Here’s a common dilemma school administrators face.  Becky’s mom alleges that she has been bullied by Susan.  You’ve looked into it and found these allegations to be true.  Furthermore, the bullying was based on disability.  Your investigation found that Susan bullied Becky based on Becky’s low cognitive ability and the social awkwardness that came with it.  You’ve taken disciplinary action against Susan, assigning her to the DAEP for four weeks.  Now Becky’s mom wants to know what you did to Susan. How much can you say without violating Susan’s right to the privacy of her educational records? Can you say anything without violating FERPA?

The Family Policy Compliance Office (FPCO) addressed this in a letter to “anonymous” in 2017.  The context is important: the OCR had strong armed a school district into changing its policies to require that the complaining party be notified of the outcome of a disciplinary hearing. In other words, the district was required to tell Becky’s mom that Susan had been assigned to DAEP for four weeks.  “Anonymous” asked a logical question: doesn’t that violate FERPA?

FPCO said that it does not.  Key Quotes:

The Department [of Education] has long interpreted FERPA as not conflicting with the requirement in Title IX that a school notify the harassed student of the outcome of the investigation.

The Department also has long viewed FERPA as permitting a school to disclose to the parent of the harassed student….information about the sanction imposed upon the student who was found to have engaged in harassment when the sanction directly relates to the harassed student.

FPCO opines that there is no conflict between FERPA, which requires privacy, and the civil rights laws (504, Title IX, Title VI) which require disclosure.  But the letter goes on to say that even if there is a conflict, the civil rights laws take precedence.  FPCO cites:

Congressional intent that, if there is a direct conflict between the laws, FERPA should not be construed to affect the applicability of these civil rights laws, such as Title V, [disability] Title VI, [race] and Title IX [sex].

One more wrinkle is worth mentioning.  In our hypothetical, we made the bullying into a civil rights issue by positing that the bullying was based on disability. What if it wasn’t? What if Susan bullied Becky but it had to do with taste in music, or fashion, or maybe choice of boyfriend?  In that case, this FPCO letter is not relevant. The FPCO letter is limited to situations that invoke civil rights protection for the complaining party. Thus if the complaint is about discrimination based on race, sex, disability, religion or national origin, the FPCO letter applies.  But not to a garden variety complaint of bullying.

That kind of distinction can lead to some head scratching among school administrators.   Let us know if we can help with that. 

The Letter to Anonymous is dated August 1, 2017. We found it at 117 LRP 46530.

DAWG BONE: GOOD FOR “ANONYMOUS” ASKING THE QUESTIONS WE ARE AFRAID TO ASK.

Tomorrow: Toolbox Tuesday!!