Can a Virginia school superintendent refuse to give a student's records to police citing FERPA, even when officers say it's a safety emergency?

Plain-English summary

Page County's Commonwealth's Attorney brought the AG a tense school-safety question. A high school student had posted on Facebook, "I hate all tenth graders. Remember Columbine." The post followed a confrontation in which the same student had told other students, "That's fine. I will bring my gun to school." Police identified the student, searched his home (no weapons found), and tried to get a juvenile petition and a CHINS petition; both were denied. The next school day, the student was searched again (no weapons) and placed in in-school suspension. Police asked the superintendent for the student's records to assess the level of threat and to investigate whether the student had access to weapons or had made similar threats. The superintendent refused, saying FERPA's emergency exception did not apply because, in her judgment, there was no emergency. Police eventually obtained the records by search warrant several days later.

The prosecutor asked the AG two questions: First, can Virginia's pupil-records statute, § 22.1-287, be reconciled with FERPA? Second, did the superintendent have authority to refuse the records request?

The AG said yes to both. FERPA and § 22.1-287 both establish a default of non-disclosure with exceptions. Neither makes disclosure mandatory in any case the other forbids. Both leave disclosure to the educational agency's discretion. Under FERPA's health-and-safety regulation, an educational agency may disclose records in connection with an emergency if it determines there is an "articulable and significant threat" to the health or safety of a student or others. The regulation expressly puts that determination in the hands of the local educational agency, not federal officials and not law enforcement.

Virginia's § 22.1-287(A)(5) permits release to "[s]tate or local law-enforcement or correctional personnel . . . seeking information in the course of his duties." But the statute uses "may," not "shall." That permissive language confers discretion; § 22.1-287 nowhere imposes a clear, affirmative duty to release records to a law enforcement officer who asks.

Reading the two regimes together, the AG concluded: a school may comply with both FERPA and § 22.1-287(A)(5) by releasing records to law enforcement when, after a totality-of-circumstances analysis, the school concludes a FERPA emergency exists. If the school concludes no emergency exists, neither FERPA nor § 22.1-287 obligates it to release the records. The Page County superintendent did her required FERPA analysis, concluded no emergency existed, and was within her authority to decline. Whether her conclusion was correct on those facts was outside the opinion's scope.

The records were not requested for the separate juvenile-justice purpose that § 22.1-287 also recognizes ("furthering the ability of the juvenile justice system to effectively serve the pupil prior to adjudication"). The request was investigative, aimed at evaluating past threats, so that alternative exception didn't come into play.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Does FERPA forbid a school from giving records to police?
Not absolutely. FERPA conditions federal funding on the school not having "a policy or practice of permitting the release of education records . . . without the written consent of their parents," but lists exceptions. The "articulable and significant threat" health-and-safety exception is one. Various other exceptions, including responses to judicial process and certain juvenile-justice referrals, also apply.

Who decides whether there is an "articulable and significant threat"?
The educational agency, not the police. The regulation explicitly says the agency may "take into account the totality of circumstances pertaining to a threat" and disclose only "[i]f the educational agency or institution determines" the threat is articulable and significant. Federal regulators won't substitute their judgment for the agency's if there's a rational basis.

Does § 22.1-287 require schools to give records to police on request?
No. It lists exceptions to a baseline of nondisclosure, including a "law-enforcement or correctional personnel . . . seeking information in the course of his duties" exception. But the statute uses permissive language ("may disclose"), and the AG read that as conferring discretion on the school, not creating an obligation to release.

Can police get the records anyway?
Yes, through judicial process. The opinion mentions that the Page County police eventually obtained the records by search warrant a few days later. Section 22.1-287 explicitly contemplates release "under judicial process," and FERPA's exceptions include disclosure in compliance with court orders or subpoenas (subject to notice requirements).

Is the superintendent's decision second-guessable?
The AG didn't opine on whether the Page County superintendent's specific judgment ("no emergency") was correct. The opinion stayed strictly at the level of authority: did she have authority to make the call? Yes. Whether she made the right call given the totality of circumstances is a separate question, potentially testable through litigation or through state-board review.

What about juvenile-justice records sharing?
Section 22.1-287 also allows disclosure to attorneys for the Commonwealth, court services units, juvenile detention centers, and similar agencies "for the purpose of furthering the ability of the juvenile justice system to effectively serve the pupil prior to adjudication." The Page County request didn't fit that purpose, so this avenue was unavailable on those facts.

