TO:
FR:
DT:
RE:
Theresa
Patricia Julianelle, NAEHCY Legal Director. pjulianelle@naehcy.org
February 11, 2013
Unaccompanied youth and school records
Background
Unaccompanied homeless youth are youth experiencing homelessness who are
not in the physical custody of a parent or guardian. Most of these students have
left home due to severe family dysfunction, including abuse and neglect.
 Many unaccompanied youth have fled abuse in the home: Studies have
found that 20-40% of unaccompanied youth were sexually abused in their
homes, while 40-60% were physically abused.1
 Over two-thirds of callers to the National Runaway Switchboard report that
at least one of their parents abuses drugs or alcohol.2
 Many youth have been thrown out of their homes due to their sexual
orientation: 20-40% of unaccompanied youth identify as gay, lesbian,
bisexual or transgender (compared to 3-5% of adults).3
 Many youth have been thrown out of their homes due to pregnancy.
 48% of street youth have been pregnant or impregnated someone.
 10% of currently homeless female teenagers are pregnant.4
 Over half of youth living in shelters report that their parents either told
them to leave, or knew they were leaving and did not care.
Every local educational agency (LEA) must identify its homeless students, and
those that receive funding through the federal McKinney-Vento Act must
disaggregate unaccompanied youth. In the 2009-2010 school year, the 235 LEAs
that received McKinney-Vento funding identified 9,292 unaccompanied homeless
youth. More current data is available from Leanne Wheeler at CDE.
Unaccompanied homeless youth and school records
The Family Educational Rights and Privacy Act (FERPA) is a federal law that
Hammer, H., Finkelhor, D., & Sedlak, A. (2002). “Runaway / Thrownaway Children:
National Estimates and Characteristics.” National Incidence Studies of Missing,
Abducted, Runaway, and Thrownaway Children. Washington DC: Office of Juvenile
Justice and Delinquency Prevention. See also Greene, J. (1995). “Youth with Runaway,
Throwaway, and Homeless Experiences: Prevalence, Drug Use, and Other At-Risk
Behaviors.” Research Triangle Institute. Washington DC: U.S. Dept. of Health and
Human Services.
2
National Runaway Switchboard, http://www.1800runaway.org/.
3
The National Gay and Lesbian Task Force and the National Coalition for the Homeless
(2007). Lesbian, gay, bisexual and transgender youth: An epidemic of homelessness.
Washington DC: Authors.
4
Toro et al. (2007).
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protects the privacy of student education records.5 Specifically, it prohibits a
school from disclosing personally identifiable information from students’
education records without the consent of a parent or eligible student, unless an
exception to FERPA’s general consent rule applies. “Parent” includes a natural
parent, a guardian, or an individual acting as a parent in the absence of a parent
or a guardian. 34 CFR §99.3. An “eligible student” is one who is 18 or over, or
who is attending a school beyond the high school level.
Unaccompanied youth in high school who have not yet turned 18 are not “eligible
students”. Therefore, they cannot access their own educational records and
cannot give consent for the school to disclose their records to advocates,
community agencies, health care providers, tutoring programs, or other agencies
or individuals that do not fall within one of FERPA’s exceptions. This creates a
barrier to youth advocating for themselves and receiving community services.
Many unaccompanied youth seek services from agencies that are not part of the
school district, such as Boys & Girls Clubs, tutoring programs, and legal services.
For example, in San Diego many youth receive tutoring and high school coaching
from a private agency called Stand Up for Kids. To be effective, tutors and
coaches need basic educational information about the youth, such as how many
credits the youth have, what they need, what classes are most challenging for
them, test scores, any special education issues, etc. However, schools cannot
release this kind of educational information to Stand Up for Kids without parental
consent. For unaccompanied homeless youth, who do not have parents who are
able or willing to consent, the tutors have no way to access this information. It is
almost impossible to be effective with the youth and navigate them through high
school graduation without this educational information.
FERPA does allow schools to release education records without parental
consent in several circumstances, including releases to officials of another
school, school system, or institution of postsecondary education where the
student seeks or intends to enroll, or where the student is already enrolled, so
long as the disclosure is for purposes related to the student's enrollment or
transfer.6 While this exception permits schools to transfer records when a student
transfers schools, it does not address other situations in which a youth needs to
have records shared with other providers.
Legislative proposals
While the state is bound by the federal law, there are at least two steps the
California State Legislature could take to eliminate this barrier for
unaccompanied homeless youth.
