Code of Virginia

Code of Virginia
Title 22.1. Education
5/31/2020

Article 5. Pupil Records.

§ 22.1-287. Limitations on access to records.

A. No 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 one of the following:

1. Either parent of such pupil or such pupil; provided that a school board may require that such pupil, if he be less than 18 years of age, as a condition precedent to access to such records, furnish written consent of his or her parent for such access;

2. A person designated in writing by such pupil if the pupil is 18 years of age or older or by either parent of such pupil if the pupil is less than 18 years of age;

3. The principal, or someone designated by him, of a school where the pupil attends, has attended, or intends to enroll;

4. The current teachers of such pupil;

5. State or local law-enforcement or correctional personnel, including a law-enforcement officer, probation officer, parole officer or administrator, or a member of a parole board, seeking information in the course of his duties;

6. The Superintendent of Public Instruction, a member of his staff, the division superintendent of schools where the pupil attends, has attended, or intends to enroll or a member of his staff;

7. An officer or employee of a county or city agency responsible for protective services to children, as to a pupil referred to that agency as a minor requiring investigation or supervision by that agency.

B. A parent or pupil entitled to see the records pursuant to subdivision A 1 shall have access to all records relating to such pupil maintained by the school except as otherwise provided by law and need only appear in person during regular hours of the school day and request to see such records. No material concerning such pupil shall be edited or withheld except as otherwise provided by law, and the parent or pupil shall be entitled to read such material personally.

C. The giving of information by school personnel concerning participation in athletics and other school activities, the winning of scholastic or other honors and awards, and other like information shall be governed by the provisions of § 22.1-287.1.

D. Notwithstanding the restrictions imposed by this section:

1. A division superintendent of schools may, in his discretion, provide information to the staff of an institution of higher education or educational research and development organization or laboratory if such information is necessary to a research project or study conducted, sponsored, or approved by the institution of higher education or educational research and development organization or laboratory and if no pupil will be identified by name in the information provided for research;

2. The name and address of a pupil, the record of a pupil's daily attendance, a pupil's scholastic record in the form of grades received in school subjects, the names of a pupil's parents, a pupil's date and place of birth, and the names and addresses of other schools a pupil has attended may be released to an officer or employee of the United States government seeking this information in the course of his duties when the pupil is a veteran of military service with the United States, an orphan or dependent of such veteran, or an alien;

3. The record of a pupil's daily attendance shall be open for inspection and reproduction to an employee of a local department of social services who needs the record to determine the eligibility of the pupil's family for public assistance and social services;

4. The 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 subdivisions A 5 and 7, 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. Prior to disclosure of any such scholastic records, the persons to whom the records are to be disclosed shall certify in writing to the principal or his designee that the information will not be disclosed to any other party, except as provided under state law, without the prior written consent of the parent of the pupil or by such pupil if the pupil is 18 years of age or older.

Code 1950, § 22-275.26; 1975, c. 639; 1976, c. 682; 1980, c. 559; 1981, c. 535; 1996, c. 1000; 1997, c. 910; 2002, c. 747; 2007, cc. 48, 555; 2018, c. 806.

§ 22.1-287.01. Student information; release to federal government agencies.

Except as required by federal law or regulation, no member or employee of a local school board or the Department of Education shall transmit personally identifiable information, as that term is defined in the Family Educational Rights and Privacy Act (20 U.S.C. § 1232g) and related regulations, from a student's record to a federal government agency or an authorized representative of such agency.

2014, c. 322.

§ 22.1-287.02. Students' personally identifiable information.

A. The Department of Education shall develop and make publicly available on its website policies to ensure state and local compliance with the federal Family Educational Rights and Privacy Act (20 U.S.C. § 1232g) and state law applicable to students' personally identifiable information, including policies for (i) access to students' personally identifiable information and (ii) the approval of requests for student data from public and private entities and individuals for the purpose of research.

