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Overview
As public school districts across the nation begin
another school year, safety and security remain at the top of
every school board agenda. While the tragedy of Columbine High
School focused attention on policies related to
student-on-student violence, the horrific events of September
11, 2001 have caused school systems to reevaluate their
policies and procedures as they relate to outside school
threats as well.
On the federal legislative scene, the newly enacted No Child
Left Behind Act emphasizes the need for school systems to do
all that is necessary to early identify and intervene in
matters involving students with emotional/behavioral problems.
When coupled with existing efforts to curb bullying and
student-on-student harassment, the need to be more aggressive
and proactive in building policies designed to create and
maintain a safe and secure environment for students and staff,
through the early detection and prevention problems, has never
been greater.
As the 2002-2003 school year moves forward, a continuing issue
area involves the clash between the privacy interests and
protections of students (and their families) and the
prerogatives of school officials to gather and share sensitive
information. While the United States Supreme Court did, in a
limited sense, address the nature and extent of student
privacy interests in New Jersey v T.L.O (1985) and Vernonia v
Acton (1995), the prerogatives of school officials to (a) seek
out and collect personal information, and (b) share that
information with administrators, teachers, counselors, social
workers and other school staff remain unclear.
Recent Decisions
This past term, three student-related
decisions of the United States Supreme Court offer some
guidance. The three decisions are Owasso ISD v Falvo (decided
on February 19, 2002), Gonzaga University v Doe (decided on
June 20, 2002), both involving the Family Educational Rights
and Privacy Act (FERPA), and Board of Education v Earls
(decided June 27, 2002) involving student random drug testing.
Owasso ISD v Falvo: This case involved the practice by some
public school teachers of allowing students in their
classrooms to exchange tests, papers, and other assignments,
and to score the papers (referred to as "peer grading"), as
the teacher read the correct answers to the entire class. Once
the grading was complete, students would report their own
grade to the teacher (either by calling it out from their
desk, or reporting it at the teacher's desk). Both the peer
grading process and the recording of the scores were in
contention in this case. The parent who brought the case
claimed that this teaching method "embarrassed her children."
More specifically, the parent cited the requirements of FERPA
requiring school officials to have parental consent prior to
the release of "sensitive information" about their child.
A federal district court did not agree with the parent.
Quoting directly from FERPA the court held that grades put on
papers by other students are not, at that stage, records
"maintained by an educational agency or institution or by a
person acting for such agency or institution." On appeal, the
Tenth Circuit reversed the district court and held that
students marking other student's papers are education records.
The peer grading process represents an impermissible release
of the information to the student grader. Subsequently, the
Tenth Circuit's decision was reversed and the United States
Supreme Court remanded the case.
In its decision, the Supreme Court neither resolved the
question of whether FERPA creates a private right of action
nor did it directly address student privacy rights. Instead,
it narrowed the focus of the case and held that the
peer-grading process did not fall within the FERPA definition
of "education records." A student grade, said the court, does
not become a part of the record until the teacher records it
in her grade book. Student graders in classrooms only handle
the assignments for a few moments. They are not "acting for"
the teacher or the school. Education records are those kept by
a single central custodian (e.g., a registrar).
An often-neglected aspect of Owasso is Justice Kennedy's
discussion of parent rights to challenge and classroom teacher
methodologies. It is doubtful, he said, that Congress intended
the requirements of FERPA to give parents the prerogative "to
challenge the accuracy of the grade on every spelling test and
art project the child contemplates…. It would force all
instructors to take time, which otherwise could be spent
teaching and in preparation, to correct an assortment of daily
assignments." Teachers would be forced "to abandon other
customary practices, such as group grading of group
assignments." If the Tenth Circuit's interpretation of FERPA
is accepted, said Justice Kennedy, "the federal power would
exercise minute control over specific teaching methods and
instructional dynamics in classrooms throughout the country."
Such was not the intent of Congress.
Gonzaga University v Doe. This case involved a private
educational institution and an alleged violation of FERPA. At
the time, the State of Washington required that all applicants
for teacher certification obtain and submit an affidavit of
good moral character from their graduating college. After
overhearing one student tell another that a particular student
(one who had applied for the affidavit of good moral
character) had engaged in sexual misconduct, a University
teacher certification specialist launched an investigation.
The specialist also contacted the state agency responsible for
teacher certification, identified the student by name, and
discussed the allegations. Subsequently the student, who did
not know of the investigation, was denied the certification
affidavit.
