Legally Speaking... (See Litigation Hold on page 17) Privacy Violations For Deficient Redacted Psychiatric Evals

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1 Legally Speaking... Office of the Chief Counsel April 2011 Volume 5, Issue 9 Risk Management Litigation Hold Letters Understand the Scope of Your Obligations uring the course of the year, the Office of Chief Counsel is provided D with information (either directly or indirectly) of events which could give rise to claims for or against the School Board. B y R o b e r t A. G l a s s m a n The Legal Department sends a records hold letter with a document transmittal form to the appropriate school, department, or person, who may have knowledge of the facts which may be germane to the potential action. The purpose of the letter is to provide an alert that an inquiry should be made of those persons within your group who may have knowledge or information about the subject event. Once the relevant people are identified, they should be requested to review their documents and/or records to make sure any information is preserved for future use, in the event a claim is filed or a lawsuit is initiated. The failure to preserve those records could potentially result in a court awarding monetary sanctions against the School Board. As you know, this is a very large organization. It is not unusual for people to change positions within this organization. Consequently, it is essential to establish an identifiable location to securely store this type of important material. The documents should always stay with the school or department. The records should not go with the person who was in charge at the time the documents were made or collected. (See Litigation Hold on page 17) Student Records Privacy Violations For Deficient Redacted Psychiatric Evals ow often do situations arising from H improper release or redaction of records occur? The facts and lessons of one recent case are discussed below. B y B r u c e A. H a r r i s On February 25, 2011, a federal district court in New Jersey ruled that a school district s social worker and special education teacher were liable to a student s parents for violating the student s constitutional right of privacy, by intentionally releasing to a class an inadequately redacted psychiatric evaluation of the student. 1 L.S. v. Mount Olive Board of Education, et al., 2011 WL (D.N.J. Feb. 25, 2011). In October 2008, the guidance counselor met with the parents and other school employees to develop a Section 504 educational plan for the 10th -grade student. On that same day, a special education instructor assigned to a high school classroom was helping an English teacher instruct a class of 11th-grade students concerning the J.D. Salinger novel, The Catcher in the Rye. As an exercise, the teacher instructed those students to prepare a psychological or psychiatric evaluation on Holden Cau- (See Psychiatric Evals on page 17) Inside This Issue Schools Duty to Supervise, Control Students on Campus Do Parents Have Constitutional Right to Access School Campus? Ask the Bruiser Regulatory Questions & Answers Parents Right of Access to Children in School (Pt. 1) Policy Business Recognition Agreements Fence Screens Year-End School Parties Timely Student Safety Reminders Legal Update Student Records Legal Update General Education Serious Bodily Injury Making Proper IAES Decisions Legal Update Students With Disabilities ADA Rules Become Familiar With New Requirements Attorney & Staff Directories , , , , 19 20

2 Page 2 Student Safety Schools Duty to Supervise, Control Students on Campus hat are the responsibilities of the school to provide a safe environment for its students while W they are on the school grounds or when attending a school-sponsored activity? B y R o b e r t A. G l a s s m a n What authority does the school principal possess to have persons removed from the campus if they do not belong there? What if a student is injured by a person who comes to the campus, but does not belong there? All of these questions come under the general topic of controlling student behavior while at school or a schoolsponsored activity. If a student was injured by a third person while at school or a school-sponsored event, a claim could be made against the School Board alleging negligence in failing to provide adequate security or failing to properly supervise the area where the incident occurred. This past fall, before the start of school, my presentation addressed the issue of when are students subject to control of school personnel? The presentation can be found on this Department s website at: sdpbc.palmbeach.k12.fl.us/docs/legal/training% 20Control%20of%20Students% pdf. The answer to the above question is contained in the applicable Florida Statutes, State Board of Education rules, and the School Board s own polices. Generally, the responsibility for student safety rests with the School Board during the following timeframes: During the time the student is being transported to or from school at public expense; During the time the student is attending school; During the time the student is participating in a school-sponsored event; and During a reasonable time before and after school when the student is on the premises for attendance at school, or for authorized participation in a school sponsored activity. Reasonable time has been defined as 30 minutes before or after the event. Supervision is the responsibility of the principal or the principal s designee, which may include administrative staff, teachers, or bus drivers. (See Supervise on page 3) Mission Statement The Office of Chief Counsel is committed to providing legal services and support