Request to Produce Student Records Not Available Through Due Process

Parents may initiate a due process petition on behalf of their child against a school district or charter school with the New Jersey Office of Special Education Programs (“OSEP”) for special education related claims arising under the Individuals with Disabilities Education Act (“IDEA”) and N.J.A.C. 6A:14-1.1 et seq., which include disagreements regarding identification, reevaluation, classification, educational placement, the provision of a free appropriate public education, or disciplinary action. However, the right to initiate a due process hearing does not extend to a request to compel a school district to produce student records, according to a recent decision issued by Administrative Law Judge John S. Kennedy on March 21, 2016 in D.O. o/b/o M.O. v. Jackson Township Board of Education, 2016 N.J. AGEN LEXIS 137 (2016).

In this case, the Jackson Township Board of Education (“Board”) successfully dismissed the case on the basis that the parent maintained no legal right to request copies of D.O.’s educational records through a due process petition. Judge Kennedy rejected the parent’s argument that the IDEA guarantees the right of access to student records, determining that none of the provisions of the IDEA or the New Jersey regulations provide for this right. The parent unsuccessfully argued that he is entitled to raise this student records issue via due process because there is currently a disagreement between the parties regarding the student’s special education placement. Judge Kennedy rejected this argument, explaining that the placement, a separate distinct issue, was not before him in the current due process petition filed by the parent.

Although the parent’s due process petition was dismissed, Judge Kennedy did not address whether the parent is completely barred from initiating a formal complaint demanding that the school district produce copies of the requested student records. That is, the parent could file a separate petition with the New Jersey Bureau of Controversies and Disputes (“BCD”) seeking this relief. School districts should be aware of whether the claims alleged by a parent can be raised in a due process petition initiated with OSEP or a petition with BCD, as each of these venues adhere to different procedures, timelines, and standards.

Tags: administrative law, Bureau of Controversies and Disputes, due process, educational records, Family Educational Rights and Privacy Act & Pupil Records, FERPA, Individuals with Disabilities Education Act, Office of Administrative Law, Office of Special Education Programs, special education, Special Education (IDEA) & Section 504 of the Rehabilitation Act, student records, students, students with disabilities