Background and statutory framework

FERPA conditions federal funding on an educational agency not having "a policy or practice of permitting the release of education records . . . without the written consent of their parents," subject to listed exceptions. One exception allows release "in connection with an emergency," subject to the regulations of the Secretary of Education.

The health-and-safety exception comes from FERPA and its implementing regulation. The regulation establishes the "articulable and significant threat" standard and entrusts the determination to the local educational agency, which "may take into account the totality of circumstances pertaining to a threat."

Virginia's § 22.1-287 mirrors FERPA's structure. The default rule is no access "except under judicial process." The exception at subsection (A)(5) covers state or local law-enforcement or correctional personnel seeking information in the course of their duties. Another provision covers disclosure for juvenile-justice service purposes prior to adjudication.

The AG read both statutes the same way: as permitting, not requiring, disclosure, and as committing the judgment about whether the exception applies to the school's discretion.

Citations

• Va. Code § 2.2-505 (Attorney General advisory opinions)
• Va. Code § 22.1-287, including subsection (A)(5) (release of pupil records; law-enforcement exception)
• Family Educational Rights and Privacy Act (FERPA) and the Secretary of Education's health-and-safety regulation (named in the opinion; U.S.C. and C.F.R. section numbers not printed)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2013/12-096_Alger.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

May 3, 2013

The Honorable Kenneth L. Alger, II
Commonwealth's Attorney for Page County
116 South Court Street, Suite D
Luray, Virginia 22835

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

Dear Mr. Alger:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented

You inquire, with regard to law enforcement access to pupils' school records, whether § 22.1-287 of the Code of Virginia may be reconciled with the federal Family Educational Rights and Privacy Act (FERPA). You further ask, based upon a specific factual scenario, whether a school superintendent possessed authority to rely upon FERPA provisions to deny a request for access to a pupil's records by a law enforcement officer seeking information in the course of his duties.

Response

It is my opinion that the provisions of § 22.1-287 of the Code of Virginia may be reconciled with those of the Family Educational Rights and Privacy Act. It is my further opinion, based upon the factual scenario you describe, that the school superintendent possessed authority to rely upon FERPA provisions to deny access to a pupil's records to a law enforcement officer seeking information in the course of his duties.

Background

You relate an incident in which several parents of high school students contacted law enforcement to advise that a local student had posted on Facebook a message that troubled them. According to the reports, the message read, "I hate all tenth graders. Remember Columbine." Law enforcement officers identified the author of the post, referred to hereinafter as "Juvenile," and met with him at his residence, where he admitted to making the post. The officers made a lawful search of the residence and found no weapons. They subsequently attempted to obtain "a juvenile petition for a threat and a CHINS petition" and were denied both prior to Juvenile returning to school. When Juvenile arrived at school the next day, he was met by law enforcement personnel who searched him for weapons and found none. Juvenile was placed in in-school suspension.

Administrative staff at the school met with the police Captain that morning and related their concerns over safety at the school due to Juvenile's prior disciplinary record, threats made towards other students and faculty, and violent outbursts he had made in the school setting. The Captain was informed that Juvenile had been involved in an altercation the previous Friday, where Juvenile reportedly had been the aggressor. On behalf of the victim, several students threatened Juvenile, to which Juvenile responded by stating, "That's fine. I will bring my gun to school." One of the other students replied, "Bring your gun to school. I dare you." The confrontation continued into the weekend, leading to text message correspondence and the aforementioned Facebook post.

After receiving this new information, law enforcement personnel became increasingly concerned about students' safety at the school. The Captain began receiving information from the Superintendent's staff, school personnel, students and parents regarding their concern over the return of Juvenile to school. The captain was then informed that the Superintendent would not authorize the release of any information on Juvenile to law enforcement.

You indicate that the Captain advised the Superintendent that Juvenile's records were essential to establish the level of threat Juvenile posed to the school system "in the past" and to determine whether Juvenile had access to weapons or had made similar threats to others. The Superintendent stated that she was not required to provide such information to law enforcement. She stated that FERPA included an emergency provision, but that she had determined that there was no emergency. The Captain maintained that this was a potential emergency. The records were obtained by a search warrant several days later.

Applicable Law and Discussion

FERPA, in relevant part, establishes as a condition of receiving federal funding, that the education records of students not be released without the prior written consent of a student's parents. FERPA nonetheless also provides several exceptions to the parental consent requirement. Relative to your inquiry, education records may be released to appropriate persons in connection with an emergency, in certain limited circumstances. The release of such information is made subject to the regulations of the Secretary of Education.

