Tag: Educational Law

U.S. Department of Education Amends its FERPA Regulations to Allow for Certain Additional Student Disclosures

Published in the National Law Review an article by attorney Stephen A. Mendelsohn of Greenberg Traurig, LLP regarding  Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. section 1232g:

 

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The United States Department of Education (DOE) has completed its administrative procedures and has enacted new regulations that amend current regulations enforcing the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. section 1232g. These new regulations, which are effective on January 3, 2012, allow for greater disclosures of personal and directory student identifying information and regulate student IDs and e-mail addresses, among other issues. The new regulations are found at 34 CFR, Part 99, sections 99.3, 99.31, 99.5, 99.6 and 99.37. Colleges and universities need to quickly consider the impact of these new regulations upon their current student privacy policies and existing notices. Failure to do so may result in complaints and DOE enforcement proceedings.

FERPA

FERPA is a longstanding federal statute which provides that a parent or eligible student, if over the age of 18, has a right to inspect and review the student’s education records and to have them amended and withdrawn, under certain circumstances. FERPA is applicable to all public K-12 school districts and virtually all post secondary institutions, as they receive federal funds under programs administered by the DOE. FERPA generally prohibits the disclosure of personally identifying information (PII) contained in “education records,” without aparent’s or student’s written consent, to certain third parties. There are a number of statutory exceptions for emergency medical and health reasons and for law enforcement activities, among others. PII includes a student’s name, social security number, parents’ names, family addresses, birth dates, place of birth, a parent’s maiden name, and any other data that make a student’s identity easily traceable.

FERPA makes a distinction between PII and “directory information.” DOE regulations allow for the disclosure of directory information, without needing a student’s or parent’s consent, unless the parent or student has opted out of such disclosure. A school subject to FERPA must provide a written notice to parents or students setting forth its disclosure policies concerning directory information with the procedures for opting out and contesting the student’s education records.

The New Regulations

A. Directory Information and Student IDs

The new regulations clarify that an institution may, under certain circumstances, designate and disclose student ID numbers, or other unique personal identifiers, as directory information to be displayed on a student’s ID card or badge as long as the ID card is not the sole method of obtaining access to the student’s education records and is used with other credible identifiers. The regulations also provide that a parent or student may not opt out of the disclosure of such directory information.

The DOE left it up to the schools to determine what specifically should be included on a student ID. It also stated that FERPA does not require schools to force students to wear IDs. With regulations enacted in 2008, institutions may use directory information to access online electronic systems and to allow a school to require a student to disclose his/her name, identifying information and institutional e-mail address in and out of class. The DOE further clarified that an institution need not make directory information available on student IDs, but may do so if it so chooses.

B. Studies and Audit and Evaluation Exceptions

The new regulations also allow for the disclosure of PII, without student or parent consent, where institutions have contracted with organizations to conduct studies or audits of the effectiveness of education programs. However, the regulations require a written agreement with the organization containing mandatory provisions intended to guard the privacy of student records. The regulations also provide institutions with detailed, required provisions aimed at preventing PII from ending up in the hands of persons or entities not intended or permitted to receive them, and guidelines for addressing data breaches. A careful review of the regulations is necessary before an institution enters into any agreement to provide PII access to an organization that is conducting a study or an audit and evaluation.

C. Notices

The new regulations contain a model notification of rights form for post secondary institutions to provide to students and parents. Given the changes in the DOE’s regulations described in this Alert, current notice forms must be re-examined to determine whether they are in compliance. Also, the DOE’s model form has a number of optional provisions that each institution should evaluate based on their specific needs.

Conclusion

FERPA and the DOE’s regulations are complex and create the potential for administrative sanctions. The new regulations give expanded authority to institutions to make disclosures, but a careful approach to crafting policies and disclosures is necessary to avoid administrative penalties, as well as possible lawsuits by students and parents.

©2011 Greenberg Traurig, LLP. All rights reserved

Personnel Season: West Virginia's Open Governmental Proceedings Act

Recently posted in the National Law Review an article by Jason S. Long and Denise M. Spatafore   of  Dinsmore & Shohl LLP regarding the listing of individual employee names on county board of education agendas:

Does your County’s Personnel Agenda Comply?

