Untitled Texas Attorney General Opinion ( 1984 )

The Attorney General of Texas
t-by 2, 1984
JIM MATTOX
Attorney General
Supreme Court Building Honorable Carl A. Parker Opinion No. ``-154
P. 0. Box 12548
Austin, TX. 78711. 2548
Chairman
5121475-2501 Senate Education Committee lb%: Whether a private secondary
Telex 9101874-1367 Texas State Senate institution may withhold a
Telecopier 5121475-0266 P1~0. BOX 12068, Capitol Station student's academic records
Austin, Texas 78711 because of unpaid tuition
714 Jackson, Syitg700
Dallas, TX. 75202.4506 Dear Senator Parker:
2141742.8944
You have requested an opinion regarding whether a private high
school which participates in a federal lunch program and is accredited
4824 Alberta Ave., Suite 160
El Paso, TX. 79905-2793
by the Texas Education Agency may withhold a former student's records
915/533-3484 because of unpaid tuition. You ask whether the school's action
violates the Texas Open Records Act or the Federal Family Educational
Rights and Privacy Act of 1974. Finally, you wish to know what remedy
r301 Texas, Suite 700 is available 'cothe student.
rlouston. TX. 77002.3111
713/223-5886
Since this case involves a private school which receives no
funding from the state of Texas, the Open Records Act, article
606 Broadway, Suite 312 6252-17a. V.T.C.S., does not apply. The act is limited to
Lubbock, TX. 79401.3479 "information collected, assembled, or maintained by governmental
SC6/747-5238
bodies." V.T.C.S. art. 6252-17a. 03(a). Section 2(l) defines
"governmental body" as, inter alia,
4369 N. Tenth, Suite 6
McAllen, TX. 78501.1685 (F) the part. section, or portion of every
512/882-4547
organization, corporation, commission, committee,
institution, or agency which is supported in whole
200 Main Plaza, Suite 400 or in part by public funds, or which expends
San Antonio. TX. 78205.2797 public funds. Public funds as used herein shall
512/225-4191 mean funds of the State of Texas or any
governmental subdivision thereof . . . .
An Equal Opportunity1
(Emphasis added).
Affirmative Action Employer
A private school would come within the ambit of the act if it came
under section 2(1)(F). Although the private school receives federal
funds, we understand that it does not receive any state funds. As a
result, it is not a governmental body under the statute and is not
bound by the disclosure requirements of the Open Records Act.
The Family Educational and Privacy Rights Act sets forth
conditions for availability of federal funds to educational agencies
or institutions. It provides:
p. 678
Honorable Carl A. Parker - Page 2 (JM-154)
No funds shall be made available under any
applicable program to any educational agency or
institution which has a policy of denying, or
which effectively prevents, the parents of
students who are or have been in attendance at a
school of such agency or at such institution, as
the case may be, the right to inspect and review
the education records of their children . . . .
20 U.S.C. 01232g(a)(l)(A).
The private school involved receives federal lunch program funds.
Section 1232g(a)(l)(A) requires any educational institution, public or
private, to permit parents to inspect their children's records or risk
losing federal funds. Thus, if the school wishes to continue to
receive federal funds under this provision, it must allow the parents
to see their child's academic records. It is important to note that
the federal statute does not require the school to provide or forward
an official transcript. It provides only that the parents be allowed
to "inspect and review" the records.
The student and her parents, however, have no remedy under the
federal statute. The enforcement provision reads:
?
The Secretary, or an administrative head of an
education agency, shall take appropriate actions
to enforce provisions of this section and to deal
with violations of this section, according to the
provisions of this chapter, except that action to
terminate assistance may be taken only if the
Secretary finds there has been a failure to comply
with the provisions of this section, and he has
determined that compliance cannot be secured by
voluntary means. (Emphasis added).
20 U.S.C. $1232g(f). The statute provides no private right of action.
Girardier v. Webster College, 563 F.2d 1267 (8th Cir. 1977).
According to the Joint Statement in Explanation of the Buckley/Pell
Amendment, the Secretary of Health, Education and Welfare [now the
Department of Health and Human Services] is responsible for
enforcement of the act. Id. at 1276. The language of subsection (f)
also indicates that the head of the Texas Education Agency is
authorized to enforce the statute. Thus, the student and her parents
may seek intervention by the appropriate official to compel the school
to comply but may not take direct action against the school.
The school's refusal to abide by section 1232g might also lead to
measures concerning its accreditation under the rules promulgated by
the State Board of Education pursuant to section 11.26(a)(5) of the
Education Code. An accredited school must demonstrate "continuous
performance" throughout a five year cycle, in part by "maintaining
p. 679
Honorable Carl A. Parker - Page 3 (JM-154)
satisfactory status with respect to principles and standards." 19
T.A.C. $97.72(c)(l). The principles and standards are listed in
sections 97.92 through 97.101. The second principle requires
"continuous compliance with constitutional and statutory law." 19
T.A.C. 597.93. Subsection (1) provides:
Standard A. The board of trustees keeps informed
on applicable law, makes reliable interpretations
thereof, and monitors compliance of its operations
with law.
(Note 1: The board is legally responsible for
law-abiding operations. Reliance by the board
solely upon external monitoring and evaluations
to test compliance with some law, does not
necessarily meet this standard.)
(Note 2: Proven noncompliance with law makes a
district liable to accreditation sanctions.
Noncomoliance auicklv corrected by the district
may not evoke punitive sanctions,-but can raise
questions about the adequacy with which this
standard is being met.) (Emphasis added).
A school's failure to comply with the Federal Family Educational
Rights and Privacy Act may, therefore, result in accreditation
sanctions as provided by the regulations.
SUMMARY
A private secondary institution is not required
to release academic records to a student or her
parents or forward them as requested under the
Open Records Act because it receives no state
funds and may not be considered a "governmental
body" within the act. The Federal Family
Educational Rights and Privacy Act requires any
school which receives federal funds to allow a
student's parents to inspect and review her
records. Failure to comply with the federal
statute may cause the school to lose federal funds
and state accreditation, but the student has no
private right of action against the school.
Jzo&
MATTOX
Attorney General of Texas
p. 680
Honorable Carl A. Parker - Page 4 (JM-154)
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Jon Bible
David Brooks
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton
p. 681