B. In cases in which electronic records containing personally identifiable information are reasonably believed by the Department of Education or a local school division to have been disclosed in violation of the Family Educational Rights and Privacy Act (20 U.S.C. § 1232g) or other federal or state law applicable to such information, the Department or local school division shall notify, as soon as practicable, the parent of any student affected by such disclosure, except as otherwise provided in § 32.1-127.1:05 or 18.2-186.6. Such notification shall include the (i) date, estimated date, or date range of the disclosure; (ii) type of information that was or is reasonably believed to have been disclosed; and (iii) remedial measures taken or planned in response to the disclosure.

2015, c. 139.

§ 22.1-287.03. Unique student identification numbers.

A. Neither the Department of Education nor any local school board shall require any student enrolled in a public elementary or secondary school or receiving home instruction pursuant to § 22.1-254.1, or his parent, to provide the student's federal social security number.

B. The Department of Education shall develop a system of unique student identification numbers. Each local school board shall assign such a number to each student enrolled in a public elementary or secondary school. No student identification number shall include or be derived from the student's federal social security number. Each student shall retain his student identification number for as long as he is enrolled in a public elementary or secondary school in the Commonwealth.

2015, cc. 372, 666.

§ 22.1-287.04. Uniformed services-connected students.

A. For purposes of this section, a "uniformed services-connected student" means a student enrolled in a public school whose parent is serving in either (i) the active component of the U.S. Army, Navy, Air Force, Marine Corps, Coast Guard, or National Guard, the Commissioned Corps of the National Oceanic and Atmospheric Administration, or the Commissioned Corps of the U.S. Public Health Services or (ii) the reserve component of the U.S. Army, Navy, Air Force, Marine Corps, Coast Guard, or National Guard.

B. The Department of Education shall establish a process for the identification of newly enrolled uniformed services-connected students by local school divisions. Local school divisions shall identify newly enrolled uniformed services-connected students in accordance with such process.

C. Nonidentifiable, aggregate data collected from the identification of uniformed services-connected students shall be made available to local, state, and federal entities for the purposes of becoming eligible for nongeneral fund sources and receiving services to meet the needs of uniformed services-connected students residing in the Commonwealth.

D. Data collected from the identification of uniformed services-connected students shall not be a public record as defined in § 2.2-3701. No person shall disclose such data except as permitted under the provisions of the federal Family Educational Rights and Privacy Act (20 U.S.C. § 1232g) and related regulations. No such data shall be used for the purposes of student achievement, the Standards of Accreditation, student-growth indicators, the school performance report card, or any other school rating system.

2015, cc. 582, 583.

§ 22.1-287.1. Directory information.

A. Notwithstanding §§ 22.1-287 and 22.1-288, directory information, as defined by the federal Family Educational Rights and Privacy Act (20 U.S.C. § 1232g) (FERPA), and which may include a student's name, sex, address, telephone listing, date and place of birth, major field of study, participation in officially recognized activities and sports, weight and height as a member of an athletic team, dates of attendance, degrees and awards received, and other similar information, may be disclosed in accordance with federal and state law and regulations, provided that the school has given notice to the parent or eligible student of (i) the types of information that the school has designated as directory information, (ii) the right of the parent or eligible student to refuse the designation of any or all of the types of information about the student as directory information, and (iii) the period of time within which the parent or eligible student must notify the school in writing that he does not want any or all of the types of information about the student designated as directory information. However, no school shall disclose the address, telephone number, or email address of a student pursuant to the Virginia Freedom of Information Act (§ 2.2-3700 et seq.) unless the parent or eligible student has affirmatively consented in writing to such disclosure. Additionally, except as required by state or federal law, no school shall disclose the address, telephone number, or email address of a student pursuant to 34 C.F.R. § 99.31(a)(11) unless (a) the disclosure is to students enrolled in the school or to school board employees for educational purposes or school business and the parent or eligible student has not opted out of such disclosure in accordance with this subsection and school board policy or (b) the parent or eligible student has affirmatively consented in writing to such disclosure. This subsection shall not apply to any disclosure, other than a disclosure pursuant to 34 C.F.R. § 99.31(a)(11), permitted under FERPA.

