Tag Archives: Safe Schools

The Federal Educational Rights and Privacy Act balancing act

30 Oct

Schools all over the country are challenged by students who are violent, disruptive, and sometimes dangerous. Christine Clarridge, Seattle Times staff reporter reports in the Seattle Times article, Student-privacy laws complicate schools’ ability to prevent attacks which was about an unprovoked assault in a high school restroom which almost killed two students.

Five months before she allegedly attacked two schoolmates with a knife, nearly killing one, a Snohomish High School student underwent counseling after she threatened to kill another student’s boyfriend.

The 15-year-old Snohomish girl was allowed to return to school only after she presented proof she had attended counseling.

The earlier threats would have never been made public if the information wasn’t contained in court documents charging the girl with first-degree attempted murder and first-degree assault in last Monday’s attack.

Some Snohomish parents were surprised to learn of the earlier threat and have expressed concern that they weren’t notified.

But student information, including mental-health records, is tightly held by school districts because of federal privacy laws. The district says it cannot even discuss whether counselors or teachers were made aware of the earlier threats because of privacy laws.

The case underscores the delicate and complicated balancing act faced by schools in their efforts to meet the educational and privacy rights of individual students, as well as their need to ensure the safety of the larger student body.

http://seattletimes.nwsource.com/html/localnews/2016643796_schoolsafety30m.html

There is a complex intertwining of laws which often prevent school officials from disclosing much about students.

According to Fact Sheet 29: Privacy in Education: Guide for Parents and Adult-Age Students,Revised September 2010 the major laws governing disclosure about student records are:

What are the major federal laws that govern the privacy of education records?

  • Family Educational Rights and Privacy Act (FERPA) 20 USC 1232g (1974)
  • Protection of Pupil’s Rights Amendments (PPRA) 20 USC 1232h (1978)
  • No Child Left Behind Act of 2001, Pub. L. 107-110, 115 STAT. 1425 (January 2002)
  • USA Patriot Act, P.L. 107-56 (October 26, 2001)
  • Privacy Act of 1974, 5 USC Part I, Ch. 5, Subch. 11, Sec. 552
  • Campus Sex Crimes Prevention Act (Pub. L. 106-386)

FERPA is the best known and most influential of the laws governing student privacy. Oversight and enforcement of FERPA rests with the U.S. Department of Education. FERPA has recently undergone some changes since the enactment of the No Child Left Behind Act and the USA Patriot Act….

https://www.privacyrights.org/fs/fs29-education.htm

The key provisions of FERPA are:

FERPA is the best known and most influential of the laws governing student privacy. Oversight and enforcement of FERPA rests with the U.S. Department of Education. FERPA has recently undergone some changes since the enactment of the No Child Left Behind Act and the USA Patriot Act, discussed below.

What are the most important things to know about FERPA?

FERPA gives parents and adult-age students some rights to the privacy of the student education record. Under FERPA, adult-age students are those who have reached the age of 18 or who attend post-secondary school, even though not yet 18 years of age. For example, a 17-year-old who is enrolled in college would be considered “adult-age.”

The law provides:

  • The right of parents and adult-age students to inspect and receive a copy of student records.
  • The right to deny access to others, specifically those outside the school system, with some exceptions.
  • A process to correct errors, including a hearing.
  • The right to opt-out of military recruitment.
  • The right to opt-out of the disclosure of a student’s directory information.
  • A complaint process, handled by the Family Compliance Office of the U.S. Department of Education.

FERPA has some significant shortcomings:

  • It does not give individuals the right to sue the school. Only the U.S. Department of Education can sanction schools that have violated FERPA.
  • It puts the burden on students and parents to respond to opt-out opportunities, such as disclosure of directory information.
  • It does not dictate requirements for safeguarding education records.

The Family Compliance Office (FPCO) oversees FERPA. For more information about this law and the mission of this Office, visit the U.S. Department of Education’s Web site at www.ed.gov/policy/gen/guid/fpco/index.html. As part of its oversight duties, FPCO has adopted regulations that supplement FERPA.

The agency’s core regulations as well as major amendments adopted in December 2008 can be found on the office’s Web site at www.ed.gov/policy/gen/guid/fpco/ferpa/index.html. In addition, FPCO’s Web site provides guidance on various aspects of FERPA to students, parents, teachers and school administrators.

A key case describing the limitations of FERPA is The Chronicle of Higher Education vs. The United States, ELECTRONIC CITATION: 2002 FED App. 0213P (6th Cir.), UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT:

KARL S. FORESTER, District Judge. Intervening Defendant-Appellant The Chronicle of Higher Education (“The Chronicle“) contests the district court’s grant of summary judgment and subsequent permanent injunction in favor of Plaintiff-Appellee the United States. Specifically, the district court concluded that university disciplinary records were “educational records” as that term is defined in the Family Education Rights and Privacy Act (“FERPA”), 20 U.S.C. § 1232g, and that releasing such records and the personally identifiable information contained therein constitutes a violation of the FERPA. The district court permanently enjoined the Defendants-Appellees Miami University and The Ohio State University (“Miami,” “Ohio State,” or collectively “Universities”) from releasing student disciplinary records or any “personally identifiable information” contained therein, except as otherwise expressly permitted under the FERPA. For the reasons that follow, we AFFIRM. [Emphasis Added]

School districts have to balance the rights of students to an education with the need to know of other parties.

School Policies and Legal Issues Supporting Safe Schools by Thomas Hutton and Kirk Bailey from the Hamilton Fish Institute on School and Community Violence put the issue of violence in schools in context and reviews the impact of federal regulation.

The discretion school officials have to disclose information about a student among themselves and to others is limited by the federal Family Educational Rights and Privacy Act (FERPA).51 Generally speaking, under FERPA personal information that is contained in a student’s education records may not be disclosed without the parent’s consent. When the student reaches the age of 18, his or her consent is required instead, except for disclosures to the parent as long as the student remains a dependent of the parent under the Internal Revenue Code.52

Education records” is construed very broadly to cover most school records concerning a student, but several of the exceptions to the nondisclosure rule apply in safety-related situations and are described below. A private individual has no right to sue over an alleged FERPA violation; rather, the remedy is an enforcement action by the federal government. IDEA also includes privacy protections related to students with disabilities and special education that largely parallel those in FERPA….

gwired.gwu.edu/hamfish/merlin-cgi/p/downloadFile/d/…/legalpdf/

As the case in Snohomish County illustrates, sometimes the balance tips in favor of the troubled student to the detriment of everyone else.

Resources:

FERPA General Guidance for Students

http://ed.gov/policy/gen/guid/fpco/ferpa/students.html

No Child Left Behind A Parents Guide

http://ed.gov/parents/academic/involve/nclbguide/parentsguide.pdf

Dr. Wilda says this about that ©