Need for Balance between Rights and Responsibilities

However, the Buckley Amendment allows several exceptions. Private notes and memoranda of teachers and administrators (including grade books) are exempt from view. In addition, records kept separate from official files and maintained for lawenforcement purposes (for example, information about criminal behavior) cannot be disclosed, and nothing may be revealed that would jeopardize the privacy rights of other pupils. On the other hand, many schools have become more open to making information available about students who may threaten security on campus.58

Although social media are not explicitly addressed in the Buckley Amendment, educators must be careful not to reveal information about students, grades, enrollment, schedules, and related matters on Facebook, Twitter, or other social platforms.

Student-privacy policies also are affected by the Protection of Pupil Rights Amendment to the federal General Education Provisions Act of 1978. This Amendment specified that instructional materials used in connection with “any research or experimentation program or project” must be “available for inspection” by participating students’ parents and guardians. In addition, no student can be required to participate in testing, psychological examination, or treatments whose “primary purpose is to reveal information” concerning political affiliations, sexual behaviors or attitudes, psychological or mental problems, income, and other personal matters. It has been difficult to define terms such as “instructional materials” and “research program,” and many parents have used the Protection of Pupil Rights Act to object to school activities that probe students’ feelings or beliefs. Consequently, teachers and other staff must consider carefully whether collecting information on students’ background or beliefs serves a legitimate goal.59

9-3j need for balance between Rights and Responsibilities

During the past several decades, as courts have upheld the constitutional rights of students and placed restrictions on school officials, many educators and parents have decided that the legal process is out of balance. They believe the courts place too much emphasis on student rights and too little on the need for school discipline. The result, said former AFT president Albert Shanker, “is schools where little or no learning goes on because teachers have to assume the role of warden.”60

However, some scholars believe that since the mid-1980s, the Supreme Court has moved to redress the balance. In this view, the Court’s decisions in T.L.O. (1985), Bethel v. Fraser (1986), and Hazelwood v. Kuhlmeier (1988) place fewer burdens on school officials than the 1969 Tinker decision. Rather than demonstrating that certain rules are necessary, school officials now need to show only that the rules are reasonable. This

58Richard S. Vacca, “Student Records 2004,” CEPI Education Law Newsletter (May 2004), available at www.cepi.vcu.edu/publications/newsletters; Meris Stansbury, “Feds Take Huge Steps to Protect Student Privacy,” eSchool News (April 7, 2011), available at www.eschoolnews.com; and “Department Releases New Guidance on Protecting Student Privacy While Using Online Educational Services,” US Department of Education (February 25, 2014), available at www .ed.gov. 59Benjamin Dowling-Sendor, “A Matter of Privacy,” American School Board Journal (November 2004); Perry A. Zirkel, “Parental Discretion Advised?” Phi Delta Kappan (March 2006), pp. 557–558; Perry D. Drake, “Is Your Use of Social Media FERPA Compliant?” Educause (February 24, 2014), available at www.educause.edu; and Richard Yeakley, “Court Rejects Mother’s Religious Home-School Arguments,” Belief Net News (March 18, 2011), available at www .beliefnet.com. 60Albert Shanker, “Discipline in Our Schools,” New York Times (May 19, 1991, p. E7). See also Benjamin Dowling-Sendor, “Balancing Safety with Free Expression,” American School Board Journal (December 2001); and Frank LoMonte, “Tennessee Judge Strikes Careful Balance in Student’s Twitter Suspension Case,” January 6, 2014, posting by the Student Press Law Center, available at www.splc.org.