The regulations promulgated by the Secretary of Education pursuant to FERPA reiterate this health and safety exception by stating, "[a]n educational agency or institution may disclose personally identifiable information from an education record to appropriate parties, including parents of an eligible student, in connection with an emergency if knowledge of the information is necessary to protect the health or safety of the student or other individuals." The regulation further provides that in making such a determination regarding health and safety,

an educational agency or institution may take into account the totality of circumstances pertaining to a threat to the health or safety of a student or other individuals. If the educational agency or institution determines that there is an articulable and significant threat to the health or safety of a student or other individuals, it may disclose information from education records to any person whose knowledge of the information is necessary to protect the health or safety of the student or other individuals.

Section 22.1-287 of the Code of Virginia establishes the strictures for the release of pupil records in the Commonwealth. In relevant part, it expressly provides that

[n]o teacher, principal or employee of any public school nor any school board member shall permit access to any records concerning any particular pupil enrolled in the school in any class to any person except under judicial process unless the person is . . . [s]tate or local law-enforcement or correctional personnel . . . seeking information in the course of his duties . . . .

Section 22.1-287 further provides, notwithstanding the restrictions it imposes, that

. . . [t]he principal or his designee may disclose identifying information from a pupil's scholastic record for the purpose of furthering the ability of the juvenile justice system to effectively serve the pupil prior to adjudication. In addition to those agencies or personnel identified in [specific sections of the statute], the principal or his designee may disclose identifying information from a pupil's scholastic record to attorneys for the Commonwealth, court services units, juvenile detention centers or group homes, mental and medical health agencies, state and local children and family service agencies, and the Department of Juvenile Justice and to the staff of such agencies.

Statutes are to be interpreted according to their plain language. Both the federal and state provisions establish a default rule of non-disclosure. Federal law authorizes release "in connection with an emergency," but critical to your inquiry, permits disclosure only "[i]f the educational agency or institution determines that there is an articulable and significant threat" to the safety of others. Indeed, absent a court order, the assessment of whether disclosure is warranted rests with the local educational agency, and not law enforcement. The decision to release records is further vested in the educational agency's discretion, in that the law provides only that the agency "may disclose information from education records" to appropriate persons; it does not require such disclosure.

Similarly, although § 22.1-287 provides for law enforcement a limited exception to the prohibition against the release of records, it nowhere imposes a clear, affirmative duty or requirement on school officials to release such records upon request. While the statute prohibits disclosure with several listed exceptions, it does not conversely mandate disclosure in the case of those listed exceptions. Rather, the statute permits disclosure in those instances, including when access to records is afforded "law enforcement . . . in the course of his duties," or, for the "purpose of furthering the ability of the juvenile justice system to effectively serve the pupil prior to adjudication."

In comparing these statutory provisions, I do not find an inherent conflict between FERPA and § 22.1-287. Critically, neither mandates disclosure where the other proscribes it; rather, where the release of student records is permitted, such release is discretionary on the part of the educational agency.

Moreover, I conclude that the specific disclosure-related exception at issue in your inquiry is consistent with FERPA. The disclosure permitted under § 22.1-287(A)(5) falls within the scope of FERPA's parallel emergency-related exception to nondisclosure. As noted, the exception at subsection (A)(5) permits disclosure to State or local law-enforcement or correctional personnel seeking information in the course of his duties. An educational agency could comply with both FERPA and this state law provision if it were to disclose information to law enforcement personnel in connection with an emergency, when the knowledge of such information is necessary to protect the health or safety of the student or other persons. If, however, upon taking into account the totality of existent circumstances, the educational agency does not conclude that the facts meet the criteria for the FERPA exception, information about the pupil may not be released.

In the specific factual scenario you describe, the superintendent concluded, under required FERPA analysis, "that there was no emergency." Thus, the terms of § 22.1-287(A)(5) did not apply so as to enable the superintendent to provide a law enforcement officer access to the pupil's records.

Conclusion

It is my opinion that the provisions of § 22.1-287 of the Code of Virginia may be reconciled with those of the Family Educational Rights and Privacy Act. It is my further opinion, based upon the factual scenario you describe, that the school superintendent possessed authority to rely upon FERPA provisions to deny access to a pupil's records to a law enforcement officer seeking information in the course of his duties.

With kindest regards, I am

Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General