1 Additional Issues Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

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Additional Issues

Yell / The Law and Special Education, Second EditionCopyright © 2006 by Pearson Education, Inc. All rights reserved

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Student Records


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Family Educational Rights & Privacy Act (FERPA)

• Background of FERPA Prior to 1970’s,

a) Parents were routinely denied access to their children’s school records

b) Third parties were often given access to student records

Passage of FERPAa) Introduced by Senator James Buckley b) Signed into law in 1974


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What Does FERPA Do?• FERPA applies to all educational agencies that receive

federal funds• FERPA provided two basic kinds of rights to parents

a) The right to inspect & review their child’s educational records

b) The right to prevent unauthorized persons from seeing the same records

• Every year, schools must notify parents of their rights under FERPA (rights transfer to students at age 18)

• Failing to comply with FERPA risks loss of federal funds


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What is An Educational Record?

• “those records, files, documents, and other materials which

i. Contain information directly related to a student; and

ii. Are maintained by an educational agency or institution or by a person acting for such agency or institution

20 USC § 1232g(a)(4)(a)


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Examples of Educational Records

• Attendance reports• Academic performance• Behavioral performance• Results of standardized tests• Psychological reports• IEPs• Disability classifications, evaluations, and

program & placement decisions• Teacher, counselor, psychologists observations• Health information


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What Records are Not Covered by FERPA?

• Anecdotal notes and memoranda of instructional, supervisory, & administrative personnel that are:– In the sole possession of the maker, and– Not accessible to or revealed to anyone else except a substitute

• Student’s police files maintained by the law enforcement unit of an LEA if created for law enforcement purposes (unless they are out in the student’s file)

• Rationale: To allow access to private notes would be an invasion of privacy and might inhibit certain professional activities

• These records court be subpoenaed by a courtYell / The Law and Special Education, Second EditionCopyright © 2006 by Pearson Education, Inc. All rights reserved

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How & When Can Parents Access Records?

• Parents can request access at any time and school districts must produce them for inspection within a reasonable time, and within 45 days of the request

• Either parent, even one not living with the student, may inspect records unless a parent has had parental rights terminated under State law


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Rationale for Access

a. Allows parents to catch errors in the record

b. Recognizes the role of parents as partners with the schools

c. Discourages undocumented, stigmatizing, and possible defamatory remarks being put in the record


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What if Parents Believe the Record is Not Accurate?

• If the parents believe that information in the educational records are inaccurate, misleading, or a violation of privacy rights, they may request its removal or amendments

• If the request is denied, parents may request a hearing to challenge the information

• If the hearing officer finds the information is not accurate, it must be removed from the record

• If the hearing officer finds that the information should remain in the record, the parents may place a statement in the record commenting on the retained information


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Hearings

• Hearings must be held within a reasonable period of time

• Parents must be allowed an opportunity to present relevant evidence and to use an attorney

• The LEA must render a written decision within a reasonable period of time

• The hearing may be conducted by an official of the LEA, as long as they have no direct interest in the outcome


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What are the FERPA Privacy Rights?

• Information in the records cannot be disseminated to unauthorized third parties without written consent of the parents (specific consent that details what and to whom)

• Persons who are authorized to see the educational records: – School personnel with a legitimate need to know and who are

designated as such by the LEA– e.g., teachers, administrators, psychologists, other school

personnel, and even student teachers (includes behavior)– A new school district, if the student moves (parents must be

notified)– Others under limited circumstances: Educational researchers,

federal & state officials, accreditation officials, court officials


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Exceptions

• Directory information may be released to unauthorized parties without written consent– Student’s name, address, phone number, data &

place of birth, dates of attendance at school, major field of study, school activities, honors, awards

– The school districts must adhere to FERPA guidelines for the release of directory information

• Health & safety emergencies (strictly construed)• Law enforcement & juvenile justice


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Controversies• Not granting access to school personnel with a legitimate

need to know• Test protocols (in records, descriptions)• Disclosure of psychological records, health records, and law

enforcement records kept at school– Record of abuse and protecting the privacy of the reporter– Sensitive health information that shouldn’t be seen by

other school personnel (keep in personal records)– Law enforcement in cases of emergency (FERPA allows

disclosure of information to noneducation officials to protect health & safety)


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What Remedies are Available when FERPA is Violated?

