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I am currently pursuing my Masters of Education in Guidance and Counseling and should graduate this August.  My hope is to find a position as a school counselor at the middle school or high school level in the next year.  My current position is as a special education teacher and behavior teacher at a middle school in Burnet, TX.

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I spoke with a school counselor with Burnet CISD, Carolyn Liles, about how her current role is impacted by current legal issues.  The following are the top five things I learned from this conversation.

1.  School and student safety has become a significant issue within the school district, state wide, and nationally.  The middle school and high school have already implemented the Say Something app in response to this need, and the counselors have played a big part in training students and are part of the crisis team responsible for responding and investigating reports through the app.

2.  Privacy and confidentiality are also concerns that school counselors have to be aware of and consider when working with students and staff.  School counselors are often faced with difficult decisions about whether confidentiality and privacy should be broken for safety concerns.  There have been issues where potential signs prior to a school shooting were not reported because of confidentiality and privacy.

3.  Family dynamics have changed over the last few decades.  There are more single parents, grandparents, and same sex couples raising our students than in the past.  This increases the need for school counselors to be understanding and non-judgemental, as well as supportive of our students living in these non-traditional families.

4.  Bullying and suicide prevention have also increased in schools, especially with the new TV series “13 Reasons Why” on Netflix.  There was also a student in a neighboring school district that committed suicide this past year, so bullying and suicide prevention has also been incorporated into the Say Something app.  The district, in collaboration with the counselors at the middle school and high school level, have started working on a school safety and suicide prevention plan for the district in an effort to have a policy and plan in place.

5.  While there are articles and various sources to stay updated on legal and ethical changes within education, it is difficult to find time to research and stay updated independently.  School counselors, at least in our school district, attend annual workshops and conferences where they are updated on changes in requirements, new trends, and testing guidelines and requirements.

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I explored and read the headlines on the Education Week website for the past six months.  There were three primary topics that seemed to come up more than any other topic: funding for schools, civil rights of students including special education students and transgender students, and gun violence in schools.  Below are two articles that I found specifically interesting.

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Transgender Students Use Bathroom of Choice

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Transgender Students Use Bathroom of Choice

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The issue of students using the school bathroom of the gender that they identify became a strong topic in 2016.  The following article discusses a more recent court case in which students and a conservative group brought a lawsuit against a Pennsylvania school district concerning transgender students using the restroom of their choice.  The court ruled this May that the school district has the right to allow transgender students to use restroom or locker room that they identify with.  However, the article doesn’t say that the ruling is required, only that the school district “can” allow.

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An appeals court says a Pennsylvania school district can allow transgender students to use the bathroom and locker room of the sex with which they identify.

A panel of federal appeals judges affirmed a lower court's ruling on Thursday in Philadelphia.

A student at the Boyertown School District and a conservative group brought the lawsuit saying the district was violating his constitutional privacy rights. Three other students joined the lawsuit.

Lawyers for the district say they've made reasonable accommodations so no one is forced to forfeit their privacy. They also say the district faces an equal protection claim if it doesn't continue allowing transgender students to use the bathroom of their choice.

In a rare move, the judges made a preliminary ruling from the bench with the idea of issuing a written ruling later Thursday.

In a related case, a federal district judge ruled earlier this week that Title IX and the 14th Amendment's equal-protection clause protect transgender students from discrimination and that a lawsuit by transgender student Gavin Grimm may proceed against his former Virginia school district.

Grimm is the student who was at the forefront of the transgender rights movement when the U.S. Supreme Court agreed in 2016 to take up an appeal by the Gloucester County School District of a lower court ruling in Grimm's favor. Grimm challenged the school district's policy that barred him from using restrooms corresponding with his gender identity.

The Supreme Court case centered on guidance issued by President Barack Obama's administration interpreting a Title IX regulation to require schools to allow transgender students to use restrooms of their gender identity. When President Donald Trump's administration rescinded that guidance, the Supreme Court sent Grimm's case back to the lower courts.

