TITLE: Exempt Tribes from FERPA’s Advance Consent Requirement and Thereby Provide Access to Tribal Student Records
WHEREAS, we, the members of the National Congress of American Indians of the United States, invoking the divine blessing of the Creator upon our efforts and purposes, in order to preserve for ourselves and our descendants the inherent sovereign rights of our Indian nations, rights secured under Indian treaties and agreements with the United States, and all other rights and benefits to which we are entitled under the laws and Constitution of the United States, to enlighten the public toward a better understanding of the Indian people, to preserve Indian cultural values, and otherwise promote the health, safety and welfare of the Indian people, do hereby establish and submit the following resolution; and
WHEREAS, the National Congress of American Indians (NCAI) was established in 1944 and is the oldest and largest national organization of American Indian and Alaska Native tribal governments; and
WHEREAS, over ninety percent (90%) of American Indian and Alaska Native students attend state-run public schools; and
WHEREAS, the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g, (P.L. 90-247), Title IV, Sec. 438, 88 Stat. 571, governs access to the student records of children attending public schools; and
WHEREAS, FERPA generally provides federal, state, and local education agencies, authorities, and officials access to student records and other personally-identifiable information kept by educational institutions without the advance consent of parents or students; and
WHEREAS, these student records typically include attendance, grades, test scores, etc.; and
WHEREAS, FERPA does not include tribes or tribal education agencies (TEAs) as among the governmental entities eligible to obtain student data without advance parental consent; and
WHEREAS, in all but a few instances, this exclusion of tribes from FERPA has thwarted tribal access to Native student data, which has consequently hampered tribal efforts to develop and coordinate education programs, develop education codes, provide support services and technical assistance to schools, collaborate with state and local education agencies, and most importantly, work to close tribal student achievement gaps; and
WHEREAS, accurate, comprehensive, and meaningful data on Native students is often lacking because federal education reporting requirements often omit Native students due to their small numbers, and the state and local education agencies that do track Native students in public schools are unable to also monitor some of the most at-need Native students attending schools other than public schools; and
WHEREAS, tribes and TEAs are in the best position to track and coordinate Native student data, regardless of the education provider and student location; and
WHEREAS, student data analysis is a central tool in evaluating educational practices, tracking students’ academic performance, and developing school improvement plans and support services; and
WHEREAS, TEAs need access to the records of Native students so that they can monitor and analyze the needs and progress of their students and make data-driven decisions to improve Native education outcomes; and
WHEREAS, under 20 U.S.C. § 1232g(b)(1)(C) and 34 C.F.R. § 99.31(a)(3)(iii), the Secretary of the Department of Education can designate TEAs as authorized representatives of the Secretary for the purpose of accessing student records without advance parental or student consent when the disclosure is in connection with the enforcement of or compliance with Federal legal requirements that relate to federal programs; and
WHEREAS, some of the State Tribal Education Partnership (STEP) Programs administered by the Department of Education have agreements that call for or require the use of student data to ensure proper enforcement, compliance, and implementation of the Program.
NOW THEREFORE BE IT RESOLVED, the Department of Education should use its authority under 20 U.S.C. § 1232g(b)(1)(C) and 34 C.F.R. § 99.31(a)(3)(iii) to exempt tribes and TEAs from FERPA’s advance consent requirement by designating TEAs as the Secretary of Education’s authorized representatives for certain federal programs that tribes and TEAs are involved in to ensure proper enforcement, compliance, and implementation of the programs; and
BE IT FURTHER RESOLVED, the Department of Education should provide technical assistance to TEAs on the protection of student records, similar to that provided by the Department of Education’s Privacy Technical Assistance Center; and
BE IT FINALLY RESOLVED, that this resolution shall be the policy of NCAI until it is withdrawn or modified by subsequent resolution.