William Kritsonis, School Law, Ch 9 Privacy Issues

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Privacy Issues Community,Educators, and Students

• William Allan Kritsonis, PhD

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The Right of Privacy
vs. The Right to Know
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The community, educators, and students
have the RIGHT to Privacy and the RIGHT to
know
Depending on circumstance
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The Communitys Right to Know.
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Texas Open Meetings
(TOMA)

• The purpose of this Act is to kept the public
  aware of the workings of the government

• states Every regular, special, or called
  meeting of a governmental body shall be OPEN to
  the public.
• The meetings must be held within the boundaries
  of the school district.
• Open session meetings cover public business
  matters or public policies.

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TOMA AT A Glance Open Meetings

• Defines meetings as staff briefing sessions
  where board members receive information or give
  information to a third party
• A written notice must be accessible at the
  administration building to inform the public
  about the place, date, time, and subjects at
  lease 72 hours BEFORE the meeting
• Only subjects on the written notice should be
  discussed
• Tape recording or written minutes must be kept to
  reflect the subject(s) discussed, decisions, or
  other actions taken. These recordings will be
  kept for at least 2 years

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EXCEPTIONS

• Closed meetings that are NOT open to the public
  must involve

• Purchase or lease of real estate property
• Security measures
• Receipt of gifts
• Consultation with attorney
• Personnel matters
• Economic development
• Certain homeland security matters
• Closed meetings must adequately describe the
  subjects that will be discussed in a public notice

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Texas Public Information ACT
The Right to Know

• Guarantees the public has access to government
  information. The Texas Government Code gives
  citizens the right to access government records,
  without having to state a reason for the request.
• Every citizen is entitled to a prompt and
  appropriate response to an open records request.

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Texas Public Information ACT

• RIGHT TO KNOW

• RIGHT TO PRIVACY

• Name, sex, ethnicity, salary, title, and dates of
  employment
• Educators degree obtained and curriculum studied
• Records and allegations against a school personnel

• All personal Information and lifestyle matters
  that will violate someones privacy
• Evaluation documents
• Transcripts

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Parents and Students

• Rights to Know
• vs.
• Rights to Privacy

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Family Educational Rights and Privacy Act
The Parent/Students Rights

• FERPA is a federal law that protects the
  privacy of student education records. The law
  applies to all schools that receive funds from
  the state
• This Act ensure student and parental rights in
  education. It also allows a student to VIEW or
  COPY the items inside of their records.

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RIGHTS UNDER FERPA

• Parents can deny the release of information to
  third parties pertaining to their child
• Parents have unlimited access to their childs
  attendance and counseling records, test scores,
  reports about behavior, and ANY files, documents,
  and other material maintained by the school
  district pertaining to their child.
• Parents are entitled to receive a understanding
  about assessments that may be used to determine
  learning behaviors and personality traits.
  Parental consent is needed.
• Parents can challenge or question the content
  found in the records and request an amendment to
  be added in the file if the records are
  misleading.

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FERPA VIOLATIONS

• If a school violates the regulations of FERPA
  they risk the chance of termination of federal
  funding through the U.S. Department of Education.
  Educators can face termination of employment!
• McGilvray v. Moses, 1999

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• The 4th Amendment guarantees the rights of the
  people to be secured in their persons, house,
  paper, and effects, against UNREASONABLE searches
  and seizures, shall not be violated, and no
  warrants shall issue but upon probable cause

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The Right to Privacy or the Right to Know

• Are students protected by the Fourth Amendment
  the right from unreasonable searches when
  randomly asked to submit to a urine test?

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Answer
Yes, BUT.

• As general rule, most districts practice their
  right to know when suspicion arises. If an
  individual is suspected of illegal drug
  possession or usage, they can be subjected to
  drug testing.
• This rule also applies to educators. Some
  degree of individualized suspicion is
  needed

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Searches and Seizures

• Do school officials hold the same RIGHTS as
  parents to search a student to preserve order?

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Answer

• YES!.....
• School officials can search a student if
• a there is a REASONABLE cause that the student
  has violated a school rule or law.
• the search is appropriate for the age, gender,
  and nature of offence
• A search can include lockers, cars,
  backpacks, and personal belongings

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Reasonable Cause EXCEPTIONS
Notice to students

• A school district or school can enforce a policy
  that requires a general search for ALL students.
  However, the students must be aware of this
  action in the student code of conduct. This
  includes random drug testing and metal detectors.
• Students should also know that any item in plain
  view will be taken and could be subjected to
  discipline measures.
• students privacy rights are limited in the
  public school setting because the district is
  responsible and expected to maintain order.

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Sniffer Dogs and Metal Detectors
The use of sniffer dogs or metal detectors to
inspect personal belongings, lockers and cars on
school property is NOT considered a search during
a general search.
However.
Once a sniffer dog or metal detectors alerts
school officials, there is grounds for REASONABLE
SUSPICION and a search can be conducted to locate
the contraband
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• The United States Supreme court ruled that public
  schools are entitled to protection of the Fourth
  Amendment.
• Yet, the courts realized that school officials
  may need to perform searches to maintain order.
  The FULL protection of the Constitution Does NOT
  apply to students.

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• The Educators Right to Know and Right to Privacy

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Right to know or the Right of privacy?
Is the personal information stored on a teachers
school-district owned computer private
information?
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Answer

• NO!

If the computer was issued by the school for
educational purposes, it should not be used for
private or personal use. The information stored
on the computer is NOT considered private
information and can be inspected by the district
at anytime.
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• The constitutional right of privacy does not
  protect against the disclosure of information
  about unlawful activity
• P.350

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Law of defamation slander and libel

• Defamation is false and unprivileged spoken words
  or written publication, which expose ridicules to
  lower the reputation of someone. These
  statements has a tendency to cause damage to
  ones occupation.
• Two types of defamation
• slander- oral statements
• libel- written statements

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Educators have a RIGHT to take legal action
against defamation if

• the words meets the definition of defamation
• the words were communicated to a third party
• the words are false
• caused injury
• These conditions suggest some defense to claim of
  defamation.
• Employees have the RIGHT to clear their names if
  their reputation is stigmatized due to
  defamation
• Hammond v. Katy ISD

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Summary

• The community, educators, and students have the
  RIGHT to KNOW and the RIGHT to PRIVACY.
• When a situation involves personal information,
  student records, students rights, work ethics,
  searches, and seizes, it is necessary for one act
  with caution and use common sense to avoid
  violating someones constitutional rights and the
  risk of a lawsuit. Know the difference between
  the Right to KNOW and the Right to PRIVACY.