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In Texas, TEA (Texas Education Agency) is an agency that is responsible for implementing federal and state education laws. TEA oversees curriculum standards, student assessments, and accountability systems as well as licenses and certifies teachers and school counselors. TEA also develops and enforces rules related to privacy and student services that school counselors must abide by.

The State Board for Educator Certification (SBEC) also oversee public education in Texas and govern professional standards for school counselors, teachers, and administrators. SBEC not only issues professional licenses and certifications, they can investigate ethical violations and enforce continuing training and education requirements to uphold certifications and licenses.

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Texas Constitution, Article I, Section 19

(Tex. Const. art. I, § 19)

Link: https://statutes.capitol.texas.gov/Docs/CN/htm/CN.1.htm

Ensures due process rights similar to the U.S. Constitution.

Supports student rights to privacy and protection from arbitrary actions.

Can be invoked when confidentiality is breached without legal justification.

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Federal Governing Agency: U.S. Department of Education

The U.S. Department of Education enforces federal laws like FERPA (Family Educational Rights and Privacy Act). FERPA protects the privacy of student education records.

Currently, the U.S. Department of Education still exists, but many changes have occurred with plans to eventually dismantle under Trump administration. If this occurs, federal laws and regulations will then be enforced at the state and local level.

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As a future school counselor, my role will include supporting students’ academic, social-emotional, and career development while upholding all ethical standards. One of the most essential ethical responsibilities in the field of school counseling is maintaining confidentiality. Confidentiality fosters trust and creates a safe space for students to reach out for help. Confidentiality is fundamental in protecting student’s rights and it ensures all ethical and legal integrity of the counseling relationship are upheld.

This guide is intended for educators, administrators, new school counselors, school counseling interns, and any school staff that may interact with students and need to understand the critical importance of confidentiality within this setting. My goal is to provide a clear and accessible overview of how confidentiality is defined, how it is and isn’t upheld, and when it may be ethically or legally breached.

I chose this topic because confidentiality is a foundational component in the counseling relationship and is sometimes misunderstood by those outside of the counseling profession. As a current 5th grade teacher, I have seen first-hand how educators or school staff may inadvertently pressure the school counselor to share protected or sensitive information and are unaware of the legality as to why the counselor must withhold this information. By educating all stakeholders in the school setting, we can promote a school culture that respects and understands student privacy while complying with ethical standards.

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14th Amendment to the U.S. Constitution

(U.S. Const. amend. XIV)

Link: https://constitution.congress.gov/constitution/amendment-14/

Ensures public education is accessible to all students on an equal basis.

Ensures due process, equal protection, and student privacy under the law.

Provides a foundation for challenging a breach of confidentiality when student rights are violated.

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Family Education Rights and Privacy Act (FERPA)

20 U.S.C. § 1232g

Link: https://studentprivacy.ed.gov/ferpa

Federal law that protects the privacy of student education records in public schools.

States that parents have the right to access or request corrections to their child's educational records.

Counseling notes can remain confidential under FERPA if they are considered "sole possession records."

Schools must have written consent from a parent or guardian before disclosing personal identifiable information (with the exception of a health/safety emergencies.)

School counselors must comply with FERPA when disclosing information to others or handling specific student records.

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34 CFR PART 99-FAMILY EDUCATIONAL RIGHTS AND PRIVACY

Below are the regulations at 34 CFR Part 99 implementing section 444 of the General Education Provision Act (GEPA), which is commonly referred to as the Family Educational Rights and Privacy Act (FERPA), and Federal Register Notices of amendments to FERPA. They are presented here for your convenience.

The current regulations can also be found at the Electronic Code of Federal Regulations: Title 34, Part 99--Family Educational Rights and Privacy.

The current statutes can be found at 20 U.S.C. 1232g - Family educational and privacy rights

To learn more about FERPA, please refer to the General Guidance for Parents or Students.

Parents and eligible students who wish to file a complaint under FERPA may do so on the File a Complaint page.
The Federal Register Notices of amendments to FERPA regulations can be found here:
34 CFR PART 99-FAMILY EDUCATIONAL RIGHTS AND PRIVACY
Contents Subpart A-General§99.1 To which educational agencies or institutions do these regulations apply?
§99.2 What is the purpose of these regulations?
§99.3 What definitions apply to these regulations?
§99.4 What are the rights of parents?
§99.5 What are the rights of students?
§99.6 [Reserved]
§99.7 What must an educational agency or institution include in its annual notification?
§99.8 What provisions apply to records of a law enforcement unit? Subpart B-What Are the Rights of Inspection and Review of Education Records?§99.10 What rights exist for a parent or eligible student to inspect and review education records?
§99.11 May an educational agency or institution charge a fee for copies of education records?
§99.12 What limitations exist on the right to inspect and review records? Subpart C-What Are the Procedures for Amending Education Records?§99.20 How can a parent or eligible student request amendment of the student's education records?
§99.21 Under what conditions does a parent or eligible student have the right to a hearing?
§99.22 What minimum requirements exist for the conduct of a hearing? Subpart D-May an Educational Agency or Institution Disclose Personally Identifiable Information From Education Records?§99.30 Under what conditions is prior consent required to disclose information?
§99.31 Under what conditions is prior consent not required to disclose information?
§99.32 What recordkeeping requirements exist concerning requests and disclosures?
§99.33 What limitations apply to the redisclosure of information?
§99.34 What conditions apply to disclosure of information to other educational agencies or institutions?
§99.35 What conditions apply to disclosure of information for Federal or State program purposes?
§99.36 What conditions apply to disclosure of information in health and safety emergencies?
§99.37 What conditions apply to disclosing directory information?
§99.38 What conditions apply to disclosure of information as permitted by State statute adopted after November 19, 1974, concerning the juvenile justice system?
§99.39 What definitions apply to the nonconsensual disclosure of records by postsecondary educational institutions in connection with disciplinary proceedings concerning crimes of violence or non-forcible sex offenses? Subpart E-What Are the Enforcement Procedures?§99.60 What functions has the Secretary delegated to the Office and to the Office of Administrative Law Judges?
§99.61 What responsibility does an educational agency or institution, a recipient of Department funds, or a third party outside of an educational agency or institution have concerning conflict with State or local laws?
§99.62 What information must an educational agency or institution or other recipient of Department funds submit to the Office?
§99.63 Where are complaints filed?
§99.64 What is the investigation procedure?
§99.65 What is the content of the notice of investigation issued by the Office?
§99.66 What are the responsibilities of the Office in the enforcement process?
§99.67 How does the Secretary enforce decisions?
Appendix A to Part 99-Crimes of Violence Definitions
Subpart A-General

§99.1 To which educational agencies or institutions do these regulations apply?

(a) Except as otherwise noted in §99.10, this part applies to an educational agency or institution to which funds have been made available under any program administered by the Secretary, if-

(1) The educational institution provides educational services or instruction, or both, to students; or

(2) The educational agency is authorized to direct and control public elementary or secondary, or postsecondary educational institutions.

(b) This part does not apply to an educational agency or institution solely because students attending that agency or institution receive non-monetary benefits under a program referenced in paragraph (a) of this section, if no funds under that program are made available to the agency or institution.

(c) The Secretary considers funds to be made available to an educational agency or institution of funds under one or more of the programs referenced in paragraph (a) of this section-

(1) Are provided to the agency or institution by grant, cooperative agreement, contract, subgrant, or subcontract; or

(2) Are provided to students attending the agency or institution and the funds may be paid to the agency or institution by those students for educational purposes, such as under the Pell Grant Program and the Guaranteed Student Loan Program (titles IV-A-1 and IV-B, respectively, of the Higher Education Act of 1965, as amended).

(d) If an educational agency or institution receives funds under one or more of the programs covered by this section, the regulations in this part apply to the recipient as a whole, including each of its components (such as a department within a university).

(Authority: 20 U.S.C. 1232g)

[53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59295, Nov. 21, 1996; 65 FR 41852, July 6, 2000]

§99.2 What is the purpose of these regulations?

The purpose of this part is to set out requirements for the protection of privacy of parents and students under section 444 of the General Education Provisions Act, as amended.

(Authority: 20 U.S.C. 1232g)

Note to §99.2: 34 CFR 300.610 through 300.626 contain requirements regarding the confidentiality of information relating to children with disabilities who receive evaluations, services or other benefits under Part B of the Individuals with Disabilities Education Act (IDEA). 34 CFR 303.402 and 303.460 identify the confidentiality of information requirements regarding children and infants and toddlers with disabilities and their families who receive evaluations, services, or other benefits under Part C of IDEA. 34 CFR 300.610 through 300.627 contain the confidentiality of information requirements that apply to personally identifiable data, information, and records collected or maintained pursuant to Part B of the IDEA.

[53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59295, Nov. 21, 1996; 73 FR 74851, Dec. 9, 2008]

§99.3 What definitions apply to these regulations?

The following definitions apply to this part:

Act means the Family Educational Rights and Privacy Act of 1974, as amended, enacted as section 444 of the General Education Provisions Act.

(Authority: 20 U.S.C. 1232g)

Attendance includes, but is not limited to-

(a) Attendance in person or by paper correspondence, videoconference, satellite, Internet, or other electronic information and telecommunications technologies for students who are not physically present in the classroom; and

(b) The period during which a person is working under a work-study program.

(Authority: 20 U.S.C. 1232g)

Authorized representative means any entity or individual designated by a State or local educational authority or an agency headed by an official listed in §99.31(a)(3) to conduct-with respect to Federal- or State-supported education programs-any audit or evaluation, or any compliance or enforcement activity in connection with Federal legal requirements that relate to these programs.

(Authority: 20 U.S.C. 1232g(b)(1)(C), (b)(3), and (b)(5))

Biometric record, as used in the definition of personally identifiable information, means a record of one or more measurable biological or behavioral characteristics that can be used for automated recognition of an individual. Examples include fingerprints; retina and iris patterns; voiceprints; DNA sequence; facial characteristics; and handwriting.

(Authority: 20 U.S.C. 1232g)

Dates of attendance. (a) The term means the period of time during which a student attends or attended an educational agency or institution. Examples of dates of attendance include an academic year, a spring semester, or a first quarter.

(b) The term does not include specific daily records of a student's attendance at an educational agency or institution.

(Authority: 20 U.S.C. 1232g(a)(5)(A))

Directory information means information contained in an education record of a student that would not generally be considered harmful or an invasion of privacy if disclosed.

(a) Directory information includes, but is not limited to, the student's name; address; telephone listing; electronic mail address; photograph; date and place of birth; major field of study; grade level; enrollment status ( e.g., undergraduate or graduate, full-time or part-time); dates of attendance; participation in officially recognized activities and sports; weight and height of members of athletic teams; degrees, honors, and awards received; and the most recent educational agency or institution attended.

(b) Directory information does not include a student's-

(1) Social security number; or

(2) Student identification (ID) number, except as provided in paragraph (c) of this definition.

(c) In accordance with paragraphs (a) and (b) of this definition, directory information includes-

(1) A student ID number, user ID, or other unique personal identifier used by a student for purposes of accessing or communicating in electronic systems, but only if the identifier cannot be used to gain access to education records except when used in conjunction with one or more factors that authenticate the user's identity, such as a personal identification number (PIN), password or other factor known or possessed only by the authorized user; and

(2) A student ID number or other unique personal identifier that is displayed on a student ID badge, but only if the identifier cannot be used to gain access to education records except when used in conjunction with one or more factors that authenticate the user's identity, such as a PIN, password, or other factor known or possessed only by the authorized user.

(Authority: 20 U.S.C. 1232g(a)(5)(A))

Disciplinary action or proceeding means the investigation, adjudication, or imposition of sanctions by an educational agency or institution with respect to an infraction or violation of the internal rules of conduct applicable to students of the agency or institution.

Disclosure means to permit access to or the release, transfer, or other communication of personally identifiable information contained in education records by any means, including oral, written, or electronic means, to any party except the party identified as the party that provided or created the record.

(Authority: 20 U.S.C. 1232g(b)(1) and (b)(2))

Early childhood education program means-

(a) A Head Start program or an Early Head Start program carried out under the Head Start Act (42 U.S.C. 9831 et seq.), including a migrant or seasonal Head Start program, an Indian Head Start program, or a Head Start program or an Early Head Start program that also receives State funding;

(b) A State licensed or regulated child care program; or

(c) A program that-

(1) Serves children from birth through age six that addresses the children's cognitive (including language, early literacy, and early mathematics), social, emotional, and physical development; and

(2) Is-

(i) A State prekindergarten program;

(ii) A program authorized under section 619 or part C of the Individuals with Disabilities Education Act; or

(iii) A program operated by a local educational agency.

Educational agency or institution means any public or private agency or institution to which this part applies under §99.1(a).

(Authority: 20 U.S.C. 1232g(a)(3))

Education program means any program that is principally engaged in the provision of education, including, but not limited to, early childhood education, elementary and secondary education, postsecondary education, special education, job training, career and technical education, and adult education, and any program that is administered by an educational agency or institution.

(Authority: 20 U.S.C. 1232g(b)(3), (b)(5))

Education records. (a) The term means those records that are:

(1) Directly related to a student; and

(2) Maintained by an educational agency or institution or by a party acting for the agency or institution.

(b) The term does not include:

(1) Records that are kept in the sole possession of the maker, are used only as a personal memory aid, and are not accessible or revealed to any other person except a temporary substitute for the maker of the record.

(2) Records of the law enforcement unit of an educational agency or institution, subject to the provisions of §99.8.

(3)(i) Records relating to an individual who is employed by an educational agency or institution, that:

(A) Are made and maintained in the normal course of business;

(B) Relate exclusively to the individual in that individual's capacity as an employee; and

(C) Are not available for use for any other purpose.

(ii) Records relating to an individual in attendance at the agency or institution who is employed as a result of his or her status as a student are education records and not excepted under paragraph (b)(3)(i) of this definition.

