, under the conditions set forth 
in 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); 

7a 

(D) in connection with a student’s application for, or 
receipt of, financial aid; 

(E) State and local officials or authorities to whom such 
information is specifically allowed to be reported or disclosed 
pursuant to State statute adopted— 

(i) before November 19, 1974, if the allowed 
reporting or disclosure concerns the juvenile justice 
system and such system’s ability to effectively serve the 
student whose records are released, or 

(ii) after November 19, 1974, if— 

(I) the allowed reporting or disclosure concerns 
the juvenile justice system and such system’s ability 
to effectively serve, prior to adjudication, the student 
whose records are released; and 

(II) the officials and authorities to whom such 
information is disclosed certify in writing to the 
educational agency or institution that the information 
will not be disclosed to any other party except as 
provided under State law without the prior written 
consent of the parent of the student.1 

(F) organizations conducting studies for, or on behalf of, 
educational agencies or institutions for the purpose of devel- 
oping, validating, or administering predictive tests, admin- 
istering student aid programs, and improving instruction, if 
such studies are conducted in such a manner as will not 
permit the personal identification of students and their 
parents by persons other than representatives of such 
organizations and such information will be destroyed when 
no longer needed for the purpose for which it is conducted; 

1 So in original. The period probably should be a semicolon. 

8a 

(G) accrediting organizations in order to carry out their 
accrediting functions; 

(H) parents of a dependent student of such parents, as 
defined in section 152 of Title 26; 

(I) subject to regulations of the Secretary, in connection 
with an emergency, appropriate persons if the knowledge of 
such information is necessary to protect the health or safety 
of the student or other persons; and 

(J)(i) the entity or persons designated in a Federal grand 
jury subpoena, in which case the court shall order, for good 
cause shown, the educational agency or institution (and any 
officer, director, employee, agent, or attorney for such 
agency or institution) on which the subpoena is served, to 
not disclose to any person the existence or contents of the 
subpoena or any information furnished to the grand jury in 
response to the subpoena; and 

(ii) the entity or persons designated in any other 
subpoena issued for a law enforcement purpose, in which 
case the court or other issuing agency may order, for good 
cause shown, the educational agency or institution (and any 
officer, director, employee, agent, or attorney for such 
agency or institution) on which the subpoena is served, to 
not disclose to any person the existence or contents of the 
subpoena or any information furnished in response to the 
subpoena. 

Nothing in clause (E) of this paragraph shall prevent a 
State from further limiting the number or type of State or 
local officials who will continue to have access thereunder. 

(2) No funds shall be made available under any 
applicable program to any educational agency or institution 

9a 

which has a policy or practice of releasing, or providing 
access to, any personally identifiable information in 
education records other than directory information, or as is 
permitted under paragraph (1) of this subsection, unless— 

(A) there is written consent from the student’s parents 
specifying records to be released, the reasons for such 
release, and to whom, and with a copy of the records to be 
released to the student’s parents and the student if desired 
by the parents, or 

(B) except as provided in paragraph (1)(J), such 
information is furnished in compliance with judicial order, or 
pursuant to any lawfully issued subpoena, upon condition 
that parents and the students are notified of all such orders 
or subpoenas in advance of the compliance therewith by the 
educational institution or agency. 

(3) Nothing contained in this section shall preclude 
authorized representatives of (A) the Comptroller General of 
the United States, (B) the Secretary, or (C) State educa- 
tional authorities from having access to student or other 
records which may be necessary in connection with the audit 
and evaluation of Federally-supported education programs, 
or in connection with the enforcement of the Federal legal 
requirements which relate to such programs: Provided, 
That except when collection of personally identifiable infor- 
mation is specifically authorized by Federal law, any data 
collected by such officials shall be protected in a manner 
which will not permit the personal identification of students 
and their parents by other than those officials, and such 
personally identifiable data shall be destroyed when no 
longer needed for such audit, evaluation, and enforcement of 
Federal legal requirements. 

10a 

(4)(A) Each educational agency or institution shall 
maintain a record, kept with the education records of each 
student, which will indicate all individuals (other than those 
specified in paragraph (1)(A) of this subsection), agencies, or 
organizations which have requested or obtained access to a 
student’s education records maintained by such educational 
agency or institution, and which will indicate specifically the 
legitimate interest that each such person, agency, or 
organization has in obtaining this information. Such record of 
access shall be available only to parents, to the school official 
and his assistants who are responsible for the custody of 
such records, and to persons or organizations authorized in, 
and under the conditions of, clauses (A) and (C) of paragraph 
(1) as a means of auditing the operation of the system. 

(B) With respect to this subsection, personal information 
shall only be transferred to a third party on the condition 
that such party will not permit any other party to have 
access to such information without the written consent of 
the parents of the student. If a third party outside the 
educational agency or institution permits access to infor- 
mation in violation of paragraph (2)(A), or fails to destroy 
information in violation of paragraph (1)(F), the educational 
agency or institution shall be prohibited from permitting 
access to information from education records to that third 
party for a period of not less than five years. 

