Liability and Student Records

1
Liability and Student Records
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Maintaining Student Records

• The primary purpose of maintaining student
  records is to aid school personnel in developing
  the best educational process for each student
  enrolled
• An effective student file contains info that can
  be used for counseling, program development,
  IEPs, grade placement, college admissions
• Contents of the file may also include

3
Student Record Confidentiality

• Family Educational Rights and Privacy Act
  (FERPA)
• Congress 1974
• Protects and guarantees parents and student with
  a level of confidentiality and fundamental
  fairness.
• The law is designed to ensure that certain types
  of personally identifiable information will not
  be released without parental or guardian consent
• FERPA is given legitimacy by the withholding of
  federal funds to violators

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Informing Parents of Rights

• School officials should provide parents and
  guardians of their FERPA rights at least annually
  
• Right to review and inspect educational rights
• Right to amend inaccuracies
• Consent form to release records(not need where
  Act does not require consent)
• Right to file federal level complaint if schools
  fail to comply with the Act
• Notification to parents or students who are
  disabled
• Procedures to access student files

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Directory Information

• Directory information under FERPA can be given
  out without the direct consent of parents or
  guardians
• School should have a policy
• Advertise practice of giving directory
  information
• Give parents the right to disallow dissemination
  of their Child(s) records
• Directory info under FERPA
• Name
• Address
• Telephone number
• Date and place of birthday
• Extracurricular activities received
• Weight and Height on Athletic teams
• Dates of attendance
• Diploma and awards

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Educational Records

• See p. 167

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Rights of Parents and Legal Guardians Under FERPA

• Parents and Guardians have the right to inspect a
  child's record
• A school official should be present to assist
  with explanation and to monitor the file
• Parents and guardians can challenge accuracy
  issues
• A school official must meet with parents, with
  appropriate personnel present, hear complaints
  and render a decision within 10 - days
• If agreement is reached, records are expunged or
  adjusted, and school writes letter confirming
  actions to parents
• If agreement is not reached at this level, the
  parents may seek a formal hearing with a higher
  level central office administrator

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Rights of Parents and Legal Guardians

• The upper echelon administrator must render a
  written decision outlining the detailed specifics
  as to why the record should not be removed or
  changed to the parents with in 10 days.
• In the case the school finds the information to
  be accurate, the parent must be allowed the
  opportunity to place statements of disagreement
  in the childs permanent folder.
• The letters must always accompany the folder
  wherever it is sent
• The parent has the right to file a further
  complaint in civil court. The complete file,
  including the parental disagreement letters, is
  submitted when subpoenaed
• NOTE Parents and guardians must be notified
  before a district complies with a judicial order
  requesting educational records

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Rights of Non custodial Parents

• FERPS requires that noncustodial biological
  parent requests for a child's records must be
  honored
• Unless a court order against such a request is
  presented to the school
• The courts have ruled consistently that records
  should be made available for any child who is
  fortunate to have both parents interested in his
  or her welfare

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Rights of School Officials

• Teachers, counselors, and administrators have a
  legitimate right to view students folders
• A signature form should be placed in or with each
  student folder.
• Each time a school official, parent, or student
  views a student file, he or she must sign the
  form and an indication of the documents looked at
  should dated and noted
• Each time a document is added or deleted from a
  file, a signature, date, and name and purpose of
  the document should be entered on the form

11
State and Federal Reviews

• In order to audit and maintain certain federally
  and state based grants and programs, state and
  federal program auditors must have access to
  certain files without consent
• Other officials include
• Comptroller General of the U.S.
• The State Superintendent and designees

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Defamation

• A tort, or civil wrong, committed against another
  in which recovery is appropriate with a showing
  that the offended party received injury injury
  based on the deliberate or malicious actions of
  others
• Slander
• Oral defamation
• Libel
• Written defamation

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Slander Oral Defamation

• Slander under FERPA
• Oral defamation in schools occurs when school
  personnel inadvertently or purposely communicate
  sensitive and damaging information contained in a
  students file to others who have no need to be
  informed
• School personnel should keep information
  concerning students strictly confidential unless
  there is a legitimate educational reason to pass
  it to other professionals.
• No joking or kidding around with the information
  should occur.
• The burden of proof for slander is on the student
  to show that personal injury occurred as a result
  of a deliberate communication of information
  contained in a students file and such
  information was disseminated to an unauthorized
  third party

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Libel Written Defamation

• Libel under FERPA occurs when school officials
  place damaging written content in a students
  file for which there is no basis
• Short term occasional discipline records should
  not be kept in a permanent file
• Information that a principal or records officer
  considers to be important to another schools
  safety regarding a childs behavior should be
  included
• A Gray area exists.
• Officials should refrain from written questions
  of
• Morality, contagious diseases, family marital
  conditions, mental or emotional interests
• These conditions are damaging to a students
  reputation based simply on their subject content

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Absence of Malice

• Malice is when there is intent to harm or injure
  another person
• In FERPA and education, malice would be targeted
  towards a student with intent to harm the
  student's reputation using private student
  information
• Intent is an important part of malice
• Truth is a defense for liability if no malicious
  intent is present
• Malicious injury of a students reputation is a
  Liberty right
• Implied malice
• Unsolicited or derogatory statements about
  students record
• Actual Malice
• Defendant must show actual intent to harm a
  reputation by calculating and generating
  statements

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Qualified Privilege

• Oftentimes school personnel need to provide
  either oral or written information that is in a
  students permanent file to other officials with
  a common interest in the child
• Officials must respond to such requests
  truthfully and reasonably
• Individuals likely having a qualified privilege
  are
• Parents, counselors, teachers, administrators

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Information that may not be Released

• Information gained from student while school
  employee is acting in the role of a clinician
• Clinician is described as any personnel which
  gain the trust and confidence of a student and
  likewise gain information from the student that
  the student believes is private and will not be
  shared with anyone else. The student is
  providing info the he/she believes will be kept
  secret and believes the school official will in
  fact keep the info a secret.
• Confidential employees acting in a role of
  clinician
• Counselor, Psychologist, Social Worker, Gym
  Coach, English Teacher
• Exception
• Employees working in the role of clinician must
  report information that may lead to the harm of
  the student or other students.