Thursday, August 07, 2008

DiscA few comments about the reporting of disciplinary infractions to colleges:

1) Just because it is permissible by FERPA, does not make it legal in every instance. For instance, some state laws are more restrictive about the release of data.

2) Something that is permissible in FERPA only means the school does not risk the loss of federal funds if one takes that action. It is NOT a protection against liability.

3) Even if it is perfectly legal, there is still a risk that a school and/or individuals at a school may be sued and may lose, particularly if there is no policy to guide what is released or the action is seen as capricious or arbitrary or inconsistent. So there are some recommendations I believe everyone should follow to keep you out of court and the poor house:

1) Have a policy that is clear, consistent and operational. There should be no question if a certain action falls under this policy. If should cover every case ("whenever a student seeks to transfer"), type of offense ("resulting in suspension or expulsion") and circumstance ("whether the offense occurred in the pre-admission or post-admission process")

2) Be consistent in the application of this policy. All exceptions should be laid out in advance ("students who entered and completed in-patient rehabilitation programs following a drug or alcohol offense.."). You put yourself in great jeopardy if you selectively enforce the disclosure of offenses.

3) Make sure the administration (headmaster, principal, superintendent) and school lawyers make the final call on any decisions both about policy and action. They likely have training in school law that you do not have. They also, through the position, have ultimate authority and responsibility.

4) Realize that hand-written notes as a response to a phone call are as admissible in court as an "official" letter. Calling a college or school and communicating information may carry substantial risk.

5) Look over the expectations on disclosure from the college end. If there is a statement that the student is expected to inform the college of infractions in the pre- or post-admissions process, you should warn the student and parent that failing to do so could put his//her admission at risk (as was the case with Gina Grant and Harvard) and that the student should be encouraged to make appropriate disclosures.

6) If you genuinely feel the student is a risk to him/herself or others, you may be at greater risk by not communicating this information to a college than doing so. It is important that you put your concerns in writing that you feel the student is a risk to himself or others and that you implore the administration to allow you to communicate this danger. FERPA makes specific mention of protecting disclosure that protects others from harm.

7) As a last resort, you may want to get administrative approval or parent approval to contact the Dean's office or office of psychological services with concerns about mental health issues without necessarily being specific about the actions that led to your concerns..losure