• The implementation & enforcement of FERPA is handled by the Federal Policy Compliance Officer (FPCO) in the U.S. Department of Education– Implementation also covers technical assistance– Enforcement covers investigation, process, review, and

adjudication of FERPA violations– FPCO can require compliance &terminate federal funding after a

hearing by a review board• No private right of action under FERPA (therefore, there has been

little litigation to clarify FERPA)• Some courts have ruled that there is a private right of action for

FERPA available under Section 1983 of the federal criminal code


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What is the Relationship Between FERPA & IDEA?

• When writing IDEA’s implementing regulations, the Department of Education’s Office of Special Education Programs (OSEP) included basic FERPA regulations and elaborated on them

• Elaborations:– Any agency that maintains personally identifiable student

information must grant parental access under FERPA (e.g., related services provider)

– Copies of the IEP must be available to parents at no cost, a reasonable fee may be charged for copies of other information

– Parents can see treatment records forwarded to the school by a physician or mental health therapist

– Disciplinary records (States may require this)


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Destruction of Records

• Under the IDEA, if a school district no longer needs a student’s educational records, it must notify the student’s parents

• The parents may then request destruction of the records and the school must honor the request

• Schools may permanently retain the following information: Name, address, telephone number, grades, attendance records, classes attended, grade level completed, and year completed

• Parents should be informed that records may be useful in establishing eligibility for adult disability benefits so destroying them may work against the student


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Notification under FERPA & IDEA

• The school district is responsible for annually informing parents of their rights under FERPA– Notifying all parents through a district or

school newsletter will suffice– Includes parents with disabilities & ESL


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Implications of FERPA

• Public school officials should be careful about releasing personally identifiable information

• Public school officials should grant access upon parental request, minimum-less than 45 days

• Staff should be training to be wary of violating the privacy rights of students

• Staff must be trained under IDEA confidentiality rights including what to put in and not put in the educational record


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Providing Special Education Services in

Private Schools


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Defining Private Schools

• IDEA does not define private schools

• Private schools typically encompass schools that are not publicly financed– They be of either a nonsectarian (not church-

related) or sectarian (church-related) nature

• State laws will often determine how LEAs address public special education services for private school students


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Children Enrolled in Private Schools by their Parents

• The child find mandate of the IDEA requires that public school locate, identify, & evaluate all students with disabilities within their jurisdiction, including students attending private schools

• Public school districts obligations to serve private school special education students under IDEA 2004

• Consultation between public school and private school personnel


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Additional Issues in Private School Education

• Children placed in, or referred to, private schools by public schools

• Financial responsibility for educating special education students enrolled in private schools by their parents

• Public schools responsibility under the Education Department Administrative Regulations (EDGAR)


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The IDEA and the Establishment Clause


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Litigation

• Evertson v. Board of Education, 1947

• Lemon v. Kurtzman, 1971

• Grand Rapids Sch. Dist. v. Ball, 1985

• Aquilar v. Felton, 1985

• Zobrest v. Catalina Foothills Sch. Dist., 1993

• Board of Education of Kiryas Joel Village Sch. Dist. v. Grumet, 1994

• Agostino v. Felton, 1997


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Liability for Student Injury


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Tort Laws• Tort laws are laws that remedies to individuals

harmed by the unreasonable actions of others.• Tort claims usually involve state law and are

based on the legal premise that individuals are liable for the consequences of their conduct if it results in injury to others.

• Tort laws involve civil suits, which are actions brought to protect an individuals private rights.


