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Phyllis
Errico, Editor
The issue of the right to privacy of an individual in the
context of the operation of an institution such as a public
school versus the public’s right to have access to certain
information is not a new one. This issue has been the source
of debate and legislation for many years. Both the public
at large and the press have a vested interest in and a desire
to know how public funds are being spent, what public policies
are being developed, what public programs are being advanced,
who is carrying out these duties and how they are being carried
out. This concept of the public’s right to know how the
government is being operated is thought to have originated
from the desire of the founders of this country to deviate
from the secrecy of the English Government.
Because a public school is a governmental entity and is supported
by local, state and federal monies, it is no exception to
the concept of the public’s right to know. In fact, at
times, the inquiries of public education organizations are
more frequent and probing than those of other governmental
entities for one main reason, and that is that the focus of
public schools are this country’s most precious resource,
children. Based on the fact that the public at large is intensely
interested in what goes on regarding public schools, the issue
of what rights the students, teachers and other public school
employees have in regard to their privacy is an important
issue. Equally important is the public schools’ ability
to efficiently and safely carry out business without undue
interference or disruption.
Privacy was a concept recognized early in this country and
was the subject of an article entitled “The Right to
Privacy” authored by Justices Warren and Brandeis and
published in the Harvard Law Review in 1890 at 4 Harv. L.
Rev. 193. The Supreme Court of Georgia was one of the first
courts to recognize this right when they decided Pavesich
v. New England Life Insurance Co., 122 Ga 190 (1905).
Today this country’s courts and legislatures clearly
recognize the concept of an individuals’ right to privacy
through both case law and statute. Generally, privacy interests
fit into one of four categories of protected interests: 1)
unauthorized use of a persons likeness or name, 2) invasion
of a person’s solitude or seclusion, 3) publicity that
places a person in the public eye in a false light or finally
4) public disclosure of private facts or information. Like
any right established by either statute or case law, the right
to privacy is not absolute and it must be balanced against
the right of the public to be kept informed and the responsibility
of the institution to operate in a safe and efficient manner.
In determining which way to tip the scales, one must look
at whether the public interest in obtaining the information
sought outweighs an individual’s personal interest or
in the case of an institution such as a public school whether
the responsibility of the institution outweighs the privacy
rights of the individual. Courts tend to allow greater inquiry
into the interests of those public employees who are considered
public figures such as elected officials. However, even public
figures are entitled to keep unrelated aspects of their life
private from the public scrutiny.
It is important to note that there is no constitutional right
to inspect public records, however, almost every state as
well as the federal government has enacted legislation, providing
for access to governmental meetings and records. These acts
generally provide access to either specific categories of
records or all public records except those identified as exempt
by statute. Thus, educational information is most often accessed
through federal and state open meeting and open record laws
often referred to as Sunshine Laws or Freedom of Information
Acts.
The Federal Freedom of Information Act grants access to records
of federal agencies and does not apply to state or local governmental
records. Most states have statutes similar to the federal
act and those laws define specifically who may have access
to records. These statutes allow for access which may range
from any person, to any citizen, taxpayer or member of the
press. Virginia’s Freedom of Information Act found in
the Code of Virginia beginning at section 2.2-3700, grants
access to citizens and the press with circulation or broadcast
in the Commonwealth.
Members of the press are often the most vocal and active
advocates for open meetings and open records. This is perhaps
most evident in the numerous requests made by the press to
public entities as well as their focused and continuous efforts
in the legislatures to broaden the areas of inquiry and disclosure.
However, others such as citizens, professional associations
or employee organizations, and parents are also frequent requestors
of information.
These individuals and entities seeking access to meetings
and information argue that school boards and their employees
are engaged in using public funds to operate a public institution.
Therefore, any information regarding the schools and their
operations should be discussed in open meetings, and records
should be subject to inspection freely so that these operations
can be audited and overseen by the public. These parties argue
that only with an open system can they be assured that policies,
practices and funds are being developed, applied and utilized
in a fair, accurate and consistent manner, according to the
wishes of the constituents.
The advocates for the privacy of individual students and
public employees are generally parents, employees and the
officials of the governmental entities respectively. They
argue that information from individual student or employee
records is not necessary to monitor the operation of the public
business and that conducting all business in a completely
public manner adversely affects the ability to run the day
to day operations efficiently or effectively. A student or
employees’ interest in nondisclosure of certain information
regarding them personally is self-explanatory. However, arguments
by government officials against total disclosure have more
to do with the ability to address certain situations that
arise without having to worry about public reaction, as well
as the ability to negotiate deals such as contracts and land
sales or to be represented in litigation without the other
party having full knowledge of the public entities’ strategy
or position.
