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Upon completion of my Masters of Education in Guidance and Counseling I want to pursue a career as an elementary school counselor.
I have been an elementary teacher for the past 5 years. I have professional experience with elementary students and the tools they need to be successful.

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The article discusses how school staff have misused the student's rights for privacy giving too little information about a student's criminal record.

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Commentary

Misinformation in the wake of Parkland tragedy highlights the need to reexamine FERPA

When a deadly or life-threatening crime takes place at an educational institution, the public justifiably asks: Did the school do enough to maintain safety? At such times, "we can't say anything because of student privacy" is a profoundly incorrect answer-legally, morally, and practically.

The Family Educational Rights and Privacy Act (FERPA) was enacted in 1974 to protect students against law enforcement snooping into secret files their schools might be keeping without their knowledge. Over the years, aggressive lawyering by school and college attorneys has distorted the statute to encompass much more-but not nearly as much as school administrators insist.

Journalists and concerned parents have been unable to obtain many documents from the Broward County school system that might help the public understand whether school authorities responded to the Parkland, Fla., mass shooter's capacity for violence with adequate urgency. Instead, they have met the "FERPA wall of secrecy" in asking about the background of Nikolas Cruz.

Government records, including those maintained by public schools, are normally presumed to be open for public inspection, even when the records contain sensitive or embarrassing information. But schools have widely come to misunderstand FERPA as preventing them from providing the public even with an anonymized factual description of serious disciplinary incidents or safety problems that involve students.

As a result, parents and community members regularly hear that "something bad happened" at a school but that they can't be told what it is or whether anyone was punished. This makes it impossible for the public to hold schools and colleges accountable for how they use their governmental authority.

When a North Carolina high school student went public last year with allegations that another student swung a noose at him and pulled a knife, the superintendent cited FERPA and told the public little more than that "the matter was immediately investigated by school officials and appropriately handled." After a 13-year-old Georgia student suffered a severe leg injury requiring amputation after an altercation with a district-contracted employee in 2016, the school claimed FERPA forbade them from releasing a surveillance video of the incident.

In these situations and hundreds more like them, schools invoke "student privacy" not because it makes students safer, but because it insulates school officials from having their disciplinary decisions second-guessed.

This is a gross misuse of FERPA. The U.S. Department of Education, which interprets and enforces FERPA (and has never penalized any institution as a violator since it was enacted) has said repeatedly that the statute is a narrow one, protecting only the confidentiality of students' education records. In an interpretation reiterated in several legal opinion letters, the department wrote to one school district in 2006 that "FERPA applies to the disclosure of tangible records and of information derived from tangible records. FERPA does not protect the confidentiality of information in general, and, therefore, does not apply to the disclosure of information derived from a source other than education records, even if education records exist which contain that information."

In other words, as long as a school is not being asked to release the contents of a school-maintained record, federal law presents no prohibition to the disclosure of information that comes from other sources. And it certainly presents no prohibition to the disclosure of information that could only be identifiable by somebody with firsthand knowledge of the situation. For instance, FERPA would not prevent schools from sharing a statement that, "Two students were suspended for making a bomb threat on Twitter," which does not identify the disciplined students by name.

When journalists ask for records about a case like Nikolas Cruz's, their purpose is to assess how government officials did their jobs. Right now, it is up for serious debate whether school authorities responded properly to a potential threat at Marjory Stoneman Douglas High School-but without access to the school's records, the debate is an uninformed one.

The initial wave of news stories reported that Cruz was expelled from Stoneman Douglas, but the Miami Herald later reported that no such expulsion took place. When an event of overriding public interest occurs, it serves no legitimate purpose for school officials to withhold accurate information, allowing speculation and rumor to proliferate. There is certainly no precedent for any school to be sanctioned as a FERPA violator for giving out such information (as, for instance, the University of Oklahoma did in announcing the expulsion of two students caught singing a racist song in 2015).

Time and again, educational institutions have put secrecy ahead of safety, insisting that FERPA prevents them from warning the public of dangerous students.

Fortunately, judges are seeing through the distortion of FERPA.