(4) Records on a student who is 18 years of age or older, or is attending an institution of postsecondary education, that are:

(i) Made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in his or her professional capacity or assisting in a paraprofessional capacity;

(ii) Made, maintained, or used only in connection with treatment of the student; and

(iii) Disclosed only to individuals providing the treatment. For the purpose of this definition, "treatment" does not include remedial educational activities or activities that are part of the program of instruction at the agency or institution; and

(5) Records created or received by an educational agency or institution after an individual is no longer a student in attendance and that are not directly related to the individual's attendance as a student.

(6) Grades on peer-graded papers before they are collected and recorded by a teacher.

(Authority: 20 U.S.C. 1232g(a)(4))

Eligible student means a student who has reached 18 years of age or is attending an institution of postsecondary education.

(Authority: 20 U.S.C. 1232g(d))

Institution of postsecondary education means an institution that provides education to students beyond the secondary school level; "secondary school level" means the educational level (not beyond grade 12) at which secondary education is provided as determined under State law.

(Authority: 20 U.S.C. 1232g(d))

Parent means a parent of a student and includes a natural parent, a guardian, or an individual acting as a parent in the absence of a parent or a guardian.

(Authority: 20 U.S.C. 1232g)

Party means an individual, agency, institution, or organization.

(Authority: 20 U.S.C. 1232g(b)(4)(A))

Personally Identifiable Information

The term includes, but is not limited to-

(a) The student's name;

(b) The name of the student's parent or other family members;

(c) The address of the student or student's family;

(d) A personal identifier, such as the student's social security number, student number, or biometric record;

(e) Other indirect identifiers, such as the student's date of birth, place of birth, and mother's maiden name;

(f) Other information that, alone or in combination, is linked or linkable to a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty; or

(g) Information requested by a person who the educational agency or institution reasonably believes knows the identity of the student to whom the education record relates.

(Authority: 20 U.S.C. 1232g)

Record means any information recorded in any way, including, but not limited to, handwriting, print, computer media, video or audio tape, film, microfilm, and microfiche.

(Authority: 20 U.S.C. 1232g)

Secretary means the Secretary of the U.S. Department of Education or an official or employee of the Department of Education acting for the Secretary under a delegation of authority.

(Authority: 20 U.S.C. 1232g)

Student, except as otherwise specifically provided in this part, means any individual who is or has been in attendance at an educational agency or institution and regarding whom the agency or institution maintains education records.

(Authority: 20 U.S.C. 1232g(a)(6))

[53 FR 11943, Apr. 11, 1988, as amended at 60 FR 3468, Jan. 17, 1995; 61 FR 59295, Nov. 21, 1996; 65 FR 41852, July 6, 2000; 73 FR 74851, Dec. 9, 2008; 76 FR 75641, Dec. 2, 2011]

§99.4 What are the rights of parents?

An educational agency or institution shall give full rights under the Act to either parent, unless the agency or institution has been provided with evidence that there is a court order, State statute, or legally binding document relating to such matters as divorce, separation, or custody that specifically revokes these rights.

(Authority: 20 U.S.C. 1232g)

§99.5 What are the rights of students?

(a)(1) When a student becomes an eligible student, the rights accorded to, and consent required of, parents under this part transfer from the parents to the student.

(2) Nothing in this section prevents an educational agency or institution from disclosing education records, or personally identifiable information from education records, to a parent without the prior written consent of an eligible student if the disclosure meets the conditions in §99.31(a)(8), §99.31(a)(10), §99.31(a)(15), or any other provision in §99.31(a).

(b) The Act and this part do not prevent educational agencies or institutions from giving students rights in addition to those given to parents.

(c) An individual who is or has been a student at an educational institution and who applies for admission at another component of that institution does not have rights under this part with respect to records maintained by that other component, including records maintained in connection with the student's application for admission, unless the student is accepted and attends that other component of the institution.

(Authority: 20 U.S.C. 1232g(d))

[53 FR 11943, Apr. 11, 1988, as amended at 58 FR 3188, Jan. 7, 1993; 65 FR 41853, July 6, 2000; 73 FR 74852, Dec. 9, 2008]

§99.6 [Reserved]

§99.7 What must an educational agency or institution include in its annual notification?

(a)(1) Each educational agency or institution shall annually notify parents of students currently in attendance, or eligible students currently in attendance, of their rights under the Act and this part.

(2) The notice must inform parents or eligible students that they have the right to-

(i) Inspect and review the student's education records;

(ii) Seek amendment of the student's education records that the parent or eligible student believes to be inaccurate, misleading, or otherwise in violation of the student's privacy rights;

(iii) Consent to disclosures of personally identifiable information contained in the student's education records, except to the extent that the Act and §99.31 authorize disclosure without consent; and

(iv) File with the Department a complaint under §§99.63 and 99.64 concerning alleged failures by the educational agency or institution to comply with the requirements of the Act and this part.

(3) The notice must include all of the following:

(i) The procedure for exercising the right to inspect and review education records.

(ii) The procedure for requesting amendment of records under §99.20.

(iii) If the educational agency or institution has a policy of disclosing education records under §99.31(a)(1), a specification of criteria for determining who constitutes a school official and what constitutes a legitimate educational interest.

(b) An educational agency or institution may provide this notice by any means that are reasonably likely to inform the parents or eligible students of their rights.

(1) An educational agency or institution shall effectively notify parents or eligible students who are disabled.

(2) An agency or institution of elementary or secondary education shall effectively notify parents who have a primary or home language other than English.

(Approved by the Office of Management and Budget under control number 1880-0508)

(Authority: 20 U.S.C. 1232g (e) and (f))

[61 FR 59295, Nov. 21, 1996]

§99.8 What provisions apply to records of a law enforcement unit?

(a)(1) Law enforcement unit means any individual, office, department, division, or other component of an educational agency or institution, such as a unit of commissioned police officers or non-commissioned security guards, that is officially authorized or designated by that agency or institution to-

(i) Enforce any local, State, or Federal law, or refer to appropriate authorities a matter for enforcement of any local, State, or Federal law against any individual or organization other than the agency or institution itself; or

(ii) Maintain the physical security and safety of the agency or institution.

(2) A component of an educational agency or institution does not lose its status as a law enforcement unit if it also performs other, non-law enforcement functions for the agency or institution, including investigation of incidents or conduct that constitutes or leads to a disciplinary action or proceedings against the student.

(b)(1) Records of a law enforcement unit means those records, files, documents, and other materials that are-

(i) Created by a law enforcement unit;

(ii) Created for a law enforcement purpose; and

(iii) Maintained by the law enforcement unit.

(2) Records of a law enforcement unit does not mean-

(i) Records created by a law enforcement unit for a law enforcement purpose that are maintained by a component of the educational agency or institution other than the law enforcement unit; or

(ii) Records created and maintained by a law enforcement unit exclusively for a non-law enforcement purpose, such as a disciplinary action or proceeding conducted by the educational agency or institution.

(c)(1) Nothing in the Act prohibits an educational agency or institution from contacting its law enforcement unit, orally or in writing, for the purpose of asking that unit to investigate a possible violation of, or to enforce, any local, State, or Federal law.

(2) Education records, and personally identifiable information contained in education records, do not lose their status as education records and remain subject to the Act, including the disclosure provisions of §99.30, while in the possession of the law enforcement unit.

(d) The Act neither requires nor prohibits the disclosure by an educational agency or institution of its law enforcement unit records.

(Authority: 20 U.S.C. 1232g(a)(4)(B)(ii))

[60 FR 3469, Jan. 17, 1995]

Subpart B-What Are the Rights of Inspection and Review of Education Records?

§99.10 What rights exist for a parent or eligible student to inspect and review education records?

(a) Except as limited under §99.12, a parent or eligible student must be given the opportunity to inspect and review the student's education records. This provision applies to-

(1) Any educational agency or institution; and

(2) Any State educational agency (SEA) and its components.

(i) For the purposes of subpart B of this part, an SEA and its components constitute an educational agency or institution.

(ii) An SEA and its components are subject to subpart B of this part if the SEA maintains education records on students who are or have been in attendance at any school of an educational agency or institution subject to the Act and this part.

(b) The educational agency or institution, or SEA or its component, shall comply with a request for access to records within a reasonable period of time, but not more than 45 days after it has received the request.

(c) The educational agency or institution, or SEA or its component shall respond to reasonable requests for explanations and interpretations of the records.

(d) If circumstances effectively prevent the parent or eligible student from exercising the right to inspect and review the student's education records, the educational agency or institution, or SEA or its component, shall-

(1) Provide the parent or eligible student with a copy of the records requested; or

(2) Make other arrangements for the parent or eligible student to inspect and review the requested records.

(e) The educational agency or institution, or SEA or its component shall not destroy any education records if there is an outstanding request to inspect and review the records under this section.

(f) While an education agency or institution is not required to give an eligible student access to treatment records under paragraph (b)(4) of the definition of Education records in §99.3, the student may have those records reviewed by a physician or other appropriate professional of the student's choice.

(Authority: 20 U.S.C. 1232g(a)(1) (A) and (B))

[53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59296, Nov. 21, 1996]

§99.11 May an educational agency or institution charge a fee for copies of education records?

(a) Unless the imposition of a fee effectively prevents a parent or eligible student from exercising the right to inspect and review the student's education records, an educational agency or institution may charge a fee for a copy of an education record which is made for the parent or eligible student.

(b) An educational agency or institution may not charge a fee to search for or to retrieve the education records of a student.

(Authority: 20 U.S.C. 1232g(a)(1))

§99.12 What limitations exist on the right to inspect and review records?

(a) If the education records of a student contain information on more than one student, the parent or eligible student may inspect and review or be informed of only the specific information about that student.

(b) A postsecondary institution does not have to permit a student to inspect and review education records that are:

(1) Financial records, including any information those records contain, of his or her parents;

(2) Confidential letters and confidential statements of recommendation placed in the education records of the student before January 1, 1975, as long as the statements are used only for the purposes for which they were specifically intended; and

(3) Confidential letters and confidential statements of recommendation placed in the student's education records after January 1, 1975, if:

(i) The student has waived his or her right to inspect and review those letters and statements; and

(ii) Those letters and statements are related to the student's:

(A) Admission to an educational institution;

(B) Application for employment; or

(C) Receipt of an honor or honorary recognition.

(c)(1) A waiver under paragraph (b)(3)(i) of this section is valid only if:

(i) The educational agency or institution does not require the waiver as a condition for admission to or receipt of a service or benefit from the agency or institution; and

(ii) The waiver is made in writing and signed by the student, regardless of age.

(2) If a student has waived his or her rights under paragraph (b)(3)(i) of this section, the educational institution shall:

(i) Give the student, on request, the names of the individuals who provided the letters and statements of recommendation; and

(ii) Use the letters and statements of recommendation only for the purpose for which they were intended.

(3)(i) A waiver under paragraph (b)(3)(i) of this section may be revoked with respect to any actions occurring after the revocation.

(ii) A revocation under paragraph (c)(3)(i) of this section must be in writing.

(Authority: 20 U.S.C. 1232g(a)(1) (A), (B), (C), and (D))

[53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59296, Nov. 21, 1996]

Subpart C-What Are the Procedures for Amending Education Records?

§99.20 How can a parent or eligible student request amendment of the student's education records?

(a) If a parent or eligible student believes the education records relating to the student contain information that is inaccurate, misleading, or in violation of the student's rights of privacy, he or she may ask the educational agency or institution to amend the record.

(b) The educational agency or institution shall decide whether to amend the record as requested within a reasonable time after the agency or institution receives the request.

(c) If the educational agency or institution decides not to amend the record as requested, it shall inform the parent or eligible student of its decision and of his or her right to a hearing under §99.21.

(Authority: 20 U.S.C. 1232g(a)(2))

[53 FR 11943, Apr. 11, 1988; 53 FR 19368, May 27, 1988, as amended at 61 FR 59296, Nov. 21, 1996]

§99.21 Under what conditions does a parent or eligible student have the right to a hearing?

(a) An educational agency or institution shall give a parent or eligible student, on request, an opportunity for a hearing to challenge the content of the student's education records on the grounds that the information contained in the education records is inaccurate, misleading, or in violation of the privacy rights of the student.

(b)(1) If, as a result of the hearing, the educational agency or institution decides that the information is inaccurate, misleading, or otherwise in violation of the privacy rights of the student, it shall:

(i) Amend the record accordingly; and

(ii) Inform the parent or eligible student of the amendment in writing.

(2) If, as a result of the hearing, the educational agency or institution decides that the information in the education record is not inaccurate, misleading, or otherwise in violation of the privacy rights of the student, it shall inform the parent or eligible student of the right to place a statement in the record commenting on the contested information in the record or stating why he or she disagrees with the decision of the agency or institution, or both.

(c) If an educational agency or institution places a statement in the education records of a student under paragraph (b)(2) of this section, the agency or institution shall:

(1) Maintain the statement with the contested part of the record for as long as the record is maintained; and

(2) Disclose the statement whenever it discloses the portion of the record to which the statement relates.

(Authority: 20 U.S.C. 1232g(a)(2))

[53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59296, Nov. 21, 1996]

§99.22 What minimum requirements exist for the conduct of a hearing?

The hearing required by §99.21 must meet, at a minimum, the following requirements:

(a) The educational agency or institution shall hold the hearing within a reasonable time after it has received the request for the hearing from the parent or eligible student.

(b) The educational agency or institution shall give the parent or eligible student notice of the date, time, and place, reasonably in advance of the hearing.

(c) The hearing may be conducted by any individual, including an official of the educational agency or institution, who does not have a direct interest in the outcome of the hearing.

(d) The educational agency or institution shall give the parent or eligible student a full and fair opportunity to present evidence relevant to the issues raised under §99.21. The parent or eligible student may, at their own expense, be assisted or represented by one or more individuals of his or her own choice, including an attorney.

(e) The educational agency or institution shall make its decision in writing within a reasonable period of time after the hearing.

(f) The decision must be based solely on the evidence presented at the hearing, and must include a summary of the evidence and the reasons for the decision.

(Authority: 20 U.S.C. 1232g(a)(2))

Subpart D-May an Educational Agency or Institution Disclose Personally Identifiable Information From Education Records?

§99.30 Under what conditions is prior consent required to disclose information?

(a) The parent or eligible student shall provide a signed and dated written consent before an educational agency or institution discloses personally identifiable information from the student's education records, except as provided in §99.31.