The public’s right to know versus the individuals privacy
interest in the public school context has been the subject
of intensive study, legislation and case law for many years.
The Supreme Court decision of Tinker v. Des Moines Independent
Community School District, 393 U.S. 503 (1969) is one
of the most important and frequently cited cases regarding
student rights in the school setting. Although this was a
case involving freedom of expression under the First Amendment,
the court clearly ruled that neither students nor teachers
shed their constitutional rights at the schoolhouse gates.
Tinker is often cited in later case law involving student’s
privacy in the context of search and seizure in the public
schools.
The Supreme Court defined the appropriate parameters for
school searches in the case of New Jersey v. T.L.O.,
469 U.S. 325 (1985). The T.L.O. case involved a search
of a student by a school official, which resulted in confiscation
of contraband that was a violation of school rules and the
law. The Supreme Court upheld the search by the school official
while, at the same time, confirming that students do have
a reasonable expectation of privacy on school grounds and
that school officials are subject to the requirements of the
Fourth Amendment.
After the T.L.O. decision, the issue of drug testing
of students and subsequently school employees became the focus
of the privacy debate in the public school arena. In 1995
the Supreme Court surprised many personal privacy advocates
when it decided the case of Vernonia School District v.
Acton, 515 U.S. 646 (1995). In this case, the court tipped
the scales in favor of the public schools’ right and
responsibility to maintain a safe and orderly learning environment
and against the individual students’ right to privacy
in upholding the schools random drug testing policy of all
student athletes. This case sent a strong message to the public
that school safety was of paramount concern and that drug
use was considered a threat to this safety thus the intrusion
of the athlete’s individual right to privacy was warranted.
In more recent years, the issue of employee privacy has arisen
in the context of drug and alcohol workplace policies. Most
public school organizations have drug and alcohol free workplace
policies that prohibit employees from participating in drug
or alcohol use at the workplace, during work activities or
prior to work if it would result in being under the influence
on duty. These policies have been in effect for some years
and often provide that an employee shall be tested if there
is a reasonable suspicion that the employee has been using
alcohol or drugs. There has been little controversy over the
wisdom of such zero tolerance policies and reasonable suspicion
testing because it is widely understood that in issues involving
the safety and supervision of students, there is little room
for error. What has caused some controversy, however, is the
prospect of random testing of teachers and other school employees.
Although the testing of public safety employees has long
been upheld by the Supreme Court, the concept of including
school employees in this category is relatively recent. Skinner
v. Railway Labor Executives Association, 489 U.S. 602
(1989) and National Treasury Employees Union vs. Von Raab,
489 U.S. 656 (1989) were two cases decided in the same year
by the Supreme Court which upheld drug and alcohol testing
without individualized suspicion for railroad employees and
custom service employees respectively. In addition, federal
law requires drug and alcohol testing of those who hold a
Commercial Drivers License including school employees such
as bus drivers, pursuant to the Omnibus Transportation Employee
Testing Act.
Random drug testing of teachers and other school employees
has recently been ruled on by the Sixth Circuit Court of Appeals
in the case of Knox County Education Association v. Knox
Board of Education, 158 F.3d 361 (1998). In the Knox case,
the court upheld a school board policy that permitted suspicionless
drug testing of applicants for certain positions. In its analysis,
the court determined that a teacher’s legitimate expectation
of privacy was diminished by working in a highly regulated
industry that involved the care of students. The court further
determined that the public interest in suspicionless testing
outweighed the individuals privacy concerns. Critics of this
type of suspicionless search argue that it is not only highly
intrusive, but that is also an insult to the professionalism
of school employees.
In addition to the case law discussed above, the confidentiality
rights of both students and employees in their educational
or personnel records are generally governed by state and federal
statute. In many states, some portions of personnel records
are exempt from disclosure while other information is subject
to public record request and disclosure. However, many state
statutes do require consent from and notification to the individual
if their records will be disclosed to a third party.
The federal law governing the confidentiality of student
records is The Family Educational Rights and Privacy Act (FERPA)
often referred to as the Buckley Amendment. This statute,
passed in 1974 and found in the United States Code, provides
access to records by parents and eligible students as well
as protection from disclosure of these records to others.