to and for The School Board of Palm Beach County. It is our responsibility to protect the School Board and School District from liability in all legal matters. The Office of Chief Counsel benefits all departments, both academic and business, and enables staff to function appropriately on behalf of the student body, parents, and community of the School District. From the Chief Counsel... T his newsletter provides you with timely, relevant articles that will apprise you of many important, recent legal developments. The Chief Counsel s office is dedicated to providing you with high quality and timely legal services. We welcome your requests for legal assistance and encourage you to contact us. Serving the School Board, Superintendent, and school and District administrators, experienced attorneys will assist you in complying with federal and State statutes, rules, and regulations as well as School Board Policies. We handle a wide range of issues, including general and special education law, including ESE and Section 504 issues, student discipline, student progression, and student records, employment and labor, rights and limitations under the U.S. and Florida Constitutions, contracts and business transactions, real estate and leasing questions, risk management, construction, administrative policy, interpretation of regulations and policies, and governance issues. Bruce A. Harris

3 Page 3 Supervise (continued from page 2) The supervision responsibility is grounded in Florida Statute section , State Board of Education rule 6A , and School Board Policy These provisions list the times and places when students are under the control of the School Board. In addition to controlling the behavior of students assigned to the school, the principal also has the authority to control access to the school campus. School Board Policies 2.04 and 2.06 provide the principal with the authority to control access to the school. Policy 2.04 Public Information Campus Visits -- To help protect the safety of students, the principal and staff must know who is visiting the campus and the purpose of the visit. Any person seeking to visit a school campus, including news media representatives, shall be required to request permission from the principal by telephone or in person and shall report to the main office upon arriving on campus, prior to any contact with students, staff, or volunteers. The principal may exercise reasonable discretion to grant or deny permission to visitors to enter the school or property or to remain on the grounds, pursuant to the authority vested in principals to supervise the operation and management of the schools and property under Fla. Stat (4) and Board Policy The principal or designated staff member should accompany media representatives or other visitors to the appropriate room/area on campus. To assist in keeping the public informed, principals will cooperate with reasonable requests from the news media. However, requests for campus visits by the media may be denied if the principal/designee reasonably believes the request would result in interruption of the orderly operation of the school or unnecessarily interfere with instruction or other school activities. Further, any person not subject to the rules of a school who creates a disturbance on the property or grounds of any school or commits any act that interrupts the orderly conduct of a school or any activity thereof, shall be guilty of a misdemeanor of the second degree as provided by Fla. Stat The principal/designee is authorized to request the police to arrest and/or remove such persons from school grounds or school activities. Policy 2.06 School Visitation Purpose -- The purpose of this policy is to provide guidelines for visitors or any person who is not an employee of (See Supervise on page 9) Parent Rights Do Parents Have Constitutional Right to Access School Campus? n December 30, 2010, the 11th Circuit Court of Appeals (whose jurisdiction includes Florida) an- O swered the question of whether parents have a federal constitutional right to access a public school campus. The case is Porter v. Duval County School Board, 2010 WL B y B r u c e A. H a r r i s In the Porter case, the parent argued that school officials violated her constitutional rights by denying her access to school property under a federal civil rights statute, 42 U.S.C To prove a violation under 42 U.S.C. 1983, a plaintiff must show that an entity, acting under the color of state law, deprived her of a right under the U.S. Constitution or federal law. Here, the 11th Circuit agreed with the district court s dismissal of this claim, concluding that the parent s claim as to the school's restrictions on her access to school property was not cognizable under The Court of Appeals observed that: While parents have a general due process right to direct their children's education without unreasonable interference by the states [the parent] has provided no legal support for the proposition that this right includes the right to access school premises. In support of its conclusion, the 11th Circuit cited a 1999 opinion of another Circuit Court of Appeals, which affirmed the dismissal of a non-custodial parent's claim that prohibited him from entering school property violated his due process rights. Please contact the Chief Counsel s office at PX with any questions about this issue. McKay Scholarship Notifications By April 1 of each year, and within ten (10) days after an Individualized Education Plan meeting, a School District shall notify the parent of a student with disabilities of all available options related to the McKay Scholarship Program. Section (5)(a)1, Florida Statutes.

