Three Requests in One Week: Records, Subpoena, and Directory Information
On a Tuesday in October, a high school assistant principal forwards three items to Ms. Chen, the school counselor. (1) A student's father, who does not live with the student, asks to inspect the cumulative file and the counselor's notes; the divorce decree on file grants the mother sole legal custody, and the mother has told the office to release nothing. (2) A subpoena from an attorney in a juvenile proceeding demands the student's discipline and attendance records; there is no court order and no protective order. (3) A reporter asks for the names of the 40 students on this quarter's honor roll and the names of the 9 students who served in-school suspension. The district has designated honor roll status as directory information; the school also posts student photos on its Facebook page, and one family has submitted a directory-information opt-out.
1. For each of the three requests, state what Ms. Chen may, must, or must not do, and the reasoning behind it.
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(1) The father's request. Rights under the federal records law belong to a parent, and a custody arrangement does not automatically strip them - the operative question is whether a legally binding instrument specifically limits that parent's access to education records. 'Sole legal custody' is not necessarily such a limit, and the mother's instruction does not by itself override a parent's right. So the correct move is neither release nor denial: hold the request, obtain and read the decree, and route the question to district counsel. Note also that counseling notes kept solely in the counselor's possession as a memory aid are a narrow exception; most counseling records filed at school are education records.
(2) The subpoena. The school may disclose records to comply with a lawfully issued subpoena, but it must first make a reasonable effort to notify the parent in advance so the parent can seek a protective order - unless a grand jury issued it or the court ordered that the parent not be told. Neither exception applies here. Notify the parent in writing, document the date, then comply or await the court's direction.
(3) The reporter's request. Honor roll names are directory information only if that category was designated in the annual notice and no opt-out applies - check the opt-out list before releasing anything. In-school suspension names are not directory information; they are education records. The answer is no, absent consent or a specific legal exception.
2. A teacher wants to post photos of honor roll students on the classroom Instagram account. What guidance should Ms. Chen give?
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Separate what federal law requires from what district policy requires. Photographs can be treated as directory information if the district has designated that category and given the annual notice and opt-out. Many districts go further and require written consent for online posting. Once that is true, district policy - not the federal statute - is the binding rule, and it is usually stricter.
Practical sequence for the teacher.
- Check the district's directory-information designation and the current opt-out list before posting. The family that opted out must be excluded from photos and from tagged names.
- Never post grades, behavior information, discipline, or services received. An honor roll post that lists a GPA, or a 'congratulations to our reading intervention stars' post, crosses from directory information into records.
- Use a school-managed account under the acceptable use policy. Personal accounts and accepting student follow requests create separate problems that no directory-information rule solves.
If a parent objects to a posted photo. Remove it promptly while the question is resolved and route it to the administrator who owns the policy. Arguing a legal technicality with a parent over a photo is never worth the relationship.
3. The student's English teacher asks to see the counselor's notes to 'understand what is going on.' How should Ms. Chen respond?
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Is the teacher a school official with a legitimate educational interest? Often yes. That exception permits disclosure without consent to employees who need the record to do their job. 'Legitimately interested' is the operative phrase: it is not the same as curious, and it does not authorize handing over the file.
What to give. Share only what bears on the teacher's work - for example, that the student has a behavior plan and what the agreed pre-correction is - not session notes, parents' statements, or unrelated history. Ask what the teacher plans to do differently with the information; that question usually narrows the request to something small and useful.
Where it goes wrong. Forwarding a whole file to a team email list, or discussing it in the staff room, converts a permissible disclosure into an impermissible re-disclosure. The same discipline applies to the newspaper request: the honor roll list must not become the vehicle for anything beyond the designated directory category. Document what was shared, under which exception, and for what purpose.