(5) Nothing in this section shall be construed to prohibit 
State and local educational officials from having access to 
student or other records which may be necessary in 
connection with the audit and evaluation of any federally or 
State supported education program or in connection with the 
enforcement of the Federal legal requirements which relate 
to any such program, subject to the conditions specified in 
the proviso in paragraph (3). 

11a 

(6)(A) Nothing in this section shall be construed to pro- 
hibit an institution of postsecondary education from 
disclosing, to an alleged victim of any crime of violence (as 
that term is defined in section 16 of Title 18), or a nonforcible 
sex offense, the final results of any disciplinary proceeding 
conducted by such institution against the alleged perpetrator 
of such crime or offense with respect to such crime or 
offense. 

(B) Nothing in this section shall be construed to prohibit 
an institution of postsecondary education from disclosing the 
final results of any disciplinary proceeding conducted by 
such institution against a student who is an alleged 
perpetrator of any crime of violence (as that term is defined 
in section 16 of Title 18), or a nonforcible sex offense, if the 
institution determines as a result of that disciplinary pro- 
ceeding that the student committed a violation of the insti- 
tution’s rules or policies with respect to such crime or 
offense. 

(C) For the purpose of this paragraph, the final results 
of any disciplinary proceeding— 

(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 of any other student, such 
as a victim or witness, only with the written consent of 
that other student. 

(7)(A) Nothing in this section may be construed to 
prohibit an educational institution from disclosing infor- 
mation provided to the institution under section 14071 of 
Title 42 concerning registered sex offenders who are re- 
quired to register under such section. 

12a 

(B) The Secretary shall take appropriate steps to notify 
educational institutions that disclosure of information 
described in subparagraph (A) is permitted. 

(c) Surveys or data-gathering activities; regulations 

Not later than 240 days after October 20, 1994, the 
Secretary shall adopt appropriate regulations or procedures, 
or identify existing regulations or procedures, which protect 
the rights of privacy of students and their families in 
connection with any surveys or data-gathering activities 
conducted, assisted, or authorized by the Secretary or an 
administrative head of an education agency. Regulations 
established under this subsection shall include provisions 
controlling the use, dissemination, and protection of such 
data. No survey or data-gathering activities shall be con- 
ducted by the Secretary, or an administrative head of an 
education agency under an applicable program, unless such 
activities are authorized by law. 

(d) Students’ rather than parents’ permission or 
consent 

For the purposes of this section, whenever a student has 
attained eighteen years of age, or is attending an institution 
of postsecondary education, the permission or consent 
required of and the rights accorded to the parents of the 
student shall thereafter only be required of and accorded to 
the student. 

(e) Informing parents or students of rights under this 
section 

No funds shall be made available under any applicable 
program to any educational agency or institution unless such 
agency or institution effectively informs the parents of 

13a 

students, or the students, if they are eighteen years of age or 
older, or are attending an institution of postsecondary 
education, of the rights accorded them by this section. 

(f) Enforcement; termination of assistance 

The Secretary shall take appropriate actions to enforce 
this section and to deal with violations of this section, in 
accordance with this chapter, except that action to terminate 
assistance may be taken only if the Secretary finds there has 
been a failure to comply with this section, and he has 
determined that compliance cannot be secured by voluntary 
means. 

(g) Office and review board; creation; functions 

The Secretary shall establish or designate an office and 
review board within the Department for the purpose of 
investigating, processing, reviewing, and adjudicating 
violations of this section and complaints which may be filed 
concerning alleged violations of this section. Except for the 
conduct of hearings, none of the functions of the Secretary 
under this section shall be carried out in any of the regional 
offices of such Department. 

(h) Disciplinary records; disclosure 

Nothing in this section shall prohibit an educational 
agency or institution from— 

(1) including appropriate information in the 
education record of any student concerning disciplinary 
action taken against such student for conduct that posed a 
significant risk to the safety or well-being of that student, 
other students, or other members of the school com- 
munity; or 

14a 

(2) disclosing such information to teachers and 
school officials, including teachers and school officials in 
other schools, who have legitimate educational interests 
in the behavior of the student. 

(i) Drug and alcohol violation disclosures 

(1) In general 

Nothing in this chapter [20 U.S.C.A. § 1221 et seq.] or 
chapter 28 of this title [20 U.S.C.A. § 1001 et seq.] shall be 
construed to prohibit an institution of higher education from 
disclosing, to a parent or legal guardian of a student, 
information regarding any violation of any Federal, State, or 
local law, or of any rule or policy of the institution, governing 
the use or possession of alcohol or a controlled substance, 
regardless of whether that information is contained in the 
student’s education records, if— 

(A) the student is under the age of 21; and 

(B) the institution determines that the student has 
committed a disciplinary violation with respect to such 
use or possession. 

(2) State law regarding disclosure 

Nothing in paragraph (1) shall be construed to supersede 
any provision of State law that prohibits an institution of 
higher education from making the disclosure described in 
subsection (a).