Specifically, this statute provides that no federal funds
will be made available to an educational institution which
has a policy or practice of permitting the release of education
records or personally identifiable information other than
directory information without written consent, except under
very specific and limited circumstances. Directory information
includes the student’s name, address, telephone number
and date and place of birth among other things. The statute
also provides a parent the opportunity to object to the release
of directory information.
FERPA’s most recent challenge currently before the Supreme
Court of the United States involves the exchange of homework
papers in class so that students may grade one another’s
papers. Argued in November of 2001 before the Supreme Court,
the case of Falvo v. A Owasso 233 F.3rd 1203 (10 cir.)
reviews the 10th Circuit’s decision that the grades which
students record on one another’s homework constitute
education records. The 10th Circuit held that student rights
under FERPA were violated by the teacher’s practice which
included students grading each other’s papers and then
reporting the grade to the teacher in the open classroom.
The Supreme Court’s decision in this case is being closely
followed by school divisions across the country and its ruling
will have widespread impact on day to day classroom activities.
As mentioned earlier, the primary law governing student education
records is found in the Family Educational Rights and Privacy
Act of 1974. There are also state statutes regarding student
records and in Virginia these can be found in the Code of
Virginia sections 22.1-287 through 22.1-289. It is important
to note that the state laws regarding student records are
not always consistent with FERPA. Although it is encouraged,
reading the two acts in concert is not always possible. If
it is necessary to go beyond the limits of the federal act
to satisfy the state statute, school divisions should be aware
that they may risk withdrawal of federal funds.
The two major provisions of FERPA and most state student
records laws are the right of access to student records by
the parents of that student and appropriate safeguards regarding
disclosure to other than the parent or student. The access
provisions assure parents that they may be privy to and have
copies of educational records that pertain to their child.
They may also take issue with the accuracy of these records,
and parents are provided a process to contest any record or
its contents. FERPA does not consider notes made by an educator
regarding a student to be educational records if those notes
are only shared with a substitute and are not made part of
a student file. However, educators should be aware that these
same notes could be subpoenaed in litigation. This issue arises
often in the case of guidance counselors who keep anecdotal
notes regarding students they see, as well as with administrators
who keep notes about disciplinary matters regarding specific
students.
The matters of disclosure or non-disclosure of educational
records can be quite complicated in practice. The general
rule is that educational records should not be disclosed to
anyone other than a parent or child except school employees
with a legitimate need to know. The exceptions to this general
rule are fairly specific and can prove to be tricky in the
day to day school operation. It is crucial to understand that
disclosure not only includes revealing a record, but also
includes communication of this information by oral, written,
electronic or any other means. Thus, educators must be extremely
careful in discussions they have with friends, neighbors,
students and parents that they do not reveal information regarding
educational records. This is why disciplinary hearings are
held in closed sessions and the outcomes are voted on by school
officials using codes instead of student names. This is most
frustrating to parents whose children are either the subject
or the victim of a student disciplinary matter involving multiple
students and they very much want to know what punishment was
given to students other than their own.
Another important concern for educators and staff is to make
sure to whom they are speaking about a particular student
in order to determine whether that person has the proper authority
to obtain information regarding a student. This arises in
the public school context when school officials receive telephone
calls, letters or faxes requesting information about a particular
student or students. Often these calls come from non-custodial
parents, friends or relatives of the child, or agencies involved
with the child or the family. School officials should, if
possible, require the requester to come in person and provide
appropriate documentation of their identity. If the person
is not local, then the school should have them send proof
of identification before any information is shared.
An additional safeguard would be to check with the enrolling
parent or legal custodian regarding the identity and status
of the requester. The safest course of action is to obtain
written consent from a parent or legal custodian before any
information is shared. It is important to note that many states,
including Virginia, allow non-custodial parents the right
to inspect and have copies of their child’s education
records and to participate in their child’s education,
absent a court order to the contrary.
The most frequent and commonly exercised exceptions to the
consent requirement of FERPA warrant mention and these include:
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Schools to which a student seeks to enroll;
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Federal, state or local education authorities for audit
purposes;
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State or local juvenile justice officials where allowed
by state statute and the disclosure concerns the ability
to serve the student prior to adjudication;
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Health and safety emergencies and
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Judicial Orders or subpoenas.
This list is not extensive but does touch on those situations
that most often occur. A frequent issue arises when a law
enforcement officer, probation official or other public agency
requests student educational information. If those officials
do not fit into one of FERPA’s delineated exceptions, consent
from the parent must be obtained prior to disclosure. Each
request for disclosure should be analyzed carefully to determine
the appropriate action.
