Does Tennessee's new charter-school student-directory-information disclosure statute conflict with FERPA, and can charter schools use the info for outreach?

Plain-English summary

The Tennessee Department of Education's commissioner asked three questions about the new Tennessee High-Quality Charter Schools Act (2017 Tenn. Pub. Acts ch. 307, codified at Tenn. Code Ann. § 49-13-132). The statute requires a local education agency (LEA) to give a chartering authority or an approved public charter school, on request, a list of student names, ages, addresses, dates of attendance, and grade levels completed.

Q1 (FERPA conflict?). Generally no. The information required by § 49-13-132 maps onto what FERPA expressly defines as "directory information" (20 U.S.C. § 1232g(a)(5)(A)) plus "grade level" added by the implementing regulations (34 C.F.R. § 99.3). FERPA permits disclosure of directory information without prior consent if the school district provides notice and opt-out. So the disclosure mandated by state law is something federal law allows. No preemption.

Q2 (Temporary withholding while policy is updated?). Yes, but only briefly. If a district has not designated the listed items as directory information, has not given parents the required notice and opportunity to opt out under 34 C.F.R. § 99.37(a), or has limited disclosure to specific parties or purposes that exclude charter schools under § 99.37(d), the district may not immediately release the information. Each district must promptly amend its policies, give parents notice and an opt-out window, and then comply with § 49-13-132. § 49-13-132 expressly says the LEA must provide the information "in accordance with" FERPA, so following the FERPA procedural rules is part of the duty.

Q3 (Use restrictions on charter schools?). § 49-13-132 prohibits the charter school from further disclosing the information without parental consent and requires the charter school to adopt an opt-out mechanism for "further information." But nothing in the statute prevents the charter school from using the information to contact parents and students about charter school options. In fact, § 49-13-132 implements § 49-13-113, which makes participation in charter schools depend on parental choice. The word "further" in the opt-out language presumes initial contact will occur.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. The interplay between FERPA, state public records law, and charter-school disclosure requirements has evolved. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule mentioned here.

Background and statutory framework

The federal framework: FERPA. 20 U.S.C. § 1232g denies federal funds to educational agencies and institutions that release education records without prior written parental consent. § 1232g(b). FERPA carves out "directory information" (§ 1232g(a)(5)(A)): name, address, telephone, date and place of birth, major field of study, sports participation, weight/height for athletes, dates of attendance, degrees and awards, and prior educational institution attended. The implementing regulations expand the non-exhaustive list to include email, photograph, and grade level (34 C.F.R. § 99.3).

Schools may disclose directory information without consent only if they give public notice of the categories designated, parents' right to refuse, and the opt-out window. § 1232g(a)(5)(B); 34 C.F.R. § 99.37(a). Schools can also limit disclosure to specific parties or purposes (34 C.F.R. § 99.37(d)).

The Tennessee Public Records Act framework. Tenn. Code Ann. § 10-7-503 makes state, county, and municipal records open by default, but § 10-7-504(a)(4)(A) treats student records as confidential. The same subsection then permits disclosure of "information relating only to an individual student's name, age, address, dates of attendance, grade levels completed, class placement and academic degrees awarded." This is discretionary, not mandatory.

The new disclosure mandate (§ 49-13-132). Adds the mandatory layer: a chartering authority or approved charter school can request, and the LEA must provide within 30 days at no cost, the listed items "in accordance with [Tenn. Code Ann.] § 10-7-504 and [FERPA] (20 U.S.C. § 1232g)." The receiving entity cannot further disclose without parental consent and must adopt an opt-out policy.

The temporary-compliance gap. A district might have FERPA policies more restrictive than federal law requires (failing to designate the items as directory information, failing to give the required notice, or limiting disclosure to specific parties that don't include charter schools). In such cases, the district cannot immediately disclose under § 49-13-132 without violating FERPA. The fix: amend the FERPA policy, give parents notice and the required opt-out window, and then comply with the state law. Failure to act promptly violates state law (and exposes the district to a § 49-3-353(a) funding-withholding action).

Charter school outreach. § 49-13-132 effectuates § 49-13-113, which says participation in a charter school must be based on parental or guardian choice. The most reasonable reading is that the statute was meant to facilitate outreach. The use restriction is on third-party disclosure, not on the charter school's outreach to parents.

Common questions

Q: Must a Tennessee school district give a charter school its student directory information?
A: Under § 49-13-132, yes, on request from a chartering authority or an approved public charter school in the district. The required items are names, ages, addresses, dates of attendance, and grade levels completed.

