Suspension and Expulsion Records

Answer

The law regarding disclosure of student disciplinary records has engendered some controversy in past years, including with respect to whether the federal FERPA (Family Education Rights and Privacy Act) laws, 20 USC Section 1232g, preempt California laws authorizing the release of certain student disciplinary information.  At this point, the short answer is that although broad statistical data not related to particular students may be available under the Public Records Act (“PRA”), records related to particular students are most likely not (absent parental consent).

The PRA provides that public records are presumptively open to the public, absent an express provision to the contrary.  Two provisions of the PRA that might apply to student disciplinary records are Government Code Section 6254(c), which exempts from disclosure “[p]ersonnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy,” and Section 6254(k), which exempts from disclosure “[r]ecords the disclosure of which is exempted or prohibited pursuant to federal or state law.”

Section 49076 of the California Education Code states that “[a] school district is not authorized to permit access to pupil records to any person without written parental consent or under judicial order” except in certain situations.  Nevertheless, Section 48918(k) of the Education Code provides that “[r]ecords of expulsions shall be a nonprivileged, disclosable public record.”  In 1997 the California Attorney General issued an opinion holding that school districts must disclose the names of pupils who have been expelled pursuant to Section 48918(k), regardless of provisions of FERPA that require the written consent of parents for the release of disciplinary records.  80 Ops. Cal. Atty. Gen. 85 (1997).

In 2002, however, a California court held that FERPA preempts Section 48918(k) and that disciplinary records, including records of expulsions, should not be disclosed without parental consent.  Rim of the World Unified School District v. Superior Court of San Bernardino,104 Cal. App. 4th 1393 (2002).  Although Section 48918(k) is still on the books, the Rim of the World decision would seem to control the issue at this point.

On the other hand, if records containing general data regarding suspensions and expulsions not related to a particular student exist, then it is not clear why such records would not be subject to disclosure under the PRA.