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FERPA and Confidentiality for Students
In the last two years the Clover Park School District has had a series of incidents that has been brought to the attention of the public. Starting with two sepererate rape charges committed by students at Clover Park High School, which the public feels notification should have been given, but was not immediately due to confidentiality and investigations by the police department. The school district eventually expelled the students under the emergency expulsion policy. In addition to the question over disclosure there is some question as to whether or not due process law was appropriately followed. Although there are many questions from the public and media about the handling of the incident, it appears as if the district cooperated with the police in the investigation of the crime. It is my opinion that the district did not release information to the public to protect the rights of the students while the “official legal investigation” by the police department took place. By doing this, the district also protected themselves from being slanderous towards the students involved. The legal issue that has arisen from this is the students right to confidentiality and the publics’ right to be informed. My judgment is that the district was correct in withholding information from the public until the authorities completed the investigation. The district needs to protect the rights of the students whom might be at fault. If the public finds out about the incident through other sources that is fine, the news should never come from the administration or the building staff in such a horrific incident.
The students right of privacy is protected under the Family Educational Rights and Privacy Act (FERPA) of 1974. FERPA ensures confidentiality of student’s educational records. It also provides procedural rights to students and parents. In order to release any information permission needs to be given. Disclosing information could possibly result in fine, prison, or loss of federal funding. There are other laws, which may protect an individual from having identifiable information given to the public. Under the Privacy Act of 1974 it is a misdemeanor subject to a $5,000 fine to willingly disclose identifiable data. The National Educational Statistic Act of 1994 strengthened this law to be a class E felony punishable by a $250,000 fine, five years in prison or both.
In Washington, according to RCW 4.24.550, school districts may release relevant information regarding adjudicated sex offenders to the public when the release of information is necessary for public protection. In this case the students were charged but not convicted, so the adjudication process had not occurred. Had names been given of the students, there might have been judged by the public rather than the court system. Most districts because of the heavy penalties, which may be levied, error on the side of being overprotective. These educational records could be released, without required permission, to law enforcement agencies in connection with an emergency in order to protect the health or safety of a student or other individuals and should be to help with the quickness of the investigation. Nothing in FERPA prevents a school official from disclosing to local law enforcement authorities information that is based on that official's personal knowledge or observation and not from an education record.
While there is potential litigation brought on by the student’s accused of the crime or their parents, there is also the possibility of a lawsuit bought on by other students’ parents. The case might be made that by not disclosing that these two separate acts have been reported that the school and district did not use reasonable standards of care. What makes this even worse is that another incident was reported as having occurred shortly after the initial two incidents were reported. In both of these cases the incidents occurred in unsupervised areas within the school during the school day or shortly after. By not disclosing that these incidents occurred the question could be made that the district didn’t exercise reasonable care to protect students from reasonably foreseeable dangers. The argument becomes compounded by the third reported incident. While these incidents occurred fairly close to each other could also might be contributed to an attention issue of a “victimized student”. Records need to be withheld in either case; the students have a right to due process and should be protected until the case is tried. Could there have been contributory negligence by the district? This would be the true if it could be proven that district contributed to a student’s injury. If an employee could be shown to have failed to exercise ordinary care in supervising students, the district could be liable for damages. I am unsure of and have not heard of any negligence cases being held to this day. I do know that the Principal was asked to resign because of these incidents occurring so closely. There is precedent for potential lawsuits in Davis v. Monroe County Board of Education, 526 U.S. 629 (1999) and Gebser v. Lago Vista Ind. School District, 118 S.Ct. 1989 (1989). In both of these cases districts were found liable for damages for student-to-student harassment. If one were to view the building administrator or district as failing to take corrective action through notification of parents, the district would be liable. The question for the court would be did the failure to notify the parents constitute deliberate indifference. Since these were acute incidents, which involve several different parties, I do not believe this to be a factor. The disclosing of information to protect the public is a touchy subject. In this case the Clover Park School District did the correct thing by handing over student information and letting the police handle the investigation. They failed, however, in not disclosing that the incidents occurred. The argument could be made that if people were aware of the first incident the second might not have happened. The district could have brought forward information that this act had been reported, and is under investigation by the authorities.
Reference List
Lamorte, M. (2002). School law cases and concepts. Boston: Allyn and Bacon.
Little-Latham, B. (2002, April). Study guide: Claims and lawsuits. City University Law course, Tacoma, WA.
Little-Latham, B. (2002, April). Study guide: Confidentiality and student records. City University Law course, Tacoma, WA.
Unknown. (1996). Information sharing and the Family Educational Rights and Privacy Act. Creating safe and drug-free schools: An action guide. [On-line]. Accessed (May 2002). http://www.ed.gov/offices/OESE/SDFS/actguid/infshare.html
Unknown. (2002). Confidentiality Laws. Available: http://nces.ed.gov/statprog/confid3.asp
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Contributor's Note
John Nystrom is currently working on www.gibsons4sale.com and www.goldcoinsearch.com
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