B. For purposes of this section, an "eligible student" is a student 18 years of age or older or a student under the age of 18 who is emancipated.

1983, c. 432; 2018, c. 806; 2019, c. 229.

§ 22.1-288. Furnishing information to public or private school or institution of higher education or private business or professional school or institution of higher education or military force.

Notwithstanding § 22.1-287, the principal of any public school may permit the furnishing of or may furnish the names and addresses of pupils presently enrolled or pupils who have terminated their enrollment to any officer or employee of a public or private school or institution of higher education or any official of a private business or professional school or institution of higher education or any official recruiting representative of the military forces of the Commonwealth and the United States. This information shall be furnished for the purpose of informing pupils and former pupils of the educational and career opportunities available in the institutions or the military. No such public or private school or institution of higher education or private business or professional school or institution of higher education or official recruiting representative or the military force he represents shall use such information for purposes not directly related to the academic or professional goals of the institution or the military force. If any school or institution or any official representative or military force violates the provisions of this section, the privilege of the school, institution, or military force to receive the lists shall be suspended for a period of two years from the time of discovery of the misuse of such lists.

Code 1950, § 22-275.27; 1975, c. 639; 1980, c. 559; 1982, c. 258.

§ 22.1-288.1. Notation in school records of missing children; local law-enforcement cooperation.

A. Each school board shall receive reports of disappearances of any children living within the school division from local law enforcement pursuant to § 52-31.1.

B. Upon notification by a local law-enforcement agency of a child's disappearance, the principal of any school in which the child was enrolled at the time of the disappearance shall indicate, by mark, in the child's cumulative record that the child has been reported as missing. Upon notification by law enforcement that the child is located, the principal shall remove the mark from the record.

C. Upon receiving a request from any school or person for copies of the cumulative records and birth certificate of any child who has been reported by a local law-enforcement agency to be missing, the school being requested to transfer the records shall immediately notify the law-enforcement agency that provided the report to the school of the child's disappearance of the location of the school or person requesting the cumulative records and birth certificate of the child, without alerting the requestor of such report.

D. For the purposes of this section, a "mark" shall mean an electronic or other indicator that (i) is readily apparent on the student's record and (ii) will immediately alert any school personnel that the record is that of a missing child.

1990, c. 295; 2006, c. 295.

§ 22.1-288.2. Receipt, dissemination and maintenance of records of certain law-enforcement information.

A. A division superintendent shall disseminate the notice or information regarding an adjudication of delinquency or conviction for an offense listed in subsection G of § 16.1-260, contained in a notice received by him pursuant to § 16.1-305.1 to school personnel responsible for the management of student records and to other relevant school personnel, including, but not limited to, the principal of the school in which the student is enrolled. The principal shall further disseminate such information to licensed instructional personnel and other school personnel who (i) provide direct educational or support services to the student and (ii) have a legitimate educational interest in such information.

B. A parent, guardian or other person having control or charge of a student in a public school and, with consent of a parent or in compliance with a court order, the court in which the disposition was rendered, shall be notified in writing of any disciplinary action taken with regard to any incident upon which the adjudication of delinquency or conviction for an offense listed in subsection G of § 16.1-260 was based and the reasons therefor. The parent or guardian shall also be notified of his or her right to review, and to request an amendment of, the student's scholastic record, in accordance with regulations of the Board of Education governing the management of scholastic records.

Every notice of adjudication of delinquency or conviction for an offense listed in subsection G of § 16.1-260 received by a superintendent, and information contained in the notice, which is not a disciplinary record as defined in Board of Education regulations, shall be maintained by him and by any others to whom he disseminates it, separately from all other records concerning the student. However, if the school administrators or the school board takes disciplinary action against a student based upon an incident which formed the basis for the adjudication of delinquency or conviction for an offense listed in subsection G of § 16.1-260, the notice shall become a part of the student's disciplinary record.