As we begin prepare for another busy personnel season, a question that seems to come up often concerns the listing of individual employee names on county board of education agendas. Many administrators are, understandably, concerned about revealing the names of employees who are recommended for various personnel actions, such as reductions in force (“RIF”) and transfers, while still complying with the West Virginia Open Governmental Proceedings Act (“Act”). And, many have concerns of prejudgment by the board of education if individual names are placed on the agenda.

As we all know, the RIF and transfer process in particular is a difficult and scary experience for many employees, and publicizing it, even if legally required, may seem to add insult to injury for some. In order to spare their employees the embarrassment associated with some personnel actions, many boards provide employees’ names only to board members, with the public board agenda only stating the actions recommended, minus individual names.

A pertinent provision of the Act, West Virginia Code 6-9A-8(a), provides:

Except as otherwise expressly provided by law, the members of a public agency may not deliberate, vote, or otherwise take official action upon any matter by reference to a letter, number or other designation or other secret device or method, which may render it difficult for persons attending a meeting of the public agency to understand what is being deliberated, voted or acted upon. However, this subsection does not prohibit a public agency from deliberating, voting or otherwise taking action by reference to an agenda, if copies of the agenda, sufficiently worded to enable the public to understand what is being deliberated, voted or acted upon, are available for public inspection at the meeting.

The West Virginia Ethics Commission has advised by opinion that a county board of education does not have the authority to conceal the identity of persons being recommended by the superintendent for any type of personnel action. The basis for the opinion is simple in that there is no statutory provision which precludes the public from knowing the identity of the person the superintendent is recommending to hire, transfer, grant of a leave of absence, or acceptance of a resignation or application to retire. Therefore, a county board has two options in order to comply with the Act, especially as it relates to the upcoming personnel season.

It may publish an agenda that states the names of individuals and the recommended personnel action; OR it may publish a listing of proposed personnel actions, without individual names, but the names of each person recommended must be announced in open session BEFORE any board vote.

As it relates to cases that disciplinary matter, such as dismissal or suspension for cause, which may be discussed in executive session, the meeting agenda provided to the public may exclude the person’s name, unless the employee requests an open meeting. This issue was addressed in the November 2010 Education Law Alert.

© 2011 Dinsmore & Shohl LLP. All rights reserved.

Allegations of Sexual Harassment and Sexual Violence: What Must a School Do?

Recently posted in the National Law Review  an article by attorney Stephen A. Mendelsohn of Greenberg Traurig, LLP regarding universities examining their policies and procedures concerning the investigation and resolution of sexual harassment and sexual violence allegations:

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Recent events at major universities should cause schools to critically examine their policies and procedures concerning the investigation and resolution of sexual harassment and sexual violence allegations. This GT Alert examines what an institution must do to limit its potential exposure to lawsuits alleging sexual harassment or sexual violence by students upon students or by faculty or staff upon students.

TITLE IX

All educational institutions that receive federal financial assistance are subject to Title IX of the Education Amendments of 1972 (Title IX), 20 U.S.C. sections 1681et seq. and the United States Department of Education (DOE) implementing regulations, 34 C.F.R. Part 106, which prohibit discrimination on the basis of sex. Sexual harassment, which includes sexual violence, covers student-student, studentstaff/faculty and faculty-faculty conduct. The DOE’s Office of Civil Rights (OCR), on April 4, 2011, published a “Dear Colleague” letter that reiterates a school’s legal obligations to investigate and resolve sexual harassment and sexual violence complaints and warns schools that they must comply with Title IX and DOE, OCR regulations or face DOE sanctions.

A School’s Obligations to Respond to Sexual Harassment and Sexual Violence Complaints

Determining what constitutes sexual harassment and sexual violence is often difficult. Though some instances are seemingly obvious, many cases turn on the issue of consent. Title IX does not prohibit all forms of sexual behavior between consenting adults. Rather, it prohibits sexual acts perpetuated against a person’s will or where a person is incapable of giving consent due to the victim’s abuse of drugs or alcohol. A person may not give consent due to intellectual or other disabilities. Whether proper consent has been given is often a challenging issue.

