TITLE IX V. FERPA: WHICH LAW TRUMPS FOLLOWING A SEXUAL HARASSMENT INVESTIGATION – BY: BETSEY HELFRICH

Source: http://www.mickesotoole.com/articles/title-ix-v-ferpa-which-law-trumps-following-a-sexual-harassment-investigation-by-betsey-helfrich/

Excerpt:

 

Sexual harassment of a student is a form of sex discrimination prohibited by Title IX.   Title IX protects students from sexual harassment at school and at school activities, including off-campus school sponsored trips.  Schools have an obligation to respond promptly and effectively to claims of sexual harassment.  Title IX regulations require schools to adopt grievance procedures which provide for the equitable resolution of sex discrimination complaints.  34 CFR 106.8(b).  As part of these procedures, schools generally conduct investigations to determine whether or not sexual harassment has occurred.  If after such investigation, a school determines that a student has sexually harassed another student, the school is responsible for taking immediate effective action to eliminate the hostile environment and prevent its recurrence.  34 CFR 106.31(b).   Steps should be taken to effectively and immediately end the harassment, which may include ordering the alleged harasser to stay away from the complainant or implementing a long-term suspension or possibly even expulsion for the harassing student.  However, this brings us back to the question – does the complainant have the right to know the outcome of your investigation and the consequence for the alleged harasser? Title IX guidance from the U.S. Department of Education says yes.

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FERPA

Family Educational Rights and Privacy Act (FERPA)

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

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

 

  • Parents or eligible students have the right to inspect and review the student’s education records maintained by the school. Schools are not required to provide copies of records unless, for reasons such as great distance, it is impossible for parents or eligible students to review the records. Schools may charge a fee for copies.
  • Parents or eligible students have the right to request that a school correct records which they believe to be inaccurate or misleading. If the school decides not to amend the record, the parent or eligible student then has the right to a formal hearing. After the hearing, if the school still decides not to amend the record, the parent or eligible student has the right to place a statement with the record setting forth his or her view about the contested information.
  • Generally, schools must have written permission from the parent or eligible student in order to release any information from a student’s education record. However, FERPA allows schools to disclose those records, without consent, to the following parties or under the following conditions (34 CFR § 99.31):
    • School officials with legitimate educational interest;
    • Other schools to which a student is transferring;
    • Specified officials for audit or evaluation purposes;
    • Appropriate parties in connection with financial aid to a student;
    • Organizations conducting certain studies for or on behalf of the school;
    • Accrediting organizations;
    • To comply with a judicial order or lawfully issued subpoena;
    • Appropriate officials in cases of health and safety emergencies; and
    • State and local authorities, within a juvenile justice system, pursuant to specific State law.

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

For additional information, you may call 1-800-USA-LEARN (1-800-872-5327) (voice). Individuals who use TDD may use the Federal Relay Service.

Or you may contact us at the following address:

Family Policy Compliance Office
U.S. Department of Education
400 Maryland Avenue, SW
Washington, D.C. 20202-8520

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Where FERPA and HIPAA May Intersect

Resource:

Clinical Procedure Guidelines,
Chapter 3 “Where FERPA and HIPAA May Intersect
http://www.sde.ct.gov/sde/cwp/view.asp?a=2663&q=334188

 

or direct at http://www.sde.ct.gov/sde/cwp/view.asp?a=2663&q=334200#whereferpaandhipaamayintersect

Where FERPA and HIPAA May Intersect

When determining whether personally identifiable information from student health records maintained by the educational agency or institution may be disclosed, school officials at institutions subject to FERPA should refer to FERPA and its requirements.

When a school provides health care to students in the normal course of business, such as through its health clinic, it is also a “health care provider” as defined by HIPAA. If a school also conducts any covered transactions electronically in connection with that health care, it is then a covered entity under HIPAA. As a covered entity, the school must comply with the HIPAA Administrative Simplification Rules for Transactions and Code Sets and Identifiers with respect to its transactions. However, many schools, even those that are HIPAA covered entities, are not required to comply with the HIPAA Privacy Rule because the only health records maintained by the school are “education records” or “treatment records” of eligible students under FERPA, both of which are excluded from coverage under the HIPAA Privacy Rule. See the exception at paragraph (2)(i) and (2)(ii) to what is considered “protected health information” (PHI) at 45 CFR § 160.103) (HIPAA, 2008).
In addition, the exception for records covered by FERPA applies both to the HIPAA Privacy Rule, as well as to the HIPAA Security Rule, because the Security Rule applies to a subset of information covered by the Privacy Rule (i.e., electronic PHI). Information on the HIPAA Privacy Rule is available from the Department of Health and Human Services, as can information on the other HIPAA Administrative Simplification Rules(HIPAA, 2008).
The HIPAA Privacy Rule specifically excludes from its coverage those records that FERPA protects. When determining whether personally identifiable information from student health records maintained by the educational agency or institution may be disclosed, school officials at institutions subject to FERPA should refer to FERPA and its requirements. While the educational agency or institution has the responsibility to make the initial, case-by-case determination of whether a disclosure meets the requirements of FERPA, the U.S. Department of Education’s Family Policy Compliance Office is available to offer technical assistance to school officials in making such determinations (HIPAA, 2008).
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Video Surveillance Cameras in Schools

Video Surveillance Cameras in Schools

 

Reprinted with Permission from the January 2009 issue of the Connecticut Association of Boards of Education (CABE) Journal (www.cabe.org)

Security remains a huge issue for schools.  Protecting the health and safety of students and staff should be a focus for board members and reflected in district policy.  New technological devices now available can help to improve security.