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Court: Pa. School District Can Let Transgender Students Use Bathroom of Choice

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An appeals court says a Pennsylvania school district can allow transgender students to use the bathroom and locker room of the sex with which they identify. A panel of federal appeals judges affirmed a lower court's ruling on Thursday in Philadelphia.

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The following article discusses how the Family Educational Rights and Privacy Act (FERPA) of 1974 is often misunderstood by school staff.  The article explains that FERPA is meant to apply to disclosure of tangible student records and information obtained from those records.  However, many schools and school officials seem to take FERPA even farther but according to the article, FERPA does not protect student’s confidentiality and privacy in relation to information that is general, obtained from first-hand reports, or comes from other sources other than educational records (even if the information could be found in a 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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What I Learned About Student Privacy Laws

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What I Learned About Student Privacy Laws

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The Family Educational Rights and Privacy Act (FERPA) protect students from unknowingly having information that may be in their school files being released to other individuals.  However, I was unaware of the specific requirements of the law and the implications for schools and districts, especially considering the recent issues with school violence and safety.

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Where Do Student Privacy Laws Leave Schools?

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Where Do Student Privacy Laws Leave Schools?

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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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The following was included in TCTA's 2017-18 Survival Guide, the ultimate reference tool for Texas educators, and is current as of September 2017 but is subject to change. The information below is for information purposes only, and is not intended to substitute for advice from an attorney.
FERPA

The Family Educational Rights and Privacy Act (FERPA), applies to education agencies or institutions that receive federal funds. FERPA gives personnel designated by the district as having a "legitimate educational interest" the right to access and view student records without prior parental consent. In addition, for employees who have a legitimate educational interest in the behavior of a student, a district does not need consent to release information from discipline records arising from conduct that "posed a significant risk to the safety or well-being of that student, other students, or other members of the school community."

District employees are charged with maintaining the strict confidentiality of student records and may release such information only with written consent of the parent, guardian or (in some cases) the student. FERPA establishes a penalty for violations of the law. A 2005 amendment to Chapter 26 of the Texas Education Code requires districts to annually notify parents of FERPA provisions relating to release of student directory information, such as name, address and phone number. Parents may elect not to disclose such information or limit such disclosure.

Closed school board meetings about students

A school district is not required to conduct a hearing in open session if it will disclose identifiable information about a student younger than 18. This prohibition does not apply if the student is 18 or older, or if the parents/guardians request an open hearing.

Testing

The laws regarding test security apply equally to state and local tests. Texas Education Code Sec. 39.030 makes a student's state test scores confidential. They may be released only as permitted by FERPA. Public release of test information cannot contain the names of students or otherwise implicitly identify the students, but may contain information regarding ethnicity, grade, subject, etc. TEA prohibits encouraging or helping another person to breach test security, and requires reporting of known violations. A supervisor who gives directions inconsistent with the rules should be referred to the test administrator.

Peer grading

In 2002, the U.S. Supreme Court decided Falvo v. Owasso ISD, a case in which a parent alleged that a teacher violated FERPA by permitting students to grade each other's work and call out grades. The court unanimously held that peer grading did NOT violate FERPA, and praised the practice as a learning experience. The court also said it was not deciding whether a grade book is an educational record under FERPA.

Medical files

Under Sec. 38.009 of the Texas Education Code, a school administrator, nurse or teacher is entitled to access district student medical records for reasons established by district policy. A student cannot be required to undergo tests to determine a medical condition or status. Any person who views medical records must maintain the confidentiality of the records.

Parental rights under the Texas Education Code

Parents are entitled to: access their child's records, including attendance records, test scores, grades, disciplinary records, health records, student evaluations and reports of behavioral patterns; review teaching materials, including textbooks and aids; and review each test the child takes after it is administered to the child's class.

A 2002 Texas attorney general opinion addressed the question of whether a parent has unrestricted access to a child's school counseling records. The opinion stated a very narrow exception to the general rule that all student records are available to parents. Under FERPA, a public school may withhold a minor child's counseling records from a parent only if the records are kept in the sole possession of the counselor, are used only as the counselor's personal memory aid, and are not accessible or revealed to any other person except a temporary substitute for the counselor. In addition to the FERPA standards, state law provides that a licensed mental health practitioner may withhold a minor child's records only if the practitioner determines that the release of such records "would be harmful to the patient's physical, mental, or emotional health." According to the Texas attorney general, a licensed mental health practitioner includes a licensed professional counselor but not a school counselor certified by SBEC.

Situations requiring written consent of parent

A parent must consent in writing before a school employee may conduct a psychological examination, test or treatment (except with regard to investigation of child abuse), or make a video- or audiotape of a child (unless the recording is used only for purposes of safety and discipline, including student safety in special education settings, co- or extracurricular activities, purposes related to regular instruction, or media coverage of the school). A parent may remove a child temporarily from a class or activity that conflicts with religious or moral beliefs.

Student searches

Public school students are entitled to be free of unreasonable searches pursuant to the U.S. Constitution, although the standard for initiating a student search by school officials is less stringent than the probable cause requirement applicable to searches by law enforcement officials. School officials may search students if there is reasonable suspicion of finding evidence of wrongdoing. The scope of the search must be reasonably related to the objectives of the search and not be excessively intrusive in light of the student's age and sex and the nature of the infraction. The U.S. Supreme Court approved the search of a student's purse when the student was caught smoking and there was reasonable suspicion that the student's purse contained cigarettes. In a 2009 opinion, the Supreme Court held that a search that required a female student to strip to her underwear and pull the garment away from her body to look for prescription strength ibuprofen was not reasonable. Due to the potential for civil rights liability, only trained administrators should conduct searches.

See also:
Parental Rights Student Searches

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The following was included in TCTA's 2017-18 Survival Guide, the ultimate reference tool for Texas educators, and is current as of September 2017 but is subject to change. The information below is for information purposes only, and is not intended to substitute for advice from an attorney.

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The articles I found regarding student privacy outlined various situations where questions of student privacy often is discussed and how FERPA applies in those situations.  While FERPA prevents schools and school employees from releasing information that may identify a student such as name, parent’s names, address, or any personally identifiable information, schools are legally able to release certain information to the public that does not identify the student.  For example, schools can make a statement that a student was suspended for making a bomb threat.  Also, information that is learned independently of school records does not violate FERPA (Earley, 2004).

Students have a right to privacy just like most individuals.  However, there are situations where privacy is not protected under FERPA.  Medical files of students may be accessible to teachers and administrators and students may be searched by administrators if there is reasonable suspicion that they’ve done something wrong and may have something that is not allowed on campus.  Furthermore, peer grading was determined by the U.S. Supreme Court in 2002 to not violate FERPA or student privacy (Texas Classroom Teachers Association, 2017).

Student privacy and the FERPA law is important to school counselors as we often have access to student information that other teachers, parents, or community members may ask about.  We should have an understanding of the types of information and how information may be shared legally and ethically.  Sharing that “a student was reprimanded and the situation was taken care of” could satisfy an upset parent of a vicitmized student while still maintaining FERPA requirements.  School counselors are in a unique role where student confidentiality becomes increasingly more important as trust has to be earned and maintained, and ASCA guidelines state that school counselors may only break confidentiality for safety reasons.  Understanding the federal guidelines of FERPA helps a school counselor stay within legal limits even when confidentiality has to be broken.

References

Earley, J. K. (2004). Where Do Student Privacy Laws Leave Schools?. Education Digest, 69(5), 18.

Texas Classroom Teachers Association.  (2017).  Confidentiality of Student Records.  Retrieved from https://tcta.org/node/11487-confidentiality_of_student_records