Data Privacy and Parental Authority

The handling of student records is governed by state and federal laws, which include the Minnesota Government Data Practices Act (Minn. Stat. 13.32) and the Federal Educational Rights and Privacy Act “FERPA" (20 USC 1232g). Most student information collected or maintained by schools is classified as “private,” and private information may not be released to members of the public without parental consent (i.e., a Release of Information form) or as otherwise specifically permitted by law. Refer the statutes cited above for a complete list of legally permitted exceptions to the requirement of parental consent. A few exceptions relevant to case managers include:

• In response to a request for records from another school district where a student seeks to enroll as long as the release is for purposes related to the student's enrollment (34 CFR 99.31(a)(2)) (Minn. Stat. 13.32, Subd. 3(e)). School districts must send educational records to the student's new school within 10 business days of a request for records (Minn. Stat. § 120A.22, Subd. 7a).

• Mandated reporting of maltreatment of minors (Minn. Stat. 13.32, Subd. 3(n); Minn. Stat. 626.556).

• During emergencies when the school determines that there is an articulable and significant threat to the health (including mental 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 (Minn. Stat. 13.32, Subd. 3(d)).

The Release of Information forms are required whenever a parent or guardian requests that the school share educational data with an outside individual or agency, such as a student's healthcare provider.

Release of Information forms are also required when members of the public attend an IEP meeting. If a parent or guardian wishes to designate an individual to participate in a school conference (e.g., IEP meetings) involving their child, the parent or guardian must provide the school with prior written consent (i.e., a Release of Information form) allowing the significant individual to participate in the conference and to receive any data necessary and relevant to the conference discussions. The consenting parent or guardian may withdraw consent, in writing, at any time (Minn. Stat. 13.32, Subd. 10(a)).

Refer to the 'Custody' section below for more details regarding custody determination. Even with an award of sole legal custody, Minnesota law retains certain rights for the noncustodial parent unless a court order further limits that parent’s rights (Minn. Stat. § 518.68, Subd. 1; 120A.22, Subd. 1a):

• Each parent has the right of access to, and to receive copies of, school records and information about the child.

• Each parent shall keep the other parent informed as to the name and address of the child's school of attendance.

• Each parent has the right to be informed by school officials about the child's welfare, educational progress and status, and to attend school and parent-teacher conferences. The school is not required to hold a separate conference (i.e., IEP meeting) for each parent.

Unless the school has been provided with evidence that there is a court order restricting a parent's access, schools are required to operate on the presumption that a parent has the authority to access educational data (1205.0500, Subp. 2). Therefore, absent a specific court order stating otherwise, noncustodial parents should be notified of IEP meetings and be given the opportunity to participate in them (however, not to make educational decisions—refer to the 'Custody' section below for more details).

IDEA 2004 (Sec. 300.30 (a)) defines a child's parent as:

1. A child’s birth or adoptive parent.

2. A foster parent.

3. A guardian generally authorized to act as the child’s parent or to make educational decisions for the child (e.g., a "guardian ad litem").

4. A person with whom the child lives who has been acting in the place of the parent. This person could be a relative (including a grandparent, stepparent, or other relative) or non-relative under the statute.

5. A surrogate parent, which means a person appointed by a school district to represent a child with a disability who has or may need special education services. Surrogate parents are only responsible for representing the child when decisions about their special education program are made. A surrogate parent would be appointed by the district in one of the following circumstances (Minn. Rule 3525.2440):

   • No other parent (as defined by IDEA) can be identified, despite reasonable efforts by a public agency to locate a parent.

   • The child is a ward of the state.

   • The child is an unaccompanied homeless youth.

   • The parent requests a surrogate parent in writing, which can be revoked in writing at any time.

A birth or adoptive parent is a child’s presumptive IDEA parent (Sec. 300.30 (b)). In situations where more than one party is qualified (per IDEA's definition above) to act as the child's parent, the biological or adoptive parent, when attempting to act as the parent, must be presumed to be the parent unless a court order has limited their legal authority to make educational decisions for the child.

In Minnesota, custody is comprised of two parts, physical and legal custody. While physical custody addresses the residence of the child, legal custody addresses the right to determine the child's education (Minn. Stat. § 518.003, Subd. 3). During a custody proceeding, a court may award joint legal custody, meaning that both parents retain equal rights to participate in educational decisions. A court may instead award one parent with sole legal custody, meaning that rights to participate in educational decisions are exclusively retained by that parent.

Joint Legal Custody

In situations where both parents have decision-making authority (e.g., a married couple, a divorced couple with joint legal custody), according to the United States Department of Education, the school must honor either parent’s consent or objection to the school's proposals (i.e., Prior Written Notices). The law requires only one parent’s consent or objection. U.S. DOE's guidance is that, if parents disagree about an educational decision, that dispute needs to be resolved through other processes (in district court, for example) rather than through IDEA’s processes.

Sole Legal Custody

In situations where one parent is awarded sole legal custody, that parent retains all rights to determine the child's education (Minn. Stat. § 518.003, Subd. 3). However, even when sole legal custody is awarded, Minnesota law retains certain rights for the noncustodial parent unless a court order further limits that parent’s rights. For more details, refer to the section above: 'Access to Educational Data by Noncustodial Parents.'

The other parent (i.e., the noncustodial parent) should be notified of IEP meetings and be given the opportunity to participate in them (absent a specific court order stating otherwise). However, the noncustodial parent will not have the right to participate in the education decision-making part of the IEP Team process (Minn. Stat. § 518.68, Subd. 1). Because it must be presumed that both parents have equal rights to make decisions for a child unless there is a court order stating otherwise, it is important for districts to request a copy of the court order to help determine who has authority to make educational decisions for the child.