1. Allow unaccompanied homeless youth age 14 and over to access
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6
20 USC §1232g; 34 CFR Part 99.
34 CFR §99.31(a)(2).
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education records and consent for their disclosure.
FERPA defines “eligible student” as a student 18 or older or beyond high school.
However, FERPA also states that The Act and this part do not prevent
educational agencies or institutions from giving students rights in addition to
those given to parents.7 The US Dept. of Education has clarified this, stating:
“Can elementary and secondary schools provide FERPA rights to minor students
in addition to those provided to their parents?
Yes. FERPA permits an elementary and secondary school to provide students,
who are not eligible students, rights in addition to those given to their parents, as
long as it does not supersede the rights of parents under FERPA. For example, a
school may permit a minor student to inspect and review his or her education
records, but the school would be required to provide parents access to the
records. 34 CFR § 99.5(b).”8
This Guidance clearly makes it permissible for schools to give unaccompanied
homeless youth FERPA rights, as long as those rights do not supersede the
rights of parents. However, the use of the word “may” in the Guidance leaves
schools uncertain as to their potential liability or in what circumstances it would
be appropriate to allow youth to access their records. Most schools are very
fearful of violating FERPA and unwilling to give youth rights in this nebulous
context.
The California State Legislature could relieve schools’ fears by establishing that
schools shall give unaccompanied homeless youth the rights to inspect, review,
and consent for disclosure of their education records. The simplest way to
establish this standard would be to give unaccompanied homeless youth the right
of eligible students, limited only by the rights of their parents.
“Public schools or county offices of education shall provide
unaccompanied homeless youth age 14 and over the rights of ‘eligible
students’ under the Family Educational Rights and Privacy Act (20 USC
§1232g; 34 CFR Part 99). Unaccompanied homeless youth shall be
provided the right to inspect and review their education records and the
authority to consent for the disclosure of personally identifiable information
from their education records, unless a student’s parent provides written
7
34 CFR §99.5(b).
U.S. Department of Education, “Family Educational Rights and Privacy Act (FERPA)
and the Disclosure of Student Information Related to Emergencies and Disasters”, June
2010. The Guidance goes on to state that "FERPA does not specifically afford minors
who are separated from their parents the rights that are afforded to parents and eligible
students under the law. However, schools may use their judgment in determining
whether an unaccompanied minor is responsible enough to exercise certain privileges,
such as inspecting and reviewing education records and providing consent for
disclosure."
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notice to the school or county office of education that the parent objects to
the student inspecting, reviewing, or consenting for the disclosure of
education records.”
I suggest the minimum age of 14, because the technical definition of
unaccompanied homeless youth does not include a minimum age. A child who is
homeless and staying with someone who is not the parent or guardian technically
is an unaccompanied homeless youth, even if that child is 8 years old. Most
youth under 14 will be living with another caregiver, and the proposal that follows
would ensure appropriate access to education records for those children.
2. Ensure that caregivers can access education records and consent for
the disclosure of records for children in their care.
FERPA defines "parent" as a natural parent, guardian, or an individual acting as
a parent in the absence of a parent or guardian. Many unaccompanied
homeless youth, particularly those under age 14, are staying with other adults
who could be considered to be "individuals acting as a parent in the absence of a
parent or guardian." However, the phrase itself is vague and open to varying
interpretations. In California, the Caregiver’s Authorization Affidavit established in
section 6550-6552 of the Family Code provides objective guidelines for
determining that an individual is acting as a parent in the absence of a parent or
guardian. The Affidavit allows caregivers to enroll children in school and consent
to medical care. It seems apparent that such caregivers will need to access
education records, as well. Clarifying their right to do so would help eliminate
confusion and fear on the part of schools.
The simplest approach to this issue would be language such as:
“Individuals who complete items 1 to 4 of the caregiver's authorization
affidavit provided in Section 6552 of the Family code and sign the affidavit
to enroll a minor in school shall be considered ‘parents’ under the Family
Educational Rights and Privacy Act (20 USC §1232g; 34 CFR Part 99).
Such caregivers shall be provided the right to inspect and review the
education records and the authority to consent for the disclosure of
personally identifiable information from the education records of students
in their care, unless a student’s natural parent or guardian provides written
notice to the school or county office of education that the parent objects to
the caregiver inspecting, reviewing, or consenting for the disclosure of
education records.”
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