ception is not inconsistent with any terms of said statute, upon a finding by the Secretary of the Interior that such waiver or exception is justified by circumstances not contemplated by these rules and such action is desirable to carry out the purpose of the statute.

PART 35-STUDENT RIGHTS AND DUE PROCESS PROCEDURES

Sec.

35.1 Purpose.

35.2 Application to Bureau schools. 35.3 Rights of the individual student.

35.4 Due process.

35.5 Application to schools under Bureau contract.

AUTHORITY: 5 U.S.C. sec. 301.

SOURCE: 39 FR 32741, Sept. 11, 1974, unless otherwise noted.

§ 35.1 Purpose.

The regulations in this part govern establishing programs of student rights and due process procedures in Bureau of Indian Affairs schools and in schools that are operating under contract with the Bureau of Indian Affairs.

§ 35.2 Application to Bureau schools.

All Bureau of Indian Affairs schools shall be governed by the regulations set forth in this part and said regulations shall be expressly included as a part of the local school regulations of each Bureau of Indian Affairs school. Upon admission, all students of Bureau of Indian Affairs schools shall be given a copy of the school regulations governing the conduct of students and shall be notified of any amendments thereto.

§ 35.3 Rights of the individual student.

Individual students at Bureau of Indian Affairs schools have, and shall be accorded, the following rights:

(a) The right to an education. (b) The right to be free from unreasonable search and seizure of their person and property, to a reasonable degree of privacy, and to a safe and secure environment.

(c) The right to make his or her own decisions where applicable.

(d) The right to freedom of religion and culture.

(e) The right to freedom of speech and expression, including symbolic expression, such as display of buttons, posters, choice of dress, and length of hair, so long as the symbolic expression does not unreasonably and in fact disrupt the educational process or endanger the health and safety of the student or others.

(f) The right to freedom of the press, except where material in student publications is libelous, slanderous, or obscene.

(g) The right to peaceably assemble and to petition the redress of griev

ances.

(h) The right to freedom from discrimination.

(i) The right to due process. Every student is entitled to due process in every instance of disciplinary action for alleged violation of school regulations for which the student may be subjected to penalties of suspension, expulsion, or transfer.

§ 35.4 Due process.

Due process shall include:

(a) Written notice of charges within a reasonable time prior to a hearing. Notice of the charges shall include reference to the regulation allegedly violated, the facts alleged to constitute the violation, and notice of access to all statements of persons relating to the charge and to those parts of the student's school record which will be considered in rendering a disciplinary decision.

(b) A fair and impartial hearing prior to the imposition of disciplinary action absent the actual existence of an emergency situation seriously and immediately endangering the health or safety of the student or others. In an emergency situation the official may impose disciplinary action not to exceed a temporary suspension, but shall immediately thereafter report in writing the facts (not conclusions) giving rise to the emergency and shall afford the student a hearing which fully comports with due process, as set forth herein, as soon as practicable thereafter.

(c) The right to have present at the aring the student's parent(s) or ardian(s) (or their designee) and to represented by lay or legal counsel the student's choice. Private attorey's fees are to be borne by the stuent.

(d) The right to produce, and have roduced, witnesses on the student's half and to confront and examine 1 witnesses.

(e) The right to a record of hearings I disciplinary actions, including writen findings of fact and conclusions in l cases of disciplinary action.

(f) The right to administrative eview and appeal.

(g) The student shall not be comelled to testify against himself.

(h) The right to have allegations of misconduct and information pertainng thereto expunged from the stulent's school record in the event the tudent is found not guilty of the charges.

535.5 Application to schools under Bureau contract.

Non-Bureau of Indian Affairs schools which are funded under contract with the Bureau of Indian Affairs must also recognize these student rights.

Sec.

36.20 Directory information. 36.21 Standards for collection and maintenance of student records.

36.22 Assuring integrity of records. 36.23 Conduct of employees.

AUTHORITY: 35 Stat. 72 (25 U.S.C. 295); Pub. L. 93-579, 88 Stat. 1896; Sec. 438, Pub. L. 93-380, as amended; Pub. L. 94-142.

SOURCE: 43 FR 52024, Nov. 8, 1978, unless otherwise noted.

§ 36.1 Purpose and scope.

