Educational Decision Makers: What to do when their identity is not clear? 

The process of advocating for an appropriate educational program for a child who has a disability typically is daunting for parents and guardians. When evaluating their child’s academic history and needs, most parents do not know where to begin. While the process is complex in any situation, it becomes more complex when the identities of legal guardians or educational rights holders are unclear. This is particularly true when advocating for a child whose parents have an adversarial custody arrangement, the child is a ward of the state, or the child does not reside with his or her legal parent. In situations such as these, before any legal advocacy begins, it is important to determine the roles of each party, and identify who holds educational rights and who is the proper decision maker.

Access to Educational Records

When advocating for an appropriate educational program for any child, the first step always should be to examine the child’s educational records. This will enable the advocate to determine the child’s educational history, needs, and any gaps in the program that may have an impact on the child. Federal law mandates that the educational records must be available to parents and guardians for review. The Federal Education Rights and Privacy Act (“FERPA”) specifically mandates that no federal funds shall be provided to programs that deny a parent (or legal guardian) rights to his child’s educational file (20 U.S.C. §1232g). FERPA further prohibits educational agencies from sharing such confidential information with any person without full consent of the parent, guardian, or child (Id.). FERPA is important for two reasons. It will assist any parent or guardian in ensuring that his or her child’s educational file is available for review, which is significant during the advocacy process. However, it also ensures that a person who does not have legal educational rights cannot access those records. Thus if the child is in foster care, or has a custody agreement excluding one of the parents as an educational rights holder, it will be (or should be) impossible for a parent or guardian who has not been given educational decision-making rights to review those records. Further, this situation may impact the legal advocate’s ability to access the child’s records.

The statute that controls the special education rights of children who have disabilities is the Individuals with Disabilities in Education and Improvement Act (“IDEA”) (20 U.S.C. §1412, et. seq.). The IDEA has a requirement similar to FERPA that parents or guardians of a child eligible for special education must have the opportunity to “examine all records relating to such child…” (20 U.S.C. §1415(b)(1)). The accompanying regulations further define access rights by including the right for a parent’s representative to examine all records. Thus, a child’s attorney may access the records with parental permission (34 C.F.R. §300.613, 34 C.F.R. §300.501). The law also presumes that a parent has legal authority to inspect the records unless the educational agency has been advised otherwise (Id.). Therefore, it is possible that an education agency may unknowingly provide access to a child’s educational file to a person who does not have educational decision-making rights (such as a biological parent who does not hold legal custody of a child) if the agency has not been informed of the child’s current custodial arrangement.

In the case where the child is in the foster care system and his parentage or educational rights holder is unknown, “such surrogate may alternatively be appointed by the judge overseeing the child’s care…” (20 U.S.C. §1415(b)(2)(A)(i)). If you are advocating for a child who is in foster care, it is imperative that such a surrogate be in place to request and obtain the child’s educational file.

Federal law stresses the availability of these records by limiting the amount of time in which they must be provided and their cost. The regulations require that these records be provided within a reasonable amount of time, but in no case more than 45 days from the request (34 C.F.R. §300.613). Each state may have its own requirement for the length of time in which the records must be provided. For example, in California, the education code requires that these records must be provided within five business days of a written request. Further, while an educational agency may charge a fee for those records, that fee cannot be such that it “effectively prevent[s] parents from exercising their right to inspect and review those records” (34 C.F.R. §300.617). The child’s district should have a fee waiver application to allow a low income child to access his records.

The accompanying regulations to the IDEA expand on a parent’s right to inspect documents. Federal regulations require that upon parental request the educational agency must provide a list of “types and locations of educational records collected, maintained, or used by the agency” (34 C.F.R. §300.616).

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