(b) The written consent must:

(1) Specify the records that may be disclosed;

(2) State the purpose of the disclosure; and

(3) Identify the party or class of parties to whom the disclosure may be made.

(c) When a disclosure is made under paragraph (a) of this section:

(1) If a parent or eligible student so requests, the educational agency or institution shall provide him or her with a copy of the records disclosed; and

(2) If the parent of a student who is not an eligible student so requests, the agency or institution shall provide the student with a copy of the records disclosed.

(d) "Signed and dated written consent" under this part may include a record and signature in electronic form that-

(1) Identifies and authenticates a particular person as the source of the electronic consent; and

(2) Indicates such person's approval of the information contained in the electronic consent.

(Authority: 20 U.S.C. 1232g (b)(1) and (b)(2)(A))

[53 FR 11943, Apr. 11, 1988, as amended at 58 FR 3189, Jan. 7, 1993; 69 FR 21671, Apr. 21, 2004]

§99.31 Under what conditions is prior consent not required to disclose information?

(a) An educational agency or institution may disclose personally identifiable information from an education record of a student without the consent required by §99.30 if the disclosure meets one or more of the following conditions:

(1)(i)(A) The disclosure is to other school officials, including teachers, within the agency or institution whom the agency or institution has determined to have legitimate educational interests.

(B) A contractor, consultant, volunteer, or other party to whom an agency or institution has outsourced institutional services or functions may be considered a school official under this paragraph provided that the outside party-

( 1) Performs an institutional service or function for which the agency or institution would otherwise use employees;

( 2) Is under the direct control of the agency or institution with respect to the use and maintenance of education records; and

( 3) Is subject to the requirements of §99.33(a) governing the use and redisclosure of personally identifiable information from education records.

(ii) An educational agency or institution must use reasonable methods to ensure that school officials obtain access to only those education records in which they have legitimate educational interests. An educational agency or institution that does not use physical or technological access controls must ensure that its administrative policy for controlling access to education records is effective and that it remains in compliance with the legitimate educational interest requirement in paragraph (a)(1)(i)(A) of this section.

(2) The disclosure is, subject to the requirements of §99.34, to officials of another school, school system, or institution of postsecondary education where the student seeks or intends to enroll, or where the student is already enrolled so long as the disclosure is for purposes related to the student's enrollment or transfer.

Note: Section 4155(b) of the No Child Left Behind Act of 2001, 20 U.S.C. 7165(b), requires each State to assure the Secretary of Education that it has a procedure in place to facilitate the transfer of disciplinary records with respect to a suspension or expulsion of a student by a local educational agency to any private or public elementary or secondary school in which the student is subsequently enrolled or seeks, intends, or is instructed to enroll.

(3) The disclosure is, subject to the requirements of §99.35, to authorized representatives of-

(i) The Comptroller General of the United States;

(ii) The Attorney General of the United States;

(iii) The Secretary; or

(iv) State and local educational authorities.

(4)(i) The disclosure is in connection with financial aid for which the student has applied or which the student has received, if the information is necessary for such purposes as to:

(A) Determine eligibility for the aid;

(B) Determine the amount of the aid;

(C) Determine the conditions for the aid; or

(D) Enforce the terms and conditions of the aid.

(ii) As used in paragraph (a)(4)(i) of this section, financial aid means a payment of funds provided to an individual (or a payment in kind of tangible or intangible property to the individual) that is conditioned on the individual's attendance at an educational agency or institution.

(Authority: 20 U.S.C. 1232g(b)(1)(D))

(5)(i) The disclosure is to State and local officials or authorities to whom this information is specifically-

(A) Allowed to be reported or disclosed pursuant to State statute adopted before November 19, 1974, if the allowed reporting or disclosure concerns the juvenile justice system and the system's ability to effectively serve the student whose records are released; or

(B) Allowed to be reported or disclosed pursuant to State statute adopted after November 19, 1974, subject to the requirements of §99.38.

(ii) Paragraph (a)(5)(i) of this section does not prevent a State from further limiting the number or type of State or local officials to whom disclosures may be made under that paragraph.

(6)(i) The disclosure is to organizations conducting studies for, or on behalf of, educational agencies or institutions to:

(A) Develop, validate, or administer predictive tests;

(B) Administer student aid programs; or

(C) Improve instruction.

(ii) Nothing in the Act or this part prevents a State or local educational authority or agency headed by an official listed in paragraph (a)(3) of this section from entering into agreements with organizations conducting studies under paragraph (a)(6)(i) of this section and redisclosing personally identifiable information from education records on behalf of educational agencies and institutions that disclosed the information to the State or local educational authority or agency headed by an official listed in paragraph (a)(3) of this section in accordance with the requirements of §99.33(b).

(iii) An educational agency or institution may disclose personally identifiable information under paragraph (a)(6)(i) of this section, and a State or local educational authority or agency headed by an official listed in paragraph (a)(3) of this section may redisclose personally identifiable information under paragraph (a)(6)(i) and (a)(6)(ii) of this section, only if-

(A) The study is conducted in a manner that does not permit personal identification of parents and students by individuals other than representatives of the organization that have legitimate interests in the information;

(B) The information is destroyed when no longer needed for the purposes for which the study was conducted; and

(C) The educational agency or institution or the State or local educational authority or agency headed by an official listed in paragraph (a)(3) of this section enters into a written agreement with the organization that-

( 1) Specifies the purpose, scope, and duration of the study or studies and the information to be disclosed;

( 2) Requires the organization to use personally identifiable information from education records only to meet the purpose or purposes of the study as stated in the written agreement;

( 3) Requires the organization to conduct the study in a manner that does not permit personal identification of parents and students, as defined in this part, by anyone other than representatives of the organization with legitimate interests;

and

( 4) Requires the organization to destroy all personally identifiable information when the information is no longer needed for the purposes for which the study was conducted and specifies the time period in which the information must be destroyed.

(iv) An educational agency or institution or State or local educational authority or Federal agency headed by an official listed in paragraph (a)(3) of this section is not required to initiate a study or agree with or endorse the conclusions or results of the study.

(v) For the purposes of paragraph (a)(6) of this section, the term organization includes, but is not limited to, Federal, State, and local agencies, and independent organizations.

(7) The disclosure is to accrediting organizations to carry out their accrediting functions.

(8) The disclosure is to parents, as defined in §99.3, of a dependent student, as defined in section 152 of the Internal Revenue Code of 1986.

(9)(i) The disclosure is to comply with a judicial order or lawfully issued subpoena.

(ii) The educational agency or institution may disclose information under paragraph (a)(9)(i) of this section only if the agency or institution makes a reasonable effort to notify the parent or eligible student of the order or subpoena in advance of compliance, so that the parent or eligible student may seek protective action, unless the disclosure is in compliance with-

(A) A Federal grand jury subpoena and the court has ordered that the existence or the contents of the subpoena or the information furnished in response to the subpoena not be disclosed;

(B) Any other subpoena issued for a law enforcement purpose and the court or other issuing agency has ordered that the existence or the contents of the subpoena or the information furnished in response to the subpoena not be disclosed; or

(C) An ex parte court order obtained by the United States Attorney General (or designee not lower than an Assistant Attorney General) concerning investigations or prosecutions of an offense listed in 18 U.S.C. 2332b(g)(5)(B) or an act of domestic or international terrorism as defined in 18 U.S.C. 2331.

(iii)(A) If an educational agency or institution initiates legal action against a parent or student, the educational agency or institution may disclose to the court, without a court order or subpoena, the education records of the student that are relevant for the educational agency or institution to proceed with the legal action as plaintiff.

(B) If a parent or eligible student initiates legal action against an educational agency or institution, the educational agency or institution may disclose to the court, without a court order or subpoena, the student's education records that are relevant for the educational agency or institution to defend itself.

(10) The disclosure is in connection with a health or safety emergency, under the conditions described in §99.36.

(11) The disclosure is information the educational agency or institution has designated as "directory information", under the conditions described in §99.37.

(12) The disclosure is to the parent of a student who is not an eligible student or to the student.

(13) The disclosure, subject to the requirements in §99.39, is to a victim of an alleged perpetrator of a crime of violence or a non-forcible sex offense. The disclosure may only include the final results of the disciplinary proceeding conducted by the institution of postsecondary education with respect to that alleged crime or offense. The institution may disclose the final results of the disciplinary proceeding, regardless of whether the institution concluded a violation was committed.

(14)(i) The disclosure, subject to the requirements in §99.39, is in connection with a disciplinary proceeding at an institution of postsecondary education. The institution must not disclose the final results of the disciplinary proceeding unless it determines that-

(A) The student is an alleged perpetrator of a crime of violence or non-forcible sex offense; and

(B) With respect to the allegation made against him or her, the student has committed a violation of the institution's rules or policies.

(ii) The institution may not disclose the name of any other student, including a victim or witness, without the prior written consent of the other student.

(iii) This section applies only to disciplinary proceedings in which the final results were reached on or after October 7, 1998.

(15)(i) The disclosure is to a parent of a student at an institution of postsecondary education regarding the student's violation of any Federal, State, or local law, or of any rule or policy of the institution, governing the use or possession of alcohol or a controlled substance if-

(A) The institution determines that the student has committed a disciplinary violation with respect to that use or possession; and

(B) The student is under the age of 21 at the time of the disclosure to the parent.

(ii) Paragraph (a)(15) of this section does not supersede any provision of State law that prohibits an institution of postsecondary education from disclosing information.

(16) The disclosure concerns sex offenders and other individuals required to register under section 170101 of the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. 14071, and the information was provided to the educational agency or institution under 42 U.S.C. 14071 and applicable Federal guidelines.

(b)(1) De-identified records and information. An educational agency or institution, or a party that has received education records or information from education records under this part, may release the records or information without the consent required by §99.30 after the removal of all personally identifiable information provided that the educational agency or institution or other party has made a reasonable determination that a student's identity is not personally identifiable, whether through single or multiple releases, and taking into account other reasonably available information.

(2) An educational agency or institution, or a party that has received education records or information from education records under this part, may release de-identified student level data from education records for the purpose of education research by attaching a code to each record that may allow the recipient to match information received from the same source, provided that-

(i) An educational agency or institution or other party that releases de-identified data under paragraph (b)(2) of this section does not disclose any information about how it generates and assigns a record code, or that would allow a recipient to identify a student based on a record code;

(ii) The record code is used for no purpose other than identifying a de-identified record for purposes of education research and cannot be used to ascertain personally identifiable information about a student; and

(iii) The record code is not based on a student's social security number or other personal information.

(c) An educational agency or institution must use reasonable methods to identify and authenticate the identity of parents, students, school officials, and any other parties to whom the agency or institution discloses personally identifiable information from education records.

(d) Paragraphs (a) and (b) of this section do not require an educational agency or institution or any other party to disclose education records or information from education records to any party except for parties under paragraph (a)(12) of this section.

(Authority: 20 U.S.C. 1232g(a)(5)(A), (b), (h), (i), and (j)).

[53 FR 11943, Apr. 11, 1988; 53 FR 19368, May 27, 1988, as amended at 58 FR 3189, Jan. 7, 1993; 61 FR 59296, Nov. 21, 1996; 65 FR 41853, July 6, 2000; 73 FR 74852, Dec. 9, 2008; 74 FR 401, Jan. 6, 2009; 76 FR 75641, Dec. 2, 2011]

§99.32 What recordkeeping requirements exist concerning requests and disclosures?

(a)(1) An educational agency or institution must maintain a record of each request for access to and each disclosure of personally identifiable information from the education records of each student, as well as the names of State and local educational authorities and Federal officials and agencies listed in §99.31(a)(3) that may make further disclosures of personally identifiable information from the student's education records without consent under §99.33(b).

(2) The agency or institution shall maintain the record with the education records of the student as long as the records are maintained.

(3) For each request or disclosure the record must include:

(i) The parties who have requested or received personally identifiable information from the education records; and

(ii) The legitimate interests the parties had in requesting or obtaining the information.

(4) An educational agency or institution must obtain a copy of the record of further disclosures maintained under paragraph (b)(2) of this section and make it available in response to a parent's or eligible student's request to review the record required under paragraph (a)(1) of this section.

(5) An educational agency or institution must record the following information when it discloses personally identifiable information from education records under the health or safety emergency exception in §99.31(a)(10) and §99.36:

(i) The articulable and significant threat to the health or safety of a student or other individuals that formed the basis for the disclosure; and

(ii) The parties to whom the agency or institution disclosed the information.

(b)(1) Except as provided in paragraph (b)(2) of this section, if an educational agency or institution discloses personally identifiable information from education records with the understanding authorized under §99.33(b), the record of the disclosure required under this section must include:

(i) The names of the additional parties to which the receiving party may disclose the information on behalf of the educational agency or institution; and

(ii) The legitimate interests under §99.31 which each of the additional parties has in requesting or obtaining the information.

(2)(i) A State or local educational authority or Federal official or agency listed in §99.31(a)(3) that makes further disclosures of information from education records under §99.33(b) must record the names of the additional parties to which it discloses information on behalf of an educational agency or institution and their legitimate interests in the information under §99.31 if the information was received from:

(A) An educational agency or institution that has not recorded the further disclosures under paragraph (b)(1) of this section; or

(B) Another State or local educational authority or Federal official or agency listed in §99.31(a)(3).

(ii) A State or local educational authority or Federal official or agency that records further disclosures of information under paragraph (b)(2)(i) of this section may maintain the record by the student's class, school, district, or other appropriate grouping rather than by the name of the student.

(iii) Upon request of an educational agency or institution, a State or local educational authority or Federal official or agency listed in §99.31(a)(3) that maintains a record of further disclosures under paragraph (b)(2)(i) of this section must provide a copy of the record of further disclosures to the educational agency or institution within a reasonable period of time not to exceed 30 days.

(c) The following parties may inspect the record relating to each student:

(1) The parent or eligible student.

(2) The school official or his or her assistants who are responsible for the custody of the records.

(3) Those parties authorized in §99.31(a) (1) and (3) for the purposes of auditing the recordkeeping procedures of the educational agency or institution.

