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Student Information & Communication: Darin Darby Escamilla & Poneck, LLP.

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1 Student Information & Communication: Darin Darby Escamilla & Poneck, LLP

2 Social Networking Time is Not Always Personal Time… "an inappropriate page on a social networking site could lead to disciplinary action or dismissal” “Those postings that you may believe to be accessible only to your friends could potentially be accessed by a student, parent of a student, colleague, or employer.” “Personal speech on your personal time is personal.” “However, it is important for employees to understand the seriousness of the potential consequences of a breach in confidential personal communications.” Awareness!

3 Internal Procedures Should Be Followed When Concerns Are Raised Ashley Payne – 24 year old Georgia teacher To: Dr. Ron Saunders; Ken Greene Sent: Aug. 27 Subject: Disappointed and worried about my daughter’s teacher To whom it may concern, My daughter is a pupil in one of Ms. Payne’s literature classes and friend of hers on the social networking site “Facebook.” Tonight, my daughter says to me casually, “Mom, I’m going to hang out with my bitches.” Shell shocked, I told her not to use profane language in my house ever again. To make matters worse, my daughter laughs in my face, trying to comfort me by saying, “Mom, it’s ok! Ms. Payne calls her friends bitches! Then she comforts me more by proving to me via “Facebook” and sure enough, it is similar to what Ms. Payne had said in her status update, except hers exclaims: “Ashley Payne is at Bitch Bingo with her bitches.”

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5 counselor-arrested-on-sex-charges/-/478452/ /- /ny9165/-/index.htmlhttp://www.ksat.com/news/Judson-elementary-school- counselor-arrested-on-sex-charges/-/478452/ /- /ny9165/-/index.html Cynthia Stewart, 43, met a 15-year-old student through a local sports association and starting communicating with him using Facebook. Their relationship grew and Stewart sent sexually explicit pictures of herself to the boy on her cellphone. Once she is released, Stewart will have to register for a sex offender for 10 years. She will no longer be allowed to be a teacher or school counselor. Stewart was convicted of online solicitation of a minor, a third degree felony

6 USA v. Hargrave, 470 Fed. Appx. 355 (5 th Cir. 2012) School counselor sent sexually explicit s and text messages to a 14 year old student that she counseled. 360 month prison sentence Significantly above the advisory guidelines – “Horrific nature of the crime” Need to promote respect for the law and impose just punishment Outweighed factors such as counselor’s mental illness and admission of guilt as well as letters of support Irrelevant that victim suffered from emotional problems prior to meeting Hargrave.

7 Student’s Use of Cell Phones in Class Shut the Hell Up! “A teacher at Lee Jr. High School in Monroe, La. became really frustrated when students wouldn't be quiet. He gave them a piece of his mind!” Review district and school policies and procedures and be consistent

8 Purposeful Versus Honest Mistake FERPA Distinguish between “on purpose” and mistaken leak Sometimes even a mistake cannot be “fixed” Teacher of the Year 2010 Blogged about her students In her own words…. ws/education/AISD-teacher- resigns-over-blog-postinghttp://www.kxan.com/dpp/ne ws/education/AISD-teacher- resigns-over-blog-posting

9 What if you Make a Mistake?!? FERPA is a funding statute Federal funds are linked with legal compliance Mistake ≠ policy that allows release Mistake ≠ blatant refusal to follow policy or law Mistakes happen Inadvertent release of records, etc.

10 First Things First District has policies that relate to FERPA FL (LEGAL) and (LOCAL) Policies prohibit FERPA violations Then how can FERPA violation occur? Mistake happens

11 First Things First…. Who tells you about the mistake? Parents? Media? Internal investigation? Employee notifies you of the FERPA violation?