This part contains the regulations of the Bureau of Indian Affairs, U.S. Department of the Interior, governing the maintenance, control, and accessibility of student records. This part will apply to all educational institutions under the jurisdiction of the Bureau of Indian Affairs, whether operated under contract or otherwise.

§ 36.2 Definitions.

As used in this part:

(a) "Assistant Secretary" means the Assistant Secretary-Indian Affairs, Department of the Interior.

(b) "Educational institution" means any institution operated under the jurisdiction of the Bureau of Indian Affairs either directly or by contract, including, but not limited to, schools or dormitories from which Indian students attend public schools.

(c) "Eligible student" means a student who has become 18 years of age or is attending an institution of postsecondary education. When a student becomes an "eligible student," the permission required of and the rights given to the parents of the student shall thereafter only be required of and given to the student.

or

(d) "Parent" means a natural parent, an adoptive parent, the legal guardian, a legal custodian of a student. (Where the natural parents are unavailable, a required written parental consent may be obtained from the person who has assumed custody of the student.) For purposes of the Education of All Handicapped Children Act, the term "parent" also includes a "surrogate" as referred to in 20 U.S.C. 1415(b)(1)(B).

(e) "Student records" means those records, files, documents, and other materials which contain information

directly related to a student and which are maintained by an educational institution, or by a person acting for that institution. The term does not include:

(1) Records of any educational personnel which are in the sole possession of the maker and which are not accessible or revealed to any other person except a substitute.

(2) Records made and maintained in the normal course of business which relate exclusively to persons who are employed in an educational institution but do not attend that institution.

(3) Directory information as given in § 36.20.

(4) Records on a student who is 18 years of age or older, or is attending an institution of post-secondary education, which are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in his professional or paraprofessional capacity, or assisting in that capacity, and which are made, maintained, or used only in connection with the provision of treatment to the student, and are not available to anyone other than persons providing such treatment, except that such records can be personally reviewed by a physician or other appropriate professional of the student's choice.

§ 36.3 Student rights.

The regulations in this part do not prevent educational institutions from giving noneligible students rights similar to those given to parents and eligible students. Educational institutions may do so at their discretion.

§ 36.4 Annual notification of rights.

(a) Each educational institution to which this part applies and which maintains records on students shall inform parents or eligible students of the rights given them by this part.

(b) In meeting the requirement in paragraph (a) of this section the educational institution shall give notice to parents and eligible students at least annually of the following:

(1) The types of education records and information contained in them

which are directly related to students and maintained by the institution.

(2) The name and position of the official responsible for maintaining each type of record, the persons who have access to those records, and the purpose for which they have access.

(3) The policies of the institution for reviewing and expunging those records.

(4) The procedures established by the institution under § 36.5.

(5) The procedures for challenging the content of education records including those in § 36.10.

(6) The cost, if any, which will be charged to the parent or eligible student for reproducing copies of records under § 36.5.

(7) The categories of information which the institution has designated as "directory information" under § 36.20.

(c) The notice given to a parent or eligible student under this section shall be in a language considered by the institution to be understandable by the parent or eligible student.

§ 36.5 Access to records.

Educational institutions shall give parents of students or eligible students, who are or have been in attendance at the institutions, access to student records, except as stated in § 36.6. § 36.6 Limitations on access.

Educational institutions are not required to make available to students the following materials:

(a) Financial records of the parents of the student or any information contained in those records.

(b) Confidential letters and statements of recommendations, which were placed in any student's record prior to January 1, 1975, and which are not used for purposes other than those for which they were specifically intended.

(c) Those records listed in § 36.2(e) which are exempt from the definition of "student records."

§ 36.7 Access rights.

The right of access specified in § 36.5 shall include:

> The right to obtain a list of the es of student records which are sintained by the institution.

b) The right to inspect and review e content of those records.

c) The right to obtain copies of ose records, the cost, if any, not to ceed the actual cost to the educanal institution of reproducing the pies.

(d) The right to a response from the stitution to reasonable requests for planations and interpretations of Cose records.

(e) The right to an opportunity for a earing to challenge the content of cords.

(f) If any material or document in he record of a student includes inforation on more than one student, the ght to inspect and review only that ortion of such material or document s relates to that particular student or o be informed of the specific informaion contained in such part of such naterials.

