# data[].attributes.body
It is the role of the school counselor to promote the social, emotional, and academic well being of the students to assist them in achieving future success. However, academic focus can only be achieved once a student’s social and emotional needs are taken care of. Therefore, much of our duty as school counselors is to help students with their social and emotional needs first, paving the way for their academics to flourish.

The topic of Confidentiality has been very important to the field of school counseling and education because, as counselors, we handle sensitive information on a daily basis. We also communicate with the school families and communities regularly to promote the goings-on at our campuses. It is very easy to unknowingly disseminate too much information, violating privacy laws.

In the world of school counseling, the topic of confidentiality is something that should be at the forefront of every educator’s mind. As school counselors, we are privy to private information about every student that we serve. We use this information to better service our students, but we are bound by privacy laws to make sure that we act with discretion. School officials and constantly communicating with each other and the community about the students we serve; there is always a risk that we may disseminate personal information about a student in an unlawful manner (Essex, 2004).

# data[].attributes.body
The topic of confidentiality is specified in chapter 33 of the Texas Education Code (33 TEC), which is created by the Texas state legislature. The Texas Education Agency (TEA) is a state-level authority pertaining to these topics because the TEA created the Texas Model for School Counseling (TEA, 2018). The TEA is responsible for creating policies and regulations that follow laws established by the Texas Education Code. It is then the local school district’s responsibility to follow those policies and regulations created by the TEA. School districts are accountable to the Texas Education Agency, and the TEA is accountable to the state of Texas.

The American School Counselor Association (ASCA) could also be viewed as an additional authority, although they are not a governmental agency (ASCA, 2016). ASCA is a national organization and they have set forth the ethical standards for school counselors, of which the TEA uses as a guide in creating their policies and regulations. So although they are not a legal agency that districts or TEA are beholden to, they are still viewed as a guiding body.

One of the areas that I learned about most was that there is a lack of federal laws that govern the world of education. In the United States Constitution, only the 14th amendment addresses education. I understand that rights and laws not expressly laid out in the U.S. Constitution are left up to the states to interpret and legislate, however, this leaves too much room for variation from state to state. In the modern age, there should be cohesiveness in education among all states in the Union. At the state level, there are tiers of accountability that create a hierarchy, with each lower tier accountable to the tier above it: Schools are accountable to their districts; districts are accountable to the Texas Education Agency (TEA); and the TEA is accountable to the State of Texas.

# data[].attributes.headline
Slide #3 Identify the federal and state constitutional laws that align with confidentiality.

# data[].attributes.subject
Slide #3 Identify the federal and state constitutional laws that align with confidentiality.

# data[].attributes.body
Though more indirectly than directly related, the 14th amendment to the United States Constitution lays out that all children in the United States have a right to a free and fair public education (U. S. Const. amend. XIV).

This constitutional law establishes that children are entitled to a complete public education.

They will have private information contained within the school and district which the employees are required to protect.

Because students will be enrolled in public schools due to this amendment, school counselors will be privy to information about students that needs to be protected.

Link: https://www.law.cornell.edu/constitution/amendmentxiv

Article 7 of the Texas Constitution is also very general as it pertains to confidentiality (Tex. Const. art. VII).

It specifies that the Texas state legislature must establish and maintain a free public school system in the state.

Like the 14th amendment to the U.S. Constitution, this is indirectly related to the topic of confidentiality.

Link: https://statutes.capitol.texas.gov/Docs/CN/htm/CN.7/CN.7.5.htm

# data[].attributes.attachment_link.readable_text
Amendment XIV

Section 1.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2.

Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.

Section 3.

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4.

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5.

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

# data[].attributes.attachment_link.description
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.

# data[].attributes.headline
Slide #4 Identify the one statue and one administrative law that align with confidentiality.

# data[].attributes.subject
Slide #4 Identify the one statue and one administrative law that align with confidentiality.

# data[].attributes.body
Federal Statute: The Family Educational Rights and Privacy Act (FERPA,20 U.S.C. § 1232g) is a federal law pertaining to confidentiality.

It protects the confidentiality of all students and their school records.

This law is one of the most important federal laws that is regularly at the center of privacy violations, putting the school and possibly the staff member in litigation.

Link: https://www2.ed.gov/policy/gen/guid/fpco/ferpa/index.html

State Administrative Law: Confidentiality is addressed in the Texas Administrative Code (247 TAC § 247.2).

It states that confidential information pertaining to students should not be disclosed unless required by law.

Unlawful violation of student confidentiality can lead to a lawsuit against the school and district.

Link: https://texreg.sos.state.tx.us/public/readtac$ext.ViewTAC?tac_view=4&ti=19&pt=7&ch=247&rl=Y

# data[].attributes.attachment_link.readable_text
The Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g; 34 CFR Part 99) is a Federal law that protects the privacy of student education records. The law applies to all schools that receive funds under an applicable program of the U.S. Department of Education.

FERPA gives parents certain rights with respect to their children's education records. These rights transfer to the student when he or she reaches the age of 18 or attends a school beyond the high school level. Students to whom the rights have transferred are "eligible students."

Parents or eligible students have the right to inspect and review the student's education records maintained by the school. Schools are not required to provide copies of records unless, for reasons such as great distance, it is impossible for parents or eligible students to review the records. Schools may charge a fee for copies.

Parents or eligible students have the right to request that a school correct records which they believe to be inaccurate or misleading. If the school decides not to amend the record, the parent or eligible student then has the right to a formal hearing. After the hearing, if the school still decides not to amend the record, the parent or eligible student has the right to place a statement with the record setting forth his or her view about the contested information.

Generally, schools must have written permission from the parent or eligible student in order to release any information from a student's education record. However, FERPA allows schools to disclose those records, without consent, to the following parties or under the following conditions (34 CFR § 99.31):

School officials with legitimate educational interest;

Other schools to which a student is transferring;

Specified officials for audit or evaluation purposes;

Appropriate parties in connection with financial aid to a student;

Organizations conducting certain studies for or on behalf of the school;

Accrediting organizations;

To comply with a judicial order or lawfully issued subpoena;

Appropriate officials in cases of health and safety emergencies; and

State and local authorities, within a juvenile justice system, pursuant to specific State law.

Schools may disclose, without consent, "directory" information such as a student's name, address, telephone number, date and place of birth, honors and awards, and dates of attendance. However, schools must tell parents and eligible students about directory information and allow parents and eligible students a reasonable amount of time to request that the school not disclose directory information about them. Schools must notify parents and eligible students annually of their rights under FERPA. The actual means of notification (special letter, inclusion in a PTA bulletin, student handbook, or newspaper article) is left to the discretion of each school.

# data[].attributes.attachment_link.keywords[]
policy; privacy; academic records; technical assistance; parent rights; student rights; ferpa

# data[].attributes.attachment_link.title
Family Educational Rights and Privacy Act (FERPA)

# data[].attributes.attachment_link.description
Family Educational Rights and Privacy Act (FERPA) Home Page.

# data[].attributes.headline
Slide #5 Identify the common or case laws that align with confidentiality.

# data[].attributes.subject
Slide #5 Identify the common or case laws that align with confidentiality.

# data[].attributes.body
A important court case relating to Confidentiality was Owasso Independent School District v. Falvo:

A parent requested that her children’s school stop allowing peer-grading of assignments, stating that this violated their privacy because another child was able to see the grade given.

The school declined and the case went to court.

In this court case, it was decided that peer-grading in class does not violate FERPA rights of the family (Owasso Independent School District v. Falvo, 2002).

This court case is important precedent because it established that there is a limit to what would be considered student records.

This means that not all school document or record sharing could be considered a violation of FERPA.

Link: https://supreme.justia.com/cases/federal/us/534/426/

# data[].attributes.attachment_link.readable_text
OCTOBER TERM, 2001

Syllabus

OWASSO INDEPENDENT SCHOOL DISTRICT NO. 1-011, AKA OWASSO PUBLIC SCHOOLS, ET AL.

v. FALVO, PARENT AND NEXT FRIEND OF HER MINOR CHILDREN, PLETAN, ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

No. 00-1073. Argued November 27, 200l-Decided February 19,2002

Teachers sometimes ask students, including respondent's children, to score each other's tests, papers, and assignments as the teachers explain the correct answers to the entire class. Claiming that such "peer grading" violates the Family Educational Rights and Privacy Act of 1974 (FERPA or Act), respondent filed a 42 U. S. C. § 1983 action against the school district and school officials (petitioners). FERPA, inter alia, authorizes federal funds to be withheld from school districts that permit students' "education records (or personally identifiable information contained therein ... )" to be released without their parents' written consent, 20 U. S. C. § 1232g(b)(1); and defines education records as "records, files, documents, and other materials" containing information directly related to a student, which "are maintained by an educational agency or institution or by a person acting for such agency or institution," § 1232(a)(4)(A). In granting petitioners summary judgment, the District Court held that grades put on papers by another student are not "education records." The Tenth Circuit reversed, holding that FERPA provided respondent with a cause of action enforceable under § 1983, and finding that grades marked by students on each other's work are "education records," so the very act of grading is an impermissible release of information to the student grader.

Held: Peer grading does not violate FERPA. Pp. 430-436.

(a) This Court assumes, without deciding, that FERPA provides private parties with a cause of action enforceable under § 1983. Though that question is left open, the Court has subject-matter jurisdiction here because respondent's federal claim is not so completely devoid of merit as not to involve a federal controversy. Pp. 430-431.

(b) Petitioners and the United States contend that education records include only institutional records, e. g., student grade point averages, standardized test scores, and records of disciplinary actions. But respondent, adopting the Tenth Circuit's reasoning, contends that an assignment satisfies § 1232(a)(4)(A)'s definition as soon as another student grades it. That court determined that teachers' grade books and the grades within are "maintained" by the teacher and thus covered by the

Act. The court recognized that teachers do not maintain the grades on individual student assignments until they have recorded them in the grade books. It reasoned, however, that if the teacher cannot disclose the grades once written in the grade book, it makes no sense to permit disclosure immediately beforehand. The court thus held that student graders maintain the grades until they are reported to the teacher. Two statutory indicators show that the Tenth Circuit erred. First, student papers are not, at that stage, "maintained" under § 1232(a)(4)(A). That word's ordinary meaning is to preserve or retain. Even assuming that a grade book is an education record, the score on a student-graded assignment is not "contained therein," § 1232g(b)(1), until the teacher records it. "Maintain" suggests FERPA records will be kept in a file in a school's record room or on a secure database, but student graders only handle assignments for a few moments as the teacher calls out the answers. The Tenth Circuit also erred in concluding that a student grader is "a person acting for" an educational institution, § 1232g(a)(4)(A). That phrase connotes agents of the school. Just as it would be awkward to say students are acting for the institution when following their teacher's instruction to take a quiz, it is equally awkward to say they are acting for the institution when following their teacher's direction to score it. That process can be as much a part of the assignment as taking the test itself. This Court does not think FERPA prohibits such educational techniques. Moreover, saying that students are acting for the teacher in grading an assignment is different from saying they are acting for an educational institution in maintaining it. Other FERPA sections--e. g., § 1232g(b)(4)(A), which requires educational institutions to maintain a record of access kept with the student's education records-support this Court's interpretation. The instant holding is limited to the narrow point that, assuming a teacher's grade book is an education record, grades on students' papers are not covered by the Act at least until the teacher has recorded them. The Court does not reach the broader question whether the Act protects grades on individual assignments once they are turned in to teachers. Pp.431-436.

233 F.3d 1203, reversed and remanded.

KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and STEVENS, O'CONNOR, SOUTER, THOMAS, GINSBURG, and BREYER, JJ., joined. SCALIA, J., filed an opinion concurring in the judgment, post, p. 436.

Jerry A. Richardson argued the cause for petitioners.

With him on the briefs was Karen L. Long.

Deputy Solicitor General Kneedler argued the cause for the United States as amicus curiae urging reversal. With

him on the brief were Solicitor General Olson, Acting Assistant Attorney General Schiffer, Beth S. Brinkmann, Mark B. Stern, and Colette G. Matzzie.

Will K. Wright, Jr., argued the cause for respondent.

With him on the brief were John W Whitehead and Steven H. Aden.*

JUSTICE KENNEDY delivered the opinion of the Court. Teachers sometimes ask students to score each other's tests, papers, and assignments as the teacher explains the correct answers to the entire class. Respondent contends this practice, which the parties refer to as peer grading, violates the Family Educational Rights and Privacy Act of 1974 (FERPA or Act), 88 Stat. 571, 20 U. S. C. § 1232g. We took this case to resolve the issue.

I

Under FERPA, schools and educational agencies receiving federal financial assistance must comply with certain conditions. § 1232g(a)(3). One condition specified in the Act is that sensitive information about students may not be released without parental consent. The Act states that federal funds are to be withheld from school districts that have "a policy or practice of permitting the release of education records (or personally identifiable information contained

*Briefs of amici curiae urging reversal were filed for the National Education Association et al. by Robert H. Chanin and Andrew D. Roth; for the National School Boards Association et al. by Julie Underwood, Julie E. Lewis, Sheldon E. Steinbach, and Martin Michaelson; for the Oklahoma Education Association by Richard B. Wilkinson and Brandon R. Webb; and for the Reporters Committee for Freedom of the Press et al. by Gregg

Briefs of amici curiae urging affirmance were filed for the Capitol Resource Institute et al. by Richard D. Ackerman and Gary G. Kreep; for the Council of Counseling Psychology Training Programs et al. by Dennis Owens; and for the Eagle Forum Education & Legal Defense Fund by Karen Tripp and Phyllis Schlafiy.

therein ... ) of students without the written consent of their parents." § 1232g(b)(1). The phrase "education records" is defined, under the Act, as "records, files, documents, and other materials" containing information directly related to a student, which "are maintained by an educational agency or institution or by a person acting for such agency or institution." § 1232g(a)(4)(A). The definition of education records contains an exception for "records of instructional, supervisory, and administrative personnel ... which are in the sole possession of the maker thereof and which are not accessible or revealed to any other person except a substitute." § 1232g(a)(4)(B)(i). The precise question for us is whether peer-graded classroom work and assignments are education records.

Three of respondent Kristja J. Falvo's children are enrolled in Owasso Independent School District No. 1-011, in a suburb of Tulsa, Oklahoma. The children's teachers, like many teachers in this country, use peer grading. In a typical case the students exchange papers with each other and score them according to the teacher's instructions, then return the work to the student who prepared it. The teacher may ask the students to report their own scores. In this case it appears the student could either call out the score or walk to the teacher's desk and reveal it in confidence, though by that stage, of course, the score was known at least to the one other student who did the grading. Both the grading and the system of calling out the scores are in contention here.

Respondent claimed the peer grading embarrassed her children. She asked the school district to adopt a uniform policy banning peer grading and requiring teachers either to grade assignments themselves or at least to forbid students from grading papers other than their own. The school district declined to do so, and respondent brought a class action pursuant to Rev. Stat. § 1979, 42 U. S. C. § 1983 (1994 ed., Supp. V), against the school district, Superintendent Dale

Johnson, Assistant Superintendent Lynn Johnson, and Principal Rick Thomas (petitioners). Respondent alleged the school district's grading policy violated FERPA and other laws not relevant here. The United States District Court for the Northern District of Oklahoma granted summary judgment in favor of the school district's position. The court held that grades put on papers by another student are not, at that stage, records "maintained by an educational agency or institution or by a person acting for such agency or institution," 20 U. S. C. § 1232g(a)(4)(A), and thus do not constitute "education records" under the Act. On this reasoning it ruled that peer grading does not violate FERPA.

The Court of Appeals for the Tenth Circuit reversed. 233 F.3d 1203 (2000). FERPA is directed to the conditions schools must meet to receive federal funds, and as an initial matter the court considered whether the Act confers a private right of action upon students and parents if the conditions are not met. Despite the absence of an explicit authorization in the Act conferring a cause of action on private parties, the court held respondent could sue to enforce FERPA's terms under 42 U. S. C. § 1983. 233 F. 3d, at 12111213. Turning to the merits, the Court of Appeals held that peer grading violates the Act. The grades marked by students on each other's work, it held, are education records protected by the statute, so the very act of grading was an impermissible release of the information to the student grader. Id., at 1216.

We granted certiorari to decide whether peer grading violates FERPA. 533 U. S. 927 (2001). Finding no violation of the Act, we reverse.

II

At the outset, we note it is an open question whether FERPA provides private parties, like respondent, with a cause of action enforceable under § 1983. We have granted certiorari on this issue in another case. See Gonzaga Univ. v. Doe, post, p. 1103. The parties, furthermore, did

not contest the § 1983 issue before the Court of Appeals. That court raised the issue sua sponte, and petitioners did not seek certiorari on the question. We need not resolve the question here as it is our practice "to decide cases on the grounds raised and considered in the Court of Appeals and included in the question on which we granted certiorari." Bragdon v. Abbott, 524 U. S. 624, 638 (1998). In these circumstances we assume, but without so deciding or expressing an opinion on the question, that private parties may sue an educational agency under § 1983 to enforce the provisions of FERPA here at issue. Though we leave open the § 1983 question, the Court has subject-matter jurisdiction because respondent's federal claim is not so "completely devoid of merit as not to involve a federal controversy." Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 89 (1998) (citation omitted). With these preliminary observations concluded, we turn to the merits.

The parties appear to agree that if an assignment becomes an education record the moment a peer grades it, then the grading, or at least the practice of asking students to call out their grades in class, would be an impermissible release of the records under § 1232g(b)(1). Tr. of Oral Arg. 21. Without deciding the point, we assume for the purposes of our analysis that they are correct. The parties disagree, however, whether peer-graded assignments constitute education records at all. The papers do contain information directly related to a student, but they are records under the Act only when and if they "are maintained by an educational agency or institution or by a person acting for such agency or institution." § 1232g(a)(4)(A).

Petitioners, supported by the United States as amicus curiae, contend the definition covers only institutional records-namely, those materials retained in a permanent file as a matter of course. They argue that records "maintained by an educational agency or institution" generally would include final course grades, student grade point averages,

standardized test scores, attendance records, counseling records, and records of disciplinary actions-but not student homework or classroom work. Brief for Petitioners 17; Brief for United States as Amicus Curiae 14.

Respondent, adopting the reasoning of the Court of Appeals, contends student-graded assignments fall within the definition of education records. That definition contains an exception for "records of instructional, supervisory, and administrative personnel ... which are in the sole possession of the maker thereof and which are not accessible or revealed to any other person except a substitute." § 1232g(a)(4)(B)(i). The Court of Appeals reasoned that if grade books are not education records, then it would have been unnecessary for Congress to enact the exception. Grade books and the grades within, the court concluded, are "maintained" by a teacher and so are covered by FERPA. 233 F. 3d, at 1215. The court recognized that teachers do not maintain the grades on individual student assignments until they have recorded the result in the grade books. It reasoned, however, that if Congress forbids teachers to disclose students' grades once written in a grade book, it makes no sense to permit the disclosure immediately beforehand. Id., at 1216. The court thus held that student graders maintain the grades until they are reported to the teacher. Ibid.

The Court of Appeals' logic does not withstand scrutiny.

Its interpretation, furthermore, would effect a drastic alteration of the existing allocation of responsibilities between States and the National Government in the operation of the Nation's schools. We would hesitate before interpreting the statute to effect such a substantial change in the balance of federalism unless that is the manifest purpose of the legislation. This principle guides our decision.

Two statutory indicators tell us that the Court of Appeals erred in concluding that an assignment satisfies the definition of education records as soon as it is graded by another student. First, the student papers are not, at that stage,

"maintained" within the meaning of § 1232g(a)(4)(A). The ordinary meaning of the word "maintain" is "to keep in existence or continuance; preserve; retain." Random House Dictionary of the English Language 1160 (2d ed. 1987). Even assuming the teacher's grade book is an education recorda point the parties contest and one we do not decide herethe score on a student-graded assignment is not "contained therein," § 1232g(b)(1), until the teacher records it. The teacher does not maintain the grade while students correct their peers' assignments or call out their own marks. Nor do the student graders maintain the grades within the meaning of § 1232g(a)(4)(A). The word "maintain" suggests FERPA records will be kept in a filing cabinet in a records room at the school or on a permanent secure database, perhaps even after the student is no longer enrolled. The student graders only handle assignments for a few moments as the teacher calls out the answers. It is fanciful to say they maintain the papers in the same way the registrar maintains a student's folder in a permanent file.

The Court of Appeals was further mistaken in concluding that each student grader is "a person acting for" an educational institution for purposes of § 1232g(a)(4)(A). 233 F. 3d, at 1216. The phrase "acting for" connotes agents of the school, such as teachers, administrators, and other school employees. Just as it does not accord with our usual understanding to say students are "acting for" an educational institution when they follow their teacher's direction to take a quiz, it is equally awkward to say students are "acting for" an educational institution when they follow their teacher's direction to score it. Correcting a classmate's work can be as much a part of the assignment as taking the test itself. It is a way to teach material again in a new context, and it helps show students how to assist and respect fellow pupils. By explaining the answers to the class as the students correct the papers, the teacher not only reinforces the lesson but also discovers whether the students have understood

the material and are ready to move on. We do not think FERPA prohibits these educational techniques. We also must not lose sight of the fact that the phrase "by a person acting for [an educational] institution" modifies "maintain." Even if one were to agree students are acting for the teacher when they correct the assignment, that is different from saying they are acting for the educational institution in maintaining it.

Other sections of the statute support our interpretation.

See Davis v. Michigan Dept. of Treasury, 489 U. S. 803, 809 (1989) ("It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme"). FERPA, for example, requires educational institutions to "maintain a record, kept with the education records of each student." § 1232g(b)(4)(A). This record must list those who have requested access to a student's education records and their reasons for doing so. Ibid. The record of access "shall be available only to parents, [and] to the school official and his assistants who are responsible for the custody of such records." Ibid.

Under the Court of Appeals' broad interpretation of education records, every teacher would have an obligation to keep a separate record of access for each student's assignments. Indeed, by that court's logic, even students who grade their own papers would bear the burden of maintaining records of access until they turned in the assignments. We doubt Congress would have imposed such a weighty administrative burden on every teacher, and certainly it would not have extended the mandate to students.

Also, FERPA requires "a record" of access for each pupil.

This single record must be kept "with the education records." This suggests Congress contemplated that education records would be kept in one place with a single record of access. By describing a "school official" and "his assistants" as the personnel responsible for the custody of the records,

FERPA implies that education records are institutional records kept by a single central custodian, such as a registrar, not individual assignments handled by many student graders in their separate classrooms.

FERPA also requires recipients of federal funds to provide parents with a hearing at which they may contest the accuracy of their child's education records. § 1232g(a)(2). The hearings must be conducted "in accordance with regulations of the Secretary," ibid., which in turn require adjudication by a disinterested official and the opportunity for parents to be represented by an attorney. 34 CFR § 99.22 (2001). It is doubtful Congress would have provided parents with this elaborate procedural machinery to challenge the accuracy of the grade on every spelling test and art project the child completes.

Respondent's construction of the term "education records" to cover student homework or classroom work would impose substantial burdens on teachers across the country. It would force all instructors to take time, which otherwise could be spent teaching and in preparation, to correct an assortment of daily student assignments. Respondent's view would make it much more difficult for teachers to give students immediate guidance. The interpretation respondent urges would force teachers to abandon other customary practices, such as group grading of team assignments. Indeed, the logical consequences of respondent's view are all but unbounded. At argument, counsel for respondent seemed to agree that if a teacher in any of the thousands of covered classrooms in the Nation puts a happy face, a gold star, or a disapproving remark on a classroom assignment, federal law does not allow other students to see it. Tr. of Oral Arg. 40.

We doubt Congress meant to intervene in this drastic fashion with traditional state functions. Under the Court of Appeals' interpretation of FERPA, the federal power would exercise minute control over specific teaching methods and

SCALIA, J., concurring in judgment

instructional dynamics in classrooms throughout the country. The Congress is not likely to have mandated this result, and we do not interpret the statute to require it.

For these reasons, even assuming a teacher's grade book is an education record, the Court of Appeals erred, for in all events the grades on students' papers would not be covered under FERPA at least until the teacher has collected them and recorded them in his or her grade book. We limit our holding to this narrow point, and do not decide the broader question whether the grades on individual student assignments, once they are turned in to teachers, are protected by the Act.

The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

JUSTICE SCALIA, concurring in the judgment.

I agree with the Court that peer-graded student papers do not constitute "education records" while they remain in the possession of the peer grader because, as the Court explains, a student who grades another's work is not "a person acting for" the school in the ordinary meaning of that phrase. Ante, at 432, 433. I cannot agree, however, with the other ground repeatedly suggested by the Court: that education records include only documents kept in some central repository at the school. Ante, at 433 ("The word 'maintain' suggests FERPA records will be kept in a filing cabinet in a records room at the school or on a permanent secure database .... It is fanciful to say [student graders] maintain the papers in the same way the registrar maintains a student's folder in a permanent file"), 435 ("FERPA implies that education records are institutional records kept by a single central custodian, such as a registrar ... ").

As the Court acknowledges, ante, at 429, 432, Congress expressly excluded from the coverage of FERPA "records of

instructional ... personnel ... which are in the sole possession of the maker thereof and which are not accessible or revealed to any other person except a substitute," 20 U. s. C. § 1232g(a)(4)(B)(i). Respondent argues that this exception, which presumably encompasses many documents a teacher might create and keep in the classroom, including a grade book, would be rendered superfluous if education records included only "institutional records kept by a single central custodian, such as a registrar." We do not, of course, read statutes in such fashion as to render entire provisions inoperative. United States v. Nordic Village, Inc., 503 U. S. 30, 35-36 (1992).

The Court does not explain why respondent's argument is not correct, and yet continues to rely upon the "central custodian" principle that seemingly renders the exception for "records of instructional ... personnel" superfluous. Worse still, while thus relying upon a theory that plainly excludes teachers' grade books, the Court protests that it is not deciding whether grade books are education records, ante, at 433. In my view, the Court's endorsement of a "central custodian" theory of records is unnecessary for the decision of this case, seemingly contrary to § 1232g(a)(4)(B)(i), and (when combined with the Court's disclaimer of any view upon the status of teachers' grade books) incurably confusing. For these reasons, I concur only in the judgment of the Court.

# data[].attributes.attachment_link.title
Owasso Independent School Dist. No. I-011 v. Falvo, 534 U.S. 426 (2002)

# data[].attributes.attachment_link.description
OCTOBER TERM, 2001 Syllabus OWASSO INDEPENDENT SCHOOL DISTRICT NO. 1-011, AKA OWASSO PUBLIC SCHOOLS, ET AL. v. FALVO, PARENT AND NEXT FRIEND OF HER MINOR CHILDREN, PLETAN, ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT No. 00-1073.

# data[].attributes.headline
Slide #6 Identify the mandate that aligns with confidentiality.

# data[].attributes.subject
Slide #6 Identify the mandate that aligns with confidentiality.

# data[].attributes.body
The mandate regulating Confidentiality comes from the Texas Education Agency.

According to the TEA's Model for School Counseling, standard 4, when auditing a school’s comprehensive counseling program, the school counselor must “protect students’ and families’ rights to privacy, confidentiality, respect, and belief”  when performing an evaluation (TEA, 2018).

This specifies that it is built in to the Texas Model to ensure counselors are abiding by existing privacy laws.

With exception to a federal statute such as FERPA, most of the legislation pertaining to the topic of Confidentiality, and education in general, is created at the state level.

Link: https://tea.texas.gov/sites/default/files/Pub_2018_Texas-Model_5th-Edition.pdf

# data[].attributes.headline
Slide #7 Local Administrative Law/Policy/Rule

# data[].attributes.subject
Slide #7 Local Administrative Law/Policy/Rule

# data[].attributes.body
In the SFDRCISD employee handbook, it states that the employee will “maintain confidentiality in all matters relating to students” and their coworkers (SFDRCISD, 2022).

The reason for the policy is to be in compliance with the Texas educator code of ethics, which states the same requirement for confidentiality.

This impacts the topic of confidentiality because it leaves no room for flexibility or misinterpretation.

Link: https://www.sfdr-cisd.org/media/50wjyimy/employee-handbook-2022-2023-7-26-2022.pdf

# data[].attributes.headline
Slide #8 Discuss three risk management strategies related to confidentiality and why it is important.

# data[].attributes.subject
Slide #8 Discuss three risk management strategies related to confidentiality and why it is important.

# data[].attributes.body
Concerning the topic of Confidentiality, there are a few steps that can be taken to ensure one is limiting legal liability. First is to be aware of existing state laws, such as the Texas Administrative Codes pertaining to confidentiality (247 TAC § 247.2) and The Family Educational Rights and Privacy Act (FERPA,20 U.S.C. § 1232g). Ensuring that school counselors and all school personnel are aware of the laws is the first step in risk management.

School counselors should also be aware of their code of ethics as outlined by ASCA, which specifically addresses the duty to maintain confidentiality (ASCA, 2016). Because confidentiality is specifically addressed in federal law, state law, and code of ethics, individuals who break confidentiality put the school, the district, and themselves at risk of breaking the law if they do not follow established procedures for maintaining confidentiality.

Another risk management step would be to provide annual training on what it means to maintain confidentiality. During the training it would be addressed the types of information that are permissible to be provided and to which parties. This professional development would also serve to keep all stakeholders informed on current legislation.

# data[].attributes.body
Although school counselors are bound by all state and federal laws pertaining to education, the main code of ethics that they abide by are those established by the American School Counselor Association (ASCA). These ethical guidelines were created not just by the organization itself, but with collaboration of other counselors and entities across many states. So the guidelines outlined by ASCA are seen as the best and most comprehensive.

ASCA standard A.2.a states that a counselor should “promote awareness of school counselors’ ethical standards and legal mandates regarding confidentiality and the appropriate rationale and procedures for disclosure of

student data” when disseminating information (ASCA, 2022). This standard ensures that the counselor will be acting in an ethical manner and maintain compliance with existing confidentiality laws.

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

# data[].attributes.headline
Slide #10 Personal Connection to the Legal and Ethical Standards

# data[].attributes.subject
Slide #10 Personal Connection to the Legal and Ethical Standards

# data[].attributes.body
Looking at specific topics in education from the lens of the law caused me to create an understanding of the legal hierarchy involved. When it comes to education, the highest law, which is federal law, is very vague. But moving down the ladder, state law is where the real substance and specificities are established. Local policy is then created with state law in mind. So, as long as an educator or counselor is following local policy, they can be confident that they are also aligned with existing state laws.

This legal research provided me with great insight into the legalities of education, but also pointed out a shortcoming. Because there is very little federal law pertaining to education, most is created at the state level. The problem with this is that states are not required to maintain much semblance of alignment with one another; as a practicing counselor intern, I see this become an issue when a student transfers to Texas from another state that has different educational requirements. That student is sometimes left scrambling to make up for requirements that a specific to our state.

# data[].attributes.headline
Slide #11 Bulleted list of Recommendations / Best Practices for Compliance

# data[].attributes.subject
Slide #11 Bulleted list of Recommendations / Best Practices for Compliance

# data[].attributes.body
Ensure that school counselors and all school personnel are aware of the existing laws, both state and federal.

School counselors should be aware of their code of ethics as outlined by ASCA, which specifically addresses the duty to maintain confidentiality (ASCA, 2016).

Provide annual professional development on what it means to maintain confidentiality.

Obtain parental consent for any and all sharing of student work and photos at the start of the school year. Maintain a list of all students whose parents do not consent and inform their teachers.

Constant self-analysis about one's personal practices; the educator should also monitor themselves, especially if they are more inclined to share classroom notices via social media-type apps such as ClassDojo.

Always operate with a need-to-know mindset when sharing student information with others. It is generally safe to provide necessary information to others on your campus who service the same student. However, make sure to only provide information that the other party needs to know about and nothing more.

Use all staff meetings as a tool for reminding staff to be conscious of maintaining confidentiality.

Campus administrators should review current legal cases pertaining to the topic of confidentiality and share that information with the campus leadership team. The focus should be on identifying what the school or educator may have done to violate confidentiality laws, so as not to repeat the same actions.

# data[].attributes.body
American School Counselor Association. (2016). ASCA ethical standards for school counselors. https://www.schoolcounselor.org/getmedia/44f30280-ffe8-4b41-9ad8-f15909c3d164/EthicalStandards.pdf

Child Abuse Prevention and Treatment Act of 1974. 42 USC §§5101–5106.

Child abuse reporting, 34 U.S.C. § 20341 (2019).

Code of Ethics and Standard Practices for Texas Educators, 247. Tex. Admin. Code. 247 TAC § 247.2 (2018). https://texreg.sos.state.tx.us/public/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p_ploc=&pg=1&p_tac=&ti=19&pt=7&ch=247&rl=2

Essex, N. L. (2004). Confidentiality and Student Records. Clearing House, 77(3), 111–113. https://doi-org.easydb.angelo.edu/10.1080/00098650409601240

Family Educational Rights and Privacy Act (1974). U.S. Department of Education. https://www2.ed.gov/policy/gen/guid/fpco/ferpa/index.html

Health & Safety, 38. Tex. Ed. Code. 38 TEC § 38.004. (2015).  https://statutes.capitol.texas.gov/SOTWDocs/ED/htm/ED.38.htm

Individuals With Disabilities Education Act, 20 U.S.C. § 1400 (2004).

Moyer, M., & Sullivan, J. (2008). Student Risk-Taking Behaviors: When Do School Counselors Break Confidentiality? Professional School Counseling, 11(4), 236–245. https://doi-org.easydb.angelo.edu/10.5330/PSC.n.2010-11.236

Office of the Federal Register, National Archives and Records Administration. (2010, December 21). 124 Stat. 3459 - CAPTA Reauthorization Act of 2010. [Government]. U.S. Government Publishing Office. https://www.govinfo.gov/app/details/STATUTE-124/STATUTE-124-Pg3459

Owasso Independent School District v. Falvo, 534 U.S. 426 (2002).

Tex. Const. art. VII

Texas Education Agency. (2018). The Texas model for comprehensive school counseling programs (5th ed.). Texas Counseling Association. https://tea.texas.gov/sites/default/files/Pub_2018_Texas-Model_5th-Edition.pdf.

San Felipe Del Rio Consolidated Independent School District. (2022). 2022-2023 SFDRCISD District Employee Handbook. https://www.sfdr-cisd.org/media/50wjyimy/employee-handbook-2022-2023-7-26-2022.pdf

School Counselors and Counseling Programs, 21. Tex. Ed. Code. 21 TEC § 21.355. (2019). https://texas.public.law/statutes/tex._educ._code_section_21.355

State v. James-Buhl, 393 P.3d 817 (2017).

U. S. Const. amend. XIV