The Legal Consequences of Hitting Send Karen Haase Harding & - PowerPoint PPT Presentation

The Legal Consequences of Hitting “Send” Karen Haase Harding & Shultz (402) 434-3000 khaase@hslegalfirm.com H & S School Law @KarenHaase

Confidentiality

FERPA  Family Education Rights and Privacy Act (sometimes called “The Buckley Amendment”)  Response to perception of • Secrecy of files from students and parents • Disclosure of information to third parties

What does FERPA do? Staff may not disclose personally identifiable information about students, nor permit inspection of their records by third parties, without the prior written consent, unless such inspection is permitted by the exceptions in FERPA.

What does FERPA do? Staff may not disclose personally identifiable information about students, nor permit inspection of their records by third parties, without the prior written consent, unless such inspection is permitted by the exceptions in FERPA.

What does FERPA do? Staff may not disclose personally identifiable information about students, nor permit inspection of their records by third parties, without the prior written consent, unless such inspection is permitted by the exceptions in FERPA.

What does FERPA do? Staff may not disclose personally identifiable information about students, nor permit inspection of their records by third parties, without the prior written consent, unless such inspection is permitted by the exceptions in FERPA.

What does FERPA do? Staff may not disclose personally identifiable information about students, nor permit inspection of their records by third parties, without the prior written consent, unless such inspection is permitted by the exceptions in FERPA.

What does FERPA do? Staff may not disclose personally identifiable information about students, nor permit inspection of their records by third parties, without the prior written consent, unless such inspection is permitted by the exceptions in FERPA.

What does FERPA do? Staff may not disclose personally identifiable information about students, nor permit inspection of their records by third parties, without the prior written consent, unless such inspection is permitted by the exceptions in FERPA.

L.S. v. Mount Olive Bd. Of Ed. (D.N.J. 2011)  Catcher in the Rye Assignment  Parent sued School • Principal • Teacher • School psych. •  Court: teacher and psych personally liable – other school defendants dismissed

Letter to Wolf (FPCO 2011)  Principal and teacher at volleyball game  Parent sued school  Parent also filed complaint with FPCO  FPCO “discussion should not have occurred • in this public location and [staff] exercised poor judgment in breaching confidence” Related lawsuit settled •

Letter to Anonymous (FPCO 2013)  Teacher’s practice was to e-mail each student who failed a test with a “remediation form”  Accidentally sent e-mail to entire group  Asked FPCO for guidance  FPCO Violation of FERPA • Contacted school • Launched an investigation •

Letter to Anonymous (FPCO 2013)  Two school board members at board meeting discussing issue with sons  Parent filed complaint with FPCO  FPCO Violation of FERPA • Emphasized broad definition of • “school staff”

An e-mail by any other name  A Business Record  A Public Record  An Education Record  A SpEd Record  A Hearing Exhibit

E-mail as Business Record

E-mail as Business Record  Rule 26 – duty to disclose; general provisions governing discovery  Rule 37 – failure to make or cooperate in discovery; sanctions  Rule 37(f) – safe harbor  Requires “litigation hold” memoranda when there is “pending or reasonably anticipated litigation”

G.W. v. Rye City Sch. Dist., 61 IDELR 14 (S.D.N.Y 2013) Private school student  Parents privately placed; kept telling • school student would return next year Parents sued claiming draft IEPs • inadequate and predetermined School system purged e-mails every 6  months Parents claimed spoliation •

G.W. v. Rye City Sch. Dist ., 61 IDELR 14 (S.D.N.Y 2013)  Hearing Officer: found for School  Federal Court • No evidence of bad faith on school’s part • No evidence that missing e-mails were relevant • School Psych printed and retained all e-mails in her file

Mason City School District , 113 LRP 10255 (Ohio SEA 2013)  Student placed in out-of-district day school  Parent asked for videos, pictures, e- mails and other documents  School asked for parent to limit scope of her request

Mason City School District , 113 LRP 10255 (Ohio SEA 2013)  Parent’s response, “I requesting all email or other communications that have gone between staff at (the district) and staff at the (WCLC) pertaining to (the student).”  School: you can look at our stuff, but we don’t control contracted school.

Mason City School District , 113 LRP 10255 (Ohio SEA 2013)  Ohio Department of Ed: No FERPA violation by resident district • Offered to allow parent to review • Provided all education records that resident district “maintained” • Parent may wish to pursue FERPA remedies against with contracted district

E-mail as Public Record

E-mail as Public Record  In most states, e-mails public records – even if they are on your home computers  Nebraska Attorney General’s Office, Disposition Letter re Hyannis Area Schools (2007)

Kokomo-Center Township Sch., 110 LRP 55120  Parent asked to see student’s testing protocols  School required parent to complete Public Records Act Form  Indiana Dept. of Ed. Found violation of FERPA and IDEA

Ellis v Cleveland Muni. Sch. Dist., 104 LRP 14907  Student suing over corporal punishment by subs  Sought records involving allegations of physical altercations  School claimed student records therefore protected by FERPA and not public records

Ellis v Cleveland Muni. Sch. Dist., 104 LRP 14907  Court: School must disclose Records not “education records” as • defined by FERPA, therefore public records “Congress did not intend FERPA to • cover records directly related to teachers and only tangentially related to students.”

Retention Implications  Must follow state retention statutes  “correspondence concerning students:” maintain until graduation or after 3 years’ absence  SpEd records: maintain 5 years after no longer needed for services

E-mail as Education Record

E-mail as Education Record  FERPA: “education record” means materials which “contain information directly related to a student [and] maintained by an educational agency”  Includes “print or computer media”

Owasso Ind. Sch. Dist. v. Falvo, 534 U.S. 426 (2002)  Parent sued over peer grading  Supreme Court: No FERPA violation  Grades not “education records” until recorded in grade book.  peer-graded items were not "maintained“ – students only handled items for a few moments.  Student graders not “person acting for an educational institution”

S.A. v. Tulare County Office of Educ. , 109 LRP 60382 (E.D. Cal. 2009)  Parents asked for copies of all e-mail sent or received by the district concerning or personally identifying their autistic son.  District sent only e-mails which were printed and in file.  Parents claimed all e-mails that specifically identify the student, are education records

S.A. v. Tulare County Office of Educ., 109 LRP 60382 (E.D. Cal. 2009)  Cal. Dept. of Ed. upheld the district's interpretation  Parents appealed, arguing that all e- mails are “maintained” in the district's electronic mail system and could be located with tech. search

S.A. v. Tulare County Office of Educ., 109 LRP 60382 (E.D. Cal. 2009)  Court: Ruled for School FERPA contemplates that ed. records • be kept in one place "An e-mail may be sent, received, • read and deleted within moments” Rejected idea that all e-mails on any • computer that identify student are “maintained” by school

Washoe County Sch. Dist. (Washoe I), 109 LRP 78026 (Nev. April 2, 2009)  Parents requested “complete copy” of child's education records. • Parents noticed e-mails they had sent school were missing • School responded that e-mails, unless archived by staff, were deleted from its server within 60 days • Parents filed state department of ed complaint

Washoe County Sch. Dist. (Washoe I), 109 LRP 78026 (Nev. April 2, 2009)  Department: violation of FERPA and IDEA  FERPA • defines "record" to mean any information recorded in any way, including computer media • Didn’t include copies upon request

Washoe County Sch. Dist. (Washoe II), 114 LRP 25728 (Nev. May 23, 2014)  Parents of student with autism requested copies of documents related to “roller skating observation” • All documents were e-mails • School initially declined to provide documents • After IEP printed, made copies and provided • Parents filed state department of ed complaint