Q: Does FERPA prohibit this disclosure?
A: No. The items required by § 49-13-132 are FERPA "directory information" (or covered by implementing regs), which can be disclosed without consent after public notice and opt-out.

Q: What if the district's current FERPA policy doesn't allow this disclosure?
A: The district must promptly amend the policy to designate the items as directory information, give parents notice and a reasonable opt-out window, and then comply with § 49-13-132. Failing to comply with state law puts education funding at risk under § 49-3-353(a).

Q: Can a charter school use the information to contact parents and recruit students?
A: Yes. § 49-13-132 implements § 49-13-113's parental-choice mandate and contemplates outreach. The opt-out provision is for "further information," presuming initial outreach.

Q: Can a charter school share the information with third parties?
A: No. § 49-13-132 prohibits further disclosure to outside parties without prior parental consent.

Q: What does "directory information" include under FERPA?
A: Per 20 U.S.C. § 1232g(a)(5)(A) and 34 C.F.R. § 99.3: name, address, telephone, date and place of birth, major field of study, sports participation, weight/height for athletes, dates of attendance, degrees and awards, prior educational institution attended, email, photograph, and grade level.

Citations and references

Federal:
- 20 U.S.C. § 1232g
- 34 C.F.R. §§ 99.2, 99.3, 99.31(a)(11), 99.37

Tennessee statutes:
- Tenn. Code Ann. § 49-13-132 (charter school disclosure)
- Tenn. Code Ann. § 49-13-113 (parental choice)
- Tenn. Code Ann. § 10-7-503, -504(a)(4)(A)
- Tenn. Code Ann. § 49-1-102(a)
- Tenn. Code Ann. § 49-3-353(a), (b)
- 2017 Tenn. Pub. Acts ch. 307

Cases:
- Gonzaga Univ. v. Doe, 536 U.S. 273 (2002)
- Elec. Privacy Info. Ctr. v. U.S. Dep't of Educ., 48 F. Supp. 3d 1 (D.D.C. 2014)
- Lake v. Memphis Landsmen, LLC, 405 S.W.3d 47 (Tenn. 2013)
- Krauss v. Nassau Comm'y College, 469 N.Y.S.2d 553 (N.Y. Sup. Ct. 1983)
- State ex rel. School Choice Ohio, Inc. v. Cincinnati Pub. School Dist., 63 N.E.3d 1183 (Ohio 2016)

Related AG opinions:
- Tenn. Att'y Gen. Op. 15-55 (July 2, 2015)
- Tenn. Att'y Gen. Op. 03-139 (Oct. 27, 2003)
- Ohio Att'y Gen. Op. 92-71 (Dec. 30, 1992)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2017/op17-039.pdf

Original opinion text

Full opinion text unavailable from the official source. See the linked PDF or landing page above for the complete text.

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
September 13, 2017
Opinion No. 17-39
Disclosure of Student Directory Information to Chartering Authorities and Public Charter Schools

Question 1
Under recently enacted legislation, upon receiving a request from "a chartering authority or a public charter school" approved to operate in the district, a local education agency must provide "a list of student names, ages, addresses, dates of attendance, and grade levels completed." 2017 Tenn. Pub. Acts, ch. 307, § 20 (codified at Tenn. Code Ann. § 49-13-132). May a school district refuse to provide this information to an approved chartering authority or public charter school on the basis of the Family Educational Rights and Privacy Act of 1974 (FERPA), 20 U.S.C. § 1232g?

Opinion 1
No.

Question 2
May a school district refuse to provide a chartering authority or public charter school with the directory information specified in Tenn. Code Ann. § 49-13-132 if the school district has adopted a policy pursuant to FERPA that would otherwise bar the release of the information?

Opinion 2
Yes, but only temporarily. Each school district or local education agency must promptly amend its policy to permit the release of the information specified in § 49-13-132 to chartering authorities and public charter schools and must notify parents of the new policy and allow them a reasonable opportunity to opt out of the disclosure of student information. After providing this notice and opportunity to opt out, the school district must comply with § 49-13-132.

Question 3
Does Tenn. Code Ann. § 49-13-132 prohibit chartering authorities and public charter schools from using student contact information received from local education agencies to contact parents and provide them with additional public school options available to their children?

Opinion 3
No.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

JONATHAN DAVID SHAUB
Assistant Solicitor General

Requested by:
Dr. Candice McQueen
Commissioner
Tennessee Department of Education
Andrew Johnson Tower, 9th Floor
710 James Robertson Parkway
Nashville, TN 37243