Maine FERPA Investigation

The Announcement

On March 28th, USED announced that the SPPO had initiated an investigation into the Maine Department of Education (MDE) related to alleged FERPA violations. The press release states: 

“This investigation comes amid reports that dozens of Maine school districts are violating or misusing FERPA by maintaining policies that infringe on parents’ rights. The districts’ policies allegedly allow for schools to create ‘gender plans’ supporting a student’s ‘transgender identity’ and then claim those plans are not education records under FERPA and therefore not available to parents.”

The Investigation Initiation Letter

As seen in California, the department is investigating these matters at the state level due to the amount of schools in Maine that allegedly have policies or practices that violate FERPA. As we mentioned above, the imposition of FERPA penalties (such as withholding federal education funding) is contingent on schools–including SEAs or other types of LEAs–having a “policy or practice” of violating FERPA, not just a single violation.

SPPO’s investigation initiation letter to Maine flagged that “numerous local educational agencies (LEAs) in Maine may be implementing policies and practices that violate the Family Educational Rights and Privacy Act (FERPA),” (emphasis added) and noted that “Given the number of LEAs potentially involved and to better inform our determination, SPPO is initiating an investigation to ascertain if the Maine Department of Education (MDOE) played a role, either directly or indirectly, in the LEAs’ adoption of these practices.”

The Policies

As with the California investigation letter, SPPO’s letter did not point to concrete examples of times that schools allegedly withheld records from parents. The USED press release about the letter, however, referenced a broader allegation not explicitly made in the letter, specifically that “districts’ policies allegedly allow for schools to create ‘gender plans’ supporting a student’s ‘transgender identity’ and then claim those plans are not education records under FERPA and therefore not available to parents.” 

The Federalist article cited in SPPO’s letter referred to documents “obtained by Parents Defending Education through public records requests” allegedly showing that “at least 57 of [Maine’s] 192 school districts have policies that exclude parents from knowing whether their children start identifying as transgender.” The Parents Defending Education website had multiple blogs with downloadable policies and other documentation from Maine districts. In our initial review of those policies, we did not see any provisions explicitly violating FERPA; however, we did find several provisions that might lead to staff confusion about FERPA’s coverage and/or application (such as provisions differentiating what can be put in “permanent records” and “school records or other documents,” for example).

SPPO’s investigation initiation letter focused on two areas where Maine policies may conflict with FERPA: 

First, SPPO references a Memorandum on the “Interpretation of the Education Provisions of the MHRA” that reads: 

“In the event that the student and their parent/legal guardian do not agree with regard to the student’s sexual orientation, gender identity, or gender expression, the educational institution should, whenever possible, abide by the wishes of the student with regard their gender identity and expression while at school.” (PDF Page 4, emphasis added)

However, this excerpted provision doesn’t appear to implicate the treatment of PII in education records. Instead, it appears to relate solely to how students will be treated while at school. For this reason, the above language does not appear to implicate FERPA. 

Regardless, SPPO’s letter does acknowledge that, “the inclusion of ‘whenever possible’ may infer some deference for other factors that could include federal laws such as FERPA,” but flags that “the overall memorandum on its face appears to give school officials discretion that would infringe on the rights of a parent under FERPA” (PDF Page 3). We agree with SPPO that the term “whenever possible” includes deference to potentially conflicting legal obligations, such as those that schools have under FERPA. 

As we were reading the rest of the memorandum, we noticed that it included an odd reference to changing student names and/or pronouns in students’ “official records” versus “all other documents.” As mentioned above, this kind of differentiation of record types could be confusing to school staff about when names and pronouns are part of the “education record” that must be disclosed to parents under FERPA. However, it still does not directly conflict with FERPA. 

Second, the letter flags the following provision in Maine law: 

“A school counselor or school social worker may not be required, except as provided by this section, to divulge or release information gathered during a counseling relation with a client or with the parent, guardian or a person or agency having legal custody of a minor client. A counseling relation and the information resulting from it shall be kept confidential consistent with the professional obligations of the counselor or social worker.” (Title 20-A, Section 4008(2))

FERPA protects PII in education records. There is sometimes a misunderstanding about whether medical records fall under FERPA; however, FERPA will usually apply to any treatment or medical records of K-12 students. There is a FERPA exemption for certain “treatment records” for students over 18 or attending college, but that exception does not extend to K-12 (34 CFR 99.3 “Education records”; see our FERPA Exemptions table for more information). Unless the records of school counselors or social workers fall within a different FERPA exemption–such as the “sole possession” exception described below–FERPA would require schools to give these records to parents. 

However, FERPA does have an exception for “records that are kept in the sole possession of the maker,” so long as those records are “used only as a personal memory aid” and not accessible to anyone else, except a “temporary substitute for the maker of the record.” Since school counselors and social workers may vary in how they keep and share their records of conversations with students, keeping those records confidential is not an automatic violation of FERPA. However, if the school counselor or social worker entered a record of their conversations with students into, for example, software that is accessible by someone else at the district, the records would be subject to FERPA and must be disclosed upon request. 

Maine’s Response

We have not yet seen a response from MDE regarding this FERPA investigation. We will be keeping an eye out for future updates.