Where students participate in a school’s education programs and activities, Title IX is applicable. It is also applicable, for example, where student upon student sexual harassment or sexual violence occurs off campus and does not involve school programs or activities.

A school that knows, or reasonably should know, about possible sexual harassment or sexual violence must promptly investigate what may have happened and must also take appropriate steps to resolve the situation. Even if the matter is subject to a law enforcement investigation, the school must conduct its own investigation. If a school has reason to believe that there may have been criminal conduct, the school must immediately notify law enforcement officials.

Schools must also navigate through the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. section 1232g; 34 C.F.R. 99.15. Though FERPA protects student confidentiality, a school may not withhold the identity of the complainant from the alleged harasser.

Procedural Requirements for Sexual Harassment and Sexual Violence Investigations

Under Title IX, schools must, at a minimum, take three procedural steps in investigating sexual harassment and sexual violence complaints. These include:

  • Disseminating a Notice of Discrimination;
  • Designating at least one employee to serve as a Title IX coordinator;
  • Adopting and publishing grievance procedures for prompt and fair resolution of student and employee sex discrimination complaints.

Whether a school’s Notice of Discrimination complies with Title IX requires the application of the DOE, OCR’s regulations. A Title IX coordinator must have adequate training in Title IX’s policies and procedures.

Title IX requires that grievance procedures be published and that they provide a prompt and fair process. Though the grievance procedures need not be separate from normal student disciplinary procedures, they must include:

  • Notice to students and employees of the procedures and where complaints may be filed;
  • Adequate and impartial investigations carried out by employees where both parties have the right to present witnesses and evidence;
  • Designated and reasonably prompt time frames for the process;
  • Notice to the parties of the outcome;
  • Steps taken to prevent recurrence and correct discriminating effects.

Risk Management

Victims of sexual harassment and sexual violence have the right to seek monetary damages against schools for student upon student and faculty/staff conduct where the school is deliberately indifferent to the victim’s complaints. Davis v. Monroe County Bd. of Ed, 119 S. Ct. 1661(1999). Compliance with Title IX and the DOE, OCR’s regulations, along with a full and fair investigation and grievance process, provides a defense to a lawsuit. In the absence of Title IX and DOE regulatory compliance, or the failure to apply existing school policies and procedures, schools will invite Title IX actions.

A thorough review and assessment of Title IX, DOE, OCR regulations and existing policies and procedures is key to avoiding monetary liability for sexual harassment and sexual violence and in aiding victims.

©2011 Greenberg Traurig, LLP. All rights reserved.

Labor Law and the First Amendment: An Argument Against Faith-Based Schooling

I went to Catholic School and I survived
I went to Catholic School and I survived

This post from NLR’s weekly guest blogger Huma Rashid is sure to give some folks a wedgie – Huma is addressing the interplay between religious schools and organized labor:

As of 2009, a little over six million American students (or 11% of all students in this country) attended a private school. The majority of private schools in the United States are operated by a religious institution. Religiously affiliated and denominational schools form a large subcategory of private schools, and instruct pupils in religious subjects and practices as well as secular subjects. These religious schools are privately financed, and as a result are usually able to skirt certain state regulations. Their costs are funded largely through tuition and donations. Out-of-pocket costs to the student attending these religious schools are usually much greater than a comparable private school, though the actual cost on a per-student basis is, on average, nearly double for public schools. Teachers, at these schools, despite the relatively high cost of attendance, were shown to be paid 45% less, on average, than public school teachers.

But salary isn’t the only area in which teachers at private, religiously oriented institutions miss out. Aside from making considerably less than their counterparts at public schools, private school teachers lack the statutory protections of the National Labor Relations Act, a vulnerability that can completely change the nature of employment at such an institution and has caused many to wonder if faith-based schooling is a worthwhile alternative for American students.

The full text can be read at:  http://www.natlawreview.com/article/labor-law-and-first-amendment-argument-against-faith-based-schooling