Chapter 9 - William Allan Kritsonis, Lecture Notes

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Chapter 9

Privacy Issues: Community,Educators,Students

William Allan Kritsonis, PhD



Right To Inspect And ReviewRecords

Right to review records within a reasonableperiod of time of written request

Right to have representative review records

Right to response to requests foreplanation and interpretation of records

Right to inspect only information related toown child

Rights etend to both parents unlessotherwise indicated by law

Right to obtain copies of records



Constitution



!amily Educational Rights andPrivacy "ct

!ERP" #hat is !ERP"$!ERP" stands for the !amily EducationalRights and Privacy "ct %sometimes

called the &uc'ley "mendment() Passedby Congress in *+-, !ERP" grants fourspeci.c rights to eligible students:

1. The right to inspect and reviewtheir edcational records!



!amily Educational Rights andPrivacy "ct

!ERP"". The right to re#est the amendment o$inaccrate or otherwise inappropriateedcational records!

%.The right to consent to disclosre o$their edcational records!&.The right to 'le a complaint with the(amil) Compliance *+ce in the .-.Department o$ dcation in Washington

D.C. concerning alleged $ailre /) W0in compl)ing with the re#irements o$(RPA.



!amily Educational Rights and Privacy "ct!ERP"

Educational Record

An educational record is any information that is

maintained by an institution which directly

relates to a student.

Educational Records include:

Demographic Information Class Schedules

Admission Records Printed Class listsrades raded test papers



Educational Interest

! /egitimate Educational Interest

/egitimate educational interest is theneed to review a student0seducational record by a universityo1cial in order to ful.ll theirprofessional responsibilities)



ossip vs.. Pro$essional-haring *$ In$ormation

#hen tal'ing to a colleague about a student

or his family, apply these four tests to seeif the discussion may be violating the

student0s con.dentiality rights)



(or Tests

1. What is discussed

". Where the discussion ta'es place%. Who is listening

&. Wh) the discussion too' place



Who Is /istening

*) If the parties to the discussion are

school o1cials with legitimateeducational interest there is noproblem with con.dentiality

2) If others are listening who have no

legitimate educational interest %suchas a teacher who is eavesdropping, anosy child on the playground,children in the hall, etc)(con.dentiality may be violated)



Wh) 3he 4iscussion 3oo'Place

! If the parties have legitimate educationalinterest in a student and are sharinginformation that will help them wor' with

the child, then there is no problem withcon.dentiality

! If the parties are gossiping to pass time,carrying tales about a student or his

family, or for other non5educationalreasons, there is probably a problem withcon.dentiality)



Educators Privacy Right

! Public employees and their wor' is readily available under the 3eas Public Information "ct

! 3he 6one of employee privacy largely is determined by traditionalforms of tort law ,such as libel and slander)

! In 3eas, state courts have recogni6ed the tort of personal privacyinvasion)

! 3he state appeals courts re7ected claim of 8involuntaryvideotaping9 and noted that teaching in a public classroom doesnot fall within the 6one of protected privacy, since public schoolteaching is by its nature open to public view (Roberts v. HoustonI.S.D.,1990)



/ifestyle Issues

! 3eacher are consider role models for their students and lifestyle behaviors on or o campus that endanger students orundermine teaching eectiveness can serve as good causefor termination

! 3he 3eas Commissioner of Education has upheld thetermination of educators for acts of public lewdness (Parkerv. Dallas I.S.D.,1998;Holland v. Dallas I.S.D.,199(

! 3eas Penal Code 2I)I2 ma'e it a crime for primary andsecondary school employees to engage in seual conductwith students enrolled at the school where the employeewor's, regardless of the students age)

! 3hree 3eas appeal courts in 2;;< upheld 2*)2* asconstitutional, legitimate state interest of preventingeploitation and coercion of 3eas schoolchildren andpreserving an educational environment conducive tolearning% In re S!aw,"00;#$%arte &orals,"00;'erkovskv.State,"00)