Generally speaking, employee records are not protected to
the same extent as student records although many states require
that an employee be notified prior to disclosure of records
from their personnel file. It is generally true that an employee
shall have access to their own personnel information. In addition,
most Open Record or Freedom of Information statutes allow
personnel records to be withheld from disclosure with certain
specific exceptions. Virginia’s Government Data Collection
and Dissemination Practices Act sets the parameters for how
data is collected and under what circumstances disclosure
is permitted. Personnel records are generally not required
to be disclosed under Virginia’s Freedom of Information
Act, however, certain information such as the contracts, salaries,
reimbursements and expenses for public employees earning over
$10,000 annually must be disclosed if requested. The press,
if not the public at large, has great curiosity regarding
what high ranking school officials are earning. Thus, this
is generally a well-covered topic in the press.
Even though public entities must follow state and federal
law regarding personnel records, most school divisions have
practices or policies regarding the disclosure of personnel
records without the consent of the employee and this is a
prudent step in order to preserve the ability to honestly
and appropriately evaluate employees without the worry of
litigation. There is a movement towards more openness regarding
public school employee’s performance and background.
Virginia is one of many states which require new school employees
to be fingerprinted. Virginia law also provides for notification
by law enforcement to the appropriate school system of arrests
of school employees for certain offenses including sexual
assault, obscenity and crimes of moral turpitude. Thus, although
this information may be protected from disclosure to the public,
it is maintained and collected by the public school system
and used appropriately in order to fulfill its responsibility
to provide a safe school environment.
Some states including Virginia have enacted immunity statutes,
which protect public school officials from suit when they
provide references regarding former employees. The obvious
reason for this type of legislation is so that former employers
will be frank with prospective employers and that problem
employees will not be passed along from one school system
to another. These statutes may be rendered less effective
in achieving this goal, however, as many deficient employees
are allowed to resign with the promise that a neutral reference
will be given.
The Fourth Amendment to the United States Constitution protects
citizens from unreasonable search and seizure by governmental
officials. The Supreme Court clearly decided that the Fourth
Amendment applies to searches of students and their belongings
by school officials in the school setting in its 1985 T.L.O.
decision. However, a natural conflict exists between the privacy
rights of students and the responsibility of public school
officials to maintain a safe school environment. The increase
in drugs, weapons and violence on school campuses has greatly
heightened the expectations placed on school officials to
maintain a safe environment.
In order to address this natural conflict, the Supreme Court
in its T.L.O. decision set forth a two-prong test to
analyze the reasonableness of searches of students. The first
prong requires that the search be reasonable in its inception,
meaning that the school official must have reasonable cause
to believe that a student has violated a school rule or the
law. The second prong is that the search itself must be reasonable
in its scope taking into account the age and sex of the student,
the item being searched for and the location where the search
takes place. Thus the balance of the interests acknowledges
a student’s reasonable expectation of privacy while allowing
a school official to determine under what circumstances a
search should take place in order to maintain the safety of
the school environment. The higher the safety risk involved,
the more likely a court will support a search even if it is
relatively intrusive in nature.
Interestingly enough, the Supreme Court set a similar standard
regarding public sector employee privacy in the workplace.
In the case of O’Connor v. Ortega, 480 U.S. 709
(1987), the Supreme Court emphasized the fact that searches
and seizures by government employers of their employees and
their property are subject to the restraints of the Fourth
Amendment. This case involved an employer’s search of
an employee’s office in which it seized personal items
from the employee’s desk and file cabinets. In its analysis,
the court pointed out that an employee does have a reasonable
expectation of privacy in his desk and that these situations
require a balancing of the employee’s reasonable expectation
of privacy against the employer’s need for supervision,
control and the efficient operation of the workplace. The
Supreme Court ruled that the search must be reasonable in
its inception and in its scope, thus mirroring its standard
set forth in the T.L.O. decision.
Perhaps the clearest distinction between the school setting
with students and the office setting with employees is the
difference in the reasonable expectation of privacy. An employee
may easily have a reasonable expectation of privacy in their
work desk, however, in most cases, a student does not have
such an expectation in their desk or locker. In any case,
the school administration or employer may take steps to lesson
the student or employee’s expectation of privacy through
policy, regulation, practice or notice.
Perhaps the single largest evolving issue related to the
conflict between the individual student or school employee’s
right to privacy and the responsibility of the institution
to the public, as well as the safe secure operation of the
institution, is in the area of electronic communications.
This includes audio, video and digital technology. Employers
have a legitimate interest in the productivity of the workforce
and educators have that same interest regarding students.
Recent events have led to increased monitoring in school buses,
on school campuses and in the office as well as an increased
interest and awareness about the productivity of time spent
on computers.
Productivity is merely one issue but it is secondary in the
school setting to safety, security and an environment free
from racial, sexual, threatening, violent and other inappropriate
material or activity. In addition, added concerns involve
the security of sensitive information such as student grades
and other confidential information, as well as deterrence
from activities that may constitute copyright infractions.
All of these concerns in the school and the work place have
resulted in an environment of close monitoring or at least
the ability for such monitoring should the person in authority
so decide.
In this environment, the individual privacy rights of the
student or employee are in most cases quite limited. Therefore,
this area is ripe for challenge and close analysis by the
courts. In fact, the Fourth circuit recently decided a case
involving the search of an employee’s computer by his
employer. The search resulted in the seizure of pornography
the employee had downloaded. In holding in favor of the reasonableness
of the employer’s search, this case turned on a well-crafted
Internet use policy that provided that the employer would
audit, inspect and monitor employee use of the Internet. U.S.
v. Mark L. Simons, 206 F.3d 392 (4th Cir. 2000).
Employees and students alike tend to use school system equipment
and a fair amount of time corresponding with others through
e-mail. It is thus crucial to address how e-mail will be treated
both in the case of student conduct and through employee computer
use policies. Two issues that arise under the open records
and open meeting analysis are whether e-mails between public
boards constitute a meeting and whether e-mails are public
records subject to disclosure. Generally speaking, the former
situation will not constitute a meeting when not done in real
time and in the latter situation, e-mails are considered public
records subject to disclosure. In any case, it is important
to let both students and employees know that the expectation
of privacy on their computers and with electronic correspondence
is limited.
It is clear from case law and actual history that the conflict
among individual privacy rights, the right of the public to
know what is taking place in school governance and the responsibility
of the institutions to maintain an appropriate school environment
is here to stay. In fact, because violence and drugs continue
to disrupt both our society and the school environment, it
is likely that the trend towards erosion of individual rights
in the classroom and workplace will continue and that the
courts will continue to support the efforts of the institution
to provide a safe and productive learning environment.
It remains important, however, to respect the dignity of
the students and employees of the school community. In order
to support this goal, it is crucial that school divisions
have clear policies regarding fingerprinting, drug and alcohol
screening and search and seizure and how, where and under
what circumstances all of these tools may be used. It is also
important to make sure students and employees alike are aware
of these policies and understand the potential consequences
of their actions. Therefore, it is not enough just to enact
such policies. It is important to provide access to training
for both students and employees regarding these policies so
that all parties understand what the expectation of privacy
is under certain conditions and that any intrusion upon these
privacy rights occur in a fair, appropriate and consistent
manner.
Huefner, Dixie Snow, FERPA Update: Balancing Access to and
Privacy of Student Records, 152 Ed. Law Rep. 469 (June 7,
2001)
Mawdsley, Ralph D., Litigation Involving FERPA, 110 Ed. Law
Rep. 897 (September 6, 1996)
Rapp, James A., Education Law, Volume 3, Section 9.08, Searches
and Investigations, Matthew Bender and Co.
Rapp, James A., Education Law, Volume 1, Section 13, Education
Records, Matthew Bender and Co.
Russo, Charles J. and Mawdsley, Ralph D., Drug Testing of
Teachers: Student Safety v. Teacher Rights or an Overreaching
School Board, 134 Ed. Law Rep. 661 (July 22, 1999)
Stefkowich, Jacqueline A., O’Brien, Jacqueline A., O’Brien
G. Michael, Drug Testing of Students In Public Schools: Implications
of Vernonia School District v. Acton for Other Types of School
Related Drug Searches, 113 Ed. Law Rep. (Dec. 12, 1996)
Waller, Peter A., Confidentiality of Education Records: Serious
Risks for Parents and School Districts, 26 J.L. & Educ.
11 (July 1997)
Winters, Steven B., Do Not Fold, Spindle or Mutilate: An
Examination of Workplace Privacy in Electronic Mail, 1 S.
Cal. Interdisciplinary L.J. 95 (Spring 1992)
Wilborn, Elizabeth S., Revisiting the Public/Private Distinction:
Employee Monitoring in the Workplace, 32 Ga. L. Rev. 825 (Spring
1998)
Click cepi@vcu.edu to provide
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