In 2011, an Arizona judge ordered Pima Community College to release internal emails in which employees discussed their concerns about a former student who went on to murder six people in Tucson and gravely wound Rep. Gabrielle Giffords. The judge turned aside the college's insistence that FERPA precluded disclosure of such emails.

More recently, a federal judge sanctioned Northern Kentucky University lawyers who frivolously claimed that FERPA prohibited coaches from testifying about how they responded to sexual-assault accusations against members of the school basketball team.

As these rulings reflect, it's eminently possible for schools to interpret FERPA in a common-sense manner that avoids absurd results.

In the Cruz case, it's nonsensical to say that a person who has admitted shooting 17 people to death has any legally recognizable privacy interest. FERPA or no, police and prosecutors will have ample access to all of the education records they care to see-no court will deny law officials access to those records once a student is in custody and facing trial. And Cruz has no reputation left to protect. Not one person's opinion of him will be lowered by finding out his disciplinary history, so even if FERPA could be interpreted to preclude disclosing his records, that interpretation makes no practical sense.

Federal regulations provide that, even if a FERPA violation is found, the U.S. Department of Education cannot take away a dime of federal money without first issuing a written warning and placing the school on a federal corrective plan. Only if the school refuses to accept the plan can the department then initiate financial penalties. That has never happened. FERPA is a toothless tiger-not an excuse for educational institutions to withhold essential information that's necessary for students and their parents to feel safe.

Whether school officials are doing enough to maintain safety is manifestly the public's concern. Schools know, or certainly should know, that they can say more than they're saying.

It's time for Congress to clarify the statute's definition of "education records" to conform with common sense.

Published in Print: March 21, 2018, as Student Privacy Laws Should Protect Students, Not School Officials

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Student Privacy Laws Have Been Distorted (And That's a Problem)

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Commentary When a deadly or life-threatening crime takes place at an educational institution, the public justifiably asks: Did the school do enough to maintain safety? At such times, "we can't say anything because of student privacy" is a profoundly incorrect answer-legally, morally, and practically.

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This article talks about the #MeToo Movement in the school setting.

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The #MeToo movement has felled the careers of some of the most celebrated and influential men in the country while exposing the pervasiveness of sexual harassment and assault in industry after industry. As more women come forward, it seems no place is immune: whether it be inside Hollywood, the Washington Beltway, or the news room.

The same is true, it turns out, of the schoolhouse.

Forty percent of teachers and school administrators report having been the victim of sexual harassment or assault in their jobs or witnessing such incidents, according to a nationally representative survey conducted by the Education Week Research Center. The survey gives a rare look at the prevalence of this issue in the K12 workplace.

Twenty-five percent of female educators say they have personally experienced sexual harassment or assault on the job, even though the profession is predominantly made up of women and most teachers spend much of their day in a classroom, isolated from their coworkers.

Six percent of male educators say they have been sexually harassed or assaulted at work, according to the survey.

Permissive school cultures where abusers are not punished, as well as power differentials between early-career teachers and their superiors, create situations that can be ripe for abuse, experts told Education Week.

Nearly 60 percent of teachers and administrators who said they had either experienced or witnessed sexual harassment or assault said they did not report it to any authority.

But while enduring abuse in silence can be emotionally fraught for educators who do not report it, coming forward doesn't always bring closure, either.

Reluctant to Go Public

Rachel Man, a teacher in Prince Georges County, Maryland, said she has often second-guessed her decision to formally accuse a fellow teacher of groping her in an empty classroom after school hours.

It happened in 2013, near the end of Man's first semester as a teacher. Initially, Man said she told no one because she was afraid she was being "dramatic." But she eventually reported the incident to the school's principal and then to the police. The male teacher was charged with first degree assault and 4th degree sexual offense. The case went to trial and he was found not guilty.

Man, who eventually transferred to another school in the same district, says the experience continues to affect how she interacts with people.

"I am that much more nervous around people, that much more cautious about how I act or what I do," she said. "I have to get out of my own head, because if I was talking to any other woman, I'm like, 'You can wear what you want, say what you want, and no one is allowed to touch you.'"