4 Page 4 Ask the Bruiser Regulatory Questions & Answers Relating to Schools** School Policies, Student Issues, and more... B y B r u c e A. H a r r i s School Board Policy 5.50 (8). A training PowerPoint presentation that I prepared on this issue a few years ago can be found on the Chief Counsel s website at: What Should Schools Do Upon Receiving Subpoenas For Student Records? Q. If my school receives a subpoena for the educational records of a student, what is the proper procedure to follow? A. This issue has been addressed in previous issues of Legally Speaking, but remains a matter which has generated questions. These prior articles can be found on the Chief Counsel s office website. On page 8 of my article on subpoenas in the August 2008 Supplement edition of Legally Speaking, I discussed the special rules relating to subpoenas for student records. This edition can be found at: sdpbc.palmbeach.k12.fl.us/docs/legal/legally% 20Speaking%20Sup%20August% pdf. Steven Lake s article on Page 9 of the November 2010 issue of Legally Speaking also refers to access to student records through subpoenas: 20Speaking%20November% pdf. If the documents requested are student records, the school must contact the School District s Student Records Specialist, Dominique Hyppolite. The telephone number is You can fax him the subpoena. Note: See Bulletin #P CAO/SLE of August 3, 2006 (or any superseding Bulletin), as to responding to a subpoena or Court Order. Mr. Hyppolite will coordinate the processing of the subpoena for student records. He will contact the requesting party in an effort to provide the documents and be the person appearing at the requested deposition, trial, or hearing. He will also ask the attorney or party if the records custodian s attendance is required, or whether they will accept documents in lieu of live testimony. He will ensure that the parents receive appropriate notice, per 20Subpoenas%20Student%20Records%20Requests% pdf. Student Uniforms Parent Cannot Afford Q. What is the District s practice if the school has a student uniform policy and the parent notifies the school of an inability to pay for the uniforms? A. Although the District s student dress code and uniform policy is currently being revised, the current practice in response to this question can be located in the district s administrative directive D 5.183, located at: chapter5.pdf, screen 95. Section A, 6 of this directive states: The school shall make provisions for those students who, by reason of financial hardship, cannot comply with the uniform dress code. Parents must be notified of this provision for financial hardship. Tobacco-Free Campus? Q. I have seen parents smoking cigarettes while they are waiting outside their vehicles in the line to pick up their children after school. Is the District or school able to develop a policy to prohibit smoking outdoors on campus? A. A December 29, 2010 Florida Attorney General Opinion addressed the issue: Fla. AGO Although smoking is prohibited in school buildings and enclosed workplaces, under current law the State has the authority (See Bruiser on page 5) ** This column is currently based upon questions that have been asked or could possibly be asked by District administrators to the Chief Counsel s office. Not all are based on actual situations. If you have any regulatory/policy questions you believe may also be of interest to other administrators and you would like the issue considered for a future edition, please contact this author.

5 Page 5 Ask the Bruiser Regulatory Questions & Answers Relating to Schools School Policies, Student Issues, and more... Bruiser (continued from page 4) to regulate smoking outdoors on school property and has not done so. The School Board and school do not have the authority to impose a prohibition outdoors and legislative authorization would be required in order for the School District to implement such a policy. This does not mean that a principal cannot ask the parent to agree voluntarily to cease smoking on campus. Note that there are proposed bills before the Legislature to enable school boards to regulate smoking throughout their campuses. Are My Personal Notes Public Records? Q. When meeting with individual employees I often take notes during the course of my official duties. Are these notes public records that must be disclosed if I receive a public records request? A. Although the law on this issue is not new, another December 29, 2010 Florida Attorney General opinion provides greater insight to answer this question: Fla. AGO In the Opinion, the Attorney General restated certain standards for making this determination: Personal notes, taken in the course of conducting official business by a public employee, are not public records subject to the provisions of Chapter 119, Florida Statutes, if the notes have not been transcribed or shown to others and were not intended to perpetuate, communicate, or formalize knowledge. If a document is prepared in connection with the official business of a public agency and its purpose is to perpetuate, communicate, or formalize knowledge, then that document is a public record regardless of whether it is in final form or the ultimate product of an agency. Florida Courts have consistently held that under Chapter 119, Florida Statutes, public employees' notes to themselves which are designed for their own personal use in remembering certain things do not fall within the definition of public record. The Attorney General did caution, however, that even if the notes were taken to help the employee remember the discussion: the longer these notes are maintained, the closer in nature they appear to documents which would perpetuate, communicate, or formalize knowledge and could be characterized as public records. If you need clarification for a particular situation, please contact this office. Restrictions on Employee Cell Phone Use While Driving Vehicles Q. Are employees allowed to use their cell phones while driving a vehicle on district business? A. The School Board adopted Policy 3.29 in July 2010 which addresses many situations. In general, cell phone use is prohibited while driving, unless its use is hands-free (note: their use is prohibited, even hands-free, for bus drivers or persons driving students). Also, texting and sending instant messages is prohibited. This is a safety issue. (See Bruiser on page 18) Preserving Public Records You must know the types of public records maintained within your school/department, and be knowledgeable of the retention schedules for the applicable records series that are found within the District s Records Retention Schedule. The schedule contains minimum retention periods that cannot be reduced. Note: this also includes s. You may use the search engine on the District s website to locate the Retention Schedule, or go to: RecordsRetentionScheduleAugust pdf. If you have any questions, please contact Records Management, within IT Applications, at