12 Parents Right to Amend Records Parents can request amendment Only for three situations: –Inaccurate –Misleading “Otherwise in violation of the privacy rights of a student” Records administrator (or designee) can serve as the “FERPA hearing officer”

13 Procedure to Amend Records Often overlooked FL (LOCAL) Internal Deadlines Internal hearing Administrator is designated as the hearing officer Notification of Decision in writing

14 Inaccuracies, Misleading or Otherwise in Violation of Confidentiality Can parent demonstrate that the grade was supposed to be something other than what was shown on the student's education record? Inaccurately recorded? Mathematical error was made in its computation? Scoring error on a test that affected the grade? FERPA cannot be used as a vehicle to dispute the validity of report cards, tests, or other evaluations. Letter to Anonymous 107 LRP 52770, 11 FAB 27 (FPCO 2007).

15 What if Parent Isn’t Asking to Amend Anything? Students checking each other’s papers Names of students who have been expelled are posted on District website Grades posted in hallway Progress charts displayed on bulletin board in the classroom

16 Expelled Students’ Names on Website Complaint resulted in FPCO providing technical assistance Names on website in unredacted form Letter to Anonymous, 14 FAB 33 (FPCO 2010)

17 Grades Posted in Hallway? Complaint resulted in internal investigation Coach resigned District ensured FPCO that steps had been taken to ensure personnel are informed of student’s rights.” Complaint closed

18 Progress Charts Displayed in Classrooms FPCO: “Such charts have long been accepted pedagogical devices to encourage student accomplishments” FPCO refused to investigate Local school district decision Letter to Anonymous, 14 FAB 18 (FPCO 2010)

19 What if you Learn About the Mistake from the Media?

20 First: Distinguish Between Inadvertent Release and Purposeful Violation…. Virginia Commonwealth University situation Students notified of scholarship opportunity through s Attachments included 195 student names, SSNs, and GPAs Mistake?

21 How Do You Handle This Type Mistake? Internal investigation What Happened? How to Prevent this from Happening in the future? How to Prevent any bad things from happening to the students’ involved? “Mitigate” the Damages

22 FERPA Does Not Have a Reporting Requirement Only a parent can file a FERPA complaint No self-reporting requirement If you call FPCO, they can issue compliance report but is that necessary? Good to place a call to them to get advice regarding mitigation efforts….

23 Helpful Tips Document the date that the parent “knew” about the violation Contact Parents Less costly and time consuming to ID mitigation efforts and offer If a significant # of students are affected – they will most likely not all respond but offer has been made.

24 Analyze What Actually Occurred…. Virginia Case v. Chapman University Number of affected students.. But how long was release? Who discovered it? Were documents sent out with sensitive information? Was a security breach present for a period of time rendering documents accessible?

25 Other Ways that Data Security Breaches Happen Teacher uses laptop to work from home. May use other programs to download things such as music Peer-to-peer file sharing (P2P) application One peer computer can access and download files form another peer computer as long as there is internet access between the 2 computers No server necessary Difficult to block use of P2P applications on networks that have internet access

26 Hidden Dangers: Inadvertent sharing of confidential information Trust that you are not downloading a malicious file Stolen laptops Internal procedures and rules Administrative regulations

27 Uploading Files to a Nonschool Server Can result in accidentally granting access to unintended users Why? Servers used at work can’t be accessed from remote locations because of security Want to work off-site Inadequate security of off-site server makes information accessible to others via internet

28 Prevention Guidelines No downloading of software without district approval P2P file sharing is dangerous – this should be understood by all individuals with access to district computer No computer sharing among staff or strictly monitored Passwords are important Education records must be returned by those leaving employment Reprimands and Training

29 Privacy Technical Assistance Center (PTAC) Created to respond to increasing confusion among states and other education stakeholders on policy, technical/data, and legal issues about student privacy. Questions on data privacy, data confidentially, and cybersecurity can be sent to the PTAC Help Desk. Any question that PTAC staff cannot answer will be sent to other offices at the Department such as the Family Policy Compliance Office (FPCO) and the Office of General Counsel (OGC). PTAC will work with those offices to provide an answer to your question Family Policy Compliance Office telephone number is

30 Must All Violations Be Reported? No Document mitigation efforts regardless Complaint is timely filed = 180 calendar days Date of alleged violation OR Date complainant knew or reasonably should have known of violation Always mitigate

31 Some Breaches Are Not Accidental Chicago teacher went into school’s database Changed grades of numerous students, including football players Her husband was the coach “Gained unauthorized access into the school's computer system on five occasions and changed numerous grades, according to police.” Told police she targeted students who were on the ineligibility list.