While Education Week interviewed more than a half dozen other women for this story who said they had been harassed or assaulted on the job, none would go on the record with their stories or were willing to share enough information that we could independently corroborate. Even in this extraordinary #MeToo era, ordinary women who've experienced harassment at work are often reluctant to share their stories publicly, much less report the incidents to managers or other authorities.

It is not uncommon for women to choose to remain silent about sexual harassment and assault that takes place at work or among colleagues, said Linda A. Seabrook, the general counsel for the advocacy group Futures Without Violence. To do otherwise could put their job, career, and even their safety at risk, she said.

Seabrook said it's both incumbent on-and imperative for-workplaces to make sure victims feel safe to report misconduct, because when sexual harassment goes unchecked, it exacerbates the problem by encouraging the abuse to continue.

"Most harassers are not single victim harassers," Seabrook said. "Workplaces generally know who those people are. To see that person get promoted, get the best office, move up the chain unfettered and without consequences, it's just demoralizing to the entire workplace."

Still, some women in K-12 have come forward recently with charges of harassment.

Educators, have you experienced or witnessed sexual harassment or assault in the workplace? Tell us your story.

A lawsuit filed by two teachers this month in New York City alleges that for years an assistant principal demanded sexual favors from multiple teachers and would punish those that did not acquiesce. The school's principal, the lawsuit contends, promoted the assistant principal over objections from several staff members and was aware of multiple complaints against him but did nothing.

And a complaint filed with the Equal Employment Opportunity Commission in May claimed that the superintendent in Fayetteville, Ark., sexually harassed a female employee who did not report the harassment for a long time for fear of retaliation, according to local media reports. The superintendent was fired by the school board this week.

When teachers and school administrators do report problems, the vast majority of the time they do so to their direct supervisor, according to the Education Week Research Center's survey. Employees were the least likely to report an issue to their union or to a state or federal agency, the survey found.

Is Sexual Harassment Less Common in K-12?

It's hard to say if sexual harassment and assault happen in K-12 education less often than in other fields. Research on the frequency of sexual misconduct in the general workplace varies greatly.

"Studies range between 25 percent of working women and 90 percent," said Heather McLaughlin, a sociology professor at Oklahoma State University who has researched workplace sexual harassment. "It really comes down to measurements and our understanding of what sexual harassment means."

Gender, age, and industry all factor into people's perception of sexual harassment, she said.

But K-12 education professionals certainly think it's more common in other industries.

Ninety-one percent of those who had worked in a setting outside of education told the Education Week Research Center that they felt sexual harassment and assault happened more frequently in other workplaces than in schools and district offices.

A high percentage also said that they felt confident that they knew what to do if they were the target of sexual harassment or assault, or saw it happening to someone else. Sixty-two percent indicated that they were either "extremely" or "very knowledgeable" about protocol, and an even greater share, 67 percent, said they had received training on preventing or responding to sexual harassment and assault. Again-over half of those respondents rated their training as either "extremely" useful or "very" useful.

Charol Shakeshaft, a professor who has studied teacher misconduct at Virginia Commonwealth University, was struck by those numbers. She pointed to the nearly 60 percent of survey respondents who also said they didn't report incidences of sexual harassment or assault.

"How useful was the training? If it was so useful, then why didn't you report [the sexual harassment]?" Shakeshaft said. "Their reports don't bear out that they've internalized the training or the policies."

She said training that requires participants to practice or act out a scenario where they report someone is most effective. But such training, Shakeshaft added, can only do so much without a corresponding critical look-and overhaul if need be-of workplace culture.

Shakeshaft warned against believing that K-12 education is immune from these issues. Some may falsely assume that the kind of people who want to become educators are less likely to perpetrate such behavior and that can lull school leaders and others into complacency, Shakeshaft said.

"Oftentimes in a school setting we say, 'We're not going to be like that.' But that culture can grow up, and we don't do enough to stop it," she said.

Years-Long Recovery

And that culture can do long-lasting damage to victims and their careers.

"People who were sexually harassed were much more likely to quit their jobs-forgoing opportunities for advancement there," said McLaughlin, the researcher at Oklahoma State. "Women in our studies had higher amounts of financial stress, really operating through that job change."