(d) Paragraph (a) of this section does not apply if the request was from, or the disclosure was to:

(1) The parent or eligible student;

(2) A school official under §99.31(a)(1);

(3) A party with written consent from the parent or eligible student;

(4) A party seeking directory information; or

(5) A party seeking or receiving records in accordance with §99.31(a)(9)(ii)(A) through (C).

(Approved by the Office of Management and Budget under control number 1880-0508)

(Authority: 20 U.S.C. 1232g(b)(1) and (b)(4)(A))

[53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59297, Nov. 21, 1996; 73 FR 74853, Dec. 9, 2008]

§99.33 What limitations apply to the redisclosure of information?

(a)(1) An educational agency or institution may disclose personally identifiable information from an education record only on the condition that the party to whom the information is disclosed will not disclose the information to any other party without the prior consent of the parent or eligible student.

(2) The officers, employees, and agents of a party that receives information under paragraph (a)(1) of this section may use the information, but only for the purposes for which the disclosure was made.

(b)(1) Paragraph (a) of this section does not prevent an educational agency or institution from disclosing personally identifiable information with the understanding that the party receiving the information may make further disclosures of the information on behalf of the educational agency or institution if-

(i) The disclosures meet the requirements of §99.31; and

(ii)(A) The educational agency or institution has complied with the requirements of §99.32(b); or

(B) A State or local educational authority or Federal official or agency listed in §99.31(a)(3) has complied with the requirements of §99.32(b)(2).

(2) A party that receives a court order or lawfully issued subpoena and rediscloses personally identifiable information from education records on behalf of an educational agency or institution in response to that order or subpoena under §99.31(a)(9) must provide the notification required under §99.31(a)(9)(ii).

(c) Paragraph (a) of this section does not apply to disclosures under §§99.31(a)(8), (9), (11), (12), (14), (15), and (16), and to information that postsecondary institutions are required to disclose under the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act, 20 U.S.C. 1092(f) (Clery Act), to the accuser and accused regarding the outcome of any campus disciplinary proceeding brought alleging a sexual offense.

(d) An educational agency or institution must inform a party to whom disclosure is made of the requirements of paragraph (a) of this section except for disclosures made under §§99.31(a)(8), (9), (11), (12), (14), (15), and (16), and to information that postsecondary institutions are required to disclose under the Clery Act to the accuser and accused regarding the outcome of any campus disciplinary proceeding brought alleging a sexual offense.

(Authority: 20 U.S.C. 1232g(b)(4)(B))

[53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59297, Nov. 21, 1996; 65 FR 41853, July 6, 2000; 73 FR 74853, Dec. 9, 2008; 76 FR 75642, Dec. 2, 2011]

§99.34 What conditions apply to disclosure of information to other educational agencies or institutions?

(a) An educational agency or institution that discloses an education record under §99.31(a)(2) shall:

(1) Make a reasonable attempt to notify the parent or eligible student at the last known address of the parent or eligible student, unless:

(i) The disclosure is initiated by the parent or eligible student; or

(ii) The annual notification of the agency or institution under §99.7 includes a notice that the agency or institution forwards education records to other agencies or institutions that have requested the records and in which the student seeks or intends to enroll or is already enrolled so long as the disclosure is for purposes related to the student's enrollment or transfer;

(2) Give the parent or eligible student, upon request, a copy of the record that was disclosed; and

(3) Give the parent or eligible student, upon request, an opportunity for a hearing under subpart C.

(b) An educational agency or institution may disclose an education record of a student in attendance to another educational agency or institution if:

(1) The student is enrolled in or receives services from the other agency or institution; and

(2) The disclosure meets the requirements of paragraph (a) of this section.

(Authority: 20 U.S.C. 1232g(b)(1)(B))

[53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59297, Nov. 21, 1996; 73 FR 74854, Dec. 9, 2008]

§99.35 What conditions apply to disclosure of information for Federal or State program purposes?

(a)(1) Authorized representatives of the officials or agencies headed by officials listed in §99.31(a)(3) may have access to education records in connection with an audit or evaluation of Federal or State supported education programs, or for the enforcement of or compliance with Federal legal requirements that relate to those programs.

(2) The State or local educational authority or agency headed by an official listed in §99.31(a)(3) is responsible for using reasonable methods to ensure to the greatest extent practicable that any entity or individual designated as its authorized representative-

(i) Uses personally identifiable information only to carry out an audit or evaluation of Federal- or State-supported education programs, or for the enforcement of or compliance with Federal legal requirements related to these programs;

(ii) Protects the personally identifiable information from further disclosures or other uses, except as authorized in paragraph (b)(1) of this section; and

(iii) Destroys the personally identifiable information in accordance with the requirements of paragraphs (b) and (c) of this section.

(3) The State or local educational authority or agency headed by an official listed in §99.31(a)(3) must use a written agreement to designate any authorized representative, other than an employee. The written agreement must-

(i) Designate the individual or entity as an authorized representative;

(ii) Specify-

(A) The personally identifiable information from education records to be disclosed;

(B) That the purpose for which the personally identifiable information from education records is disclosed to the authorized representative is to carry out an audit or evaluation of Federal- or State-supported education programs, or to enforce or to comply with Federal legal requirements that relate to those programs; and

(C) A description of the activity with sufficient specificity to make clear that the work falls within the exception of §99.31(a)(3), including a description of how the personally identifiable information from education records will be used;

(iii) Require the authorized representative to destroy personally identifiable information from education records when the information is no longer needed for the purpose specified;

(iv) Specify the time period in which the information must be destroyed; and

(v) Establish policies and procedures, consistent with the Act and other Federal and State confidentiality and privacy provisions, to protect personally identifiable information from education records from further disclosure (except back to the disclosing entity) and unauthorized use, including limiting use of personally identifiable information from education records to only authorized representatives with legitimate interests in the audit or evaluation of a Federal- or State-supported education program or for compliance or enforcement of Federal legal requirements related to these programs.

(b) Information that is collected under paragraph (a) of this section must-

(1) Be protected in a manner that does not permit personal identification of individuals by anyone other than the State or local educational authority or agency headed by an official listed in §99.31(a)(3) and their authorized representatives, except that the State or local educational authority or agency headed by an official listed in §99.31(a)(3) may make further disclosures of personally identifiable information from education records on behalf of the educational agency or institution in accordance with the requirements of §99.33(b); and

(2) Be destroyed when no longer needed for the purposes listed in paragraph (a) of this section.

(c) Paragraph (b) of this section does not apply if:

(1) The parent or eligible student has given written consent for the disclosure under §99.30; or

(2) The collection of personally identifiable information is specifically authorized by Federal law.

(Authority: 20 U.S.C. 1232g(b)(1)(C), (b)(3), and (b)(5))

[53 FR 11943, Apr. 11, 1988, as amended at 73 FR 74854, Dec. 9, 2008; 76 FR 75642, Dec. 2, 2011]

§99.36 What conditions apply to disclosure of information in health and safety emergencies?

(a) An educational agency or institution may disclose personally identifiable information from an education record to appropriate parties, including parents of an eligible student, in connection with an emergency if knowledge of the information is necessary to protect the health or safety of the student or other individuals.

(b) Nothing in this Act or this part shall prevent an educational agency or institution from-

(1) Including in the education records of a student appropriate information concerning disciplinary action taken against the student for conduct that posed a significant risk to the safety or well-being of that student, other students, or other members of the school community;

(2) Disclosing appropriate information maintained under paragraph (b)(1) of this section to teachers and school officials within the agency or institution who the agency or institution has determined have legitimate educational interests in the behavior of the student; or

(3) Disclosing appropriate information maintained under paragraph (b)(1) of this section to teachers and school officials in other schools who have been determined to have legitimate educational interests in the behavior of the student.

(c) In making a determination under paragraph (a) of this section, an educational agency or institution may take into account the totality of the circumstances pertaining to a threat to the health or safety of a student or other individuals. If the educational agency or institution determines that there is an articulable and significant threat to the health or safety of a student or other individuals, it may disclose information from education records to any person whose knowledge of the information is necessary to protect the health or safety of the student or other individuals. If, based on the information available at the time of the determination, there is a rational basis for the determination, the Department will not substitute its judgment for that of the educational agency or institution in evaluating the circumstances and making its determination.

(Authority: 20 U.S.C. 1232g (b)(1)(I) and (h))

[53 FR 11943, Apr. 11, 1988; 53 FR 19368, May 27, 1988, as amended at 61 FR 59297, Nov. 21, 1996; 73 FR 74854, Dec. 9, 2008]

§99.37 What conditions apply to disclosing directory information?

(a) An educational agency or institution may disclose directory information if it has given public notice to parents of students in attendance and eligible students in attendance at the agency or institution of:

(1) The types of personally identifiable information that the agency or institution has designated as directory information;

(2) A parent's or eligible student's right to refuse to let the agency or institution designate any or all of those types of information about the student as directory information; and

(3) The period of time within which a parent or eligible student has to notify the agency or institution in writing that he or she does not want any or all of those types of information about the student designated as directory information.

(b) An educational agency or institution may disclose directory information about former students without complying with the notice and opt out conditions in paragraph (a) of this section. However, the agency or institution must continue to honor any valid request to opt out of the disclosure of directory information made while a student was in attendance unless the student rescinds the opt out request.

(c) A parent or eligible student may not use the right under paragraph (a)(2) of this section to opt out of directory information disclosures to-

(1) Prevent an educational agency or institution from disclosing or requiring a student to disclose the student's name, identifier, or institutional email address in a class in which the student is enrolled; or

(2) Prevent an educational agency or institution from requiring a student to wear, to display publicly, or to disclose a student ID card or badge that exhibits information that may be designated as directory information under §99.3 and that has been properly designated by the educational agency or institution as directory information in the public notice provided under paragraph (a)(1) of this section.

(d) In its public notice to parents and eligible students in attendance at the agency or institution that is described in paragraph (a) of this section, an educational agency or institution may specify that disclosure of directory information will be limited to specific parties, for specific purposes, or both. When an educational agency or institution specifies that disclosure of directory information will be limited to specific parties, for specific purposes, or both, the educational agency or institution must limit its directory information disclosures to those specified in its public notice that is described in paragraph (a) of this section.

(e) An educational agency or institution may not disclose or confirm directory information without meeting the written consent requirements in §99.30 if a student's social security number or other non-directory information is used alone or combined with other data elements to identify or help identify the student or the student's records.

(Authority: 20 U.S.C. 1232g(a)(5) (A) and (B))

[53 FR 11943, Apr. 11, 1988, as amended at 73 FR 74854, Dec. 9, 2008; 76 FR 75642, Dec. 2, 2011]

§99.38 What conditions apply to disclosure of information as permitted by State statute adopted after November 19, 1974, concerning the juvenile justice system?

(a) If reporting or disclosure allowed by State statute concerns the juvenile justice system and the system's ability to effectively serve, prior to adjudication, the student whose records are released, an educational agency or institution may disclose education records under §99.31(a)(5)(i)(B).

(b) The officials and authorities to whom the records are disclosed shall certify in writing to the educational agency or institution that the information will not be disclosed to any other party, except as provided under State law, without the prior written consent of the parent of the student.

(Authority: 20 U.S.C. 1232g(b)(1)(J))

[61 FR 59297, Nov. 21, 1996]

§99.39 What definitions apply to the nonconsensual disclosure of records by postsecondary educational institutions in connection with disciplinary proceedings concerning crimes of violence or non-forcible sex offenses?

As used in this part:

Alleged perpetrator of a crime of violence is a student who is alleged to have committed acts that would, if proven, constitute any of the following offenses or attempts to commit the following offenses that are defined in appendix A to this part:

Arson

Assault offenses

Burglary

Criminal homicide-manslaughter by negligence

Criminal homicide-murder and nonnegligent manslaughter

Destruction/damage/vandalism of property

Kidnapping/abduction

Robbery

Forcible sex offenses.

Alleged perpetrator of a nonforcible sex offense means a student who is alleged to have committed acts that, if proven, would constitute statutory rape or incest. These offenses are defined in appendix A to this part.

Final results means a decision or determination, made by an honor court or council, committee, commission, or other entity authorized to resolve disciplinary matters within the institution. The disclosure of final results must include only the name of the student, the violation committed, and any sanction imposed by the institution against the student.

Sanction imposed means a description of the disciplinary action taken by the institution, the date of its imposition, and its duration.

Violation committed means the institutional rules or code sections that were violated and any essential findings supporting the institution's conclusion that the violation was committed.

(Authority: 20 U.S.C. 1232g(b)(6))

[65 FR 41853, July 6, 2000]

Subpart E-What Are the Enforcement Procedures?

§99.60 What functions has the Secretary delegated to the Office and to the Office of Administrative Law Judges?

(a) For the purposes of this subpart, Office means the Office of the Chief Privacy Officer, U.S. Department of Education.

(b) The Secretary designates the Office to:

(1) Investigate, process, and review complaints and violations under the Act and this part; and

(2) Provide technical assistance to ensure compliance with the Act and this part.

(c) The Secretary designates the Office of Administrative Law Judges to act as the Review Board required under the Act to enforce the Act with respect to all applicable programs. The term applicable program is defined in section 400 of the General Education Provisions Act.

(Authority: 20 U.S.C. 1232g (f) and (g), 1234)

[53 FR 11943, Apr. 11, 1988, as amended at 58 FR 3189, Jan. 7, 1993; 82 FR 6253, Jan. 19, 2017]

§99.61 What responsibility does an educational agency or institution, a recipient of Department funds, or a third party outside of an educational agency or institution have concerning conflict with State or local laws?

If an educational agency or institution determines that it cannot comply with the Act or this part due to a conflict with State or local law, it must notify the Office within 45 days, giving the text and citation of the conflicting law. If another recipient of Department funds under any program administered by the Secretary or a third party to which personally identifiable information from education records has been non-consensually disclosed determines that it cannot comply with the Act or this part due to a conflict with State or local law, it also must notify the Office within 45 days, giving the text and citation of the conflicting law.

(Authority: 20 U.S.C. 1232g(f))

[76 FR 75642, Dec. 2, 2011]

§99.62 What information must an educational agency or institution or other recipient of Department funds submit to the Office?