The student successfully brought suit in a state court, where
he built his case both on tort and contract law, and used 42
U.S.C. 1983 to enforce alleged violations of FERPA
(nondisclosure of personally identifiable information without
consent). A jury awarded him both compensatory and punitive
damages on the FERPA claim. On appeal the Washington Court of
Appeals ruled that FERPA does not create individual rights
enforceable under Section 1983. Subsequently, the Washington
Supreme Court agreed with the Court of Appeals, but it held
that FERPA's nondisclosure provision does create an
enforceable right under Section 1983.
This past June, the United States Supreme Court took a
different position. By a vote of 7-2, the high court held that
since no clear and unambiguous language exists in the federal
statute, there is no personal right of action for private
persons under FERPA enforceable under 42 U.S.C. 1983. "Where a
statute provides no indication that Congress intends to create
new individual rights," said Chief Justice Rehnquist, "there
is no basis for a private suit under Section 1983." FERPA
directs the U.S. Secretary of Education to enforce the
provisions of the law through the withholding of funds.
Board of Education v Earls. In this case high school students
and their parents challenged a local school board's student
activities drug testing policy. Under the policy all middle
and high school students had to consent to urinalysis testing
for drugs in order to participate in all competitive extra
curricular activities. Seeking remedy under 42 U.S.C Section
1983, the parents alleged that the policy violated the Fourth
Amendment of the United States Constitution. A federal
district court ruled for the school board. On appeal, since
the policy called for suspicionless drug testing of students,
in a situation where the school board could not demonstrate
the existence of identifiable drug abuse among a sufficient
number of students to be tested, the Tenth Circuit held that
the policy violated the Fourth Amendment. Subsequently, by a
vote of 5 to 4, the United States Supreme Court reversed the
Tenth Circuit.
In an opinion written by Justice Thomas, the Supreme Court
held that the drug testing policy is constitutional. Because
the policy serves an immediate and important need (i.e., the
need to detect, prevent and deter the substantial harm of
childhood drug use and abuse), the necessary immediacy and the
reasonableness of the school system's policy is demonstrated.
Undergirding Justice Thomas' rationale are the special needs
existing in the context of public schools. Citing Tinker v Des
Moines (1969), New Jersey v T.L.O. (1985), Vernonia v Acton
(1995), he reasoned, "While school children do not shed their
constitutional rights when they enter the schoolhouse, Fourth
Amendment rights are different in public schools than
elsewhere; the reasonableness inquiry cannot disregard the
school's custodial and tutelary responsibility for children."
In his opinion, Justice Thomas specifically spoke to student
privacy. A student's privacy interest, he said, is "limited in
a public school environment where the state is responsible for
maintaining discipline, health, and safety…. Securing order in
the school environment sometimes requires that students be
subjected to greater controls than those appropriate for
adults." It is important to note that, in addition to the
policy serving a legitimate interest of the school officials
[preventing, deterring, and detecting drug use] the policy:
(1) was not solely punitive, (2) required confidentiality of
all information [drug testing information was kept separate
from the student's educational record], (3) involved parental
notification, (4) was minimally intrusive in nature, and (4)
was released to personnel solely on a "need to know' basis.
Policy Implications. In the "post-Columbine and 9/11 era," the
Owasso, Gonzaga and Earls decisions foster a judicial climate
in which it is possible to develop student disciplinary
policies that enable pre-emptive actions. More specifically,
these three decisions:
- Evidence an attitude of judicial restraint.
- Reaffirm the discretionary authority of school officials and
teachers.
- Limit the scope of the personally identifiable information
and educational records provisions of FERPA.
- Reiterate the importance of confidentiality of sensitive,
personal information, and the release of such information
solely on a "need to know" basis.
- Narrow the privacy interests and expectations of individual
students, within the special environment of a school, when
school officials act in the best interests of all students.
- Negate the enforcement of FERPA by private parties (e.g.,
parents and students) through court action.
- Affirm the school's custodial and tutelary responsibility
for children within the special environment of the school.
- Leave matters of pedagogy, including classroom management
and student discipline, to educators.
- Underscore the importance of school officials being free to
take immediate and appropriate action.
- Encourage the enactment of policies that enable early
intervention in student disciplinary issues, long before these
issues grow into serious problems.
Cases Cited
Board of Education v Earls, 122 S.Ct. 2559 (2002)
Gonzaga University v Doe, 122 S.Ct. 2268 (2002)
New Jersey v T.L.O., 105 S.Ct. 733 (1985)
Owasso ISD v Falvo, 122 S.Ct. 934 (2002)
Tinker v Des Moines, 89 S.Ct. 733 (1969)
Vernonia v Acton, 115 S.Ct. 2386 (1995)
Richard S. Vacca
Senior Fellow CEPI
Note: The views and opinions expressed in this commentary are
those of the author.
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