Many switch industries altogether, according to McLaughlin's research, and it can take years for women's income to rebound after leaving a job. That's in addition to the physical consequences of harassment which can include depression and even post-traumatic stress symptoms.

After the trial, Man, the Maryland teacher, said she felt ostracized by the rest of the teaching staff, which is what pushed her to move to a job in a different school. Although Man feels as though she's finally found her footing again as a teacher, it's been a long recovery process over the past five years. One that included a lot of self-doubt and therapy.

"I handle it by asking myself, what would I tell my students to do?" Man said. "I need to live the life I would tell my students to live. But it's a conversation I have to repeatedly have with myself."

But, she added, "I don't think there is a safe place for avoiding sexual harassment and assault."

Published in Print: July 18, 2018, as In K-12, 20 Percent of Staff Say #MeToo

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Even in a Field Dominated by Women, 25% of Female Educators Say #MeToo

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The #MeToo movement has felled the careers of some of the most celebrated and influential men in the country while exposing the pervasiveness of sexual harassment and assault in industry after industry. As more women come forward, it seems no place is immune: whether it be inside Hollywood, the Washington Beltway, or the news room.

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The National Education Association (NEA)

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The National Education Association (NEA)

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The legal issues and initiatives taken by the NEA are many. Immigration is relevant to current events. This association is committed in supporting students and educators throughout immigration issues and crisis.

School safety is another recurring topic in the news that needs support from the NEA. It is extremely important to establish prevention programs and implement a plan for school safety.

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Our Current Focus

More Issues

In support of common issues and public education.

Research reports reviewing data on educational issues and policy papers concerning NEA members, educators, and the public school community.

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In support of common issues and public education. Research reports reviewing data on educational issues and policy papers concerning NEA members, educators, and the public school community.

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Confidentiality and Undocumented Status 

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Confidentiality and Undocumented Status 

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Two of the positions statements for the American School Counselor Association (ASCA) are student confidentiality and students who have undocumented status in the United States.

Student confidentiality is important to create a trusting relationship between the student and school counselor. However, students must understand that this confidentiality could be broken if the school counselor believes that the student's life or others might be at risk (American School Counselor Association, ASCA, n.d.).

School counselors must understand their role and responsibility when working with students who have undocumented status in the United States. These students have the right to receive services and support without discrimination (American School Counselor Association, ASCA, n.d.).

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I choose Immigration as a topic for exploration on legal and ethical issues. I believe immigration affects students emotional and physical wellbeing. There is a lot of changes and policies that affect students who are refugees and immigrants. I am also very interested in this topic because I am an immigrant myself. I moved to the United States almost five years ago from Caracas, Venezuela. Both of my children are born here in Texas but they have lived throughout the stage of us adapting and establishing our lives here. As an educator and future school counselor I will provide support and encouragement to those children who are suffering through this difficult process.

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On the Rights of Undocumented Children. 

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On the Rights of Undocumented Children. 

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Gonzales, R. (2009). On the Rights of Undocumented Children. Society, 46(5), 419. doi:10.1007/s12115-009-9240-7

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Angelo State University - Library Online Resources

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Unauthorized use is prohibited; Usage may be subject to security testing and monitoring; Misuse is subject to criminal prosecution; No expectation of privacy except as otherwise provided by applicable privacy laws.

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Immigration is an important topic for educators because there are around 12 million undocumented families that live in the United States, these children who move to the United States go through many issues that children who are not immigrants do not face (Gonzales, 2009). As educators it is our role and responsibility to educate and support children no matter their circumstance.

According to the American Immigration Council (AIC) “In June 1982, the Supreme Court issues Plyler vs. Doe, a landmark decision holding that states cannot constitutionally deny students a free public education on account of their immigration status” (2016, para.1).  This legal decision holds educators accountable for the education and future of immigrant children. Immigrant children have the right to receive free education in the United States; however once they finish their education in the public school system they have no rights regarding work or higher education studies (Gonzales, 2009).  An important legal and ethical issue is the continuation of the rights for these undocumented children. How does the United States manage the undocumented and illegal status of these children once they are old enough to pursue a career or higher education?