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Two Major Types of Torts

• Intentional torts: Offenses committed by a person who attempts or intends to do harm that result in injury

• Negligence torts: When a person’s actions lead to injury and those actions were neither expected nor intended


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Intentional Torts• Elements of an intentional tort

– A person intends to do another person harm– Actual injury

• Types of intentional torts– Assault: An overt attempt to injure another or

create fear or apprehension– Battery: A person is injured as a result of intention

physical contact


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Teachers & Intentional Torts

• Assault & battery cases in education often result from attempts to discipline a student or stop a student from injuring someone

• Because courts are reluctant to interfere with a teacher’s authority to discipline, teachers are given considerable leeway by the courts in assault & battery cases.

• Courts, however, have found teachers guilty of assault & battery when discipline is cruel, brutal, excessive, or administered with malice, anger, or intent to injure.


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Determining Liability• When determining if a teacher’s actions or discipline

constitutes excessive or unreasonable punishment, courts will examine:– The age of a student,

– the instrument, if any, that was used,

– the extent of the discipline,

– the nature & gravity of a student’s offense,

– the history of the student’s previous conduct, and

– the temper & conduct of the teacher


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Negligence Torts• The difference between intentional torts and negligence

torts is that in negligence the acts leading to injury are not intended to cause harm but were caused by a person failing to act reasonable to prevent the injury

• Students bringing negligence claims must prove that school personnel should have foreseen and prevented the injury by exercising proper care

• Accidents that could not have been prevented by reasonable care are not negligence


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The Elements of Negligence

1. Duty to Protect

2. A reasonable standard of care

3. Proximate cause

4. Actual injury


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Duty to Protect• The first element that must be proven in negligence cases is

the duty to protect.• Teachers have a duty to anticipate foreseeable dangers &

take necessary precautions to protect students in their care• Duties of educational personnel:

– Adequate supervision (includes activities on and possibly away from school grounds)

– Maintenance of equipment & facilities– Heightened supervision of high-risk activities

• This element is easily proven in most cases


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Failing To Exercise a Reasonable Standard of care

• The second element that must be proven is that the teacher failed to exercise a reasonable standard of care to protect his or her students from injury.

• Courts will gauge a teacher’s conduct on how a “reasonable” teacher in a similar situation would have acted.

• Degree of care is determined by:The teachers training & experienceThe student’s age & disability (if one exists)The nature of the environment & activityThe presence/absence of a supervising teacher


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Proximate Cause• The third element that must be proven is whether there

was a connection between the teacher’s breach of duty and the student’s injury.

• This element often hinges of the concept of foreseeability.– Was the student’s injury something that should have been

anticipated by the teacher?

• If the injury could have been foreseen and prevented by the teacher if a reasonable standard of care had been exercised, a logical connection, and therefore negligence, may exist


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Actual Injury

• The final element that must be proven is that there was was actual mental or physical injury.

• Even in instances where there was negligence, if there is no actual injury, damage suits will not be successful


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Educator’s Responsibilities

1. School districts should develop policies regarding standards of care & supervision

2. School districts should take actions to ensure that all personnel are aware of & discharge their care & supervisory duties.

3. IEP teams should address potential safety risks and plan for them.

4. Don’t rely on waivers5. Keep thorough records


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Record Keeping

• When a behavioral incidence happens in your class, you need to thoroughly record the incident

• If it is not written down, legally it didn’t happen!!


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Search and Seizure


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Searches of Students

• New Jersey v. T.L.O., 1985

• Cornfield v. Consolidated High School Dist., 1993

• Thomas v. Carthage School District, 1996


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Searches of Property

• Litigation• Legally sound searches

– Draft a public policy– Officials must have reasonable suspicion conduct a search– The scope of the search must be reasonable– Conduct strip searches only as a last resort– Strip searches should be conducted by two officials of the

same gender as the student– Random searches should only be conducted on reliable

information– Document searches and seizures


Documents

1 Additional Issues Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved