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Editor's Notes

• #2: The Law and Ethics of Student Records: How to Comply with FERPA\n§ \n\n\n
• #3: Our goal today is to outline a legal and ethical decision-making framework to assist you in making everyday decisions about student records and privacy. \n\nSome question we will answer:\nWho can you communicate with when neither parent is in the student’s life?\nWhat changes when a student turns 18?\nWhat are your obligations to parents after the student turns 18?\nWho can you share confidential information with in an emergency?\nWhat do you do when you are subpoenaed to testify in court about a student?\nWhat will happen to you if you make a mistake? \n§\n\n\n
• #4: Law v. Ethics\nWhat is legal is not always ethical. \n\n\n
• #5: Choices that are legal v. choices that are ethical\n§\nBefore we look at the law, let’s look first at the ethical framework.\n\n\n
• #6: Ethical Standards\nCode of Ethics for Arkansas Educators: \n “An educator keeps in confidence information about students and colleagues obtained in the course of professional service, including secure standardized test materials and results, unless disclosure serves a professional purpose or is allowed by law.” (Standard 6, Code of Ethics) \n\n\n
• #7: American School Counselor Association, “Ethical Standards for School Counselors”\nSection A.2 discusses a school counselor’s duty of confidentiality\nwww.schoolcounselor.org\nKey Concepts:\n Informed Consent\n Protect Confidentiality\n Except to meet legal requirements\n Except to prevent serious and foreseeable harm\n Promote student autonomy and independence \n§\n\n\n
• #8: Balance student privacy with the parents’ rights to be the guiding voice in their child’s lives, especially in value-laden issues\n\n§\n\n\n
• #9: FERPA\nFamily Educational Rights and Privacy Act of 1974, or “The Buckley Amendment”\n§\n\n\n
• #10: Sponsored by Sen. James L. Buckley (voted for his amendment but against the bill)\n Only living American to have held high office in all three branches of the federal government: Judge of the U.S. Court of Appeals for the D.C. Circuit (one step below US Supreme Court); Undersecretary of State for the U.S. Dept. of State, and President of Radio Free Europe; U.S. Senator from New York\n§\n\n\n
• #11: §\n“The purpose of my amendment was to strengthen the parental role by requiring schools that received federal funding to provide parents, on request, with all information relating to their children.” \nNowadays, we think of FERPA primarily in terms of student privacy, but it’s important to remember that the first priority of FERPA was, and always has been, parental involvement. \n§\n\n\n
• #12: Parents have a guaranteed right to inspect any and all education records related to their minor children. \nUnpack this statement by defining our terms, from last to first:\nFirst, "minor children"\n§\n\n\n
• #13: §\n “Record” means any information recorded in any way, including, but not limited to, handwriting, print, computer media, video or audio tape, film, microfilm, and microfiche\n\n\n
• #14: §\n “Education Record” means (1) any information that is (2) directly related to a student and is (3) maintained by a school or school district. \n One relevant exception: personal notes maintained by you but not shared with anyone else (counseling notes kept in your office; a teacher’s grade or attendance book)\n Includes discipline records\n§\n\n\n
• #15: §\n “Parent” means a parent of a student and includes (1) a natural parent, (2) a guardian, (3) a foster parent, (4) DHS, for a child in the agency’s custody, or (4) any other individual acting as a parent in the absence of a parent or a guardian\n SCENARIO: Undocumented immigrant student, living with family friend because parents deported\n SCENARIO: boyfriend gets girlfriend pregnant, she goes to live with boyfriend's family because either her parents kicked her out, or she ran away -- what if her parents try to still be involved?\n SCENARIO: child has lived with grandparents for years, but one or both parents try to be involved and demand records\nBut what happens when a student reaches the age of 18?\n§\n\n\n
• #16: A student who has reached the age of 18, or is attending a postsecondary institution, or is emancipated by a court, is considered to be an “eligible student”. When this happens, all of the rights of the parent transfer to the student.\n The day of their 18th birthday; \n Attending a postsecondary institution, meaning the student has graduated or transferred from your school to the postsecondary institution;\n Emancipated, meaning the student is at least 17, is living on his or her own, and has been formally declared by a court to be emancipated. \n Right of student to sign education-related documents\n Absolute right to get records\n For Smart Core waiver, ADE considers signature of either the parent or the student to be acceptable\n Other documents, depends on local school policy. If policy doesn’t say, assume that the student can sign. \n§\n\n\n
• #17: \n\n
• #18: §\nThe parents of an “eligible student” have the right to obtain information in two situations:\n If the child meets the definition of a “dependent student” in §152 of the Internal Revenue Code of 1986 is living at home with the parents or is financially dependent on the parents, the parents have all the same rights they had before the child turned 18; \n If the child is no longer dependent on the parents, information may be released to the parents only in the event of a health or safety emergency. \nEXAMPLE: Parent of 18-year old calls and demands to see report card. What should you do?\n\n\n
