October 26, 2007
Dear Categorical Program Directors, Direct-Funded Charter School Administrators, and Superintendents of County Offices of Education:
SUPPLEMENTAL EDUCATIONAL SERVICES (SES) PROVIDERS AND FAMILY EDUCATIONAL RIGHTS AND PRIVACY ACT (FERPA)
The California Department of Education (CDE) has been made aware that at least in one local educational agency (LEA) and perhaps more, certain supplemental educational services (SES) providers have been restricted in marketing their program for the current school year. They have been restricted from doing so because the LEA felt the SES providers had violated the Family and Educational Privacy Rights Act (FERPA) by contacting parents whose children received SES services from their organization in the previous school year with the hope of once again being selected for the current school year. The U.S. Department of Education (ED) advised that they did not consider such contacts to be in violation of FERPA. In subsequent communications with some LEAs, it was clarified that the marketing ban is not based upon FERPA, but instead is based upon a contract provision that prevents such marketing contacts.
LEA policies may not interfere with the right of parents to choose an approved provider. An LEA may not refuse to contract with a provider who uses legitimately obtained contact information to market future SES. Such refusal would have the effect of removing a provider from the State’s approved list, and thereby limiting parent choice.
The ED reiterated its policy in a letter dated August 26, 2004, a copy of which is enclosed. It cautions that LEAs may impose reasonable contracting requirements but generally those requirements must be uniformly imposed upon all contractors and they may not limit educational options for parents.
The CDE has an obligation to ensure that parents have as many choices as possible in the selection of SES providers. Therefore, you must discontinue any ban on marketing that would interfere with parents' right to select any state approved SES provider.
If you have questions regarding this subject, please contact Maria Reyes, Administrator, Title I Policy and Accountability Office, at (916) 319-0380 or by e-mail at mreyes@cde.ca.gov.
Sincerely,
Bill Waroff, Interim Director
School and District Accountability Division
BW:mr
Enclosure
1430 N Street
Sacramento, CA 95814