As an educator and future school counselor I will work with undocumented students who will need my full support when facing the challenges of coming to the United States illegally. As an immigrant myself, I know and understand the issues they face. It is important as a school counselor to offer the necessary tools and resources for these students and their families in order to make the transition easier.

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In June 1982, the Supreme Court issued Plyler v. Doe, a landmark decision holding that states cannot constitutionally deny students a free public education on account of their immigration status. By a 5-4 vote, the Court found that any resources which might be saved from excluding undocumented children from public schools were far outweighed by the harms imposed on society at large from denying them an education.

For more than thirty years, Plyler has ensured equal access to education for children regardless of status, but anti-immigrant sentiment continues to threaten that right. States and localities have passed measures and adopted unofficial policies that violate the spirit-if not the letter-of the Court's decision. For example, in 2011 the state of Alabama enacted a law requiring school administrators to determine the immigration status of newly enrolling students, which in turn resulted in markedly higher rates of absenteeism for Latino school children and caused much fear and confusion in schools. Supporters of the Alabama law wanted to challenge Plyler itself, claiming the Court implied that its ruling could change if sufficient evidence established that the enrollment of undocumented children harmed the overall quality of education, but that challenge was blocked by the Courts.

This fact sheet provides an overview of the Supreme Court's decision in Plyler and subsequent efforts by states and localities to avoid compliance with the decision.

What were the facts of Plyler v. Doe?

In 1975, the Texas Legislature authorized local school districts to deny enrollment in public schools to foreign-born children who were not "legally admitted" to the United States. Two years later, the TylerIndependentSchool District adopted a policy requiring foreign-born students to pay tuition if they were not "legally admitted." Under the school district's policy, children were considered "legally admitted" if (1) they possessed documentation showing that they were legally present in the United States, or (2) federal immigration authorities confirmed they were in the process of securing such documentation.

Shortly thereafter, a group of students from Mexico who could not establish that they were "legally admitted" brought a class action lawsuit challenging the policy. The district court, after making extensive findings of fact, held that the policy violated the Constitution and was also "preempted" by federal immigration law. A federal appeals court upheld the injunction, although its decision rested on constitutional rather than preemption grounds. The school district then filed a petition with the Supreme Court, which granted the case for review.

What was the basis for the Supreme Court's ruling?

The Court based its ruling on the Fourteenth Amendment of the U.S. Constitution, which says in part, "No State shall ... deny to any person within its jurisdiction the equal protection of the laws." (This provision is commonly known as the "Equal Protection Clause.") Under this provision, the Court held that if states provide a free public education to U.S. citizens and lawfully present foreign-born children, they cannot deny such an education to undocumented children without "showing that it furthers some substantial state interest."

The Court found that the school district had no rational basis to deny children a public education based on their immigration status, given the harm the policy would inflict on the children themselves and society as a whole. "By denying these children a basic education," the Court said, "we deny them the ability to live within the structure of our civic institutions, and foreclose any realistic possibility that they will contribute in even the smallest way to the progress of our Nation." The Court also said that holding children accountable for their parents' actions "does not comport with fundamental conceptions of justice."

Did the dissent suggest that undocumented children should be prevented from attending school?

No. To the contrary, the dissent acknowledged that it "is senseless for an enlightened society to deprive any children-including [unauthorized immigrants]-of an elementary education," in part because "the long-range costs of excluding any children from the public schools may well outweigh the costs of educating them." Instead, the dissent argued that the Court should defer to the school district's policy because the Constitution does not officially prevent discrimination against unlawfully present immigrants.

Did the Court say its opinion would change if evidence existed that educating undocumented children reduces the quality of education for other students?

No. The majority noted that the record in the case did not support "the claim that exclusion of undocumented children is likely to improve the overall quality of education in the State." However, the remark was not central to the Court's reasoning or otherwise intended to leave open the question. The Court also said that even if barring one group of children from schools was likely to improve the overall quality of education, the school district would still have to justify applying the prohibition to undocumented children. Thus, there is no basis to believe the Court's decision would have been different-or that a future Court would overrule Plyler -if evidence showed that educating undocumented school children reduces the quality of education for other students.

How have states and localities attempted to circumvent the Plyler decision?

In the three decades since the Plyler ruling was issued, states and localities have passed numerous measures and adopted unofficial policies that violate the spirit if not the letter of the decision. For example:

In 1994, California voters enacted Proposition 187, which prohibited public elementary and secondary schools from admitting any student who was not lawfully present in the United States, and which required schools to notify federal immigration authorities within 45 days of any student reasonably believed to be in violation of federal immigration laws. The measure was subsequently struck down in federal court for violating Plyler.

In 2006, the school district in Elmwood Park, Illinois, denied enrollment to a student who had overstayed the tourist visa on which he had originally entered the country. The district ultimately permitted the student to enroll, however, after the Illinois State Board of Education threatened to withhold funding.

In 2011, the Alabama legislature enacted a measure requiring school administrators to determine the immigration status of all newly enrolling students, and to submit an annual report to the state Board of Education setting forth all data obtained under the requirement. The federal government and numerous private plaintiffs have sought to enjoin this provision as part of a larger challenge to H.B. 56, the omnibus measure in which it was enacted. A federal district court in Alabama declined to enter a preliminary injunction against the provision upon finding that none of the plaintiffs had standing to appeal. However, a federal appellate court subsequently blocked implementation of the provision pending resolution of an appeal. The provision was permanently blocked in October 2013 when Alabama agreed to a settlement in the lawsuit.

In addition to formal measures, local school districts have routinely adopted unofficial policies designed to circumvent Plyler. For example, schools have required immigrant students or parents to submit Social Security numbers or provide other additional documents prior to enrollment. In a "Dear Colleague" letter sent in May 2011, the Department of Education and the Department of Justice reminded school administrators that they may not deny enrollment to students who are unwilling or unable to provide a Social Security number, or who provide a foreign birth certificate at the time of enrollment.

Why should schools be prevented from collecting and reporting information on students' immigration status?

Even if schools permit undocumented children to enroll, collecting and reporting information about their immigration status is bad policy and also likely unconstitutional. Although the stated intent of such measures may be to obtain an accurate count of the number of undocumented schoolchildren, their implementation may dissuade immigrant families from enrolling their children in the first place. According to figures provided by the state of Alabama, for example, more than 13 percent of Latino students in the state withdrew from public schools between September 2011 and February 2012-even though immigrants as a whole constituted less than 0.5 percent of students in Alabama schools. Thus, the apparent effect of such measures is to deter enrollment of children with undocumented parents or other family members, even if the children are themselves U.S. citizens.

In addition to causing higher rates of absenteeism, measures like Alabama's require untrained school administrators to make complicated determinations about immigration status; erode immigrant students' trust of teachers, counselors, and other school employees; create greater potential for racial and ethnic profiling; and can breed conflict amongst students themselves, such as the bullying of students who are (or are perceived to be) foreign-born. Such measures can also lead to potential violations of the Family Educational Rights and Privacy Act (FERPA), which prevents schools from disclosing information in student files without parental consent.

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Public Education for Immigrant Students: Understanding Plyler v. Doe

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This fact sheet provides an overview of the Supreme Court's decision in Plyler v. Doe and subsequent efforts by states and localities to avoid compliance with the decision.

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American Immigration Council. (2016). Public education for immigrant students: Understanding Plyler v. Doe. Retrieved from https://www.americanimmigrationcouncil.org/research/plyler-v-doe-public-education-immigrant-students

American School Counselor Association, ASCA. (n.d.). The School Counselor and Confidentiality. Retrieved from https://www.schoolcounselor.org/asca/media/asca/PositionStatements/PS_Confidentiality.pdf

American School Counselor Association, ASCA. (n.d.).The School Counselor and Working with Students Experiencing Issues
Surrounding Undocumented Status. Retrieved from https://www.schoolcounselor.org/asca/media/asca/PositionStatements/PS_Undocumented.pdf

Gonzales, R. (2009). On the rights of undocumented children. Society, 46(5), 419. doi:10.1007/s12115-009-9240-7