Employee 4rug 3esting

! !ederal regulations adopted by the 4epartment of 3ransportation require drug testing of school busdrivers)

! 3he fourth "mendment protect the right of

privacy)! Section =I)I;2%a( of the 3eas >ealth and Safety

Code spells out the conditions and requirementsfor testing persons with "I4S and relateddisorders)

! Employers can test employees only when there isa bona .de occupational quali.cation 7ustifyingthe testing) Section =*);? sets forth theconditions for con.dentiality of test results



Personnel Records and EmployeeReferences

! 3he /aw of defamation and privacy invasion is most li'elyto surface in the education setting in the contet ofrevealing the content of personal records) " 4efamation can be either oral %slander( or written %libel( " !or defamation to be actionable the words must meet the

de.nition of defamation, words must be communicated to athird person, words must be false and the communication ofthe words must have result in in7ury to the person)

" 3ruth is always a defense to a claim of defamation)

! !our 3eas statutes convey a quali.ed privilege toemployers with respect to employee decision5ma'ing) " "rticle @2;< of the 3eas Revised Civil Statutes states that 8"ny

written statement of cause of discharge ,if true, when made bysuch agent, company or corporation, shall never be used asthe cause for an action for libel, either civil or criminal, againstthe agent, company or corporation so furnishing same



Personal Record and EmployeeReferences cont,

" 3EC 22);@**%a( shields school professional employees fromability from damage suits in most situations)

" Required that the person sued be acting in the scope of hisor her employer)

! 3he fourth statute was enacted in *+++ as an amendment tothe /abor Code) Provides that disclosure by an employer of

truthful information regarding a current or former employeeis su1ciently important to employment relationships and thepublic interest to shield the employer form civil liability%3eas /abor Code *;?);;*(

! Probably the best protection against defamation lawsuits inthe contet of employee references is to secure theemployee0s permission to release information)

! 3EC 2*)?@2 speci.cally authori6es a school district to send ateacher0s evaluation and any rebuttal to a new school districtwhere the teacher has applied for employment, at therequest of the new school district)



Student Personal Privacy

! Court have recogni6ed the public school students have ,tosome degree of constitutionally protection rights of privacy)%&errik!en v. ress*an, % 918)

! Students *a not be dis+i%line b t!e s+!ool or liestlebe!avior unless s+!ool o-+ials +an s!ow !ow t!e interestso t!e s+!ool are sini/+antl ae+ted.

! #RP2 also a%%lies to student3s re+ords, t!eir %arents !avet!e ri!t to a++ess t!e student3s %ersonal edu+ationalre+ords.

! #du+ation Re+ords +onsist o4 5re+ords, /les, do+u*ents,and ot!er *aterials t!at +ontain inor*ation dire+tlrelated to t!e student6 *aintained b t!e s+!ool or its %ersonnel. (7# ".00,".00)

! Dis+losure o Re+ords 5S+!ool o-+ial6 w!o !ave a5leiti*ate edu+ational interest6 are a*on t!e relativelew %erson allowed a++ess to student re+ords b lawwit!out t!e written +onsent o t!eir %arent or eliiblestudent



Student 4ress Code andArooming

! State law does not give students a right tochoose their mode of dress, it is at thediscretion of their local school districts)

! !ifth Circuit re7ected the contention thatpublic elementary and secondary schoolstudent have the constitutionallyprotected right in personal grooming %arrv. S+!*idt,199")

! S+!ool o-+ial *ust be +areul not tointrude u%on t!e ri!ts o s*boli+e$%ression u%!eld b t!e Su%re*e ourtin ( 3in'er v) 4es Boines School 4istrict(



Student Search and Sei6ure

! 3he )S supreme Court .rst ruled in *+=@ that the!ourteenth "mendments,protecting person formunresonable searches and sei6ures,apply topublic school students)

! 3he Courts in Dew ersey v) 3)/)F) re7ectedargument that school o1cials have the sameauthority to search that parents do %the in locoparentis theory(3he courts speci.cally held thatneither a warrant nor probable cause is required)

! 3o conduct a lawful search of a student,a school

o1cal must Gestablish reasonable cause forbeliving a student is violating or has violated astudent rule or law and ensure the search isreasonable in scope in light of the ageand se ofthe student and the nature of the oense



Student Search and Sei6urecont,

! Bany commentators advise that schoolo1cials should leave strip searchers toparents or the police ecept incircumstances of imminent harm)

! 3he law involving the use ofmagnetometers and handheld metaldetectors was handed down by anobscured Dew Hor' City court in *++2

%Peo%le v. Dukes)! 7e$as a%%eal +ourts !ave u%!eldad*inistrative sear+!es o students u%onenterin alternative s+!ools w!ere t!e!ave been %la+ed or dis+i%linar reasons.



Student Search and Sei6urecont,! Searches of loc'ers and des's are considered

permissible upon reasonable cause to believethat they contain illegal items or for periodicinspection purposes)

! 3eas court of appeals concluded in a *++= casethat an assistant principal had cause to search astudent0s loc'er after she had left a student alonein the o1ce for a few minutes to discover theassistant principal purse was missing% S!oe*akerv. State(

! )Since loc'ers and des's are 7ointly held property,the school may limit student epectation ofprivacy)

! 3he search of a cell phone con.scated or found atschool should be treated the same as any student

search)



Student 4rug 3esting

! In une *++@ the )S Supreme Court revisited the studentsearch and sei6ure area, this time in the contet of drugtesting)

! &y a <5? margin the court upheld a school district drug5testing policy for students participating in interscholasticsport % :eroni+a S+!ool Distri+t v. 2+tion(

! Fnly the student0s involved in interscholastic sports weretested and then only after a consent form had been signed)

! Penalties were limited, .rst positive a second test wasadministered, the second positive the student was give achoice of participating in a si5wee' program that includedwee'ly urinalysis or being dropped for athletic for the

reminder of the season! 3he second and third oenses resulted in longer

suspensions from athletic)! 3he testing results were not used for internal school

disciplinary measures and were not turned over to thepolice)



Student 4rug 3esting cont,

! 3he )S) Supreme Court ruled in 2;;2 thatthe general drug testing policy approvedin eronica School 4istrict v) "cton can be

etended beyond the contet ofcompetitive athletic to studentsparticipating in non athletic competitiveetracurricular activities)

! 3he court upheld the policy noting thatstudents have limited privacy rights inpublic schooling in general and even morerestricted rights in etracurricularactivities)



Student 4rug 3esting Cont,

! 3he parents in a 3eas case based their drug5testing challenge on an alleged violation of thestate constitution

! In &arble alls I.S.D. v S!ell("00), t!edistri+t re<uired dru testin on all

=unior and senior !i! s+!oolstudents w!o %arti+i%ated in

e$tra+urri+ular a+tivities.! 7!e distri+ted tested t!e students

twi+e a ear or al+o!ol ,barbiturates,+o+aine, and steroids, and additional

rando* testin was i*%le*ented



Student 4rug 3esting cont,

! 3est results were con.dential and were used onlyto determine eligibility for participation inetracurricular activities)

! 3eas appeals court upheld the district0s drug J

testing policy, based on the eronica and Earldecisions)

! 3he policy did not violate student0s due processrights guaranteed by "rticle I, Section *+, of the

3eas Constitution)

! 3eas students who participate in I/ athleticcompetitions now must agree to submit torandom testing for illegal steroids, and parentsmust sign a statement ac'nowledging as much

%3EC ??);+*(



Reference

! #alsh,)Kemerer,!)LBaniotis,/)th edition 3he Educator0s Auide to 3eas

School /aw: niversity of 3eas press

Documents

Chapter 9 - William Allan Kritsonis, Lecture Notes