6 Page 6 Student Access Parents Right of Access to Children in School (Part 1) he general rule of parental right of access is shared T parental responsibility. Shared parental responsibility is a court-defined relationship under Florida law, in which both parents retain their full parental rights and obligations with respect to their children. For example, where a school may permit the nonresidential parent to have an occasional lunch with her/ his child, it is not in the student s best interest to have that parent pull the student away from class to accomplish a visit, as this would intrude on the student s instructional day. B y I o l a T. M o s l e y This means specifically: unless a court order takes away a parent s rights, both parents share equal rights of access. Florida law no longer designates a custodial parent. Courts now determine that a parent is either the primary residential or secondary residential parent. Each parent has the right to: View their child s educational records Sign their children out of school Meet with their children s teachers Give consent for their children to participate in school-based activities. The party who does not serve as the primary residential parent has a right to reasonable visitation and contact with the children, provided that such contact is in the children s best interest. School centers frequently receive requests to allow one parent, typically the non-primary residential parent, to visit the student during the school day and share in activities in school. Subject to school rules, only courts can lawfully terminate or limit a parent s right of access and/ or contact with the child. However, while the parent has the right to reasonable contact, the right is not unrestrained, either by letter or by spirit of the law. The law considers the best interest of the child in situations in which the parents are at odds concerning fundamental issues, which affect or proscribe access to the child. School centers also frequently must determine in most situations what is reasonable and in the best interest of the child in an educational setting. Any actions by a school must be reasonably drawn within the parameters of best educational interest of the child. Access to student records is open to both parents, provided there is no court Order extinguishing or restricting a parent s right to review records or confer with teachers. This is true even if one parent has a Restraining Order against the other parent. Restraining Orders may prohibit contact between spouses, or between a parent and a child. However, unless the Restraining Order specifically states that there is to be no contact with the children, then a Respondent parent still has the right to pick up the children and attend their extracurricular activities. Of course, if a child is the Petitioner, then a parent Respondent may not be permitted to communicate with or contact the child, if that is what the Order provides. Notwithstanding this, a parent may still view student records and ask questions about how the student is progressing in school. However, the questions do not extend to sending messages to the Petitioner. A question that frequently arises is: What rights does a step-parent have with respect to student registration and communication? Where a student lives full time with the parent and stepparent and the step-parent has parental authority, the step-parent may acquire rights of access equal to a parent. If you have any question about this parental rights article, please call this author, or visit the Legal Department website training portal for more information at: Training%20Student%20And%20Family%20Issues% pdf. School Board Policy Even if a student with certain absences is allowed to pass a course or pass to the next grade level under the Student Progression Plan, students must be aware that unexcused absences are prohibited and may result in discipline and/or other interventions.

7 Page 7 Business Partnerships Policy Business Partnership Recognition Fence Screens his is an update to the article contained in the April T 2010 edition of Legally Speaking. Since the publication of the original article, the School Board adopted Policy p/ B y B l a i r L i t t l e J o h n I I I School Board Policy differs in some significant ways from the previously issued Bulletin and the advice given in last year s Legally Speaking article. The following summarizes the essential elements of the Policy: A Business Partnership Agreement form (PBSD 1570) must be used to document all business partnerships as well as any fence screens posted to recognize sponsor donation revenue. All funds provided by a business partner are considered a donation to the school and not a commitment by the school to display the fence screen in a particular location or for a minimum time period. In the case of schools that use recreational facilities located on adjacent City-owned or Countyowned property, fence screens may not be placed on City-owned or County-owned property. The location of fence screens on exterior campus fences should be coordinated with School Police regarding any potential safe-sight concerns and the Planning Department regarding any municipality-specific regulations, restrictions or prohibitions. For all schools located in the City of Boca Raton, an Interlocal Agreement restricts the placement of business partner recognition fence screens to Boca Raton High School and Spanish River High School. Business partner recognition fence screens are prohibited at all schools in the municipal boundary of Palm Beach Gardens. Screens placed along residential roads with residential structures fronting the school should allow not more than 50 percent coverage of fence frontage. Principals are expected to use discretion in selecting and approving business partners that are to be recognized on fence screens to ensure that they are consistent with the educational mission of the School Board, District and community values and are appropriate for the age group attending the school. Specific examples of inappropriate business partners include businesses that sell goods or services which are illegal if possessed by or sold to a minor, adult entertainment establishments, businesses whose primary source of revenue is generated from the sale or distribution of alcohol or tobacco products, tattoo parlors, pain clinics and businesses soliciting addicts. If you have questions about the appropriateness of a particular potential business partner, those questions should be addressed to the Area Office. The fence screen must thank the sponsor, e.g., Thank you to our business partner or This school is supported by... All fence screens must be uniform in size, not exceed six (6) feet in height and ten (10) feet in width, and use no more than two colors, preferably the school colors. Font size must not exceed eight (8) inches in height. No photographs should be printed on the screens and business logos, if used, should be in the upper left corner and must not be larger than eighteen (18) inches by eighteen (18) inches in size. Note: Screens and banners displayed in areas not visible from the street are exempt from the design standards. Screens should be placed side-by-side and at a uniform height, aligned with the top rail of the fence, however, side-by-side screens may not be used to create longer messages. School marquees are not permitted to be used to advertise or permanently reference business partner recognition; however, they may be used to thank a business partner for a specific one-time support of an event or donation to the school for a specific project. As with the selection of appropriate business partners, your specific questions regarding the use of a school s (See Fence Screens on page 8)

