Thursday, November 05, 2009

A Few Thoughts on Disclosure

Here are a few things that you should be aware of:

1) The No Child Left Behind Act of 2001 (NCLB), which reauthorized the Elementary and Secondary Education Act, contains a provision in Section 4155 that requires each state to have in place, a procedure to facilitate the transfer of a student’s disciplinary records, with respect to a suspension or expulsion, when the student enrolls in another public or private elementary or secondary school. Specifically, public schools are required to provide for the transfer of these records when the student is enrolling in either a public or private elementary or secondary school; however, private schools are not subject to these requirements. The transfer of disciplinary records policy pursuant to this requirement must be consistent with the Family Educational Rights and Privacy Act (FERPA) of 1974 (20 U.S.C. 1232g). Further, this federal requirement does not apply to any disciplinary records that are such transferred from a private, parochial or other nonpublic school, person, institution or other entity that provides education below the college level.

2) In my state, NJ, public high schools who receive a student from another school must request disciplinary records from the sending school within two weeks. If the student transferred from a public school, the sending school is required to send records to the receiving school. This does not need parental permission but it does require parental notification. Private schools are not required to seek disciplinary information or send it out. But public schools are required to send out disciplinary information requested by private schools.

3) If there is a health or safety emergency where the transferring student is deemed to be a threat to harm himself or others, schools are required to communicate this information without delay.

4) The action is taken by the chief school administrator or his/her designee (generally the principal or assistant/vice principal).

5) When a student is seeking to transfer to a post-secondary school, schools may (except in health or safety emergencies, where they must) send disciplinary information to where the student intends to enroll. This does not require parental (or adult student) permission, but it does require notification. Many schools have parents sign forms when they ask records to be sent to college. If the forms state that the school records sent include disciplinary records, that should be sufficient notification.

6) Parents and students have a right to view and request amendment any and all student records. This includes anything which resides in a student's permanent file (either on paper or electronically) or is sent out about the student.

7) Students (and only students, even minor students) may waive their right to access recommedation letters sent on their behalf. If students do not sign the waiver, parents do have a right to view the recommendation letter. Schools personnel, including teachers and counselors, MAY refuse to write a recommendation letter unless the waiver is signed.
Ironically, even though ONLY the student, even a minor student, may waive the right of access to recommendation letters, only the parent or adult student may request access to and amendment of these records.

8) We have a few policies in place to deal with this. For one, we have all students complete the Common Application Secondary School Report Form, no matter where they are applying. Thus we have the waiver of access on file for all students. Most students are confused about whether to sign this or not, so we spend a lot of time educating students about this. We have had a few parents recently say that they did not want to have their children sign the waiver of access and wanted to see the letter of recommendation before it went out. We informed them that this would affect what we sent out (for instance, we would not include any teachers comments that come to us in confidential letters) and that we would send a separate letter stating that the recommendation was viewed by the parent and student. No one has called our bluff yet. Mostly we are successful by explaining the similarity between the college admissions process (which they do not understand) and the job application process (which they do understand).

9) The FERPA regulations only apply to schools and colleges where there is a legal relationship to the student. Thus parents and adult students do have a right to see records of the school where a student was enrolled in the past, will be enrolling in the future or is presently enrolled. They do not have a right to see records from schools where they seek to enroll unless the student has been accepted and enrolled (at most colleges, this means signing a contract and/or paying a deposit).

10) The questions on the Common Application Secondary School Report Form and many other SSR's about discipline are problematic for public schools. For one, counselors at our school are not involved in many disciplinary decisions and we do not have access to all disciplinary records. We are not generally the designees of the Chief School Administrator, the Principal or Assistant Principals are. The law places this in their hands because they have training and education in school law, something not required of counselors. Thus counselors, at least in New Jersey, are not the ones who are authorized to communicate disciplinary information. In addition, though we have a right to communicate disciplinary information without parental permission, we do need to provide notification.

11) I have tried many times, with school lawyers and administrators, to come up with a disclosure policy where we agree that we would send all suspensions and expulsions to anywhere a student seeks to enroll. The lawyers always say the same thing: that they would consider such a policy ill advised for it would tie our hands in difficult cases and open us up to possible litigation. I still remember Colleen Quint's words in a panel I did with her about ten years ago (she is the wife of Bill Hiss from Bates, and is an expert in school law) that just because sending disciplinary records is permissable by FERPA, does not mean that you will not be sued for doing so, and possibly lose. The school lawyers stated that if we had a case where we thought a student might be a danger to others, they of course would approve us transferring that information.

12) If we had a disclosure policy for students that stated that we sent out suspensions and expulsions for students, we would not be able to selectively send out this information. By doing so, we would be considered to be acting capriciously, something that would put us in jeopardy. Thus we would need to send out all suspensions during the high school years. I do not think that is desirable or workable. When you add up all the in-school suspensions and out-of school suspensions, we would need a whole new office of Disciplinary Information Dissemination to handle this.

The major problem, though, is in my experience, is that in the cases where we would like to send records, we almost never can. In the most agregious cases, it is rarely simple. Many kids who do some outrageous acts are not suspended. Some are placed on home instruction for psychiatric reasons pending a Child Study Team evaluation, something we are forbidden by ADA from communicating. Many times these acts occur outside of school and the student's case is not adjudicated through the justice system until after the student graduates. And even if it is adjudicated before then, convictions or minors are frequently sealed convictions.

14) Personal notes that do not reside in the student's file are not subject to FERPA regulations.

15) In the very few cases where I had concerns about a student's mental health or integrity, I have placed a call to the school or college where the student was enrolling and stated that I had concerns about the student and this should be communicated to psychological services at the school or college. I am usually only as specific as I need to be. I believe that saying that I have concerns about "integrity" or "stability" or "security" usually are sufficient. I have only done this a few times in 25 years and no one has asked for specifics. If I was pressed, I would ask the receiving school or college to send a written request for records and would present this to the administration. I realize this course of action could open me up to litigation, but this is a risk I was willing to take. I always asked for this information to not be put in writing and for it not to reside in anything that could be construed to be a student record

So, in summary,

1) Our letters of recommendation are not confidential and ARE school records which can be seen by parents or adult students. But we can refuse to write recommendation letters or communicate that they are not confidential if there is not a waiver of access.

2) We may send disciplinary information to where a student seeks to enroll, but we cannot do so selectively and we need to provide parental notification. It is best to have a written policy, something I have not been able to achieve at either of the public schools where I worked (it was never a problem at any of the 3 private schools where I worked).

3) Disclosure is always more complex than just having a policy or checking boxes. It is always messier and more complicated than it seems.

4) College representatives (Bruce, are you out there?) who state that we should send any and all disciplinary information should spend a one-year internship working at a public school and they would see how unworkable a policy this would be. Though it would be nice if we could send out disciplinary information only to the colleges that ask for it, we do not have that freedom. On either side of the desk, we often engage in platitudes that sound great in theory ("all colleges should deny all inadmissable students who apply Early Decision or Action") but are much more complicated in practice.