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ception is not inconsistent with any (d) The right to freedom of religion terms of said statute, upon a finding and culture. by the Secretary of the Interior that (e) The right to freedom of speech such waiver or exception is justified by

and expression, including symbolic excircumstances not contemplated by pression, such as display of buttons, these rules and such action is desirable

posters, choice of dress, and length of to carry out the purpose of the stat

hair, so long as the symbolic expresute.

sion does not unreasonably and in fact

disrupt the educational process or en. PART 35–STUDENT RIGHTS AND DUE danger the health and safety of the PROCESS PROCEDURES

student or others.

(f) The right to freedom of the Sec.

press, except where material in stu35.1 Purpose.

dent publications is libelous, slander35.2 Application to Bureau schools.

ous, or obscene. 35.3 Rights of the individual student. 35.4 Due process.

(g) The right to peaceably assemble 35.5 Application to schools under Bureau

and to petition the redress of griev. contract.

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

(h) The right to freedom from dis

crimination. SOURCE: 39 FR 32741, Sept. 11, 1974, (i) The right to due process. Every unless otherwise noted.

student is entitled to due process in $ 35.1 Purpose.

every instance of disciplinary action

for alleged violation of school regulaThe regulations in this part govern

tions for which the student may be establishing programs of student

subjected to penalties of suspension, rights and due process procedures in

expulsion, or transfer. Bureau of Indian Affairs schools and in schools that are operating under $ 35.4 Due process. contract with the Bureau of Indian Af. fairs.

Due process shall include:

(a) Written notice of charges within $ 35.2 Application to Bureau schools. a reasonable time prior to a hearing. All Bureau of Indian Affairs schools

Notice of the charges shall include refshall be governed by the regulations

erence to the regulation allegedly vioset forth in this part and said regula

lated, the facts alleged to constitute tions shall be expressly included as a

the violation, and notice of access to part of the local school regulations of

all statements of persons relating to each Bureau of Indian Affairs school.

the charge and to those parts of the Upon admission, all students of student's school record which will be Bureau of Indian Affairs schools shall considered in rendering a disciplinary be given a copy of the school regula- decision. tions governing the conduct of stu- (b) A fair and impartial hearing dents and shall be notified of any prior to the imposition of disciplinary amendments thereto.

action absent the actual existence of

an emergency situation seriously and 8 35.3 Rights of the individual student.

immediately endangering the health Individual students at Bureau of or safety of the student or others. In Indian Affairs schools have, and shall an emergency situation the official be accorded, the following rights: may impose disciplinary action not to (a) The right to an education,

exceed a temporary suspension, but (b) The right to be free from unrea- shall immediately thereafter report in sonable search and seizure of their writing the facts (not conclusions) person and property, to a reasonable giving rise to the emergency and shall degree of privacy, and to a safe and afford the student a hearing which secure environment.

fully comports with due process, as set (c) The right to make his or her own forth herein, as soon as practicable decisions where applicable.


(c) The right to have present at the Sec. hearing the student's parent(s) or 36.20 Directory information. guardian(s) (or their designee) and to

36.21 Standards for collection and msintebe represented by lay or legal counsel

nance of student records

36.22 Assuring integrity of records of the student's choice. Private attor

36.23 Conduct of employees. ney's fees are to be borne by the student.

AUTHORITY: 35 Stat. T2 (25 U.S.C. 295; (d) The right to produce, and have Pub. L. 93-579, 88 Stat. 1896, Sec. 438. Pub. produced, witnesses on the student's

L 93-380, as amended: Pub. L 94-142. behalf and to confront and examine SOURCE 13 FR 52024, Nov. &, 1978, unless all witnesses.

otherwise noted. (e) The right to a record of hearings of disciplinary actions, including writ- $36.1 Purpose and scope. ten findings of fact and conclusions in This part contains the regulations of all cases of disciplinary action.

the Bureau of Indian Affairs, U.S. De(f) The right to administrative partment of the Interior, governing review and appeal.

the maintenance, control, and accessi(g) The student shall not be com- bility of student records. This part will pelled

to testify against himself. apply to all educational institutions (h) The right to have allegations of under the jurisdiction of the Bureau misconduct and information pertain- of Indian Affairs, whether operated ing thereto expunged from the stu- under contract or otherwise. dent's school record in the event the student is found not guilty of the $36.2 Definitions. charges.

As used in this part:

(a) “Assistant Secretary" means the $ 35.5 Application to schools under Assistant Secretary-Indian Affairs, Bureau contract.

