BILL NUMBER: S7353

SPONSOR: BRISPORT
 
TITLE OF BILL:

An act to amend the education law, in relation to the release of student
education records to juvenile detention facilities

 
PURPOSE OF THE BILL:

The proposed legislation would permit educational agencies to release
student education records to educational programs provided by juvenile
detention facilities for the purpose of providing a student with pre-ad-
judication services, where such student is being held in the juvenile
detention facility pursuant to a court order.

 
SUMMARY OF THE PROVISIONS OF THE BILL:

Section 1 of the bill adds a new section 2-e to the Education Law to
provide for the release of student education records to juvenile
detention facilities. Subdivision 1 provides for the definitions of the
following terms: education records, educational agency, student, parent,
              

educational program, and juvenile detention facility, and eligible
student.

Subdivision 2 provides that, as authorized under the Family Educational
Rights And Privacy Act (FERPA), where a student has been directed to be
held in a juvenile detention facility pursuant to a court order, the
educational agency where such student attends school at the time of such
direction shall, upon request of the juvenile detention facility,
disclose such student's data to educational program personnel at such
facility without parental consent, provided that: (i) such student has
not yet been adjudicated delinquent pursuant to article three of the
family court act, convicted of a crime as an adolescent offender or
juvenile offender, or adjudicated a youthful offender; (ii) such disclo-
sure is for the sole purpose of providing the student with pre-adjudica-
tion services including, but not limited to, educational services; and
(iii) any individual who receives the student's education records certi-
fies in writing that he or she agrees not to disclose such information
to a third party outside the juvenile detention facility without
parental consent, except as authorized pursuant to subdivision three of
such section.

Subdivision 3 provides that any student education records disclosed
pursuant to this section shall not be re-disclosed by the juvenile
detention facility without parental consent, unless: (i) the individual
or entity is authorized by such juvenile detention facility to receive
such disclosure; (ii) the individual or entity is or anticipates provid-
ing services to address a student's educational needs; and (iii) such
disclosure is consistent with the requirements of all applicable state
and federal laws including, but not limited to, section two-d of this
article.

Section 2 is the effective date.

 
STATEMENT IN SUPPORT OF THE BILL:

Research has documented that many of the adolescents who commit crimes
and enter the juvenile justice system possess significantly less academ-
ic credits than most students their age, some reading only at the
elementary level. A recent study indicated that one-third of incarcerat-
ed youth required or received special education services, a rate nearly
four times higher than non-incarcerated youth. Engaging youth in their
education and future is essential to changing their trajectory and to
reducing recidivism. Yet there are significant barriers to expeditiously
providing appropriate education services to youth in justice system
educational programs, such as timely receipt of education records when a
student is directed to be held in a juvenile detention facility pursuant
to a court order prior to adjudication by the court. Detention programs
across the state are expected to immediately provide appropriate educa-
tion programming for youth, including services required by a student's
individualized education program, although they do not have the access
to student's education records.

As a general rule, FERPA states that a minor child's educational records
can be reviewed and released only with the written consent of the
child's parent, guardian, or person standing in loco parentis to the
child-or, for a child 18 or over, him or herself. Oftentimes, it may
take weeks to obtain a parent's written consent and the student's educa-
tional records, hampering the facility's ability to provide a timely,
appropriate education to the student. However, FERPA contains an excep-
tion to the written consent requirement where state and local officials
have been explicitly authorized under state law to have access to
student education records of students in the juvenile justice system.
For a school to release a student's education records under the juvenile
justice exception, FERPA further requires that the disclosure must
concern the juvenile justice system's ability to effectively serve,
prior to adjudication, the student whose records are released. Addi-
tionally, it requires that the officials to whom the information is
disclosed must certify in writing to the educational agency or institu-
tion 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 or of the student.

This bill would codify the FERPA juvenile justice exception in New York
State law by giving juvenile detention facilities the ability to access
education records of students that are being held at such facilities for
the purposes of providing pre-adjudication services, including educa-
tional services, without having to first obtain written consent. This
bill will remove the barrier that juvenile detention facilities face in
timely receiving access to education records of students who are held at
such facilities so that they can more immediately provide appropriate
education programming for such students.

 
PRIOR LEGISLATIVE HISTORY:

This is a new bill.

 
EFFECTIVE DATE:
This act would take effect immediately.
 
FOR FURTHER INFORMATION CONTACT:
Jennifer Trowbridge Office of Governmental Relations Education Building
89 Washington Avenue Albany, New York 12234
(518) 486-5644 Respectfully submitted, Daniel Morton-Bentley Counsel and
Deputy Commissioner For Legal Affairs State Education Department January
16, 2023