C. When a superintendent receives notice of the filing of a petition from the intake officer in accordance with § 16.1-260, or upon request of a court services unit for information made in conjunction with the preparation of a social history report pursuant to § 16.1-273, the superintendent shall provide information regarding the student's educational and attendance status to the intake officer or court services unit, as the case may be. Whenever a division superintendent receives notice of a student's commitment to the Department of Juvenile Justice, the superintendent or his designee shall participate in the development of a reenrollment plan as provided in § 16.1-293.

1994, cc. 835, 913; 1995, c. 429; 1996, cc. 755, 914; 1998, c. 870; 2003, c. 119.

§ 22.1-289. Transfer and management of scholastic records; disclosure of information in court notices; penalty.

A. As used in this section:

"Scholastic record" means those records that are directly related to a student and are maintained by an educational agency or institution or by a party acting for the agency or institution. These include, but are not limited to, documentation pertinent to the educational growth and development of students as they progress through school, student disciplinary records, achievement and test data, cumulative health records, reports of assessments for eligibility for special education services, and Individualized Education Programs. Such records may be recorded in any way, including, but not limited to, handwriting, print, computer media, video or audio tape, film, microfilm, and microfiche.

A notice of adjudication or conviction received by a superintendent relating to an incident which did not occur on school property or during a school-sponsored activity shall not be a part of a student's scholastic record.

The term "scholastic record" also shall not include records of instructional, supervisory, administrative, and ancillary educational personnel that are kept in the sole possession of the maker of the record and are not accessible or revealed to any other person except a temporary substitute for the maker of the record.

B. Whenever a pupil transfers from one school division to another, the scholastic record or a copy of the scholastic record shall be transferred to the school division to which the pupil transfers upon request from such school division. Permission of the parent, guardian, or other person having control or charge of the student shall not be required for transfer of such scholastic record to another school or school division within or outside the Commonwealth.

C. Any notice of disposition received pursuant to § 16.1-305.1 shall not be retained after the student has been awarded a diploma or a certificate as provided in § 22.1-253.13:4.

D. Every student's scholastic record shall be available to the student and his parent, guardian, or other person having control or charge of the student for inspection during the regular school day. Permission of the parent, guardian, or other person having control or charge of the student, or of a student who is 18 years of age or older, shall not be required for transfer of such scholastic record to another school or school division within or without this Commonwealth.

Consistent with federal law and regulation, each school shall annually notify parents of students currently enrolled and in attendance of their rights under the federal Family Educational Rights and Privacy Act (20 U.S.C. § 1232g) and related regulations.

A school responding to a request for the transfer of the scholastic record from another school division need not provide written notice of the transfer of the record, including the identity of the requester, to the parent, guardian, or other person having control or charge of the student, or to a student who is 18 years of age or older, if the school has previously included in the annual notice required by this subsection a statement that it forwards such records to such requesting school divisions.

E. Whenever the division superintendent is notified by the Department of Juvenile Justice, pursuant to § 16.1-287, or by a school division employee responsible for education programs in a local jail or a detention center, that a pupil who last attended a school within the school division is a pupil in a school of a juvenile correctional center of the Department of Juvenile Justice, or a pupil in an educational program in a local jail or detention center, the school division superintendent or his designee shall transfer the scholastic record of such pupil to the designated juvenile correctional center or local jail or a detention center, as the case may be, within five work days. The Department of Juvenile Justice shall transfer the scholastic record of a student who has been discharged from a juvenile correctional center to the relevant school division within five work days of the student's discharge.

The Board of Education shall adopt regulations concerning the transfer and management of scholastic records from one school division to another, to the learning centers of the Department of Juvenile Justice, and to educational programs in local jails and detention centers.

