Federal law protects the confidentiality of student education records as well as personally identifiable information contained in such records. At the same time, federal and state laws guarantee parents access to this information.
The Family Educational Rights and Privacy Act applies to education agencies or institutions that receive federal funds. FERPA gives personnel designated by the district as having a “legitimate educational interest” the right to access and view student records without parental consent. For employees who have a legitimate educational interest in the behavior of a student, a district does not need consent to release information from discipline records arising from conduct that “posed a significant risk to the safety or well-being of that student, other students, or other members of the school community.” District employees are charged with maintaining the strict confidentiality of student records and may release such information only with written consent of the parent, guardian or (in some cases) the student. FERPA establishes a penalty for violations of the law. Districts must annually notify parents of FERPA provisions relating to release of student directory information, such as name, address and phone number. Parents may elect not to disclose such information or limit such disclosure.
A school district is not required to conduct a hearing in open session if it will disclose identifiable information about a student younger than 18. This prohibition does not apply if the student is 18 or older, or if the parents/guardians request an open hearing.
Texas Education Code Sec. 39.030 makes a student’s test scores confidential. They may be released only as permitted by FERPA. Public release of test information cannot contain the names of students or otherwise implicitly identify the students, but may contain information regarding ethnicity, grade, subject, etc. TEA prohibits encouraging or helping another person to breach test security and requires reporting of known violations. A supervisor who gives directions inconsistent with the rules should be referred to the district’s testing coordinator.
In 2002, the U.S. Supreme Court decided Falvo v. Owasso ISD, a case in which a parent alleged that a teacher violated FERPA by permitting students to grade each other’s work. The court unanimously held that peer grading did NOT violate FERPA, while praising the practice as a learning experience. The court did not decide whether a grade book is an educational record.
Under Sec. 38.009 of the Texas Education Code, a school administrator, nurse or teacher is entitled to access student medical records for reasons established by district policy. When viewing student medical records, these employees must maintain confidentiality. A student cannot be required to undergo tests to determine a medical condition or status.
Parents are entitled to access their child’s records, including attendance records, test scores, grades, disciplinary records, health records, student evaluations and reports of behavioral patterns; review teaching materials, including textbooks and aids; and review each test the child takes after it is administered to the child’s class. Recent legislation also provides that a parent is entitled to observe virtual instruction to the same extent they would be entitled to observe in-person instruction of the child.
A 2002 Texas attorney general opinion addressed whether a parent has unrestricted access to a child’s counseling records. The opinion stated a very narrow exception to the general rule that all student records are available to parents. Under FERPA, a public school may withhold a minor’s counseling records from a parent only if the records are kept in the sole possession of the counselor, are used only as the counselor’s personal memory aid, and are not accessible or revealed to any other person except a temporary substitute for the counselor. In addition, state law provides that a licensed mental health practitioner may withhold a minor child’s records only if the practitioner determines that the release of such records “would be harmful to the patient’s physical, mental or emotional health.” Accordingly, to properly withhold a minor’s records from parents, a certified school counselor must also be a licensed mental health practitioner, e.g., a licensed professional counselor.
A parent must consent in writing before a school employee may conduct a psychological examination, test or treatment (except regarding investigation of child abuse) or make a video- or audio recording of a child (unless the recording is used only for purposes of safety and discipline, including student safety in special education settings, co- or extracurricular activities, purposes related to regular instruction, or media coverage of the school). A parent may remove a child temporarily from a class or activity that conflicts with their religious or moral beliefs.
Public school students are entitled to be free of unreasonable searches pursuant to the U.S. Constitution, although the standard for initiating a student search by school officials is less stringent than the probable cause requirement applicable to searches by law enforcement. School officials may search students if there is reasonable suspicion of finding evidence of wrongdoing. The scope of the search must be reasonably related to the objectives of the search and not be excessively intrusive in light of the student’s age and sex and the nature of the infraction. The U.S. Supreme Court approved the search of a student’s purse when the student was caught smoking and there was reasonable suspicion that the purse contained cigarettes. In a 2009 opinion, the Supreme Court further held that a search that required a female student to strip to her underwear and pull the garment away from her body to look for prescription-strength ibuprofen was not reasonable. Due to the potential for civil rights liability, only trained administrators should conduct searches.
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