The Office may require an educational agency or institution, other recipient of Department funds under any program administered by the Secretary to which personally identifiable information from education records is non-consensually disclosed, or any third party outside of an educational agency or institution to which personally identifiable information from education records is non-consensually disclosed to submit reports, information on policies and procedures, annual notifications, training materials, or other information necessary to carry out the Office's enforcement responsibilities under the Act or this part.

(Authority: 20 U.S.C. 1232g(b)(4)(B), (f), and (g))

[76 FR 75643, Dec. 2, 2011]

§99.63 Where are complaints filed?

A parent or eligible student may file a written complaint with the Office regarding an alleged violation under the Act and this part. The Office's address is: Family Policy Compliance Office, U.S. Department of Education, 400 Maryland Avenue, SW., Washington, DC 20202.

(Authority: 20 U.S.C. 1232g(g))

[65 FR 41854, July 6, 2000, as amended at 73 FR 74854, Dec. 9, 2008]

§99.64 What is the investigation procedure?

(a) A complaint must contain specific allegations of fact giving reasonable cause to believe that a violation of the Act or this part has occurred. A complaint does not have to allege that a violation is based on a policy or practice of the educational agency or institution, other recipient of Department funds under any program administered by the Secretary, or any third party outside of an educational agency or institution.

(b) The Office investigates a timely complaint filed by a parent or eligible student, or conducts its own investigation when no complaint has been filed or a complaint has been withdrawn, to determine whether an educational agency or institution or other recipient of Department funds under any program administered by the Secretary has failed to comply with a provision of the Act or this part. If the Office determines that an educational agency or institution or other recipient of Department funds under any program administered by the Secretary has failed to comply with a provision of the Act or this part, it may also determine whether the failure to comply is based on a policy or practice of the agency or institution or other recipient. The Office also investigates a timely complaint filed by a parent or eligible student, or conducts its own investigation when no complaint has been filed or a complaint has been withdrawn, to determine whether a third party outside of the educational agency or institution has failed to comply with the provisions of §99.31(a)(6)(iii)(B) or has improperly redisclosed personally identifiable information from education records in violation of §99.33.

(Authority: 20 U.S.C. 1232g(b)(4)(B), (f) and (g))

(c) A timely complaint is defined as an allegation of a violation of the Act that is submitted to the Office within 180 days of the date of the alleged violation or of the date that the complainant knew or reasonably should have known of the alleged violation.

(d) The Office may extend the time limit in this section for good cause shown.

(Authority: 20 U.S.C. 1232g(b)(4)(B), (f) and (g))

[53 FR 11943, Apr. 11, 1988, as amended at 58 FR 3189, Jan. 7, 1993; 65 FR 41854, July 6, 2000; 73 FR 74854, Dec. 9, 2008; 76 FR 75643, Dec. 2, 2011]

§99.65 What is the content of the notice of investigation issued by the Office?

(a) The Office notifies in writing the complainant, if any, and the educational agency or institution, the recipient of Department funds under any program administered by the Secretary, or the third party outside of an educational agency or institution if it initiates an investigation under §99.64(b). The written notice-

(1) Includes the substance of the allegations against the educational agency or institution, other recipient, or third party; and

(2) Directs the agency or institution, other recipient, or third party to submit a written response and other relevant information, as set forth in §99.62, within a specified period of time, including information about its policies and practices regarding education records.

(b) The Office notifies the complainant if it does not initiate an investigation because the complaint fails to meet the requirements of §99.64.

(Authority: 20 U.S.C. 1232g(g))

[73 FR 74855, Dec. 9, 2008, as amended at 76 FR 75643, Dec. 2, 2011]

§99.66 What are the responsibilities of the Office in the enforcement process?

(a) The Office reviews a complaint, if any, information submitted by the educational agency or institution, other recipient of Department funds under any program administered by the Secretary, or third party outside of an educational agency or institution, and any other relevant information. The Office may permit the parties to submit further written or oral arguments or information.

(b) Following its investigation, the Office provides to the complainant, if any, and the educational agency or institution, other recipient, or third party a written notice of its findings and the basis for its findings.

(c) If the Office finds that an educational agency or institution or other recipient has not complied with a provision of the Act or this part, it may also find that the failure to comply was based on a policy or practice of the agency or institution or other recipient. A notice of findings issued under paragraph (b) of this section to an educational agency or institution, or other recipient that has not complied with a provision of the Act or this part-

(1) Includes a statement of the specific steps that the agency or institution or other recipient must take to comply; and

(2) Provides a reasonable period of time, given all of the circumstances of the case, during which the educational agency or institution or other recipient may comply voluntarily.

(d) If the Office finds that a third party outside of an educational agency or institution has not complied with the provisions of §99.31(a)(6)(iii)(B) or has improperly redisclosed personally identifiable information from education records in violation of §99.33, the Office's notice of findings issued under paragraph (b) of this section-

(1) Includes a statement of the specific steps that the third party outside of the educational agency or institution must take to comply; and

(2) Provides a reasonable period of time, given all of the circumstances of the case, during which the third party may comply voluntarily.

(Authority: 20 U.S.C. 1232g(b)(4)(B), (f), and (g))

[76 FR 75643, Dec. 2, 2011]

§99.67 How does the Secretary enforce decisions?

(a) If an educational agency or institution or other recipient of Department funds under any program administered by the Secretary does not comply during the period of time set under §99.66(c), the Secretary may take any legally available enforcement action in accordance with the Act, including, but not limited to, the following enforcement actions available in accordance with part D of the General Education Provisions Act-

(1) Withhold further payments under any applicable program;

(2) Issue a complaint to compel compliance through a cease and desist order; or

(3) Terminate eligibility to receive funding under any applicable program.

(b) If, after an investigation under §99.66, the Secretary finds that an educational agency or institution, other recipient, or third party has complied voluntarily with the Act or this part, the Secretary provides the complainant and the agency or institution, other recipient, or third party with written notice of the decision and the basis for the decision.

(c) If the Office finds that a third party, outside the educational agency or institution, violates §99.31(a)(6)(iii)(B), then the educational agency or institution from which the personally identifiable information originated may not allow the third party found to be responsible for the violation of §99.31(a)(6)(iii)(B) access to personally identifiable information from education records for at least five years.

(d) If the Office finds that a State or local educational authority, a Federal agency headed by an official listed in §99.31(a)(3), or an authorized representative of a State or local educational authority or a Federal agency headed by an official listed in §99.31(a)(3), improperly rediscloses personally identifiable information from education records, then the educational agency or institution from which the personally identifiable information originated may not allow the third party found to be responsible for the improper redisclosure access to personally identifiable information from education records for at least five years.

(e) If the Office finds that a third party, outside the educational agency or institution, improperly rediscloses personally identifiable information from education records in violation of §99.33 or fails to provide the notification required under §99.33(b)(2), then the educational agency or institution from which the personally identifiable information originated may not allow the third party found to be responsible for the violation access to personally identifiable information from education records for at least five years.

(Authority: 20 U.S.C. 1232g(b)(4)(B) and (f); 20 U.S.C. 1234c)

[76 FR 75643, Dec. 2, 2011]

Appendix A to Part 99-Crimes of Violence Definitions

Arson

Any willful or malicious burning or attempt to burn, with or without intent to defraud, a dwelling house, public building, motor vehicle or aircraft, personal property of another, etc.

Assault Offenses

An unlawful attack by one person upon another.

Note: By definition there can be no "attempted" assaults, only "completed" assaults.

(a) Aggravated Assault. An unlawful attack by one person upon another for the purpose of inflicting severe or aggravated bodily injury. This type of assault usually is accompanied by the use of a weapon or by means likely to produce death or great bodily harm. (It is not necessary that injury result from an aggravated assault when a gun, knife, or other weapon is used which could and probably would result in serious injury if the crime were successfully completed.)

(b) Simple Assault. An unlawful physical attack by one person upon another where neither the offender displays a weapon, nor the victim suffers obvious severe or aggravated bodily injury involving apparent broken bones, loss of teeth, possible internal injury, severe laceration, or loss of consciousness.

(c) Intimidation. To unlawfully place another person in reasonable fear of bodily harm through the use of threatening words or other conduct, or both, but without displaying a weapon or subjecting the victim to actual physical attack.

Note: This offense includes stalking.

Burglary

The unlawful entry into a building or other structure with the intent to commit a felony or a theft.

Criminal Homicide-Manslaughter by Negligence

The killing of another person through gross negligence.

Criminal Homicide-Murder and Nonnegligent Manslaughter

The willful (nonnegligent) killing of one human being by another.

Destruction/Damage/Vandalism of Property

To willfully or maliciously destroy, damage, deface, or otherwise injure real or personal property without the consent of the owner or the person having custody or control of it.

Kidnapping/Abduction

The unlawful seizure, transportation, or detention of a person, or any combination of these actions, against his or her will, or of a minor without the consent of his or her custodial parent(s) or legal guardian.

Note: Kidnapping/Abduction includes hostage taking.

Robbery

The taking of, or attempting to take, anything of value under confrontational circumstances from the control, custody, or care of a person or persons by force or threat of force or violence or by putting the victim in fear.

Note: Carjackings are robbery offenses where a motor vehicle is taken through force or threat of force.

Sex Offenses, Forcible

Any sexual act directed against another person, forcibly or against that person's will, or both; or not forcibly or against the person's will where the victim is incapable of giving consent.

(a) Forcible Rape (Except "Statutory Rape"). The carnal knowledge of a person, forcibly or against that person's will, or both; or not forcibly or against the person's will where the victim is incapable of giving consent because of his or her temporary or permanent mental or physical incapacity (or because of his or her youth).

(b) Forcible Sodomy. Oral or anal sexual intercourse with another person, forcibly or against that person's will, or both; or not forcibly or against the person's will where the victim is incapable of giving consent because of his or her youth or because of his or her temporary or permanent mental or physical incapacity.

(c) Sexual Assault With An Object. To use an object or instrument to unlawfully penetrate, however slightly, the genital or anal opening of the body of another person, forcibly or against that person's will, or both; or not forcibly or against the person's will where the victim is incapable of giving consent because of his or her youth or because of his or her temporary or permanent mental or physical incapacity.

Note: An "object" or "instrument" is anything used by the offender other than the offender's genitalia. Examples are a finger, bottle, handgun, stick, etc.

(d) Forcible Fondling. The touching of the private body parts of another person for the purpose of sexual gratification, forcibly or against that person's will, or both; or not forcibly or against the person's will where the victim is incapable of giving consent because of his or her youth or because of his or her temporary or permanent mental or physical incapacity.

Note: Forcible Fondling includes "Indecent Liberties" and "Child Molesting."

Nonforcible Sex Offenses (Except "Prostitution Offenses")

Unlawful, nonforcible sexual intercourse.

(a) Incest. Nonforcible sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.

(b) Statutory Rape. Nonforcible sexual intercourse with a person who is under the statutory age of consent.

(Authority: 20 U.S.C. 1232g(b)(6) and 18 U.S.C. 16)

[65 FR 41854, July 6, 2000]

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Below are the regulations at 34 CFR Part 99 implementing section 444 of the General Education Provision Act (GEPA), which is commonly referred to as the Family Educational Rights and Privacy Act (FERPA), and Federal Register Notices of amendments to FERPA. They are presented here for your convenience.

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State Administrative Law: Texas Educator's Code Of Ethics

19 Tex. Admin. Code § 247.2

Link: https://www.law.cornell.edu/regulations/texas/19-Tex-Admin-Code-SS-247-2#:~:text=(3)%20Ethical%20Conduct%20Toward%20Students,(B)%20Standard%203.2.

Protects student's privacy by outlining that educators/school counselors must maintain confidentiality of student information unless disclosure is required by law.

While maintaining confidentiality, educators/school counselors have a duty to report if a child is in harm or being abused, harming themselves, or harming others.

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Enforceable Standards.

(1) Professional Ethical Conduct, Practices and Performance.

(A) Standard 1.1. The educator shall not intentionally, knowingly, or recklessly engage in deceptive practices regarding official policies of the school district, educational institution, educator preparation program, the Texas Education Agency, or the State Board for Educator Certification (SBEC) and its certification process.

(B) Standard 1.2. The educator shall not intentionally, knowingly, or recklessly misappropriate, divert, or use monies, personnel, property, or equipment committed to his or her charge for personal gain or advantage.

(C) Standard 1.3. The educator shall not submit fraudulent requests for reimbursement, expenses, or pay.

(D) Standard 1.4. The educator shall not use institutional or professional privileges for personal or partisan advantage.

(E) Standard 1.5. The educator shall neither accept nor offer gratuities, gifts, or favors that impair professional judgment or that are used to obtain special advantage. This standard shall not restrict the acceptance of gifts or tokens offered and accepted openly from students, parents of students, or other persons or organizations in recognition or appreciation of service.

(F) Standard 1.6. The educator shall not falsify records, or direct or coerce others to do so.

(G) Standard 1.7. The educator shall comply with state regulations, written local school board policies, and other state and federal laws.

(H) Standard 1.8. The educator shall apply for, accept, offer, or assign a position or a responsibility on the basis of professional qualifications.

(I) Standard 1.9. The educator shall not make threats of violence against school district employees, school board members, students, or parents of students.

(J) Standard 1.10. The educator shall be of good moral character and be worthy to instruct or supervise the youth of this state.

(K) Standard 1.11. The educator shall not intentionally, knowingly, or recklessly misrepresent his or her employment history, criminal history, and/or disciplinary record when applying for subsequent employment.

(L) Standard 1.12. The educator shall refrain from the illegal use, abuse, or distribution of controlled substances, prescription drugs, and toxic inhalants.

(M) Standard 1.13. The educator shall not be under the influence of alcohol or consume alcoholic beverages on school property or during school activities when students are present.

(2) Ethical Conduct Toward Professional Colleagues.

(A) Standard 2.1. The educator shall not reveal confidential health or personnel information concerning colleagues unless disclosure serves lawful professional purposes or is required by law.

(B) Standard 2.2. The educator shall not harm others by knowingly making false statements about a colleague or the school system.