8 Page 8 Risk Management Year-End School Parties: Timely Student Safety Reminders he end of another school year is rapidly approaching. Last year at this time, I wrote an article for Le- T gally Speaking about a case which had recently been decided by the State s Third District Court of Appeal. B y R o b e r t A. G l a s s m a n The case involved the potential liability of a school and its administrative staff as it related to off-site activities by students. It is very important to remember safety and potential liability at end of year activities, including Proms, Graduation Night, and End-of-Year Field Trips. Due to the importance of the issue and the time of the year, this article is being reprinted below. I believe the information remains helpful to those new to the District and will serve as a reminder to those who read the article last year. Legally Speaking Article Originally Published April 2010 It will not be long before the school year ends and groups of student get together to celebrate the end of school and the beginning of summer. Recently, Florida s Third District Court of Appeal rendered a decision in a tragic case involving one such party.* While that case involved a private parochial school in Miami, the ruling would apply equally to any school whether public or private. The court had to address the issue of whether the party was school sponsored or a school related event. In addition, the court also had to determine if any action undertaken by the school or its staff created an obligation to render services to students at the party, and if so, did the school fail to use reasonable care. The day before school was to end for the year, the principal became aware of a private party planned at the home of a student who lived several miles from campus. The principal made an announcement that day to advise the student that he was aware of the party and further advised that he might put a damper on it. The school had issued a Parent-Student Handbook which stressed the importance of parents maintaining control over parties given at their homes for students. It detailed the school alcohol and drug abuse policy. The Handbook also referenced the fact that the school was not responsible for unsponsored events off-campus. On the day of the party, the principal did go to the home while the party was in progress, together with another staff member. They stayed in the front yard and learned that at least one parent was at home. While at the home, they conducted no investigation. They did not observe any abuse of alcohol or drugs. Nor did they call the police or discuss anyone s behavior with them. The two school personnel left shortly after arriving. One of the students at the party, a 17-year-old, did consume alcohol at the party. He left in his car with another student after the principal had left. While diving at speeds estimated by police to be in excess of 80 mph, the car struck a tree and killed the passenger. It also left the driver a quadriplegic with traumatic brain injury. A jury returned a verdict in favor of the injured minor. (See Parties on page 11) Fence Screens continued from page 7) marquee to recognize a business partner should be referred to the Area Office. In addition to the support provided by the Area Office, information about municipality-specific issues can be obtained from Angela Usher, Director of Intergovernmental Relations, Planning Department. The Planning Department has also created a webpage with additional resources to schools interested in utilizing fence screens as way to raise revenue for their school. This page can be found at w w w. p a l m b e a c h s c h o o l s. o r g / p l a n n i n g / HowToRaiseMoney/BusinessPartnership.asp. Due to the limited space available, this is article is only a summary of what you need to know regarding Policy If you have other questions after reviewing the Policy and the Planning Department s webpage, please contact me at littlejohn@palmbeach.k12.fl.us or call me at PX

9 Page 9 Legal Update: Student Records Deceased Students Who Makes Records Release Decisions? n the sad situation where a student enrolled in a District school dies, can the District release any of the I student s records without a parent s written consent or in response to a subpoena? The answer essentially depends on the age of the student. B y S t e v e n E. L a k e Under the Family Educational Rights and Privacy Act (FERPA), which is the federal law that protects the privacy of student education records, Districts are prohibited from disclosing the education records of a deceased "non-eligible" student without the parent's prior written consent or a subpoena. In 2009, the Family Policy Compliance Office (FPCO), the federal agency charged with administering and enforcing FERPA, had occasion to issue guidance on this issue, when it responded to a guidance request from the Florida Department of Education (FLDOE). Letter to Parker, 109 LRP (FPCO 2009). A representative from FLDOE contacted FPCO concerning the interaction between FERPA and Florida's State Child Abuse Death Review Committee. The representative explained that the Committee reviews circumstances of all child deaths that occur as a result of abuse or neglect. To conduct the child death reviews, State law provides that certain officials must be afforded access to any information or records that pertain to a child whose death is reviewed and that are necessary for the Committee to carry out its statutory duties. The representative also explained that Florida law provides the Committee with the authority to subpoena students' education records and asked whether a court order or subpoena is necessary when the committee requests the education records of a deceased child. FPCO s response noted that FERPA rights do not lapse or expire upon the death of a non-eligible student. The agency instructed that: "there is nothing to suggest that parents' rights under FERPA should terminate solely because their child is deceased. Instead, FPCO advised that because the parents hold the rights in those circumstances, they may exercise those rights so long as the education records exist." Therefore, FPCO instructed that FERPA prohibits the disclosure of a deceased, non-eligible student s education records without the parent's prior written consent or in response to a subpoena. Although FERPA rights and protections continue to apply to the records of non-eligible students, including those individuals who are younger than 18, or who do not attend a post-secondary institution, the same rationale is not true for "eligible students. Supervise (continued from page 3) the School District. This Policy does not apply to routine deliveries or scheduled maintenance visits. Policy -- The Palm Beach County School Board welcomes visits by parents and guardians in schools, especially if prearranged and for the purpose of conferences with teachers. Any visitor, which for the purpose of this policy shall mean, parents, volunteers, business partners, community members, public officials, representatives of the news media, salespersons or any other non-school District employee, shall report to the principal's office to explain the purpose of and get permission for the visit, sign-in and to receive a visitor's pass/badge. All visitors shall be welcomed, treated with dignity and respect and be allowed to express their concerns and/or questions to the appropriate person. There are situations which arise either before or after school, while the students are still under the control of the School Board, when someone is acting improperly. At these times when an altercation develops adult intervention is required. Consequently, each school should formulate a plan to ensure that areas (such as bus loops, courtyards, and other areas where students congregate before and after school) have adult supervision. Those persons should have the ability to communicate and enable them to reach other school personnel or 911 in case of an emergency. It is impossible to prevent each and every adverse action from happening. However, as school administrators, you must always make a reasonable effort to do so with the staff allocated to you.