 Protecting the investment of the district’s building and grounds is the board’s responsibility.  An electronic monitoring system using video surveillance equipment can help to provide protection from fire, water damage and vandalism.  Video surveillance is important in corridors, hallways, stairwells, common areas and building points of entry and around the property of a school, including parking lots.  Schools are increasingly installing video surveillance cameras in order to increase safety and security for students and staff.

 Equipment costs have decreased resulting in a proliferation of surveillance cameras.  The question for board members given the risk and liability issues, is whether the district can afford to make the investment.  Before installing such equipment, a through inventory or risk assessment of the district’s needs and security concerns should be conducted to address the security threats the cameras could address and how the system will be maintained and staffed.

 School officials must weigh the benefits and costs of their decision.  Most school districts believe that installing video surveillance equipment will help students focus on their studies and not worry about outside violence.  Other benefits include deterring crime and savings on insurance premiums.

 The district must also consider initial set-up costs, maintenance and personnel costs, which can be prohibitive for some districts.  Whether the cameras will be monitored “real-time” by trained personnel or whether the images will be recorded and later used as “evidence” must be determined.  A growing number of districts are installing cameras that are linked over the Internet with local police departments, giving law enforcement real-time access to various school locations thereby improving security.

 The public should be informed when security cameras are present.  The presence of such equipment has a deterrent effect.  Also, a notice of security cameras will blunt any argument about an expectation of privacy.  Cameras don’t violate any laws unless they invade the private space of an individual.  Courts are in general agreement about the legal principle that students in schools have fewer privacy rights than when they are on their own time, out-of-school.  The notice of the system’s presence should be placed in student and parent handbooks, on the district’s web site and other public places where the equipment is being used. 

 Although the courts have not ruled on the use of surveillance systems in a school setting, generally the use of cameras (i.e. a “search” within the meaning of the Fourth Amendment) must be reasonable and the cameras should not be located where there is a “reasonable expectation of privacy.”  Therefore, cameras should not be located in areas such as bathrooms, locker rooms, or private offices.  Cameras may generally be used in hallways, stairwells, parking lots, cafeterias and school buses.  If the district’s equipment has audio capability, it should be disabled because audio surveillance usually requires a warrant.

Student Record Issues

The images of students captured on security videotapes contain personally identifiable student information and are considered confidential in accordance with the Family Educational Rights and Privacy Act (FERPA).  The status of school videotape footage under FERPA has been the subject of considerable uncertainty in the courts.

The U.S. Department of Education’s guidance on this issue indicated “images of students captured on security videotapes that a maintained by the school’s law enforcement unit are not considered records under FERPA.  Accordingly, these videotapes may be shared with parents of students whose images are on the video and with outside law enforcement authorities, as appropriate.  Schools that do not have a designated law enforcement unit might consider designating an employee to serve as the `law enforcement unit’ in order to maintain the security cameras and determine the appropriate circumstances in which the school should disclose recorded images.”  The guidance also indicated that K-12 educators may disclose any educational records, including personally identifiable information, to protect the health or safety of a student or other individuals.

It is considered in the district’s best interests to indicate that the videotapes retain their status as educational records subject to FERPA’s restrictions on their release.  They should not be destroyed as long as there is an outstanding request to inspect and review them.  The right to inspect should be provided only for those parents whose students are the cause of the retention of the video recordings.  Parents of students “inadvertently” caught in the video would not have the right to inspect them, nor is their permission required to have the video viewed by the parents of the involved students.

The FERPA Compliance Office has provided “informal advice” that in the case of a video or other picture image of one or more students and where there are students in the background, he video is “directly related” to, and thus the educational record of the student or students who are the subject of the video and not the students merely in the background,

With regard to parents of those students that a are the focal point of the being permitted to view the video, a school need to obtain the consent of the parents of the two students involved and may show both sets of parents the video, because this would typically be the education record of both students especially in situations involving altercation.

In this case however, where there is more than one student that is the focus of the video, while the school may provide a parent with access to the video without the prior consent of the other parent the school may not give a copy of the video to any of the parents without the consent of the other student’s parents.

Regardless of whether a district utilizes video surveillance equipment, remember that regarding security and safety, the first and best line of the defense is a well-trained and highly alert school staff and student body.

Policy#5131.111, “Video Surveillance,” and its accompanying administrative regulations pertain to this topic.

 

ADDED NOTE:

 

Please also refer to Balancing Student Privacy and School Safety: A Guide to the Family Educational Rights and Privacy Act for Elementary and Secondary Schools (USDOE)

 

http://www2.ed.gov/policy/gen/guid/fpco/brochures/elsec.html

 

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