32 Mitigation Efforts Can Include Adverse Personnel Actions…. Juvenile probation office to speak to 6 th graders Peer pressure, gangs, drugs and alcohol Teacher prepared a list of students with attitude problems “Thoughtless, disrespect [sic], rude, selfish, uncaring” Mere fact that officer was coming to campus to make presentation does not make him a school official for FERPA McGilvray v. Boyd ISD, TEA Dkt. No. 185-R2-597 (Comm’r Dec. 1997)McGilvray v. Boyd ISD, TEA Dkt. No. 185-R2-597 (Comm’r Dec. 1997)

33 Everton v. Round Rock ISD, TEA Dkt. No R (Comm’r Dec. 1996) Termination case with a laundry list of conduct – none of which was found to be good cause for termination EXCEPT Tape recording parent teacher conference Contained personally identifiable information Maintained by the District Education record – limited disclosure Remember what context the parent has consented to the use of the record Release of tape-recording also violated Code of Ethics and Standard Practices as a Breach of Student Confidentiality Alone = Good Cause to terminate

34 Legitimate Educational Interest FL (LOCAL) “Need to Know” Test Access to documents can be through a subpoena Redaction of confidential portions of student information Consistent with Everton v. Round Rock ISD, TEA Dkt. No. 070-R (Comm’r Dec. 1996)

35 Cruz v. Austin ISD, TEA Dkt. No. 036-R (Comm’r Dec. 2010) Retained confidential student information and sent to personal attorney FERPA Violation = Good Cause for termination of contract No right to retain student information. No right to transmit and reveal student information to her own attorney as part of a grievance. No right to transmit and reveal student information to employees who were not directly involved with education of student, but were HR staff dealing with personnel evaluation & grievance.

36 Can Damages resulting from all FERPA Violations be Mitigated? L.S. and R.S. ex rel S.S. v. Mount Olive Bd. Of Educ., 14 FAB 15 (D.N.J. 2011) Student with diabetes and anxiety Sped teacher and social worker partially redacted student’s psychiatric evaluation Used it as a teaching tool for students for Catcher in the Rye novel Assignment -- “Prepare a psychological evaluation of the protagonist” Employees held individually liable for violation of privacy rights

37 Purposeful Versus Honest Mistake Distinguish between “on purpose” and mistaken leak Sometimes even a mistake cannot be “fixed”

38 Health and Safety Emergencies. Adds provision that district may take into consideration the totality of the circumstances pertaining to a threat to the safety or health of a student or other individuals Articulable & significant threat = disclosure is okay To any person whose knowledge of the info. is necessary to protect “The District should also document their analysis of why an emergency exists.” –Presentation by Leroy Rooker, Director of FPCO, July 16, 2002 What should be documented?

39 The Department of Education Explains When Release is Appropriate: To avert or diffuse serious threats to the safety or health of a student or other individuals. Typically = law enforcement officials, public health officials, and trained medical personnel But “appropriate parties” = parties whose knowledge of the information is necessary to provide immediate protection of the health and safety of the student or other individuals. Limited to the period of the emergency No blanket releases

40 So What Meets This Exception? Special education director discloses information to student’s doctor, without first obtaining written parental consent Protocol for Diabetes-Hypoglycemic Reaction for Johnny Smith Parent complained Health & Safety Emergency? Irvine Unified Sch. Dist., 23 IDELR 1077 (FPCO 1996)

41 Each Set of Circumstances Matters! Student going into what appears to be a diabetic coma Medical personnel arrive on scene School nurse discloses information from IHP Parents allege improper disclosure Health and Safety Emergency? Letter re: Pioneer Sch., 11 FAB 17 (FPCO 2007)

42 How Does District Support Position? Need a rational basis for the determination DOE has stated that it will not substitute its judgment for school district’s judgment Their evaluation will not involve substitution of judgment So…much needed flexibility BUT Documentation is KEY 34 CFR 99.32(a)(5) requires LEA to record disclosure -- to whom PII was released and the articulable and significant threat that formed the basis of the release

43 Letter re: Vermont Immunization Registry, 105 LRP (FPCO 2005) State Health Dept wanted to create a centralized database FERPA applies -- school nurses cannot disclose to the registry the immunization information w/o prior written consent Health & Safety Emergency Exception does not apply “To prevent or control an outbreak or epidemic of measles, rubella, mumps, polio or other serious infectious disease that may cause injury or death.”