10 Page 10 Legal Update: Student Records A Can Teachers Disclose Names Of Students Who Performed Well On Classroom Tests? high school teacher had the practice of writing on his classroom blackboard the name and actual test scores of each student in his class who received an A or B on his tests, as part of a "motivational strategy" he called the "steel trap minds" list. Is this blackboard practice permissible under the Family Educational Rights and Privacy Act (FERPA)? B y S t e v e n E. L a k e A parent alleged that the teacher s practice violated FERPA by disclosing personally identifiable information from students' education records to third parties without written parental consent. FERPA s enforcement agency, the Family Policy Compliance Office (FPCO), reviewed that a designated FERPA exception permits an institution to disclose information that has been appropriately designated as directory information. 34 CFR 99.31(a)(11). "Directory information" is defined as information included in the education records of a student, which would not generally be considered harmful or an invasion of privacy if disclosed. Directory information includes "student name" and "honors and awards," among other items. 34 CFR Note: The School District of Palm Beach County does not have a directory information policy. Schools can disclose directory information to third parties without consent if they gave public notice of the types of information it designated as directory information, a parent's right to refuse to let the school designate any or all of that information about the student as directory information, and the period of time within which a parent has to notify the school in writing that he or she does not want any or all those types of information about the student designated as directory information. Schools are required to provide a notice regarding directory information annually to parents of students in attendance and eligible students in attendance. 34 CFR If a school district has appropriately designated student name and honors and awards as directory information, the School District would be permitted by FERPA to disclose, without parental consent, the names of those students who received honors and awards. Note that school districts are not permitted to nonconsensually disclose such information regarding those students whose parents opted-out of directory information. The agency concluded that FERPA does permit nonconsensual disclosure of the names of students who made above a certain score on the exam, as long as the remaining group of students includes some students who passed the exam. However, FERPA would not generally permit disclosure of specific grades without written parental consent. Likewise, the teacher would be permitted by FERPA to write on the board the names of all the students who made As and Bs on classroom tests. However, FERPA would prohibit nonconsensual disclosure of any individual student's grade. School Board Policy 5.50 Student Records 4. Access by Parents and Adult Students.- Parents and adult students shall be granted access to that student's records within 30 days after receipt of a request by the School District. The right to access student records by the parent or eligible student includes the right, upon request, to be shown any record or report relating to such student maintained by the School District and that, upon a reasonable request, the school shall furnish such parent or student with an explanation or interpretation of any such record or report. Copies of any list, record, or report requested under the provisions of Fla. Stat (3) shall be furnished to the parent or student upon request.

