1. School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e © 2012 Pearson Education, Inc. All rights reserved. Chapter 7 Liability and Student Records

2. School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved. 7-2 Public Law 93-380, The Family Educational Rights and Privacy Act (FERPA) protects confidentiality of student records. This act, commonly referred to as the Buckley Amendment, was enacted by the Congress in 1974 to guarantee parents and students a certain degree of confidentiality and fundamental fairness with respect to the maintenance and use of student records.

3. School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved. 7-3 The law is designed to ensure that certain types of personally identifiable information regarding students will not be released without parental consent. If a student is 18 years of age or attends a post secondary institution, parental consent is not required.

4. School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved. 7-4 Since P.L. 93-380 is a federal statute, it applies to school districts and schools which receive federal funds.

5. School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved. 7-5 Sanctions for Violating Family Privacy Rights An excerpt of the FERPA Act states the following: At a minimum, the school district should provide, on an annual basis, information to parents, guardians and eligible students regarding the content of the law and inform them of their rights to file complaints with the Rights and Privacy Act Office of the Department of Education.

6. School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved. 7-6 If non-English-speaking parents are affected, the district has a responsibility to notify them in their native language.

7. School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved. 7-7 Rights of Parents Parents or legal guardians have the right to inspect their child’s record. A school official should be present to assist a parent or guardian in interpreting information contained in the files and to respond to questions which may be raised during the examination process.

8. School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved. 7-8 Rights of Noncustodial Parents Occasionally, controversy arises regarding the rights of a noncustodial biological parent to access his or her child’s educational records. School or district policy should provide guidance in these situations.

9. School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved. 7-9 Rights of Eligible Students The student may exercise the same rights afforded parents or guardians, if he or she has reached the age of 18 or is enrolled in a post secondary institution.

10. School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved. 7-10 Rights of School Personnel Teachers, counselors and administrators who have a legitimate educational interest in viewing records may do so. A written form which must be maintained permanently with the file should indicate specifically what files were reviewed by school personnel and the date in which files were reviewed.

11. School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved. 7-11 In 1994, the FERPA was amended to emphasize that institutions are not prevented from maintaining records related to a disciplinary action taken against a student for behavior that posed a significant risk to the student or others.

12. School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved. 7-12 Confidentiality Issues Involving School Counselors A number of states have passed laws protecting the confidentiality of school counselors. Most communication between a school counselor and a student does not rise to a civil or criminal proceeding.

13. School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved. 7-13 In states where no privilege is granted, the counselor is required to testify if ordered by a court.

14. School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved. 7-14 Enforcement of State or Federal Statutes Federal officials and state officials may inspect files without parental consent in order to enforce federal or state laws or to audit or evaluate federal education programs.

15. School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved. 7-15 In these cases, personally identifiable information may not be associated with any student unless Congress, by law, specifically authorizes federal officials to gather personally identifiable data.

16. School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved. 7-16 Authorized representatives who may access records include: (1) the Comptroller General of the United States (2) the Secretary (3) an administrative head of an educational agency (4) state and educational authorities.

17. School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved. 7-17 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.

18. School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved. 7-18 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.

19. School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved. 7-19 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.

20. School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved. 7-20 Good faith requires that a legitimate purpose be served by communicating the information. Common interest in the student’s well being would constitute a legitimate purpose.

21. School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved. 7-21 Acts of Malice Malice exists when there is intent to harm or injure another. When statements are communicated about a student either written or orally with the intent to injure his or her reputation, a tortious act has occurred, especially if these statements are false.

22. School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved. 7-22 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, non-biased and truthful manner.