Week 3 - Student Records and FERPA

Week 3 - Student Records and FERPA

Please read the information below. These experts were lifted from the textbook.

1. Respond to the discussion questions in the case study.
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3. Post a "What if" question on one of the two topics.

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FAMILY EDUCATION RIGHTS AND PRIVACY ACT (FERPA)

Landmark U.S. Supreme Court Rulings

On February 1 9, 2002, the U.S. Supreme Court ruled in Owasso ISD v.  Falvo that peer grading

does not violate FERPA.7 Student papers are not “maintained” within the meaning of FERPA

when students correct them or call out grades. “Maintained” suggested that FERPA records were

kept in files or cabinets in a records room at the school. The court stated further that FERPA

should not be construed to prohibit techniques currently used by teachers. If homework or class

work were considered educational records, a substantial burden would be placed on teachers

across the country. Simply stated, an assignment is not considered an educational record as soon

as it is graded by another student.

On June 20, 2002, the U.S. Supreme Court ruled in Doe v.  Gonzaga. 8 In the Gonzaga case,

a student brought litigation against the university for disclosing personally identifiable informa-

tion, without his consent, in violation of FERPA. The Supreme Court ruled that students and par-

ents may not sue for damages under 42 U.S.C. § 1 983 to enforce provisions of FERPA.

U.S. Court of Appeals for the Sixth Circuit Ruling

On June 27, 2002, the Sixth Circuit Court of Appeals unanimously affirmed a lower court’s rul-

ing that university disciplinary records are “education records” under FERPA and that disclosing

such records without students’  consent constitutes a violation of FERPA. In 1 998, the U.S.

Department of Education asked a federal district court in Ohio to enjoin Miami University and

The Ohio State University from disclosing records containing the names of student victims

and accused students as prohibited under FERPA.9 On March 20, 2000, the U.S. District Court for the Southern District of Ohio permanently enjoined the two Ohio universities from disclosing

their on-campus disciplinary records to the public under the state’s open-records law.

In affirming the ruling, the circuit court concluded that continued release of student disci-

plinary records “will irreparably harm the United States” and the Department of Education. This

is important for three reasons:

1. The court agreed with the lower court that the Student Right-to-Know and Campus

Security Act provides parents and students with statistical information about the type and

amount of crimes on campus.

 

2. The court reaffirmed the department’s broad reading of the term “education records” and

stated that Congress, in amending FERPA in 1 998 to allow postsecondary institutions to

disclose the final results of disciplinary proceedings, must have intended that disciplinary

records be education records or this amendment would be “superfluous.”

 

3. The court held that the Department of Education was within its rights in seeking an injunc-

tive relief in this case because none of the administrative remedies authorized by FERPA

would have stopped the violations. In effect, the court held that the department can take

preemptive actions in enforcing FERPA, rather than only after violations occur.

NO CHILD LEFT BEHIND ACT OF 2002

Annual Notification Requirements

The Secretary of Education is now required to annually inform each state education agency (SEA)

and each local education agency (LEA) of their obligations under both FERPA and the Protection

of Pupil Rights Amendment (PPRA). This provision is found in § 1061(c)(5)(C), the amendments

to PPRA (discussed below). The Family Policy Compliance Office (FPCO) is in the process of

finalizing the notices to be provided to SEAs and LEAs. (See Chapter 4 for No Child Left Behind

and School Safety.)

Transfer of School Disciplinary Records

FERPA currently permits schools to transfer any and all education records, including discipli-

nary records, on a student who is transferring to another school. See § 99.31 (a)(2) and § 99.34 of

the FERPA regulations. This new provision requires states that receive funds under the

Elementary and Secondary Education Act (ESEA) to provide, within two years, an assurance to

the secretary of education that the state “has a procedure in place to facilitate the transfer of dis-

ciplinary records, with respect to a suspension or expulsion, by local educational agencies to any

private or public elementary school or secondary school for any student who is enrolled or seeks,

intends, or is instructed to enroll, on a full- or part-time basis, in the school.”

 

Armed Forces Recruiter Access

FERPA currently allows schools to designate and disclose without consent certain items of infor-

mation as “directory information.” FERPA regulations define “directory information” under

§ 99.3 of the regulations and set forth the requirements for implementing a “directory information”

policy under § 99.37 of FERPA. Generally, “directory information” may be disclosed by a school

to any party, provided the requirements of FERPA are followed.

