Letters of recommendation from school staff can be a key component in the college application and selection process.  Not surprisingly, some parents want to see how strong the letters of recommendation are before they are issued.  The Family Educational Rights and Privacy Act (FERPA) gives parents and eligible students that right.  A letter of recommendation written by a school staff member is an “education record” as it directly relates to a student and is maintained by the school district.  Parents may inspect education records until a student turns 18 or starts college, whichever occurs first, after which the student may inspect the educational records with limited exceptions (34 C.F.R. § 99.3).

In a November 17, 1994 guidance letter issued by the Family Policy Compliance Office (FPCO), the FPCO took the position that K-12 school districts may ask students to sign a waiver of their FERPA right to access letters of recommendation.  Specifically, the FPCO stated:

While the regulations [34 C.F.R. § 99.12] indicate that this section applies at the post secondary level, this office has previously determined that a secondary school may refuse a student or the student’s parent access to any copies of letters of recommendation to which a student has waived his or her right of access which are maintained at the secondary level.  However, if a student has not signed a waiver of his or her right to access a particular confidential letter or statement, a school would be required by FERPA to provide that student access to that record. 

There are several benefits to such waivers.  First, teachers and guidance counselors will feel more free to write more realistic letters of recommendation.  Also, with a waiver, parents will not be able to ask for advance copies of the letter and then request that it be strengthened.  Waivers also benefit students in that colleges may place greater weight on “waived” letters of recommendation.  Therefore, by providing a waiver, it enhances the weight of the letter of recommendation in the student’s application, thereby increasing the student’s chances of acceptance.

In implementing a waiver program, school districts should ask both parents and students to waive their FERPA rights of access.  The parents should be asked to sign the waiver because they usually have the FERPA inspection rights during the letter writing and application process because the child is not yet 18 (34 C.F.R. § 99.4).  Students should be asked to sign the waiver because they will gain FERPA access rights in the very near future (34 C.F.R. § 99.5).  Please remember that FERPA regulations do not permit school districts to require students to sign waivers as a condition of receiving a letter of recommendation.  However, the FPCO guidance letter states that school district employees may decline to write a letter of recommendation if the student will not waive their FERPA rights to access the letter.

The attorneys in our school law division are prepared to assist in drafting waivers of FERPA rights to implement a waiver program for college letters of recommendation if your school district desires to implement such a program.

Alfred Maiello

Alfred C. Maiello is the founding member of MBM and has represented area school districts as solicitor for 50 years. He counsels school districts and educational institutions on leading developments in school law and guiding them through their day-to-day and long-term challenges.