(C) Standard 2.3. The educator shall adhere to written local school board policies and state and federal laws regarding the hiring, evaluation, and dismissal of personnel.

(D) Standard 2.4. The educator shall not interfere with a colleague's exercise of political, professional, or citizenship rights and responsibilities.

(E) Standard 2.5. The educator shall not discriminate against or coerce a colleague on the basis of race, color, religion, national origin, age, gender, disability, family status, or sexual orientation.

(F) Standard 2.6. The educator shall not use coercive means or promise of special treatment in order to influence professional decisions or colleagues.

(G) Standard 2.7. The educator shall not retaliate against any individual who has filed a complaint with the SBEC or who provides information for a disciplinary investigation or proceeding under this chapter.

(H) Standard 2.8. The educator shall not intentionally or knowingly subject a colleague to sexual harassment.

(3) Ethical Conduct Toward Students.

(A) Standard 3.1. The educator shall not reveal confidential information concerning students unless disclosure serves lawful professional purposes or is required by law.

(B) Standard 3.2. The educator shall not intentionally, knowingly, or recklessly treat a student or minor in a manner that adversely affects or endangers the learning, physical health, mental health, or safety of the student or minor.

(C) Standard 3.3. The educator shall not intentionally, knowingly, or recklessly misrepresent facts regarding a student.

(D) Standard 3.4. The educator shall not exclude a student from participation in a program, deny benefits to a student, or grant an advantage to a student on the basis of race, color, gender, disability, national origin, religion, family status, or sexual orientation.

(E) Standard 3.5. The educator shall not intentionally, knowingly, or recklessly engage in physical mistreatment, neglect, or abuse of a student or minor.

(F) Standard 3.6. The educator shall not solicit or engage in sexual conduct or a romantic relationship with a student or minor.

(G) Standard 3.7. The educator shall not furnish alcohol or illegal/unauthorized drugs to any person under 21 years of age unless the educator is a parent or guardian of that child or knowingly allow any person under 21 years of age unless the educator is a parent or guardian of that child to consume alcohol or illegal/unauthorized drugs in the presence of the educator.

(H) Standard 3.8. The educator shall maintain appropriate professional educator-student relationships and boundaries based on a reasonably prudent educator standard.

(I) Standard 3.9. The educator shall refrain from inappropriate communication with a student or minor, including, but not limited to, electronic communication such as cell phone, text messaging, email, instant messaging, blogging, or other social network communication. Factors that may be considered in assessing whether the communication is inappropriate include, but are not limited to:

(i) the nature, purpose, timing, and amount of the communication;

(ii) the subject matter of the communication;

(iii) whether the communication was made openly, or the educator attempted to conceal the communication;

(iv) whether the communication could be reasonably interpreted as soliciting sexual contact or a romantic relationship;

(v) whether the communication was sexually explicit; and

(vi) whether the communication involved discussion(s) of the physical or sexual attractiveness or the sexual history, activities, preferences, or fantasies of either the educator or the student.

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19 Tex. Admin. Code § 247.2 - Code of Ethics and Standard Practices for Texas Educators

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Enforceable Standards. (1) Professional Ethical Conduct, Practices and Performance. (A) Standard 1.1. The educator shall not intentionally, knowingly, or recklessly engage in deceptive practices regarding official policies of the school district, educational institution, educator preparation program, the Texas Education Agency, or the State Board for Educator Certification (SBEC) and its certification process.

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Case Law: Doe v. Unified School Dist., 255 F. Supp. 2d 1239 (D. Kan. 2003)

Source of Law: Federal District Court Case (U.S. District Court for the District of Kansas)

(Doe v. Unified Sch. Dist. No. 233, 255 F. Supp. 2d 1239, D. Kan. 2003)

Link to full text: https://law.justia.com/cases/federal/district-courts/FSupp2/255/1239/2562555/

A student named Barbara Doe and her mother contended that the school and school counselor negligently failed to report or investigate allegations that Barbara Doe's stepfather had sexually abused her. The mother also contended that the school district and principal negligently supervised and retained the school counselor (whom was not certified), who knew of these allegations to Barbara Doe. The defendants also invaded the student's right to privacy when a school board member discussed the abuse with his spouse.

The idea of whether a school and its employees, specifically school counselors, owe a common law duty to investigate or report allegations of sexual abuse were explored with this case.

School counselors are mandated reporters, and are legally obligated to report suspected child abuse to the appropriate authorities. School counselors have a legal and ethical duty to report, even if it means breaking student confidentiality. This duty is mandated by state law, federal guidelines, and ethical codes.

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U.S. District Court for the District of Kansas - 255 F. Supp. 2d 1239 (D. Kan. 2003)
April 3, 2003

Jane DOE, individually and as natural mother and guardian of Barbara Doe, a minor child, Plaintiff,
v.
UNIFIED SCHOOL DISTRICT, School Counselor, and Elementary School Principal, Defendants.

No. 02-2100-JWL.

United States District Court, D. Kansas.

April 3, 2003.

*1240 Brian J. Niceswanger, Dana P. Niceswanger, McDowell, Rice, Smith & Gaar, Overland Park, KS, for Jane Doe.

Gerald L. Green, Carol Z. Smith, Gilliland & Hayes, P.A., Hutchinson, KS, Craig Kennedy, Johnson, Kennedy, Dahl & Willis, Wichita, KS for Defendants.

LUNGSTRUM, District Judge.

Plaintiff Jane Doe, individually and as natural mother and guardian of Barbara Doe, brings this diversity action asserting multiple claims against defendants Unified School District (the "School District"), School Counselor, and Elementary School Principal ("Principal"). Specifically, Ms. Doe contends that the defendants negligently failed to report or investigate allegations that Barbara Doe's stepfather had sexually abused her, that School District and Principal negligently supervised and retained School Counselor, and that defendants invaded Barbara Doe's right to privacy when a board member discussed these allegations with his spouse.

The matter is before the court on defendants' motions for summary judgment (Docs. 70 and 72).[1] The court will address the bulk of the issues raised by the parties in this Memorandum and Order. However, as to Ms. Doe's negligence claims founded upon a theory that the school and/or its employees owed Barbara Doe a common law duty to investigate or report the allegations of sexual abuse and those claims founded on the theory that school counselors owe students a similar duty under common law (based on their status as professionals), the court has elected to certify questions to the Kansas Supreme Court, pursuant to K.S.A. § 60-3201 et seq., as fully set forth in the court's separate Memorandum and Order filed immediately hereafter. The court grants the School District and School Counselor's motion for summary judgment, in part, and denies it, in part. The court denies Principal's separate motion for summary judgment in its entirety.[2] Specifically, the court denies summary judgment as to all negligence claims encompassed within the court's Memorandum and Order certifying questions to the Kansas Supreme Court: those claims founded on a theory that defendants had a duty under Kansas common law to investigate and disclose allegations of sexual abuse, when someone other than Barbara Doe informed the school and/or its employees that she was a victim of abuse.[3] The court grants summary judgment against Ms. Doe on her claims founded on a theory that the defendants assumed a duty to protect Barbara Doe. The court also grants summary judgment against Ms. Doe on her negligent supervision and retention claims. Finally, the court grants summary judgment against Ms. Doe on her invasion of privacy claim.

There is no doubt that what allegedly occurred to Barbara Doe at the hands of her stepfather is sad and distressing. Unless the Kansas Supreme Court recognizes duties which it has neither clearly recognized nor explicitly declined to recognize in the past, however, she has no recourse against these defendants arising out of the harms he perpetrated.

The following facts are either uncontroverted or construed in the light most favorable to Ms. Doe, the nonmoving party. Barbara Doe is a 16-year old minor who was subjected to sexual abuse by her stepfather. Plaintiff Jane Doe is Barbara Doe's mother and brings this action individually and as the natural mother and guardian of her daughter.

Barbara Doe began attending the School District's elementary school when she was in second grade (1993-1994). Sometime during her third grade year (1994-1995), Barbara Doe's stepfather began sexually abusing her at their home. The abuse continued until Barbara Doe completed sixth grade (1998) or seventh grade (1999). The stepfather did not abuse her while she was at school.

At some point during Barbara Doe's fourth grade year (1995-1996), she told three school classmates about her stepfather's sexual abuse. Shortly thereafter, the three classmates felt compelled to contact School Counselor. On April 29, 1996, Barbara Doe's classmates wrote a note to School Counselor indicating that they were worried about a friend. On April 30, 1996, the three girls met with School Counselor. During the course of that meeting, the classmates told School Counselor that Barbara *1242 Doe informed them that her stepfather had raped her. The School Counselor believed that the three classmates were honest and trustworthy and she had no concern that they were making up the allegations of sexual abuse.

After the meeting, one of the classmates did not think that School Counselor believed them, did not think she was going to do anything about it and that she acted like they should not worry about it. Another classmate, however, recalls School Counselor saying that she would take care of the situation. Barbara Doe did not know that her classmates told the School Counselor about the abuse until law enforcement officials arrested her stepfather several years later.

The Elementary School had no written policies that dealt with reporting allegations of sexual abuse, but the School District's general policy was to comply with Kansas reporting statutes. Though neither the School District nor Principal trained School Counselor on its policy, she knew that state law obligated her to report suspected sexual abuse. Even so, School Counselor failed to report these allegations of sexual abuse to the State Department of Social and Rehabilitation Services ("SRS") or to any other law enforcement agency. Moreover, she did not talk to Barbara Doe about the sexual abuse, she did not report the allegations to Barbara's mother (Jane Doe), and she did not speak with any of Barbara's teachers to discern whether they noticed any behavioral problems. School Counselor, however, informed the Principal about her meeting with Barbara's classmates. The Principal did not notify SRS or law enforcement of the sexual abuse allegations, nor did he investigate further such allegations.

After Barbara's classmates met with School Counselor, the sexual abuse continued until 1998 or 1999. Barbara has been diagnosed with depersonalization disorder as a result of her stepfather's sexual abuse. Among other problems, Barbara feels ashamed and insecure, struggles with general life activities and relationships, her grades are declining, she has trouble focusing and communicating, and suffers nightmares. Barbara will require ongoing treatment in the future.

The School District first hired School Counselor beginning in the 1995-1996 school year (Barbara's fourth grade year) to serve as its elementary school and middle school counselor. For the previous two years, the School District did not have a school counselor to serve its students. At the time the School District hired School Counselor, she had an Associates degree from Cloud County Community College and a Bachelor of Arts degree from Bethany College. At the time of her hiring, she had not obtained state certification as a counselor, but was enrolled in the Elementary Education Masters program and the Counseling Masters program at Fort Hays State University. The School District obtained approval for and a waiver of the certification requirements from the Kansas State Board of Education in order to employ School Counselor. School Counselor completed her Elementary Masters in 1997 and her Counseling Masters in 1998. She received her Counseling Masters and certification effective February 8, 1999 and has maintained it since that date. Prior to working for School District, School Counselor taught fifth through eighth grade reading, English, writing and spelling at Grinnell, Kansas, from 1981 to 1990. Thereafter, she was employed as the admissions counselor and academic advisor for Barton County Community College from 1991 to 1995. Principal, however, knew that School Counselor had not received her certification at the time she was hired, yet he did not exercise any heightened degree of scrutiny over her performance and or provide any on-the-job training.

*1243 As part of her job duties for School District, School Counselor met with each of the Elementary School classes to discuss different topics, including improper touching. School Counselor instructed the students that, in situations where improper touching is occurring, they should report it to someone they trust, including trusted friends or the School Counselor. Thus, when Barbara's classmates notified School Counselor of the allegations of sexual abuse, they were acting in accord with the advice she had given them.

After completing eighth grade, Barbara Doe and her mother moved to California in the summer of 2000. In April of 2001, Jane Doe was assaulted and raped by Barbara Doe's stepfather. After learning of this assault, Barbara Doe told her mother that the stepfather had sexually abused her. On August 23, 2001, Jane Doe and Barbara Doe filed notice of a claim with the School District pursuant to K.S.A. § 12-105(6). The school board reviewed the claim in an executive session. School District policy requires that matters discussed during such sessions is to remain confidential. Even so, one of the three classmates of Barbara Doe who originally reported the alleged abuse to School Counselor, Joni Karnowski, overheard a school board member telling his wife about the allegations contained in Ms. Doe's notice of claim. There is no evidence that anyone other than the board member, his spouse and Joni Karnowski overheard the conversation.

Ms. Doe originally filed the present action on March 7, 2002. Ms. Doe amended her complaint on October 24, 2002. On January 21, 2003, defendants filed their motions for summary judgment.

Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Spaulding v. United Transp. Union, 279 F.3d 901, 904 (10th Cir. 2002). A fact is "material" if, under the applicable substantive law, it is "essential to the exhibits in proper disposition of the claim." Wright ex rel. Trust Co. of Kansas v. Abbott Laboratories, Inc., 259 F.3d 1226, 1231-32 (10th Cir.2001) (citing Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998)). An issue of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way." Adler, 144 F.3d at 670 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)).

The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Spaulding, 279 F.3d at 904 (citing Celotex Corp. v. Catrett, 411 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). In attempting to meet that standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim. Adams v. Am. Guarantee & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir.2000) (citing Adler, 144 F.3d at 671).

Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Spaulding, 279 F.3d at 904 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986)); Anderson, All U.S. at 256, 106 S. Ct. 2505; Celotex, All U.S. at 324, 106 S. Ct. 2548. The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Anderson, All U.S. at 256, 106 S. Ct. 2505; accord Eck v. Parke, Davis & Co., 256 F.3d 1013, 1017 (10th Cir.2001). Rather, the nonmoving party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." Mitchell v. City of Moore, Oklahoma, 218 F.3d 1190, 1197-98 (10th Cir.2000) (quoting Adler, 144 F.3d at 671). To accomplish this, the facts "must be identified by reference to an affidavit, a deposition transcript, or a specific exhibits incorporated therein." Adams, 233 F.3d at 1246.

The court notes that summary judgment is not a "disfavored procedural shortcut;" rather, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action." Celotex, All U.S. at 327, 106 S. Ct. 2548 (quoting Fed.R.Civ.P. 1).

