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The Legal Consequences of Hitting “Send” Karen Haase Harding & Shultz (402) 434-3000 khaase@hslegalfirm.com H & S School Law @KarenHaase

Confidentiality

FERPA  Family Education Rights and Privacy Act (sometimes called “The Buckley Amendment”)  Response to perception of • Secrecy of files from students and parents • Disclosure of information to third parties

What does FERPA do? Staff may not disclose personally identifiable information about students, nor permit inspection of their records by third parties, without the prior written consent, unless such inspection is permitted by the exceptions in FERPA.

L.S. v. Mount Olive Bd. Of Ed. (D.N.J. 2011)

 Catcher in the Rye Assignment  Parent sued • School • Principal • Teacher • School psych.  Court: teacher and psych personally liable – other school defendants dismissed

Letter to Wolf (FPCO 2011)

   

Principal and teacher at volleyball game Parent sued school Parent also filed complaint with FPCO FPCO • “discussion should not have occurred in this public location and [staff] exercised poor judgment in breaching confidence” • Related lawsuit settled

Letter to Anonymous (FPCO 2013)

 Teacher’s practice was to e-mail each student who failed a test with a “remediation form”  Accidentally sent e-mail to entire group  Asked FPCO for guidance  FPCO • Violation of FERPA • Contacted school • Launched an investigation

Letter to Anonymous (FPCO 2013)

 Two school board members at board meeting discussing issue with sons  Parent filed complaint with FPCO  FPCO • Violation of FERPA • Emphasized broad definition of “school staff”

An e-mail by any other name     

A Business Record A Public Record An Education Record A SpEd Record A Hearing Exhibit

E-mail as Business Record

E-mail as Business Record  Rule 26 – duty to disclose; general provisions governing discovery  Rule 37 – failure to make or cooperate in discovery; sanctions  Rule 37(f) – safe harbor  Requires “litigation hold” memoranda when there is “pending or reasonably anticipated litigation”

G.W. v. Rye City Sch. Dist., 61 IDELR 14 (S.D.N.Y 2013) 



Private school student • Parents privately placed; kept telling school student would return next year • Parents sued claiming draft IEPs inadequate and predetermined School system purged e-mails every 6 months • Parents claimed spoliation

G.W. v. Rye City Sch. Dist., 61 IDELR 14 (S.D.N.Y 2013)

 Hearing Officer: found for School  Federal Court • No evidence of bad faith on school’s part • No evidence that missing e-mails were relevant • School Psych printed and retained all e-mails in her file

Mason City School District, 113 LRP 10255 (Ohio SEA 2013)

 Student placed in out-of-district day school  Parent asked for videos, pictures, emails and other documents  School asked for parent to limit scope of her request

Mason City School District, 113 LRP 10255 (Ohio SEA 2013)

 Parent’s response, “I requesting all email or other communications that have gone between staff at (the district) and staff at the (WCLC) pertaining to (the student).”  School: you can look at our stuff, but we don’t control contracted school.

Mason City School District, 113 LRP 10255 (Ohio SEA 2013)

 Ohio Department of Ed: No FERPA violation by resident district • Offered to allow parent to review • Provided all education records that resident district “maintained” • Parent may wish to pursue FERPA remedies against with contracted district

E-mail as Public Record

E-mail as Public Record  In most states, e-mails public records – even if they are on your home computers  Nebraska Attorney General’s Office, Disposition Letter re Hyannis Area Schools (2007)

Kokomo-Center Township Sch., 110 LRP 55120

 Parent asked to see student’s testing protocols  School required parent to complete Public Records Act Form  Indiana Dept. of Ed. Found violation of FERPA and IDEA

Ellis v Cleveland Muni. Sch. Dist., 104 LRP 14907

 Student suing over corporal punishment by subs  Sought records involving allegations of physical altercations  School claimed student records therefore protected by FERPA and not public records

Ellis v Cleveland Muni. Sch. Dist., 104 LRP 14907

 Court: School must disclose • Records not “education records” as defined by FERPA, therefore public records • “Congress did not intend FERPA to cover records directly related to teachers and only tangentially related to students.”

Retention Implications  Must follow state retention statutes  “correspondence concerning students:” maintain until graduation or after 3 years’ absence  SpEd records: maintain 5 years after no longer needed for services

E-mail as Education Record

E-mail as Education Record  FERPA: “education record” means materials which “contain information directly related to a student [and] maintained by an educational agency”  Includes “print or computer media”

Owasso Ind. Sch. Dist. v. Falvo, 534 U.S. 426 (2002)

 Parent sued over peer grading  Supreme Court: No FERPA violation  Grades not “education records” until recorded in grade book.  peer-graded items were not "maintained“ – students only handled items for a few moments.  Student graders not “person acting for an educational institution”

S.A. v. Tulare County Office of Educ., 109 LRP 60382 (E.D. Cal. 2009)