11 Page 11 Legal Update: General Education A Tenn. Teachers Win Fight Against School Board s Drug Testing Policy Tennessee School Board Policy that required all teachers to submit to random drug testing violated teachers Fourth Amendment right to be free from unreasonable searches. A federal district court concluded that the Policy: (1) Was unclear B y S t e v e n E. L a k e (2) Failed to provide teachers with reasonable and adequate notice of what was being tested (3) Unreasonably intruded on teachers privacy The Policy instructed that all School District employees were subject to random drug testing, The School Board, on an annual basis, intended to randomly test at least 10 percent of its employees (the drug testing Policy was included in the teachers collective bargaining agreement). Concluding that, as a general rule, drug testing intrudes on an individual s reasonable expectation of privacy, the court explained that drug testing of governmental employees first required individualized suspicion of drug use. The exception to the general rule allows drug testing without individualized suspicion in circumstances where such testing serves special government needs. To determine if a policy satisfies the exception, a court must balance the individual s privacy expectations against the government s interest to determine whether it is impractical to require a warrant or some level of individualized suspicion in the particular context. Though agreeing with the School Board that deterring illegal drug use was a legitimate government interest, random drug testing must still provide adequate notice. It must always be implemented with due regard for the privacy rights of teachers. Duration of Related Services District Practice Requires IEP Include Precise Time of Each Session An article in November 2010 edition of Legally Speaking summarized 2010 guidance from the Office of Special Education Programs, which stated that an IEP need not include the precise length of time of each related services session, if the IEP outlined the overall amount of time to be devoted to that service. Please note, however, that the practice of this District has been and is that IEPs include the precise time that the District must provide for each session of related services. Parties (continued from page 8) The school filed an appeal, which was successful. The appellate court reversed the judgment and directed the trial court to enter a judgment in favor of the school. The appellate decision found that, first, the party was not a school-sponsored event or a related school activity. Second, based upon the specific facts of this case, the court did not find that the actions taken by the school and its staff created a duty to undertake new and additional services to the students and their parents. While this particular ruling favored the school, it is very fact specific. That means a slight change in the facts could easily have altered the ultimate result. Accordingly, this means school staff must be very vigilant in dealing with these types of situations. There should never be any acquiescence by the school in participating in these types of events. Certainly, it is always proper to remind everyone that drinking and driving is unacceptable behavior for anyone to engage in, no matter the time or location. *The case is Archbishop Coleman F. Carroll v. Maynoldi, 30 So.3d 533 (Fla. 3d DCA 2010).

12 Page 12 Legal Update: General Education A Cheerleader Loses Constitutional Claims After School District Removed Her From Squad Texas school district did not violate a high school student s constitutional rights when school officials removed her from the cheerleading squad for refusing to cheer for a member of the boys basketball team, whom she had accused of sexually assaulting her. The 5th U.S. Circuit Court of Appeals concluded that students possess no constitutional right to participate in extracurricular activities. Therefore, it reasoned, the cheerleader was not deprived of a protected property interest in violation of her due process rights under the Fourteenth Amendment. The 5th Circuit also rejected her Equal Protection claim because there was no evidence that the school officials took their action based on her gender. The court further held that her removal from the cheerleading squad for refusing to cheer did not implicate her Free Speech rights. It ruled that as a cheerleader, her speech should be construed as school speech, not private student speech. As a member of the cheerleading squad, the student had a contractual duty to cheer for the boys basketball team, which included one of the students she had accused of sexual assault. During one game, she refused to cheer for the male basketball player, individually. Based on her actions, she was told by the superintendent and the high school principal that she must cheer when the rest of the squad did or she must leave the game. Presented with the choice, she then left the game. The cheerleading coach removed her from the team, but she was permitted to rejoin the team the following year. She then filed her lawsuit against the school district and various school officials. Doe v. Silsbee Independent School District., No (5th Cir. 2010). 4th Circuit Validates State s Mandatory Student Vaccination Law A West Virginia statute requiring mandatory vaccination of children as a condition of attending school in the state is constitutional, per a ruling by the 4th U.S. Circuit Court of Appeals. The panel concluded that the parent s Free Exercise, Equal Protection, and Due Process Clause challenges were each without merit. The parent claimed one of her children developed health problems after receiving vaccinations and refused to have her other child vaccinated. State law mandated that: no child shall be admitted to any of the schools of the state until the child has been immunized for diphtheria, polio, rubeola [measles], rubella, tetanus, and whooping cough. The sole exception to the law exempts a person who presents a certificate from a reputable physician showing that immunization for these diseases is impossible or improper or other sufficient reason why such immunizations have not been done. The parent obtained a certificate from a child psychiatrist supporting her claim of exemption. However, a school nurse challenged the certificate. The school district eventually barred the parent from enrolling her child in school until she complied with the mandatory vaccination law. The parent then filed suit against the school district and a number of state and school officials in federal district court, which dismissed her federal claims. The 4th Circuit agreed that the questions of whether defendants acted properly in overturning the parent s medical exemption pursuant to state law, and whether her religious beliefs were sincere and genuine, were not questions of fact, but rather purely legal determinations. In regard to her religious beliefs, the 4th Circuit highlighted that the sincerity of the parent s beliefs were immaterial to resolution of her lawsuit, because her beliefs do not exempt her from complying with West Virginia s mandatory immunization program. Workman v. Mingo County Sch., No (4th Cir. Mar. 22, 2011).