Congress passed a provision in the No Child Left Behind (NCLB) Act that addresses the

disclosure of directory-type information (students’  names, addresses, and telephone listings) to military recruiters. Congress also included similar language in the National Defense

Authorization Act for fiscal year 2002. Both laws, with some exceptions, require schools to pro-

vide directory-type information to military recruiters who request it. Typically, recruiters request

names, addresses, and telephone listings of junior and senior high school students that will be

used for recruiting purposes and college scholarships offered by the military.

Student Privacy and Physical Exams

NCLB contains a major amendment to PPRA that gives parents more rights with regard to the

surveying of minor students, the collection of information from students for marketing purposes,

and certain nonemergency medical examinations. PPRA has been referred to as the Hatch

Amendment and the Grassley Amendment, after the authors of amendments to the law. School

officials may also hear the law referred to as the Tiahrt Amendment, after Congressman Todd

Tiahrt, who introduced to PPRA the changes regarding surveys. The statute is found in 20 U.S.C.

§ 1 232h, and the regulations are found in 34 CFR Part 98.

 

DEFAMATION INVOLVING SCHOOL PERSONNEL

Defamation, discussed in Chapter 6, regarding liability applies to student records. When

school personnel communicate personal and sensitive information to another unauthorized

person that results in injury to the student’s reputation or standing in the school or that dimin-

ishes the respect and esteem to which the student is held, they may face charges of libel or

slander, depending on the manner and intent with which such information was communi-

cated. Defamation is a tort or civil wrong committed against another in which recovery is

appropriate with a showing that the offended party received injury based on the deliberate or

malicious action of others.

 

Slander

Slander is oral defamation, which occurs when school personnel inadvertently communicate

sensitive and damaging information contained in student files to others who have no need to be

informed. Libel and slander involve communication to a third party. Information contained in

student files is there for the exclusive use of the teacher, principal, or counselor who has a legiti-

mate interest in accessing this information as each works with the student. Information should

not be accessed without meeting this requirement.

Once the information is ascertained, it should be used only in providing and improv-

ing educational opportunities for the student. By no means should confidential information

be discussed in a thoughtless and j oking manner. Under no circumstances should the stu-

dent be ridiculed. The law is very specific in indicating that personally identifiable infor-

mation should not be communicated to third parties without proper consent. When this is

done, not only has the law been violated, but the educator has run the risk of defaming the

student.  Off-the-cuff remarks and sharing sensitive information regarding a student are

absolutely prohibited and may result in liability damages to those who are guilty of com-

mitting such acts.

School personnel are well advised to maintain strict confidentiality in all cases involving

students’  personal files. In cases involving claim of personal injury, the burden of proof rests

with the student in demonstrating that actual harm occurred based on deliberate communication

to a third party.

Libel

Libel, unlike slander, is written defamation. Teachers, counselors, and principals should refrain

from including damaging information in the student’s record for which there is no basis. Any

information recorded should be factual and specific with respect to serious infractions committed

by the student—for example, time and place in which infractions occurred and possible wit-

nesses who might verify, if needed, that the incident described is an accurate account of what

actually occurred.

Another consideration involves a determination as to whether certain types of information

should be included in the student’s permanent file. Some legal experts feel that information that

is subject to change and minor disciplinary infractions should be maintained in a separate file

and destroyed after the student leaves school. For example, if there is no evidence of serious and

recurring behavior problems, one might question the wisdom of including a single occurrence on

the student’s permanent records. On the other hand, if there is a strong belief that the behavior is

sufficiently serious that it needs to be passed on to those who will be working with the student in

the future, it might be appropriate, under the circumstances, to do so. Sound and rational judg-

ment is required in these cases. These decisions must be carefully drawn, due to the serious

implications involved. When it becomes necessary to record a serious disciplinary infraction on

the student’s record, it should be executed in the presence of the student, who should be provided

a copy of the document.

Schools should refrain from statements that are based on opinion, particularly those

involving questions of morality,  contagious diseases,  family marital conditions, and mental or

emotional issues. These statements are damaging, based on their content, and, if communicated

to others, may result in injury to the student’s reputation, self-esteem, or standing in the school.