44 Not Always Cut and Dry…. B.A.B. v. Bd of Education of City of St Louis, 698 F.3d 1037 (8 th Cir. 2012) H1-N1 vaccine administered to students at school 5 th grader returned form signed by parent stating that she did not consent to vaccination Nurse Frankline allegedly told student that regardless of what his mother said, he needed the shot because he had asthma Shot versus Nasal mist Abide by Parent Consent or Affirmative Refusal to Consent!

45 PREGNANCY AT SCHOOL No Legal Requirement To Inform Parent Know Local Board Policy Balance Student’s Right To Privacy With Health Risk

46 Is It Legal to Have A Policy Requiring Parent Notification of a Pregnant Student? Teacher’s Association vs. Port Washington Union Free School District (US Dist. Court, New York, 2006) School District published a ‘guidance memo’ on rights and responsibilities of District staff to inform a student’s parents that she is pregnant. Policy required staff to ‘immediately report’ to the school social worker. Social worker will encourage students to inform parents. If student refuses, social worker will ultimately inform parents.

47 Wyatt v. Newell, 718 F3d 496 (5 th Cir. 2013) HS softball coaches disclosed student’s sexual orientation to her mother during a disciplinary meeting 14 th Amendment privacy right violation? Held: No clealry established law holding that a student in a public secondary school has a privacy right under the 14 th Amendment that precludes school officials from discussing with the a parent the student’s private matters – including matters relating to sexual activity of the student.

48 Herring v. Sliwowski, 2013 US App. LEXIS 6065 (6 th Cir. 2013) School nurse conducted a visual examination of 6 year old girl’s genital area for medical purposes in response to complaints of itching and discomfort Distinction between search that is medically motivated versus one that is for disciplinary reasons Didn’t touch child / examination after numerous days of complaints and calls with mom indicated that she had had a history of chronic bladder infections National and state nursing guidelines restrict medical examinations of students and prohibit genital exams absent parental consent or a medical emergency

49 But what About Abuse? Any professional who has cause to believe that a child has been or may be abused or neglected shall make a report as required by law within 48 hours after the professional first suspects abuse or neglect. No delegation A “professional” = person who is licensed or certified by the state or who is an employee of a facility licensed, certified, or operated by the state and who, in the normal course of official duties or duties for which a license or certification is required, has direct contact with children. The term includes teachers, nurses, doctors, day-care employees, and juvenile detention or correctional officers. Family Code (b) / FFG (LEGAL)

50 Valley Forge Ins. Co. v. Carol Field et al, 670 F3d 93 (1 st Cir. 2012) 11 year old child suffered long-term horrific abuse at hands of adoptive mother and stepfather Suit against licensed social worker for failure to identify and report ongoing physical abuse 35 months of treatment with approximately 51 in-person counseling sessions.

51 Sexual Abuse Jenna’s Law – Enacted in 2009 Jenna Quinn Sexually molested by her father’s best friend starting at the age of 13 years old Eventually sentenced to 20 years in prison “Its Not Just Jenna” Effective

52 Sexual Abuse Policy District Improvement Plan must include policy addressing sexual abuse and other maltreatment of children “And other maltreatment” – “abuse” and “neglect” as defined by Texas Family Code Policy must address methods for increasing staff, student and parent awareness regarding sexual abuse and other maltreatment of children. Training must now include prevention and recognition techniques FFG (LEGAL)

53 More Policy Requirements Must be a part of new employee orientation and may be provided to district staff members annually (can be offered as part of required annual training under TEC ) Daycare center employees also covered