Defendants contend that Ms. Doe has failed to establish a genuine issue of material fact or otherwise has failed to state a claim upon which relief may be granted on her claims of general negligence, negligent retention and supervision, and invasion of privacy. The court will address each claim in turn.

I. General Negligence Claims

Ms. Doe alleges that defendants, based on several theories, owed Barbara a duty to report and/or investigate the allegations of sexual abuse. First, she contends that the School District and its employees had a common law duty to report and/or investigate the allegations. Second, Ms. Doe alleges that School Counselor had a duty, as a professional, to report the alleged abuse or to follow up on the accusations. Finally, Ms. Doe believes that the defendants assumed a duty to report and/or investigate the allegations based on their acts and conduct toward Barbara Doe.

In a subsequent Memorandum and Order, the court will certify two questions to the Kansas Supreme Court: (1) whether Kansas common law imposes a duty upon a school district and/or its employees, to report to the appropriate authorities allegations that a parent is sexually abusing a child or to investigate further the validity of such allegations when someone other than the student informs the school and/or its employees that the student has been abused; and (2) whether Kansas common law imposes a duty upon school counselors, based on their professional status, to report to the appropriate authorities allegations that a parent is sexually abusing a child or to investigate further the validity of such allegations when someone other than the student informs the counselor that the student has been abused. The Kansas Supreme Court's answer to these two inquiries likely will be determinative of Ms. Doe's first two theories of negligence. As such, the court denies defendants' motion for summary judgment as to Ms. Doe's negligence claims founded upon a theory that the school and/or its employees owed Barbara Doe a common law duty to investigate or report the allegations of sexual abuse and those claims founded on the theory that school counselors owe students a similar duty under common law, based on their status as professionals.[4]

Moreover, the court denies Principal's motion for summary judgment, which was founded on his lack of notice of the allegations of sexual abuse, because Ms. Doe has demonstrated a genuine issue of material fact that School Counselor informed him of such allegations.[5]

The court, however, will address defendants' motion to dismiss Ms. Doe's negligence claims that are founded on a theory that defendants assumed a duty to protect Barbara Doe. "Actionable negligence must be based upon breach of duty." Irvin v. Smith, 272 Kan. 112, 122, 31 P.3d 934 (2001) (internal citations omitted). "Whether a legal duty exists is a question of law." Id. The Kansas Supreme Court has recognized that an individual may create a specific legal duty by undertaking to render services to another, adopting the principles set forth in the Restatement (Second) of Torts § 324A. Honeycutt By and Through Phillips v. City of Wichita, 251 Kan. 451, 464, 836 P.2d 1128 (1992). This section provides:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

Restatement (Second) of Torts § 324A.

"The threshold requirement for the application of the Restatement (Second) of Torts § 324A (1964) is a showing that the defendant undertook, gratuitously or for consideration, to render services to another." Honeycutt By and Through Phillips, 251 Kan. at 464, 836 P.2d 1128 (quoting McGee v. Chalfant, 248 Kan. 434, 806 P.2d 980 (1991)). "In order to meet this requirement, the evidence must show the defendant did more than act, but through affirmative action assumed an obligation or intended to render services for the benefit of another." Id. "For a defendant to meet the threshold requirements of § 324A, the defendant must not only take affirmative action to render services to another, but the person to whom the services are directed must accept such services in lieu of, or in addition to, such person's obligation to perform the services." Id. (quoting Gooch v. Bethel A.M.E. Church, 246 Kan. 663, 676, 792 P.2d 993 (1990)). "[0]ne who does not assume an obligation to render services does not owe a duty to third persons." Id. (quoting Anderson v. Scheffler, 248 Kan. 736, Syl. 113, 811 P.2d 1125 (1991)).

To survive summary judgment, Ms. Doe must demonstrate a genuine issue of material fact that the defendants (1) affirmatively undertook a duty to protect Barbara Doe from her stepfather; (2) they negligently failed to perform that undertaking, and (3) such negligence either increased the risk of harm to Barbara Doe or caused her to suffer harm because of her reliance on the defendants' undertaking[6]. Defendants contend that the acts of School Counselor, Principal and the School District do not constitute an affirmative undertaking sufficient to create a duty. Moreover, the defendants argue that even if they undertook a duty to report or investigate the allegations, Ms. Doe cannot hold them liable for Barbara's injuries because they did not increase the risk of harm (because Barbara's stepfather created the risk) and because Barbara did not rely on any duty defendants' assumed. In her response, Ms. Doe argues that defendants assumed a duty to report or investigate the allegations of abuse because they educated students how to distinguish between appropriate and inappropriate touching, told the students to report inappropriate touching to friends or to School Counselor, and School Counselor told the classmates that she would take care of the situation.

The court agrees with defendants that the School District, Principal and School Counselor did not take an affirmative act sufficient to create a specific legal duty. While School Counselor educated students about sexual abuse and told them how to report it, she did not specifically agree to take any affirmative act to protect Barbara Doe.[7] Were the court to find that teachers and schools assume legal duties every time they educate and instruct students on mat ters of public health or safety, then school liability would be infinite. To the extent such educational efforts can be characterized as an undertaking, it was a limited undertaking as to Barbara Doe. That is, during School Counselor's sexual abuse seminars, she informed students, generally, how to respond to sexual abuse. School Counselor did not affirmatively or expressly agree to assume any duty to investigate or report sexual abuse, in general, or the abuse inflicted upon Barbara, in particular. Such "a limited undertaking by a defendant does not give rise to a duty under § 324A." Beckner v. Jensen, 29 Kan. App.2d 129, 135, 24 P.3d 169 (2001); see, e.g., McGee v. Chalfant, 248 Kan. 434, 806 P.2d 980 (1991) (concluding that defendants did not assume a duty to prevent plaintiff from driving even though they knew he was drunk and agreed to take him to his automobile).

Independently, even assuming that the defendants had assumed a duty to report or investigate the allegations of sexual abuse, they cannot be held liable for their failure to exercise reasonable care to carry out that undertaking. As stated above, such liability only attaches if the "failure to exercise reasonable care increases the risk" of harm or a person suffers harm "because of reliance of the other or the third person upon the undertaking." Neither situation exists in this case. First, the defendants' failure to report or investigate the allegations of sexual abuse did not increase the risk of harm. The Kansas Court of Appeals analysis in Beebe v. Fraktman, 22 Kan.App.2d 493, 921 P.2d 216 (1996), is directly on point. In Beebe, the mother of a deceased child, A.R., brought suit against SRS alleging that it and its employees negligently failed to investigate adequately allegations that A.R.'s father was physically abusing her, after the agency undertook efforts to protect the child. Id. at 494, 921 P.2d 216. SRS employees received two separate reports of abuse. Id. First, A.R.'s grandmother and her counselor reported that A.R.'s father was abusing her. Id. Later, A.R.'s pediatrician contacted SRS regarding possible sexual abuse. Id. An SRS employee informed the pediatrician that a supervisor would "follow up" on the reported allegations. Id. SRS decided not to open an investigation. Id. A.R. died and her father was convicted of her murder. Id. A.R.'s mother sued SRS and the trial court dismissed the claim after ruling that it had no legal duty to protect A.R. from abuse.

On appeal, Ms. Beebe argued that SRS undertook the duty to render protective services to A.R. The court found that any duty SRS undertook did not render it liable for negligently carrying out its undertaking because A.R.'s father created the risk of harm:

By Monday morning quarterback standards, SRS might have decreased the risk to A.R. had it opened a file and actively investigated; however, we cannot state that SRS's failure to do so increased the risk of harm. A.R.'s father created the risk of harm, not SRS.

Id. at 496, 921 P.2d 216. As in Beebe, it was Barbara Doe's stepfather, not the defendants, who created the risk of harm.

Second, Barbara Doe did not rely on any act or service the School District, Principal or School Counselor allegedly undertook. At best, the evidence establishes that School Counselor told one of the three reporting classmates of Barbara Doe that she would take care of the situation. As explained above, to undertake a legal duty, a "defendant must not only take an affirmative act, but the person to whom the services are directed must accept such services in lieu of, or in addition to, such person's obligation to perform the services." Gooch, 246 Kan. at 676, 792 P.2d 993. Barbara Doe never spoke to School Counselor about the alleged abuse and School Counselor never told Barbara Doe that she would handle the situation. Thus, Barbara Doe never accepted School Counselor' services in lieu of or in addition to another person's obligation to report the sexual abuse and therefore, she could not have relied on any duty assumed by the defendants.

The court grants summary judgment in favor of defendants on Ms. Doe's negligence claims that are founded on the theory that defendants assumed a legal duty to protect Barbara Doe. Ms. Doe failed to demonstrate a genuine issue of material fact that the defendants took affirmative steps to protect Barbara Doe from the acts of her stepfather and, alternatively, even if they did take such steps they cannot be held liable for their failure to adequately fulfill that duty because such a failure did not increase the risk of harm to Barbara Doe nor did she rely on any of defendants' alleged undertakings.

II. Negligent Hiring and Retention

Ms. Doe contends that School District negligently retained and supervised School Counselor. Defendants contend that she has failed to demonstrate a genuine issue of material fact as to whether the employers knew or should have known she posed an undue risk of harm.

"When a third party asserts a negligent retention and supervision claim against an employer, liability results not because of the employer-employee relationship, but because the employer had reason to believe that an undue risk of harm to others would exist as a result of the employment of the alleged tortfeasor." Schmidt v. HTG, Inc., 265 Kan. 372, 401, 961 P.2d 677 (Kan. 1998). "The employer is subject to liability only for such harm as is within that risk." Id. "If, therefore, the risk exists because of the quality of the employee, there is liability only to the extent that the employer had reason to believe would be likely to cause harm." Id. "However, it is not necessary that the precise nature of the injury alleged by the third-party plaintiff would have been foreseen by the employer." Id.

Thus, to succeed on this claim, Ms. Doe must show "some causal relationship between the dangerous propensity or quality of the employee, of which the employer has or should have knowledge, and the injuries suffered by the third person; the employer must, by virtue of knowledge of his employee's particular quality or propensity, have reason to believe that an undue risk of harm exists to others as a result of the continued employment of that employee; and the harm which results must be within the risk created by the known propensity for the employer to be liable." Kurtz v. UNIFIED Sch. Dist. No. 308, 197 F. Supp. 2d 1317, 1320 (D.Kan. 2002) (quoting Kansas State Bank & Tr. Co. v. Specialized Transp., Serv., Inc., 249 Kan. 348, 359, 819 P.2d 587 (1991)). "Whether risk of harm is reasonably foreseeable is a question to be determined by the trier of fact. Only when reasonable persons could arrive at but one conclusion may the court determine the question as a matter of law." Kansas State Bank & Tr. Co., 249 Kan. at 362, 819 P.2d 587.

Defendants argue that Ms. Doe has failed to demonstrate a genuine issue of material fact as to School District's knowledge that School Counselor posed an undue risk of harm to her students. School District notes that School Counselor had a Bachelors degree in education and was completing her Master degree in education when she was hired. She had worked nine years as a school teacher in another district, and five years as an academic adviser and an admissions counselor at a community college. At the time she received the report of Barbara's abuse, she was pursuing *1249 her Masters degree in counseling, the State Board of Education had waived the certification requirements for her position and approved her hiring, and the undisputed evidence establishes that she understood the reporting requirements imposed under K.S.A. § 38-1522. In her response, Ms. Doe simply argues that the School District and Principal had a heightened duty to supervise School Counselor, knowing she had not completed her counseling certification.

The court disagrees with Ms. Doe's analysis. School Counselor had obtained a Bachelors degree in education, which was reinforced by nearly fourteen years of employment in the education sector. Though School District and Principal knew she had not completed her counselor's certification at the time of her hiring, she was pursuing her Masters degree in counseling and the State Board of Education waived the certification requirements to permit School District to hire her. Moreover, School Counselor testified in her deposition that based on her prior experience as a teacher and a school counselor she knew that a state statute obligated her to report allegations of abuse and there is no evidence suggesting that she failed to comply with reporting requirements (or any other school policy, for that matter) before Barbara Doe's classmates met with her on April 30, 1996. Ms. Doe has failed to identify any facts that would suggest that School Counselor's failure to fully acquire her counselor's certification at the time she was hired created an undue risk that she would fail to comply with state reporting requirements. Thus, the court finds that reasonable persons could arrive at but one conclusion: School District and Principal had no reason to believe that School Counselor presented an undue risk of harm to others because she had not completed state certification requirements at the time she was hired. As such, summary judgment is granted in favor of the defendants on Ms. Doe's claim of negligent hiring and supervision.

III. Invasion of Privacy

Ms. Doe argues that the defendants violated Barbara Doe's right to privacy (by means of publicizing a matter concerning her private life) when a school board member disclosed to his spouse information concerning the allegations of abuse that were contained in Ms. Doe's notice of complaint. In their motion for summary judgment, defendants contend that Ms. Doe has failed to demonstrate a genuine issue of material fact that the degree of publicity was sufficient to constitute an actionable invasion of privacy claim.

In Dotson v. McLaughlin, 216 Kan. 201, 207, 531 P.2d 1 (1975), the Kansas Supreme Court recognized the tort of invasion of privacy, adopting the provisions of the Restatement (Second) of Torts § 652A. The Restatement provides:

(1) One who invades the right of privacy of another is subject to liability for the resulting harm to the interests of the other. (2) The right of privacy is invaded by (a) unreasonable intrusion upon the seclusion of another, as stated in § 652B; or (b) appropriation of the other's name or likeness, as stated in § 652C; or (c) unreasonable publicity given to the other's private life, as stated in § 652D; or (d) publicity that unreasonably places the other in a false light before the public, as stated in § 652E.

Restatement (Second) of Torts § 652A. Here, Ms. Doe contends that the board member's disclosure to his spouse constituted "unreasonable publicity given to [Barbara Doe's] private life, as stated in § 652D", which provides:

One who gives publicity to a matter concerning the private life of another is *1250 subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.

Restatement (Second) of Torts § 652D.

