                                      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




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