Upon receiving notice of a foster care placement of a student across jurisdictional lines, the sending school division and the receiving school division, as such school divisions are defined in subsection D of § 22.1-3.4, shall expedite the transfer of the scholastic record of the student.

F. The division superintendent or his designee shall notify the local police or sheriff's department for investigation as a possible missing child of any enrolled pupil whose scholastic record he is unable to obtain within 60 days or sooner, if the division superintendent or his designee has reason to suspect that the pupil is a missing child.

G. Superintendents and their designees shall be immune from any civil or criminal liability in connection with any notice to a police or sheriff's department of a pupil lacking a scholastic record or failure to give such notice as required by this section.

H. Except as provided in §§ 16.1-309 and 22.1-287 and this section, a superintendent or his designee, or other school personnel who unlawfully discloses information obtained pursuant to § 16.1-305.1 shall be guilty of a Class 3 misdemeanor.

Code 1950, § 22-275.28; 1975, c. 639; 1980, c. 559; 1985, c. 593; 1990, c. 797; 1991, c. 295; 1993, cc. 740, 889; 1994, cc. 808, 835, 913; 1996, c. 1000; 2000, c. 86; 2005, c. 343; 2006, c. 47; 2012, cc. 803, 835.

§ 22.1-289.01. School service providers; school-affiliated entities; student personal information.

A. For the purposes of this section:

"Elementary and secondary school purposes" means purposes that (i) customarily take place at the direction of an elementary or secondary school, elementary or secondary school teacher, or school division; (ii) aid in the administration of school activities, including instruction in the classroom or at home; administrative activities; and collaboration between students, school personnel, or parents; or (iii) are otherwise for the use and benefit of an elementary or secondary school.

"Machine-readable format" means a structured format that can automatically be read and processed by a computer such as comma-separated values (CSV), Javascript Object Notation (JSON), or Extensible Markup Language (XML). "Machine-readable format" does not include portable document format (PDF).

"Personal profile" does not include account information that is collected and retained by a school service provider and remains under control of a student, parent, or elementary or secondary school.

"School-affiliated entity" means any private entity that provides support to a local school division or a public elementary or secondary school in the Commonwealth. "School-affiliated entity" includes alumni associations, booster clubs, parent-teacher associations, parent-teacher-student associations, parent-teacher organizations, public education foundations, public education funds, and scholarship organizations.

"School service" means a website, mobile application, or online service that (i) is designed and marketed primarily for use in elementary or secondary schools; (ii) is used (a) at the direction of teachers or other employees at elementary or secondary schools or (b) by any school-affiliated entity; and (iii) collects and maintains, uses, or shares student personal information. "School service" does not include a website, mobile application, or online service that is (a) used for the purposes of college and career readiness assessment or (b) designed and marketed for use by individuals or entities generally, even if it is also marketed for use in elementary or secondary schools.

"School service provider" means an entity that operates a school service pursuant to a contract with a local school division in the Commonwealth.

"Student personal information" means information collected through a school service that identifies a currently or formerly enrolled individual student or is linked to information that identifies a currently or formerly enrolled individual student.

"Targeted advertising" means advertising that is presented to a student and selected on the basis of information obtained or inferred over time from such student's online behavior, use of applications, or sharing of student personal information. "Targeted advertising" does not include advertising (i) that is presented to a student at an online location (a) on the basis of such student's online behavior, use of applications, or sharing of student personal information during his current visit to that online location or (b) in response to that student's request for information or feedback and (ii) for which a student's online activities or requests are not retained over time for the purpose of subsequent advertising.

