This week we’ve been looking at cases that address a parent’s right to make educational decisions and to be informed of what is going on at school. Sometimes the right of the parent, or the interest of the parent, may infringe on the student’s sense of privacy. Sometimes kids tell things to counselors or teachers or coaches with the request: “please don’t tell my parents.”
The Daily Dawg is not the place to even try to offer some simple resolution of the issues that such a request presents. If you are facing that situation, you likely need to bounce it off your school lawyer. Many factors come into play. What are we talking about? Does your school policy address the issue? Is it a matter of possible abuse or neglect? How old is the student?
Texas has a very strong statement in the Education Code about the parent’s right to information:
(a) A parent is entitled to full information regarding the school activities of a parent’s child except as provided by Section 38.004. [Note: 38.004 is about child abuse investigations].
(b) An attempt by any school district employee to encourage or coerce a child to withhold information from the child’s parent is grounds for discipline under Section 21.104, 21.156, or 21.211, as applicable. [Note: all three of those statutes deal with termination of employment].
The Texas statute provides the starting point in answering the question: do we tell the parents about this? The “default rule” in Texas is that parents have a right to know what is happening at school. The next question would be: is there some very good reason to deviate from this rule?
Most of the case law addressing student privacy involves sexuality. In one case, a police officer arrested two young men (17 and 18 years old) in a parked car. The arrest was for underage drinking, but during the questioning, the young men admitted that they were in the car for the purpose of having sex. The officer threatened to inform the grandfather of the 18-year old, Marcus Wayman, of this. When released from police custody, young Mr. Wayman went home and killed himself.
His mother sued for the invasion of her son’s privacy and was vindicated by the 3rd Circuit:
It is difficult to imagine a more private matter than one’s sexuality and a less likely probability that the government would have a legitimate interest in disclosure of sexual identity. Sterling v. Borough of Minersville, 232 F.3d 190 (3rd Cir. 2000).
Matters of sexuality are private, and the law on this is well established. But it’s not quite so clear when the case arises in the school context, and the disclosure of private information is to the parent. Consider our 5th Circuit case on this. The suit alleged that two coaches had improperly “outed” a gay student to her mother. Since the suit was against the coaches individually, they were able to assert the “qualified immunity” defense. And it worked. The court held that this disclosure, to the mother, in the context of a discussion of school related matters, did not violate a right of privacy that was “clearly established.” Wyatt v. Fletcher, 718 F.3d 496 (5th Cir. 2013).
These are murky waters, to be navigated carefully, with legal counsel and with a clear understanding of the specific facts relevant to your situation.
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See you next week, readers!