ď&#x201A;§ Parents asked for copies of all e-mail sent or received by the district concerning or personally identifying their autistic son. ď&#x201A;§ District sent only e-mails which were printed and in file. ď&#x201A;§ Parents claimed all e-mails that specifically identify the student, are education records

S.A. v. Tulare County Office of Educ., 109 LRP 60382 (E.D. Cal. 2009)

 Cal. Dept. of Ed. upheld the district's interpretation  Parents appealed, arguing that all emails are “maintained” in the district's electronic mail system and could be located with tech. search

S.A. v. Tulare County Office of Educ., 109 LRP 60382 (E.D. Cal. 2009)

 Court: Ruled for School • FERPA contemplates that ed. records be kept in one place • "An e-mail may be sent, received, read and deleted within moments” • Rejected idea that all e-mails on any computer that identify student are “maintained” by school

Washoe County Sch. Dist. (Washoe I), 109 LRP 78026 (Nev. April 2, 2009)

 Parents requested “complete copy” of child's education records. • Parents noticed e-mails they had sent school were missing • School responded that e-mails, unless archived by staff, were deleted from its server within 60 days • Parents filed state department of ed complaint

Washoe County Sch. Dist. (Washoe I), 109 LRP 78026 (Nev. April 2, 2009)

 Department: violation of FERPA and IDEA  FERPA • defines "record" to mean any information recorded in any way, including computer media • Didn’t include copies upon request

Washoe County Sch. Dist. (Washoe II), 114 LRP 25728 (Nev. May 23, 2014)

 Parents of student with autism requested copies of documents related to “roller skating observation” • All documents were e-mails • School initially declined to provide documents • After IEP printed, made copies and provided • Parents filed state department of ed complaint

Washoe County Sch. Dist. (Washoe II), 114 LRP 25728 (Nev. May 23, 2014)

 Department: NOT a violation of FERPA or IDEA • Quoted Owasso and Tulare • Held no violation • Re Washoe I: “Since a complaint report must reflect the statutory, regulatory and judicial authority at the time of the alleged violation, the NDE does not view the conclusion of law in the prior complaint report to have a bearing on this determination”

Red Lion Area Sch. Dist., 112 LRP 2720 (Penn. SEA 2011)

 Long history of litigation between family and school  Parents demanded all e-mail:

Red Lion Area Sch. Dist., 112 LRP 2720 (Penn. SEA 2011)

ď&#x201A;§ "correspondence among members of the IEP team and/or district staff that may or may not consider themselves or be considered IEP team members either through e-mail or hard copy communication." ď&#x201A;§ The district provided only e-mails from student's permanent file

Red Lion Area Sch. Dist., 112 LRP 2720 (Penn. SEA 2011)

 Produced two bankers' boxes worth of documents to the parents.  District had created two storage archives for Student on its server.  Hearing officer: no violation of FERPA

E-mail as Special Ed Record

E-mail as Special Ed Record  IDEA requires notification of SpEd parents prior to deleting ed records which contain “personally identify information collected, maintained, or used”  If e-mail is SpEd record, you’ll have to notify before hitting “delete” (!!)

Washoe County Sch. Dist., 109 LRP 78026 (Nev. April 2, 2009)

 IDEA • Requires districts to inform parents when personally identifiable information is no longer needed • School was obligated to inform the parents that the information in the messages was no longer needed • “safe harbor” of Rule 27 not protection in IDEA context

Washoe County Sch. Dist. (Washoe II), 114 LRP 25728 (Nev. May 23, 2014)

Rachel L. v. State of Hawaii, 59 IDELR 244 (Haw. 2012)

 Parent who claimed she was excluded from IEP process  Staff repeatedly tried to schedule IEP meeting with mother  Parent claimed she didn't receive notice of meetings because school sent notices to old email address

Rachel L. v. State of Hawaii, 59 IDELR 244 (Haw. 2012)

 Court: ruled for school • Parent continued using that same email address to communicate with the district • Parents e-mailed school telling it to use that e-mail address • School attempted to use other means to contact parent

R.P. v. Alamo Heights Indep. Sch., 60 IDELR 60 (5th Cir. 2010)

 Nonverbal student needed AT eval • Team requested in spring 2008 • Eval completed but not reviewed until June 2009 • Two intervening IEP meetings  AT ultimately implemented  Parents sued claiming delay denied FAPE

R.P. v. Alamo Heights Indep. Sch., 60 IDELR 60 (5th Cir. 2010)

 School: assessment conducted on time and discussed by IEP team  Court: factually untrue • January 2009 e-mail from school psych • Asked about assessment • Confirmed not discussed at IEP team meetings

E-mail as Hearing Exhibits

A.C. v. Shelby County Board of Ed., 60 IDELR 271 (6th Cir. 2013)

 504 student with diabetes and peanut allergy  Tension between mom and principal immediately  Voicemail:

A.C. v. Shelby County Board of Ed., 60 IDELR 271 (6th Cir. 2013) Hey, Barbara. I know we're having a meeting tomorrow about [student]. This is Kay Williams from Bon Lin. [Mom] is here causing all kinds of confusion and [teacher] has already broken down and cried. This woman is out to lunch. My teacher had ten minutes for lunch because she's trying to make sure there are no peanut people by her, and now she claims the kid did sit by her with peanut butter. I mean, yet she doesn't want the child sitting at another table because she doesn't want her singled out. I don't know what to do with this lady anymore. She does not reason or have any common sense. So you know that since I am the one with common sense, I am going to have a little problem with her. But at any rate, love ya, and I'll see you tomorrow unless you want to call.

A.C. v. Shelby County Board of Ed., 60 IDELR 271 (6th Cir. 2013)

 Mom filed OCR complaint on other issues; school lost every issue  School allowed mom to write own HCP, nurses uncomfortable implementing  Constant blood sugar issues  Principal reported mom to HHS for medical neglect

A.C. v. Shelby County Board of Ed., 60 IDELR 271 (6th Cir. 2013)

 Mom sued claiming report of abuse made in retaliation for advocacy  Court: e-mails could support claim • Principal referenced parent’s “harassment” of school • Showed concern about parent not for student

Falls Church City Pub. Sch., 112 LRP 502380 (6th Cir. 2013)

 Mother sent numerous e-mails to teachers throughout the year  Teachers (including algebra) replied for most of school year  By March Algebra teacher had enough:

Falls Church City Pub. Sch., 112 LRP 502380 (6th Cir. 2013)

 Algebra Teacher • E-mailed principal that mom’s e-mails were lies and school should “cut her off” • Replied to mom, “I don’t have time for your lies” • “Be careful with your ‘statements of fact’ because my attorney has made me very aware of the slander laws . . . And my options for legal recourse”

Falls Church City Pub. Sch., 112 LRP 502380 (6th Cir. 2013)

 Mom complained to OCR claiming e-mails were retaliation  OCR: insufficient evidence of retaliation • Teacher genuinely believed parent was lying • No adverse action; Teacher continued to reply to e-mails • Threat of litigation true and school didn’t influence teacher’s decision to seek legal counsel

M.J.C. v. Special Sch. Dist. No. 1, 58 IDELR 288 (Minn. 2012)

 Parents requested eval; student diagnosed with ADHD but parent would not provide documentation  Staff e-mails referred mom as “difficult;” “hard to work with”  Court: violation of child find  School didn’t want to verify because didn’t want to work with mom

Responding to Parent E-mails

In re Ogallala Public Schools, 106 LRP 913 (Neb SEA 2005)

 Parent unhappy with services  Send several e-mails per week to multiple staff members  Building principal instituted “communication ban” • • •

All e-mail had to be sent to principal or special ed director Response once per week Later once per month

In re Ogallala Public Schools, 106 LRP 913 (Neb SEA 2005)

 Parent claimed violation of right to participate in IEP team  Hearing officer • •

Special ed parent only entitled to same communication as gen ed “While the right to be involved is important, it is not an unabridged right. [School] must necessarily be able to maintain control over the time, manner, and method of contact with its employees.”

Granville County (NC) Schools, 57 IDELR 203 (OCR 2011)

 Parent in e-mail called teacher “incompetent”  Superintendent banned from all e-mail communication with school  Parent claimed retaliation  School • • •

16 e-mails a day E-mails “intimidating” and “threatening” One other parent had been banned

Granville County (NC) Schools, 57 IDELR 203 (OCR 2011)

 OCR • • •

E-mails provided to OCR – not 16 per day “Threats” were of legal action and complaints” One other parent had been banned – for Title IX complaints

 Concluded District’s ban was retaliation

Practical Pointers

Practical Pointers  Find, review and comply with your e-mail retention policy  Comply with state retentions schedule  Keep relevant SpEd emails in hard copy  Notify before deletion  Think about other methods of digital communication • Text messages • Social media (Facebook, Twitter, Instagram, etc.) • Evernote

Practical Pointers  Remember the Federal Rules (Litigation Hold)  Auto spell check, proofing, etc.  Instill a culture of oral, not e-mail, griping

Practical Pointers  Personal devices aren’t exempt • Probably not “education records” • Could be business records or hearing exhibits  Personal identifiers won’t save you  Obtain parent consent before e-mailing records

Practical Pointers  Dealing with parent e-mails • Remember difference between disruption and advocacy • Consider an “e-mail diet” instead of an “email ban” • Consider describing e-mail protocol in IEP rather than ad hoc

Questions?

The Legal Consequences of Hitting “Send” Karen Haase Harding & Shultz (402) 434-3000 khaase@hslegalfirm.com H & S School Law @KarenHaase