13 Page 13 Students with Disabilities Serious Bodily Injury Making Proper IAES Decisions he Individuals with Disabilities Education Improvement Act of 2004 (IDEA) permits (but does T not require) local educational agencies to invoke the interim alternative educational setting placement provision for special education students who have inflicted serious bodily injury (SBI) upon another person while at school, on school premises, or at a school function under the jurisdiction of a state educational agency or LEA. 34 C.F.R (g)(3). The IDEA adopted the definition of SBI wholesale from Section 1365(h)(3) of Title 18, United States Code, which explains that SBI is bodily injury with the addition of heightened qualifiers: Substantial risk of death; Extreme physical pain; Protracted and obvious disfigurement; or Protracted loss or impairment of function of a bodily member, organ, or mental faculty. Note: In its Commentary to IDEA s 2006 Part B regulations, the U.S. Department of Education observed that it was legally prohibited from expanding the definition of SBI, as used in Section (g), beyond that included in 18 U.S.C. 1365(3)(h). In contrast, the law explains that SBI is not: Cut, abrasion, bruise, burn, or disfigurement (not protracted or obvious) Physical pain (not extreme) Illness B y S t e v e n E. L a k e Impairment of function of bodily member, organ, or mental faculty (without protracted loss or function) Other injury to the body, no matter how temporary Understanding the Requirements SBI requires convincing proof of one or more of the following 5 requirements: 1. Death substantially close to dying 2. Physical pain extreme amounts 3. Disfigurement Protracted and obvious 4. Bodily member, organ, or mental faculty protracted loss of 5. Bodily member, organ, or mental faculty protracted impairment of While SBI is obviously much more than bodily injury, it does not always require that it be life threatening. Also, because the extent of the injury and pain may not be immediately known, the SBI decision may take some time Distinguishing SBI from bodily injury can be difficult. The following evidentiary indicators tend to support a finding that a victim suffered SBI: Initially after the incident, victim requires Emergency Room care and hospital s urgent, serious medical treatment Victim cannot work for substantial time Victim requires follow-up care by medical specialists (internal medicine, etc.) Pain management requires the initial administration of strong narcotic pain medication and then continuing pain treatment Case Decision Illustrating SBI A 6-year-old student ran at a teacher from several feet away, head-butting the teacher in the left part of her chest with all of his force. The blow knocked the wind out of her and she felt she could not breathe. The teacher saw a physician three times in one week, after her initial doctor's visit due to her pain. Two prescribed drugs failed to provide pain relief. As a result, she had to curtail her daily activities. She missed one week of work. She described her pain as a "10" on a scale of 1 to 10. The ALJ concluded: "Under these circumstances, [the teacher] suffered serious bodily injury defined as 'extreme physical pain,' so as to constitute the special circumstances. Westminster School District (Cal. 2011). Supporting Evidence: Proving SBI Ambulance transportation utilized Blood loss significant (See SBI Decisions on page 15)

14 Page 14 Legal Update: Students With Disabilities A Parental Notice, Communication at Heart of Disability Complaint parent alleged that Florida s Hernando High School discriminated against her son, a senior, based on his disability, by failing to provide the student with notice about events. B y S t e v e n E. L a k e Those events included a Senior Interview and the Senior Prom in March 2010, and the Bright Futures Scholarship opportunities occurring at the school, in accordance with his IEP, while receiving homebound services. The investigation by the U.S. Office for Civil Rights (OCR) revealed the school used a variety of methods to communicate with all students regarding school activities. Although major school activities are found on the school website and can be obtained by means of the internet based parent portal, Edline, they do not provide a comprehensive list of all school activities. Also, the District had no comprehensive policy or method for "disseminating information" about activities occurring at the school to students who receive home instruction or to their parents. Nor was there a mechanism in place to ensure they receive such information consistently or in a timely manner: It is left to the discretion of the schools to determine the best means for communicating with these students and/or parents, and in some instances, the onus is on these students to initiate an inquiry. Although disabled students may have access to school activity information, similar to student, they may not be able to effectively understand and access this information on their own. OCR concluded the District was not ensuring equal access to participation by disabled students in all extracurricular activities, which violated Section 504 and Title II, ADA. Regarding the Senior Exit Interview, in the senior year, a sheet is passed around in the English class for students to sign up for the Senior Exit Interview. Participation is not mandatory. During the school year, no specific notices were provided to home instruction students regarding the Senior Exit Interview activity because this activity is traditionally limited to in-school students. The Career Specialist noted the student could have requested participation in the interview process from the school and/or his home instruction teachers. The District said the student should have been aware of the Program because he had already participated in the Program in previous years and had already begun to prepare his required Career Portfolio. OCR concluded that it was not the student s responsibility to initiate an inquiry about the Senior Exit Interview: Contrary to the District's argument, this is a school activity since it is coordinated by and takes place at the school. Also, the District provided no evidence that: (1) student was able to gain access to the school's website or EdLine to learn about this activity, (2) the Senior Exit Interview information was posted on either location, or (3) student was fully informed about the activity in a timely manner. OCR stated that: Based on the preponderance of the evidence, OCR finds the District treated student differently than students without disabilities by putting the onus on him to initiate the inquiry about Senior Exit Interviews, despite student being unable to access this information on his own. However, OCR concluded there was not enough evidence to support the parent s claim that the District failed to notify student about the Bright Futures Scholarship opportunities. Hernando County entered into a Resolution Agreement to address OCR s findings. Hernando County School District, 111 LRP 6885 (OCR 2010).