• #19: When you must release education records\nA parent must be given the right to inspect and review any education record related to their child. \n Access must be provided within a reasonable time, no later than 45 days after the request.\n A school may charge a fee for making copies if the parent requests copies, but the school cannot charge for a parent’s review of a record. \n A school cannot refuse to provide records due to a student’s failure to pay fees. \n Divorce or separation \n Child abuse when parent is alleged perpetrator?\n SCENARIO: Student becomes pregnant, (1) parent wants you to confirm; do you tell? (2) Parent thinks you know who the father is. Do you tell them who it is? Research right of privacy wrt contraception and abortion cases, striking down laws requiring parental notification\nWhen a student transfers to another public school district, the student’s records must be transmitted to the receiving school district within ten school days. (emphasize this is only Arkansas public schools or school districts, and all others fall in discretionary category) (talk about Triand)\nInvestigators from the Department of Human Services and Arkansas State Police are entitled to review records in a child abuse investigation.(Distinguish from hotline) They may:\n Review any records regarding the alleged victim;\n Obtain the name, address, and identifying information (DOB, SSN) of the alleged perpetrator; and\n Obtain the name and address of any alleged witnesses. \n§\n\n\n
• #20: When you may release education records\n(discretionary based on ethical considerations, parents rights, and students interests, but remember FOIA implications)\nRead your district policy, because it may be more restrictive then federal law. \nThe obvious situations:\n School officials in your district “with legitimate educational interests”; this can include contractors or consultants hired by the district. Does this include student aides in the counseling office? Paid student employees? Parent volunteers?\n Arkansas Department of Education, for monitoring purposes. \n A student who is under 18 and not emancipated. Note that this is discretionary, not mandatory. \n SCENARIO: A mother comes to speak to you about her 14-year old son and his home situation; the son comes in later that same day and demands to know what his mother told you. What do you do?\nDirectory information “information that would not generally be considered harmful or an invasion of privacy if disclosed” (name, picture, address, phone, grade level, extra-curriculuar activities, honors and awards - read your school policy)\n§\n\n\n
• #21: For all of the other allowed releases, you must keep a log of each and every release of records. The log must show (1) who the record was released to, and (2) why the record was released. This log must be released to a parent or eligible student on request. \nWritten Consent of parent or eligible student\n Attorney\n Newspaper\nWithout written consent, can release to:\n Officials in a school where the student has enrolled or intends to enroll\n College or university;\n Trade school; \n Private elementary or secondary school.\n Officials responsible for determining eligibility for scholarships or other financial aid\n Any appropriate person in the event of a Health or Safety Emergency\n Death threat\n Communicable diseases/AIDS (without identifying?)\n SCENARIO: Student has been diagnosed with AIDS and identifies multiple sexual partners in the student population. What, if anything, may you ethically tell the partners?\n Judicial order or subpoena, with notice to the parent or eligible student (maybe)\n Ethical obligation to request that the court not require you to disclose when the release of confidential information may potentially harm a student or the counseling relationship\n Ideally you will have the school district attorney with you, but if not, you must be an advocate for that child’s rights and interests -- obey the court’s directions and show the proper respect, but do not hesitate to explain to the court why disclosure may not be appropriate or helpful\n Some subpoenas bar you from revealing the existence of the subpoena \n SCENARIO: Order to testify at trial\n\nAuthentication: Must use “reasonable methods to identify and authenticate the identity of parents, students, school officials, and any other party”\n§\n\n\n
• #22: Amendments\n“information that is inaccurate, misleading, or in violation of the student’s rights of privacy”\n Changing a grade given by a teacher\n Changing a grade recorded wrong by a teacher\n Letters of recommendation / Notes to file\nRight to hearing if denied\n§\n\n\n
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• #24: Possible Penalties for Disclosure\nAs a licensed teacher in Arkansas, you have an ethical obligation to protect confidential student information: (Standard 6 of the Code of Ethics) “An educator keeps in confidence information about students and colleagues obtained in the course of professional service, including secure standardized test materials and results, unless disclosure serves a professional purpose or is allowed by law”\n\nPossible penalties: ethical charges (up to loss of license); discipline by district; loss of job. District’s possible penalties: loss of federal funds, or more likely, nasty letter from U.S. Dept. of Education. \nFRL Status: Prison\nA person “who publishes, divulges, discloses, or makes known in any manner, or to any extent not authorized by Federal law (including a regulation), any information obtained under this subsection shall be fined not more than $1,000 or imprisoned not more than 1 year, or both.”\n\nFOIA\n\nHIPPAA\n§\n
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