Categorical statements or stereotypical statements should be avoided. If educators adhere to con-

fidentiality and respect for the privacy rights of students, they will avoid liability claims involv-

ing injury to students. Professionalism and ethics dictate that these practices be followed.

Privilege

On many occasions, school personnel are requested to provide either oral or written information

regarding a student, some of which might be contained in the student’s file. When such requests

are made and school personnel respond in a truthful and reasonable manner in accordance with

their prescribed duties, they are protected by qualified privilege. When school personnel and the

recipient of the information both have a common interest, they also are protected by a qualified

privilege when the communication is reasonable to achieve their objective. Those who have com-

mon interest would likely include counselors, subject matter teachers, administrators, and par-

ents. Interestingly, this privilege is lost if the communication is transmitted to another who does

not share this common interest and consequently has no need to be apprised of the information.

 

Good Faith

Qualified privilege is based on the premise that the educator is operating in good faith. When

damaging or sensitive information is communicated to others who have no need to know, good

faith has been violated. Good faith requires that a legitimate purpose be served by communicat-

ing the information. Common interest in the student’s well-being would constitute a legitimate

purpose. Good faith efforts dictate that as information is shared with other eligible parties, it is

communicated for legitimate purposes and without any intent or desire to damage the student. An absence of good faith may result in personal damages against those who do not operate in a

reasonable and prudent manner.

An unusual case arose in Maryland when a special education student was sexually abused

by her grandfather, who was charged with child abuse. Prior to his trial, he attempted to sub-

poena his granddaughter’s school records. The child was enrolled in a special education program

for emotionally disturbed children. The school district refused to furnish the records and filed a

motion for a protective order. The defense attorney argued that the records were relevant in that

they could reveal mental deficiencies that affected the child’s ability to control her actions. The

judge examined the records privately and determined that there was nothing contained in them

that would serve to impeach the child’s testimony. The grandfather was convicted and then

appealed his conviction, contending that his rights were violated when the judge refused to allow

him access to his granddaughter’s records.

Maryland requires parental consent or a court order before a student’s record can be dis-

closed. The Sixth Amendment to the Constitution requires that a criminal defendant be allowed

to confront and cross-examine his or her accusers. The defendant in this case (Zall v.  State)

argued that the information contained in personal records was needed in order to cross-examine

the granddaughter. The court ruled that the defendant’s right to cross-examine was not violated

since it had been established by the lower court that the files contained no material evidence per-

tinent to the case. The Sixth Amendment only requires that the defendant receive material evi-

dence. It is the court’s role, not the defendant’s, to determine material evidence. The defendant’s

appeal was denied.

Acts of Malice

Malice exists when there is intent to harm or injure another. Intent is an important element

regarding malicious behavior. When statements are communicated about a student, either

written or oral, with the intent to injure his or her reputation, a tortious act has occurred, espe-

cially if these statements are false. Truth is a defense for liability, if no malicious intent is

present. School personnel should exercise care in ensuring that statements communicated to

others are free of malice, based on defensible evidence, and communicated in a professional,

nonbiased, and truthful manner. When evidence reveals that school personnel acted in bad

faith with the intent to injure a student’s reputation and standing in the school or community,

liability charges may be justified, even if statements are true. Students are entitled to a liberty

right with respect to the expectation that their reputation be protected against unwarranted

attacks.

There are essentially two types of malice. In implied malice, the offender has no defense

for conveying harmful information. Such statements normally fall in the category of unsolicited

or derogatory statements aimed at another person. In actual malice, the offended person must

demonstrate that the person making the offensive comment had a motive for doing so and that

this motive was calculated to generate ill will against the offended person. Both types may create

serious legal problems for school personnel.

Since the passage of FERPA, numerous forms of litigation have surfaced, covering a full

range of legal issues. The following cases summarize a number of issues faced by the courts

related to the enforcement of FERPA:

 

1. A New York court ruled that a public school was required to release names of bilingual stu-

dents with English deficiencies because complainants had demonstrated a genuine need

for the information that outweighed the privacy rights of students.

2. Another New York court ruled that a father’s request to release third-grade test scores of

other students so that they could be compared to his child’s score could be honored if the

test results were not identified by student names.

