Education Laws and Regulations

Amendments to Student Records Regulations on Access by Non-Custodial Parents

To:	Superintendents of Schools, Charter School Leaders and School Principals
From:	David P. Driscoll, Commissioner of Education
Date:	November18, 2005

In July 2005, the Board adopted emergency amendments to the Student Records Regulations in order to ensure compliance with federal law and to provide guidance to school administrators before the start of the 2005-2006 academic year. In accordance with the Administrative Procedure Act, these amendments became effective as emergency regulations upon adoption by the Board of Education on July 28, 2005. The Department solicited public comment on the amended regulations and the Board took a final vote approving the amended regulations on October 25, 2005. As set forth in the amended regulation, 603 CMR 23.07(5), non-custodial parents are eligible to obtain access to their children's student records unless the school or district has been given documentation that:

the non-custodial parent has been denied legal custody based on a threat to the safety of the student or to the custodial parent, or
the non-custodial parent has been denied visitation or has been ordered to supervised visitation, or
the non-custodial parent's access to the student or to the custodial parent has been restricted by a temporary or permanent protective order, unless the order or any subsequent court order specifically allows access to student record information.

Reason for the Amendments

In 1998, the Massachusetts Legislature enacted G.L. c. 71, §34H in order to standardize the process through which schools make student records available to non-custodial parents. The statute provides that a non-custodial parent will have access to his or her child's student record unless a court has determined that the parent poses a safety risk. The Board of Education subsequently adopted regulations (603 CMR 23.07(5)) to implement the state law. In May 2005, the U.S. Department of Education informed the Massachusetts Department of Education of its determination that our state statute and regulations on access to student records by non-custodial parents must be amended in order to conform to federal law (the Family Educational Rights and Privacy Act, or FERPA, 20 U.S.C. §1232g). In particular, the U.S. Department of Education found that requiring non-custodial parents to provide documentation that there are no court orders rendering them ineligible before granting them access to student records violates their right to inspect and review their children's educational records. We have been working with the staff of the Legislature's Joint Committee on Education as they prepare a statutory amendment that will bring the state law into conformity with the federal requirement. After legislation is enacted, it may be necessary to revise our regulations to accord with it. The complete text of the amended regulations concerning access to student records by non-custodial parents is available at this link: http://www.doe.mass.edu/lawsregs/603cmr23.html. Copies are also available on the Department of Education's web site at www.doe.mass.edu/lawsregs/.

Last Updated: November 21, 2005