In the fast changing world of COVID related legal issues, a letter from the Student Privacy Police Office dated April 16, 2021 seems like ancient history. Nevertheless, it’s worth mentioning, particularly in how it treats the “health and safety” exception under FERPA.
Let’s review. The general rule under FERPA is that personally identifiable information about a student contained in education records is not to be disclosed without parent consent. There are numerous exceptions to that general rule. The most commonly used exception is the one that permits disclosure to other school officials who have a legitimate educational interest in having the information. This is what enables teachers and counselors and administrators to talk about students without getting parent consent for every conversation.
Another widely used exception involves health and safety. That’s the one cited in the SPPO’s “Letter to Anonymous.” “Anonymous” had complained that a teacher “disclosed my children’s positive test results for COVID to not only fellow staff, but to students as well.” The response:
Based on the facts you provided this Office, your complaint does not give this Office reasonable cause to believe that there has been a violation of FERPA.
SPPO notes that the “health and safety” exception permits disclosure “in connection with an emergency if knowledge of the information is necessary to protect the health or safety of the student or other individuals.” Agencies can “take into account the totality of the circumstances” and if “there is an articulable and significant threat to the health or safety of a student or other individuals it may disclose information from education records to any person whose knowledge of the information is necessary to protect the health or safety of the student or other individuals.”
That’s not a permission to tell everyone everything that you know. And there are laws and regulations besides FERPA to think about. What is your district policy about this? What direction have you gotten from your board or superintendent? What is T.E.A.’s guidance? The guidance from the Agency has changed as the months have rolled by. Currently that guidance requires only two notices: first, to the local health department for each positive; and second, to the TDSHAS on a weekly basis for all positives.
Moreover, there is the Vast Reservoir of Common Sense. It might be appropriate to inform parents that there was a positive test in the third grade without giving out a particular student’s name. Let’s not gossip. Let’s inform those who need to know.
DAWG BONE: COMMON SENSE AND THE LAW ARE OFTEN ALIGNED.
Got a question or comment for the Dawg? Let me hear from you at firstname.lastname@example.org.
Tomorrow: Four custodians race to the car to go to the lunch. How does this end up in litigation?