 

3. A Missouri court upheld a school board member against charges of defamation who com-

mented during a board meeting that marijuana cigarettes had been found in a student’s car.

His statement was held to be privileged.

 

4. A federal court in New York ruled against a student who withheld his records from a grand

jury when he could not show that they bore no relevance to the subject under investigation.

 

In other developments, a case emerged in Illinois when a group of parents requested that

their school district disclose standardized achievement scores for students for certain years,

grades, and schools within the district, along with a listing of educational programs available in

those schools. The district, using FERPA as its defense, refused to comply with their request.

Suit was filed by parents, seeking disclosure under the Freedom of Information Act. The district

court dismissed the case, which was then appealed to the Illinois Court of Appeals. The appeals

court reversed the district’s court decision and remanded, finding that the district had an obliga-

tion to release and mask all released information regarding students. The school district then

appealed, contending that releasing masked information was in conflict with the Freedom of

Information Act and would not protect the privacy rights of students. The Supreme Court held

that the act was designed to open governmental records to public scrutiny. The act did not pro-

hibit disclosure of masked student records. Since no students were identified, there is no invasion

of privacy and the records must be released.

Main Points: Liability and Student Records

1. School districts and schools should have legally defensible policies and procedures consistent with the requirements of FERPA. Students, parents, and legal guardians should be informed of their rights under this act.
2. Accurate records should be maintained in the student’s file, indicating the name, title, date, description of educational interest, specific records examined, and the place of examination of student records for those who have access.
3. Any corrections or adjustments to student records should be dated and initialed by the person responsible, with the knowledge and approval of school officials.
4. School personnel should avoid labeling children.
5. When it becomes necessary to place disciplinary infraction information on student records, the information should be specific regarding the infraction committed—time, place, and witnesses, as appropriate. The student should be present when such information is recorded.
6. School personnel should refrain from aimless chatter involving third parties regarding confidential information found on student records. Gossip or careless talk among school personnel calculated to harm a student is not protected by qualified privilege.
7. Student records should be maintained in a safe and secure place and should not be removed from school premises by school personnel unless proper authorization is secured.
8. Unless prohibited by court order, the noncustodial parent should be afforded the same right to access student records as the custodial parent.
9. To avoid allegations of malicious intent, transmit only the information that is requested by a prospective employer.
10. Refrain from releasing information over the telephone, unless identity of the other party has been firmly established.
11. Where conflict or difficulty arises regarding interpretation of FERPA, consultation with the school district’s attorney would be appropriate.
12. Public disclosures of students’  grades will not likely be supported by the courts. Such practices violate the intent of FERPA and should not be supported by school officials.

CASE STUDIES

Student Records and FERPA
Bernice Evans, mother of a twelve-year-old daughter, sued the board of education for releasing
to a local newspaper reporter information regarding her daughter’s medical condition. The news-
paper article referred to a twelve-year-old female hermaphrodite with severe emotional and
behavioral problems. School board members asserted that they were simply attempting to
explain why the district needed to expand emergency funds to meet the needs of students with
special problems. They further argued that the information did not personally identify the student
because no name was revealed to the reporter.

Discussion Questions:

1. Did the school board err in releasing this information? Why or why not?
2. Does Mrs. Evans have a valid claim? Why or why not?
3. Does the school board have a defensible basis for revealing the information? Why or why not?
4. How does FERPA apply in this case?
5. How do you think the court would rule in this case?
6. Provide a rationale for your response.
7. What are the administrative implications of this case?

Disclosure of Disciplinary Action Involving a Student
An elementary student was disciplined for verbally and physically abusing other students.
Parents of the victims were notified by the district of the student’s actions. The assaulting student
was suspended. His parent filed suit alleging a violation of FERPA by disclosing information
about her son to other parents.

Discussion Questions:

1. Does the complaining parent have a valid claim? If so, why? Why or why not?
2. Does disclosure under the circumstances described constitute a FERPA violation? Why or why not?
3. Does the memorandum sent to parents constitute a release of an educational record? Why or why not?
4. How would a court likely rule on the complaining parent’s allegation? Provide a rationale for your response.
5. What criteria would the court use in reaching a decision?
6. What are the administrative implications in this case?