36.8 Destruction of records.

This part does not prevent educa¿ional institutions from destroying any records, if not otherwise prevented by law. However, access shall be granted under § 36.5 before destroying student records where the parent or eligible student has requested access. Only records which are no longer relevant or necessary may be destroyed, subject to § 36.23(c).

§ 36.9 Procedures for granting access.

Each educational institution shall establish appropriate procedures for granting a request by parents for access to the records of their children, or by eligible students for access to their own records within a reasonable period of time. In no case shall access be withheld more than forty-five (45) days after the request has been made.

§ 36.10 Right to challenge.

Each educational institution shall give parents of students and eligible students, who are or have been in attendance at the institution, an opportunity to challenge the content of the student's records to:

§ 36.12 Right to a hearing.

Upon the request of the educational institution, the parent, or eligible student, a hearing shall be conducted under the procedures adopted and published by the institution. Such procedures shall include at least the following elements:

(a) The hearing shall be conducted and decided within a reasonable period of time following the request for the hearing.

(b) The hearing shall be informal and a verbatim record of proceedings will not be required. Interpreters will be utilized when necessary.

(c) The hearing shall be conducted by an institutional official or other party who does not have a direct interest in the outcome of the hearing.

(d) The parents or eligible student shall be given a full and fair opportunity to present evidence relevant to the issues raised under § 36.10.

(e) Within a reasonable period of time after the hearing ends, the hearing official shall make his recommendation in writing to the head of the educational institution. Within 20 days after receipt of the recommendation, the head of the institution shall issue his decision in writing to the parent or eligible student.

§ 36.13 Right of appeal.

If any parent or eligible student is adversely affected by the decision of the head of the institution, that party shall have appeal rights as given in 25 CFR Part 2. However, each official decision shall be issued within 30 days from receipt of the appeal.

§ 36.14 Consent.

Educational institutions shall not permit access to or the release of student records or personally identifiable information contained in them, other than directory information of students, without the written consent of the parents or of an eligible student, to any party other than the following:

(a) Local school officials, including teachers within the educational institution, who have been determined by the institution to have legitimate educational interests in the records.

(b) Officials of other schools or school systems at which a student is interested in enrolling. The student or parent must be notified of such release except in cases involving Bureau of Indian Affairs schools. All Bureau of Indian Affairs schools are considered to be components of one school system whether operated under contract or otherwise.

(c) Persons having official involvement with a student's application for or grant of financial aid.

(d) Parents of a dependent student as defined in section 152 of the Internal Revenue Code of 1954, as amended.

(e) Accreditation agencies in order to carry out their accrediting functions.

(f) U.S. Office of Education officials and other governmental education officials when deemed necessary by the institution to carry out their official functions.

(g) An education testing center or similar institution as a part of its validation research which has been authorized by the school.

(h) In an emergency, any person to whom the information is necessary in the discretion of the school's administration in order to protect the student's health and safety, subject to § 36.17.

(i) Indian groups, contractors, tees, professional social service org zations and personnel performing fessional services, when necessary carry out an official function aut ized by the Bureau of Indian Affan

(j) Pursuant to the order of a co of competent jurisdiction; howe the parent or eligible student musi notified of such order in advance compliance therewith by the ed tional institution.

§ 36.15 Content of consent.

The consent of a parent or eligi student requested under this part the release of student records shall in writing, signed and dated by the person giving the consent. The com sent shall include:

(a) A specification of the records be released.

(b) The reasons for release.

(c) The names of the parties t whom the records will be released.

§ 36.16 Copy to be provided to parents or eligible students.

Where the consent of a parent or el gible student is required under this part for the release of student records. a copy of the records to be released shall be provided on request to:

(a) The student's parents or the eli gible student.

(b) The student who is not an eligi ble student, if desired by the parents.

§ 36.17 Release of information for health or safety emergencies.

(a) Educational institutions may release information from student records to appropriate persons in an emergency if the information is necessary to protect the health or safety of a student or other person. The factors to be used in determining whether records may be released under this sec tion include the following:

(1) The seriousness of the threat to the health or safety of the student or other persons.

(2) The need for those records to meet the emergency.

(3) Whether the persons to whom the records are released are in a position to deal with the emergency.