Defendants admit that a school board member told his spouse about the allegations of sexual abuse and that one of the three classmate of Barbara Doe who reported the alleged abuse to School Counselor, Joni Karnowski, overheard the conversation. They contend, however, that such disclosure did not sufficiently publicize the facts so as to create liability under § 652D. Indeed, the Restatement distinguishes "publication" of private facts from "publicity" of such facts, noting that the latter "means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge." Restatement (Second) of Torts § 652D cmt. a. "The difference is not one of the means of communication, which may be oral, written or by any other means. It is one of a communication that reaches, or is sure to reach, the public." Id. "Thus it is not an invasion of the right of privacy, within the rule stated in this Section, to communicate a fact concerning the plaintiffs private life to a single person or even to a small group of persons." Id. Moreover, the Kansas Supreme Court has adopted this distinction between publication and publicity. In Werner v. Kliewer, 238 Kan. 289, 296, 710 P.2d 1250 (1985), plaintiff alleged that defendant Vernon Kliewer, M.D., violated her right to privacy by disclosing sensitive medical information to a judge and court personnel without her consent. Relying on the Restatement, the court found that there was insufficient publicity, explaining "[h]ere the only publicity was to the court services officer, the district judge handling the divorce action, and the attorneys for the parties, all being officers of the court." Id.

In her response to the summary judgment motion, Ms. Doe simply alleges that the disclosure was substantially certain to become one of public knowledge because it occurred in a very small north-central Kansas town. Ms. Doe cites to the deposition testimony of School Counselor wherein she agreed that there are very few secrets in a town of that size and wherein she stated that among the faculty "there's [sic] secrets that are let out." Ms. Doe, however, fails to produce any evidence that the particular secret upon which she requests relief was disclosed beyond the school board member, his spouse, and the former classmate who overheard the conversation. In fact, Ms. Doe did not controvert the fact that "Barbara Doe has not heard that anyone else in [the town] knows about her claims." As such, the court finds that the uncontroverted facts establish that defendants' disclosure of private facts was limited to only one individual: the school board member's spouse. The school board member was already privy to the private facts based on his position on the board and Barbara Doe had previously told the classmate who overheard the conversation, Jodi Karnowski, about the abuse. Based on controlling Kansas precedent, such disclosure, as a matter of law, does not constitute publicity sufficient to create a cause of action for invasion of privacy. As such, the court grants summary judgment in favor of defendants as to this claim.

The court denies School District and School Counselor's motion for summary judgment, subject to refiling after the Kansas Supreme Court responds to the certified questions, as to Ms. Doe's negligence claims founded upon a theory that the school and/or its employees owed Barbara Doe a common law duty to investigate *1251 or report the allegations of sexual abuse and those claims founded on the theory that school counselors owe students a similar duty under common law, based on their status as professionals. The court grants these defendants' motion as to Ms. Doe's negligence claims based on a theory of an assumed duty. The court grants these defendants' motion for summary judgment as to Ms. Doe's negligent supervision and retention claims. Finally, the court grants these defendants' motion for summary judgment as to Ms. Doe's invasion of privacy claim. The court denies Principal's separate motion for summary judgment in its entirety because Ms. Doe demonstrated a genuine issue of material fact that School Counselor informed him of the allegations of sexual abuse. Of course, as to Principal, he is free to reassert that he had no duty in any event based on the response by the Kansas Supreme Court to the certified questions.

IT IS THEREFORE ORDERED THAT School District and School Counselor's motion for summary judgment (Doc. 70) is granted in part and denied in part, as explained within this order. Principal's motion for summary judgment (Doc. 72) is denied in its entirety.

IT IS FURTHER ORDERED THAT defendants' motion to exclude the expert testimony of Deanna S. Pledge, PH.D, and Stephen H. Dinwiddie, M.D., (Doc. 68) is denied as moot. The motion is subject to refiling pending the Kansas Supreme Court's response to this court's certified questions. This matter is removed from the trial calendar, subject to being re-set at a later date after the Kansas Supreme Court responds to the certified questions. All other pre-trial deadlines are suspended and will be re-set as necessary.

NOTES

[1] School District and School Counselor filed a joint motion for summary judgment (Doc. 70). Principal joined in this motion, but also filed his own motion for summary judgment (Doc. 72), alleging that he was never notified of the allegations that Barbara Doe had been sexually abused.

[2] Of course, because Principal joins in School District and School Counselor's motion for summary judgment, he is entitled to summary judgment to the extent the court grants School District and School Counselor's motion.

[3] The court denies the motion for summary judgment as to these claims, subject to refiling should the Kansas Supreme Court find that no duty exists.

[4] The court also denies defendants' motion for summary judgment requesting the court dismiss Ms. Doe's claims under the public duty doctrine. Should the Kansas Supreme Court find, based on the questions this court certified, that a special relationship exists between Barbara Doe and School District, Principal and School Counselor, then that doctrine would not barr her negligence claims. McCormick v. Bd. of County Comm'rs of Shawnee County, 272 Kan. 627, 648, 35 P.3d 815 (2001). (holding that "under the public duty doctrine, officials have no duty to any individual except where circumstances create a special relationship or specific duty"). For the same reason, the court must deny defendants' motion for summary judgment as to Ms. Doe's negligence claims based on discretionary immunity provided to state agencies under the Kansas Tort Claims Act. Barrett ex rel Barrett v. Unified Sch. Dist. No. 259, 272Kan. 250, 263, 32 P.3d 1156 (2001) (recognizing that "the discretionary function exception is not applicable in those situations where a legal duty exists, either by case law or by statute").

[5] Principal also joined with School District and School Counselor's motion for summary judgment. To the extent the court grants summary judgment against Ms. Doe based on that motion, the claims similarly are dismissed against Principal.

[6] The Restatement also recognizes liability when a defendant has "undertaken to perform a duty owed by the other to the third person ..." Restatement (Second) of Torts § 324A(b). There are no allegations that the School District, Principal or School Counselor undertook such a duty in this case.

[7] While the School District had a policy to report sexual abuse, that policy was founded on the statutory obligations the Kansas Legislature imposed under K.S.A. § 38-1522. The Kansas Supreme Court, however, has held that this statute does not create a private right of action for those aggrieved by a violation of this duty. Kansas Slate Bank & Jr. Co. v. Specialized Transp. Serv., Inc., 249 Kan. 348, 373, 819 P.2d 587 (1991) (noting that "[i]f the legislature had intended to grant a private right of action in K.S.A. 38-1522 it would have specifically done so"). The court does not believe, nor has Ms. Doe argued, that compliance with state law constitutes an affirmative act sufficient to create a legal obligation to render services for the benefit of Barbara Doe. The Restatement imposes liability on "[o]ne who undertakes, gratuitously or for consideration, to render services to another...." Restatement (Second) of Torts § 324A (emphasis added). School District, Principal and School Counselor were not rendering services gratuitously or for consideration by complying with state mandated disclosure requirements. In short, the School District adopted its policy to comply with state law and there is no evidence that it adopted the policy to protect students from parental abuse that might occur off school grounds. Prugue v. Monley, 29 Kan.App.2d 635, 639, 28 P.3d 1046 (2001) (finding no liability under § 324A where bar owner adopted employee alcohol policy to minimize litigation and no evidence suggested that bar adopted policy to protect third parties from injuries inflicted by its intoxicated employees). This fact also distinguishes this case from Cansler v. State, 234 Kan. 554, 675 P.2d 57 (1984). In Cansler, the Leavenworth County Sheriff's Office entered into an agreement whereby it promised to notify state penitentiary officials and other law enforcement agencies when a prisoner escapes. Id. at 567, 675 P.2d 57. Plaintiff alleged that defendants breached this assumed duty, resulting in injury. The court found that the complaint sufficiently alleged a claim for breach of an assumed duty of care arising out of the contract. Id. That duty, however, was not imposed by statute, but instead, it was an affirmative obligation that the County agreed to undertake. Here, however, the School District's mandatory reporting policy was founded on mere compliance with state statute.

# data[].attributes.attachment_link.description
U.S. District Court for the District of Kansas - 255 F. Supp. 2d 1239 (D. Kan. 2003) April 3, 2003 Jane DOE, individually and as natural mother and guardian of Barbara Doe, a minor child, Plaintiff, v. UNIFIED SCHOOL DISTRICT, School Counselor, and Elementary School Principal, Defendants. No. 02-2100-JWL.

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Federal Regulation: Family Educational Rights and Privacy Act (FERPA)

20 U.S.C. § 1232g; 34 CFR Part 99

Link: https://www.ecfr.gov/current/title-34/subtitle-A/part-99

This federal regulation protects student confidentiality through FERPA, which protects the privacy of student educational records, including counseling-related documents.

Counseling documents and notes are not considered education records and do not have to be disclosed to parents under FERPA.

This federal regulation outlines the limitations of disclosing information without consent, such as significant threats to the health or safety of the student.

School counselors must stay up to date and follow all FERPA regulations as they provide the legal foundation for maintaining confidentiality.

# data[].attributes.body
Understanding these governing bodies helps me understand, define, and enforce confidentiality polices. At the state level, I learned that state education agencies serve as both policy setters and enforcers, and help hold counselors accountable to both ethical and legal standards. At the federal level, I learned that FERPA is the most relevant law for me as a future school counselor. There is a fine line between what is considered a student's education record versus what is to be protected as confidential counseling information and it will be crucial for me to understand what is specifically outlined by FERPA. Understanding these governing bodies will help me be able to set clear boundaries with students, parents, and staff about what can be kept confidential. I will also better understand when I am legally required to break confidentiality.

# data[].attributes.body
Local Policy: San Saba ISD Board Policy - FL (Local): Student Records

Source of Law: Local School District Policy

(San Saba ISD Board Policy FL (Local), 2024)

Link: https://pol.tasb.org/PolicyOnline/PolicyDetails?key=1058&code=FL#legalTabContent

The local policy states that San Saba ISD complies with FERPA and ensures that personally identifiable student information is kept confidential. This information is only shared in accordance with legal exceptions and with the authorized personnel.

The policy also outlines that counseling records taken by a certified school counselor are qualified as sole possession records, and are not considered part of the educational records under FERPA.

Parents have the right to view their child's education records, but not counselor notes. Information will only be disclosed without the appropriate consent if it is necessary to protect the health or safety of the student, or if required by court orders, child abuse reporting laws, or law enforcement investigations.

San Saba ISD's policy is aligned with FERPA and state laws to protect student confidentiality. School counselors must abide by their district policy, which outlines when confidentiality can be maintained and when it can/must be broken.

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The school district should ensure that all campus staff including teachers, school counselors, principals, administration, and school personnel are trained and up to date on confidentiality polices and laws. This will ensure all staff remains in compliance and is aware of the legal repercussions that could occur.

The school counselor should provide clear, informed consent and confidentiality limits. When appropriate, students and parents should be informed about the limits of confidentiality. Procedures should be put in place for when a breach of confidentiality occurs, including documentation, notification of appropriate stakeholders, policy review, and revisions.

The school counselor must follow state-mandated reporting laws without delay. If a student discloses information about alleged abuse, abuse must be reported within 48 hours of becoming aware. Following this protects the child and complies with Texas Family Code § 261.101, and reduces and personal legal liability. (Texas Family Code § 261.101, 2024)

# data[].attributes.body
Learning about legal and ethical standards such as FERPA, mandated reporting, and protecting our students' safety and confidentiality has outlined the serious responsibilities that come with being in the school counseling profession. Protecting student safety isn't just a best practice, but a legal obligation that could directly harm a student, their safety, their trust, and their future. My confidence in navigating ethical dilemmas has been strengthened by learning more about the laws that apply to real counseling scenarios centered around confidentiality.

I now feel more empowered to uphold student rights and build student trust. These legal and ethical practices have given me a stronger sense of purpose and professionalism in my journey to becoming a future school counselor. I have a stronger respect for the legal framework that guides our field and understand the responsibility I will have to stay knowledgable and up to date on these practices and laws.

I have taken note that I will need to ensure I describe clearly what the limits of confidentiality are to my students and their parents, when the need arises. I have also noted that I need to implement a safe way to take counseling notes and how I securely store them. This will ensure I am mindfully making my students aware of my job as a counselor and that I am protecting their safety the best I can.

# data[].attributes.body
Always inform students and parents about the limits of confidentiality at the beginning of the counseling relationship. Periodically, remind them of these limits throughout the counseling relationship so they remain aware.

Document all counseling sessions and disclosures carefully and store them in an area that is secured. Along with a storing procedure, a discard procedure should also be put into place.

Stay current on federal and state laws like FERPA, Texas Family Codes, and Educator Code of Ethics. Train and update school personnel of these changes and updates regarding student confidentiality.

Establish a clear protocol for handling breaches in confidentiality, including a protocol on documentation, stakeholder notification, and any corrective and legal measures. Also consider technology if breaches occur online, such as having a digital backup system in place, etc.

Consult with the school districts legal or administrative counsel when unsure of the legal or ethical decision-making process.

As a school counselor, never disclose any confidential information to anyone unless proper consent is obtained. Even in a small school, do not disclose information to people within the school as a form of gossip. If the student's teacher, a coworker, family member, or even a close friend asks, remember you are legally bound to keep the information your student shared with you confidential. Practice professionalism and keeping boundaries at all times.

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American School Counseling Code of Ethics

Link: https://www.schoolcounselor.org/getmedia/44f30280-ffe8-4b41-9ad8-f15909c3d164/EthicalStandards.pdf

A.2.b - "Inform students of the purposes, goals, techniques, rules and procedures under which they may receive counseling. Disclosure includes informed consent and clarification of the limits of confidentiality" (ASCA, 2022, A.2.b.).

School counselors must inform students about confidentiality and its limitations. This supports risk management practices by ensuring students understand what information may have to be disclosed if the need arises.

A.2.e - "Explain the limits of confidentiality in developmentally appropriate terms through multiple methods, such as student handbooks; classroom lessons; verbal notification to individual students; and school counseling department websites, brochures and social media accounts" (ASCA, 2022, A.2.e).

School counselors must ensure students fully understand what limits of confidentiality means.

Referece:

American School Counselor Association. (2022). ASCA ethical standards for school counselors. https://www.schoolcounselor.org/getmedia/44f30280-ffe8-4b41-9ad8-f15909c3d164/EthicalStandards.pdf