Department of the Interior. Non-Bureau of Indian Affairs (b) “Educational institution" means schools which are funded under con- any institution operated under the jutract with the Bureau of Indian Af- risdiction of the Bureau of Indian Affairs must also recognize these student fairs either directly or by contract, inrights.

cluding, but not limited to, schools or

dormitories from which Indian stuPART 36MAINTENANCE AND CON

dents attend public schools. TROL OF STUDENT RECORDS IN

(c) "Eligible student” means a stu

dent who has become 18 years of age BUREAU SCHOOLS

or is attending an institution of postSec.

secondary education. When a student 36.1 Purpose and scope.

becomes an "eligible student," the per36.2 Definitions.

mission required of and the rights 36.3 Student rights.

given to the parents of the student 36.4 Annual notification of rights.

shall thereafter only be required of 36.5 Access to records.

and given to the student. 36.6 Limitations on access.

(d) “Parent” means a natural parent, 36.7 Access rights. 36.8 Destruction of records.

an adoptive parent, the legal guardian, 36.9 Procedures for granting access.

or a legal custodian of a student. 36.10 Right to challenge.

(Where the natural parents are un36.11 Informal proceedings.

available, a required written parental 36.12 Right to a hearing.

consent may be obtained from the 36.13 Right of appeal.

person who has assumed custody of 36.14 Consent.

the student.) For purposes of the Edu36.15 Content of consent.

cation of All Handicapped Children 36.16 Copy to be provided to parents or eli- Act, the term "parent" also includes a

gible students. 36.17 Release of information for health or

“surrogate" as referred to in 20 U.S.C. safety emergencies.

1415(b)(1)(B). 36.18 Record of access.

(e) "Student records" means those 36.19 Transfer of information by third par. records, files, documents, and other ties.

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 8 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.

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.

8 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.

8 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

8 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."

8 36.7 Access rights.

The right of access specified in § 36.5 shall include:

(a) The right to obtain a list of the (a) Insure that the records are not types of student records which are inaccurate, misleading, or otherwise maintained by the institution.

violating the privacy or other rights of (b) The right to inspect and review students. the content of those records.

(b) Provide an opportunity for cor(c) The right to obtain copies of recting or deleting any inaccurate, those records, the cost, if any, not to misleading, or otherwise inappropriate exceed the actual cost to the educa- data in the record. tional institution of reproducing the (c) Insert into such records a written copies.

comment by the parents or eligible (d) The right to a response from the students pertaining to the content of institution to reasonable requests for such records. explanations and interpretations of those records.

8 36.11 Informal proceedings. (e) The right to an opportunity for a

Educational institutions may athearing to challenge the content of tempt to resolve differences with the records.

parent of a student or the eligible stu(f) If any material or document in dent regarding the content of the stuthe record of a student includes information on more than one student, the ings and discussions with the parent or

dent's records through informal meetright to inspect and review only that eligible student. portion of such material or document as relates to that particular student or 836.12 Right to a hearing. to be informed of the specific information contained in such part of such

Upon the request of the educational materials.

institution, the parent, or eligible stu

dent, a hearing shall be conducted § 36.8 Destruction of records.

under the procedures adopted and This part does not prevent educa- published by the institution. Such protional institutions from destroying any

cedures shall include at least the fol. records, if not otherwise prevented by lowing elements: law. However, access shall be granted

(a) The hearing shall be conducted under $ 36.5 before destroying student and decided within a reasonable period records where the parent or eligible of time following the request for the student has requested access. Only hearing. records which are no longer relevant

(b) The hearing shall be informal or necessary may be destroyed, subject and a verbatim record of proceedings to $ 36.23(c).

will not be required. Interpreters will

be utilized when necessary. 36.9 Procedures for granting access. (c) The hearing shall be conducted

Each educational institution shall by an institutional official or other establish appropriate procedures for party who does not have a direct intergranting a request by parents for est in the outcome of the hearing. access to the records of their children, (d) The parents or eligible student or by eligible students for access to shall be given a full and fair opportutheir own records within a reasonable nity to present evidence relevant to period of time. In no case shall access the issues raised under $ 36.10. be withheld more than forty-five (45) (e) Within a reasonable period of days after the request has been made. time after the hearing ends, the hear.

ing official shall make his recommen$36.10 Right to challenge.

dation in writing to the head of the Each educational institution shall educational institution. Within 20 give parents of students and eligible days after receipt of the recommendastudents, who are or have been in at. tion, the head of the institution shall tendance at the institution, an oppor issue his decision in writing to the tunity to challenge the content of the parent or eligible student. student's records to:

8 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.

(i) Indian groups, contractors, gran. tees, professional social service organi. zations and personnel performing professional services, when necessary to carry out an official function author. ized by the Bureau of Indian Affairs.

(j) Pursuant to the order of a court of competent jurisdiction; however, the parent or eligible student must be notified of such order in advance of compliance therewith by the educational institution.

8 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 of ficials 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.

§ 36.15 Content of consent.

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

(a) A specification of the records to be released.

(b) The reasons for release.

(c) The names of the parties to whom the records will be released. 8 36.16 Copy to be provided to parents or

eligible students. Where the consent of a parent or eligible 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 eligible student.

(b) The student who is not an eligible 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 section 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.

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