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22-1-123. Protection of student data - parental or legal guardian consent for surveys

Text

(1) As used in this section, education records and directory information shall have the same meanings as those terms are defined in the federal Family Educational Rights and Privacy Act of 1974, as amended, 20 U.S.C. sec. 1232g and education records shall include an individualized education program.

(2) A school district shall comply with the provisions of 20 U.S.C. sec. 1232g (a) and 34 CFR 99 if a parent or legal guardian of a student either requests the education records of the student or requests an amendment or other change to the education records after reviewing them.

(3) A school district shall not release the education records of a student to any person, agency, or organization without the prior written consent of the parent or legal guardian of the student except as otherwise permitted in 20 U.S.C. sec. 1232g (b).

(4) A school district shall not release directory information to any person, agency, or organization without first complying with the provisions of 20 U.S.C. sec. 1232g (a)(5)(B) related to allowing a parent or legal guardian to prohibit such release without prior consent.

 

(5) (a) A school district shall comply with 20 U.S.C. sec. 1232h. A school or school district employee who requires participation in a survey, assessment, analysis, or evaluation in a public schools curriculum or other official school activity shall obtain the written consent of a students parent or legal guardian before giving the student any survey, assessment, analysis, or evaluation intended to reveal information, whether the information is personally identifiable or not, concerning the student or the students parents or legal guardians:

(I) Political affiliations;

(II) Mental and psychological conditions potentially embarrassing to the student or the students family;

(III) Sexual behavior and attitudes;

(IV) Illegal, anti-social, self-incriminating, or demeaning behavior;

(V) Critical appraisals of individuals with whom a student has close family relationships;

(VI) Legally recognized privileged or analogous relationships, such as those of lawyers, physicians, and members of the clergy;

(VII) Income, except as required by law;

(VIII) Social security number; or

(IX) Religious practices, affiliations, or beliefs.

(b) The requirement of written consent pursuant to this subsection (5) applies throughout a public schools curriculum and other school activities; except that the requirement of written consent does not apply to a students participation in an assessment administered pursuant to part 10 of article 7 of this title. In implementing this subsection (5), the school or school district and employees shall ensure that their first responsibility is to students and their parents and shall allow only minimal use of students academic time by institutions, agencies, or organizations outside the school or school district to gather information from students.

(c) Written consent pursuant to this subsection (5) is valid only if the school district has given a parent or legal guardian written notice of the survey, assessment, analysis, or evaluation, has made a copy of the document available for viewing at convenient locations and times, and has given the parent or legal guardian at least two weeks, after receipt of the written notice, to obtain written information concerning:

(I) Records or information that may be examined and requested in the survey, analysis, or evaluation;

(II) The means by which the records or information shall be examined reviewed, or disseminated;

(III) The means by which the information is to be obtained;

(IV) The purposes for which the records or information is needed;

(V) The entities or persons, regardless of affiliation, who will have access to the information; and

(VI) A method by which a parent or legal guardian of a student can grant or deny permission to access or examine the records or information.

(d) Nothing in this subsection (5) shall be construed to prevent a public school employee from reporting known or suspected child abuse or neglect pursuant to section 19-3-304, C.R.S.

(e) Nothing in this subsection (5) shall be construed to prevent a student who is working under the supervision of a journalism teacher or sponsor from preparing or participating in a survey, analysis, or evaluation without obtaining the written consent of such students parent or legal guardian as long as such participation without parental consent is not otherwise prohibited by federal law.

(f) Nothing in this subsection (5) shall be construed to limit the ability of a health professional who is acting as an agent of the school district from evaluating an individual child.

(g) Nothing in this subsection (5) limits the ability of a school district to administer a suicide assessment or threat assessment.

(6) If a school district sends a form to a parent or legal guardian requesting written consent for the school district to release personally identifiable information concerning that parents or legal guardians child in education records other than directory information, such consent shall be valid under this section only if the form contains notice to the parent or legal guardian regarding:

(a) The specific records to be released;

(b) The specific reasons for such release;

(c) The specific identity of any person, agency, or organization requesting such information and the intended uses of the information;

(d) The method or manner by which the records will be released; and

(e) The right to review or to receive a copy of the relevant records to be released.

 

(7) (a) Consent for release of information pursuant to this section shall be valid only for the specific instance for which it was given.

(b) A general consent for a student to participate in any course or part of a course, in a school activity, in any special education program, or in any other school program does not constitute written consent pursuant to this section.

(c) Consent forms obtained pursuant to this section shall be retained by the school district.

(8) Any right accorded to a parent or legal guardian pursuant to this section shall transfer to the relevant student when that student attains the age of eighteen years.

(9) A school district shall, at the beginning of each academic year, provide to a parent or legal guardian of each student in the school district written notice of the rights contained in this section.

(10) The provisions of this section shall apply to any public school in the state, regardless of whether the public school receives any federal funds.

(11) The state board of education shall adopt such rules as may be necessary to implement this section.

(12) If an individual licensed, certified, endorsed, or authorized by the state board is found by the state board to have knowingly and intentionally violated the provisions of this section, the department of education may suspend or revoke such individuals license, master certificate, endorsement, or authorization for a period not less than ninety days.

(13) Nothing in this section shall be construed to prevent a school or a school district from releasing education records to the extent authorized by 20 U.S.C. sec. 1232g (b) and any other applicable federal law.

History

History.
Source: L. 2000: Entire section added, p. 1096, 1, effective August 2. L. 2003: (1) amended, p. 1806, 1, effective August 6. L. 2004: (12) amended, p. 1283, 11, effective May 28. L. 2012: (5)(a), (5)(b), and (5)(c) amended and (5)(g) added, (SB 12-036), ch. 273, p. 1443, 1, effective August 8. L. 2015: (5)(b) amended, (HB 15-1323), ch. 204, p. 719, 18, effective May 20.

Annotations

ANNOTATION

Exception under Family Education and Privacy Rights Act (FEPRA) to unauthorized release of school records when a subpoena is issued for law enforcement purposes does not apply to defendants subpoena duces tecum request. People v. Wittrein, 198 P.3d 1237 (Colo. App. 2008), revd on other grounds, 221 P.3d 1076 (Colo. 2009).

However, the court may grant defendants subpoena duces tecum request pursuant to FERPAs exception for a judicial order or lawful subpoena if the parents and student are notified. When determining whether to grant a defendants subpoena request for school records, the court must weigh the nature of the information sought, the relationship between the information sought and the dispute, and the harm that may result from disclosure. If the court determines the defendants need outweighs any privacy interest, then it should review the records in camera. Then, in its discretion, the trial court can order disclosure of the records. People v. Wittrein, 221 P.3d 1076 (Colo. 2009).

A defendant may obtain school records of a student who is a witness in a criminal case without the consent of the student or the students parents upon a proper showing of need. People v. Bachofer, 192 P.3d 454 (Colo. App. 2008).