DATE: July 24, 1995
SUBJECT: Chapters 7A, 115C and 134A of The North Carolina General Statutes; 20 U.S.C. § 1232, Family Educational Rights And Privacy Act; Release of Juvenile Education Records To The Division Of Youth Services, Department of Human Resources
REQUESTED BY: C. Robin Britt, Sr., Secretary, North Carolina Department of Human Resources
QUESTIONS: Are Local School Boards Required, Upon Request, To Transmit To The Division Of Youth Services, Department Of Human Resources, Education Records Of Juveniles Committed To The Physical Custody Of The Division of Youth Services?
If Local School Boards Are Required To Transmit Education Records To The Division Of Youth Services, Is The Division Of Youth Services Bound to Keep Such Records Confidential?
CONCLUSION: The Answer To Each Question Is Yes.
DISCUSSION:
The Division of Youth Services ("DYS"), North Carolina Department of Human Resources ("DHR"), operates regional detention centers for juveniles ordered into secure custody by the juvenile court or bound over for trial as adults in superior court and residential training schools for juveniles who have been adjudicated delinquent. G.S. §§ 7A-517(15); 7A-574; 7A-611. DYS operates schools in each of its regional juvenile detention centers and training schools. G.S. §§ 7A-652(a); 134A-2(8).
Juveniles involuntarily ordered into secure detention or adjudicated delinquent and ordered to training school are in the physical custody of DYS. G.S. §§ 7A-573; 7A-652(g). DYS is required by statute to develop educational programs and services for juveniles in its physical custody inasmuch as the terms of juvenile commitments prohibit them from attending public schools.
G.S. §§ 115C-378; 134A-20.
Educational records maintained by public schools previously attended by juveniles in DYS custody are often helpful to DYS in fulfilling its duty to provide educational programs and services. Public schools, however, are sometimes reluctant to share those educational records with DYS because of uncertainty about the scope of various laws generally protecting the confidentiality of such records and their authority to do so. To resolve these uncertainties, you have asked for our opinion.
After carefully examining the laws pertinent to this issue we have concluded that public schools can and should provide DYS with the educational records of juveniles in DYS custody for whom DYS has educational responsibilities. We have also concluded that DYS is bound to maintain the confidentiality of those records in the same manner as a public school once it obtains them. These conclusions apply to all DHR facilities that provide educational programs and services for children of school age.
Many, if not most, children of school age in DYS or other DHR facilities have been identified, or may properly be identified, as children with "special needs" within the meaning of G.S. § 115C109 and similar federal legislation. In regard to the education of children with "special needs," the General Assembly has stated that "all duties, responsibilities, rights and privileges imposed on or granted to local school administration units are also imposed on or granted to the Department of Human Resources and Department of Correction and their divisions and agencies." G.S. § 115C-110(a). The effect of this statutory provision is to make the various divisions and agencies of DHR engaged in providing educational opportunities to school age children with "special needs" the functional equivalent of a local school administrative unit. One of the obligations imposed on local school administration units is promptly to provide a child’s educational records to another school system to which the student has been transferred. G.S. § 115C-403(b) (school system to which child transfers must be obtained by the "receiving" system from the other system within 30 days). While this obligation arguably does not apply when the child in DYS custody has not been classified as a child with "special needs," it is our opinion that the foregoing statutes represent and embody an intention by the General Assembly that public agencies providing education to school age children share the educational records of children who move or are moved from one of those agencies to another.
Confidentiality requirements generally applicable to education records do not prevent this exchange of records between a public school and DYS or other DHR agencies or divisions providing educational services to school age children. The Family Educational Rights and Privacy Act ("FERPA"), 20 U.S.C. §§ 1232 et seq., applies to the educational records of all public school students and generally protects the confidentiality of education records. See also
G.S. § 115C-114(a). FERPA, however, authorizes an educational agency or institution to disclose education records to "… officials of other schools or school systems in which the student seeks or intends to enroll, upon the 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." 20 U.S.C. § 1232g(b)(B).
In Alexander S., 876 F.Supp. 773, 800-803 (D.S.C. 1995), evidence was presented showing that some South Carolina School Districts were refusing to disclose education records to the South Carolina Juvenile Justice Department (the South Carolina counterpart to DYS) believing that such disclosure was prohibited by FERPA. The district Court sought and received an interpretative memorandum from the United States Department of Justice, Civil Rights Division, concluding that the provisions of 20 U.S.C. § 1232g(b)(1) (B) permit the disclosure. "The only obligations upon transferor school districts are the obligations to provide reasonable notice to the parent that the student’s records have been transferred and, if requested, to provide copies of the records that have been sent." Id. at 802. See also 34 C.F.R. § 99.34. Once DYS obtains these education records it is itself bound to honor FERPA and release the education records it has obtained and generated only as authorized by that law.
In summary, local school boards can and should transmit to DYS and other DHR agencies providing educational services to school age children any requested education records of juveniles committed to their custody or control. Once such education records are obtained by DYS or other DHR facilities they are confidential and must not be released except as permitted by FERPA.
Michael F. Easley ATTORNEY GENERAL
Edwin M. Speas, Jr.
Senior Deputy Attorney General
John R. Corne
Special Deputy Attorney General