B. In operating a school service pursuant to a contract with a local school division, each school service provider shall:

1. Provide clear and easy-to-understand information about the types of student personal information it collects through any school service and how it maintains, uses, or shares such student personal information;

2. Maintain a policy for the privacy of student personal information for each school service and provide prominent notice before making material changes to its policy for the privacy of student personal information for the relevant school service;

3. Maintain a comprehensive information security program that is reasonably designed to protect the security, privacy, confidentiality, and integrity of student personal information and makes use of appropriate administrative, technological, and physical safeguards;

4. Facilitate access to and correction of student personal information by each student whose student personal information has been collected, maintained, used, or shared by the school service provider, or by such student's parent, either directly or through the student's school or teacher;

5. Collect, maintain, use, and share student personal information only with the consent of the student or, if the student is less than 18 years of age, his parent or for the purposes authorized in the contract between the school division and the school service provider;

6. When it collects student personal information directly from the student, obtain the consent of the student or, if the student is less than 18 years of age, his parent before using student personal information in a manner that is inconsistent with its policy for the privacy of student personal information for the relevant school service, and when it collects student personal information from an individual or entity other than the student, obtain the consent of the school division before using student personal information in a manner that is inconsistent with its policy for the privacy of student personal information for the relevant school service;

7. Require any successor entity or third party with whom it contracts to abide by its policy for the privacy of student personal information and comprehensive information security program before accessing student personal information;

8. Upon the request of the school or school division, delete student personal information within a reasonable period of time after such request unless the student or, if the student is less than 18 years of age, his parent consents to the maintenance of the student personal information by the school service provider; and

9. Provide, either directly to the student or his parent or through the school, access to an electronic copy of such student's personal information in a manner consistent with the functionality of the school service. Contracts between local school boards and school service providers may require that such electronic copy be in a machine-readable format.

C. In operating a school service pursuant to a contract with a local school division, no school service provider shall knowingly:

1. Use or share any student personal information for the purpose of targeted advertising to students;

2. Use or share any student personal information to create a personal profile of a student other than for elementary and secondary school purposes authorized by the school division, with the consent of the student or, if the student is less than 18 years of age, his parent, or as otherwise authorized in the contract between the school division and the school service provider; or

3. Sell student personal information, except to the extent that such student personal information is sold to or acquired by a successor entity that purchases, merges with, or otherwise acquires the school service provider, subject to the provisions of subdivision B 7.

D. Nothing in this section shall be construed to prohibit school service providers from:

1. Using student personal information for purposes of adaptive learning, personalized learning, or customized education;

2. Using student personal information for maintaining, developing, supporting, improving, or diagnosing the school service;

3. Providing recommendations for employment, school, educational, or other learning purposes within a school service when such recommendation is not determined in whole or in part by payment or other consideration from a third party;

4. Disclosing student personal information to (i) ensure legal or regulatory compliance, (ii) protect against liability, or (iii) protect the security or integrity of its school service; or

5. Disclosing student personal information pursuant to a contract with a service provider, provided that the school service provider (i) contractually prohibits the service provider from using any student personal information for any purpose other than providing the contracted service to or on behalf of the school service provider, (ii) contractually prohibits the service provider from disclosing any student personal information provided by the school service provider to any third party unless such disclosure is permitted by subdivision B 7, and (iii) requires the service provider to comply with the requirements set forth in subsection B and prohibitions set forth in subsection C.

E. Nothing in this section shall be construed to:

1. Impose a duty upon a provider of an electronic store, gateway, marketplace, forum, or means for purchasing or downloading software or applications to review or enforce compliance with this section with regard to any school service provider whose school service is available for purchase or download on such electronic store, gateway, marketplace, forum, or means;

2. Impose liability on an interactive computer service, as that term is defined in 47 U.S.C. § 230(f), for content provided by another individual; or

3. Prohibit any student from downloading, exporting, transferring, saving, or maintaining his personal information, data, or documents.

F. No school service provider in operation on June 30, 2016, shall be subject to the provisions of this section until such time as the contract to operate a school service is renewed.

2015, c. 728; 2016, cc. 438, 439, 468; 2017, c. 518.

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