54 Required Training Components At risk factors Likely warning signs Internal procedures for seeking assistance Techniques for reducing risk Community resources District must maintain records that include name of each participating staff member

55 Interesting Element of Law District employee cannot be subject to any disciplinary proceeding (TEC (b)) resulting from an action taken in compliance with this section. Requirements of section are considered to involve ministerial acts for purposes of immunity from liability under TEC No limitation of immunity from liability under TEC

56 Teets v. Cuyahoga County, 2012 US App. LEXIS 2414 (6 th Cir. 2012) Sexual abuse allegations by child against stepfather Resulted in lawsuit against social worker regarding alleged misstatements MS guidance counselor reported possible sexual abuse to hotline Based on written statement by 12 year old daughter that described single instance of sexual abuse by stepfather Social worker investigated and concluded that abuse was indicated No allegations against reporting individual…..

57 Rogers v. Christina Sch. Dist., (SCt Delaware 2013) 16 year old student wrote to school counselor of attempted suicide and feelings of loneliness and being unloved 4 hours with student = no longer suicidal Sent back to class ed teachers and principal – no longer a threat to self Delaware state regulations require parent or guardian notification for crisis situations Crisis situation – suicidal or homicidal

58 What Does Texas Say? FFB (LEGAL) Texas Dept of State Health Services Recommended best practices re: early mental health intervention & suicide prevention programs Training components Policy regarding procedures

59 FFB (LOCAL) Policy can: Establishes a procedure for providing notice of a recommendation for early mental health intervention regarding a student to a parent or guardian of the student within a reasonable amount of time after the identification of early warning signs, which may include declining academic performance, depression, anxiety, isolation, unexplained changes in sleep or eating habits, and destructive behavior toward self and others Establishes a procedure for providing notice of a student identified as at risk of committing suicide to a parent or guardian of the student within a reasonable amount of time after the identification of early warning signs

60 FFB (LOCAL) Establishes that the District may develop a reporting mechanism and may designate at least one person to act as a liaison officer in the District for the purposes of identifying students in need of early mental health intervention or suicide prevention; Sets out available counseling alternatives for a parent or guardian to consider when his or her child is identified as possibly being in need of early mental health intervention or suicide prevention.

61 The policy must prohibit the use without the prior consent of a student’s parent or guardian of a medical screening of the student as part of the process of identifying whether the student is possibly in need of early mental health intervention or suicide prevention. The policy and any necessary procedures adopted must be included in the annual student handbook and the district Improvement plan under Education Code

62 What Else? District policy and procedures are not intended to interfere with the rights of parents or guardians and the decision-making regarding the best interest of the child. District policy and procedures are intended to notify a parent or guardian of a need for mental health intervention so that a parent or guardian may take appropriate action. School districts do not have the authority to prescribe medications. Any and all medical decisions are to be made by a parent or guardian of a student. Health and Safety Code (d)–(f), (i)

63 What Can you say to the Media? Ann Jones v. Northside ISD (1985) Counselor Received Notice of Her Proposed Termination  Erroneously caused a senior to miss graduation ceremonies by miscalculating the student’s graduation credits  Misinforming the class valedictorian and salutatorian that their standings were to be inverted  Disobeyed Supervisor’s Instructions to Be Present During A Post-School Work Shop  Poor Relationships with Students and Parents Caused Excessive Requests for Transfers to Another Counselor

64 The Subsequent Press Conference: You Should Have Stopped There! In An Attempt To Discredit Those Seeking Her Termination: – Counselor Entered a Student’s Records, Obtained Copies of His Grades and Other Writings – Provided Info To Her Lawyer and Alleged That Student’s Grade Had Been Changes So That He Might Receive a Scholarship – Lawyer Held a Press Conference With the Documents Containing ID number, grades, course schedule, teacher names, and name of the college from which the scholarship was received – FERPA violation

65 Seek Written Parental Consent to Make or authorize making of a videotape of a child or record or authorize the recording of a child’s voice Exceptions: Safety, including maintenance of order and discipline in common areas of the school or on school buses Purpose related to cocurricular or extracurricular Purpose related to classroom instruction Media coverage Tex Educ Code

66 The End


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