Date: 10/27/2015

Final
Panel on Student Privacy

SCHOOL SAFETY AND YOUTH IN CRISIS

Votes: View--> Action Taken:
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10:11 AM -- Panel on Student Privacy

 Senator Scheffel, Chair, called the meeting to order and introduced the panel participants, including:

Dale King, representing ED, introduced himself and discussed his office's role in investigating complaints and providing technical assistance to schools with respect to the Family Educational Rights and Privacy Act (FERPA). Mr. King stated that FERPA was enacted in 1974 to protect the privacy rights of students and that schools are required to notify parents of their rights and when a student turns 18, those rights transfer to the student.

Mr. King reviewed how and when disclosures about a student may be made. He said that specific exceptions allow for the release of information in order to protect the health and safety of the student or others and noted that although information can be disclosed to first responders in an emergency situation, it cannot be released for emergency preparedness or training activities unless parental consent is provided. He reviewed the options for enforcement of FERPA, which may include notice, cease and desist orders, withholding funding, or lawsuits.


10:24 AM

Senator Scheffel asked for clarification about whether students are tagged as posing a threat to others and how that information may be disclosed. Mr. King responded that student information is confidential unless there is a health and safety risk to the student or others and that disciplinary records may only be shared with school officials and only when the school administrator needs it for a legitimate educational purpose.

Representative Moreno asked about exceptions to FERPA as a result of a subpoena and for clarification on the health, safety, and emergency exception. Mr. King said there must be an imminent threat and without action, the event is likely to happen. Representative Moreno asked for clarification about whether the exception depends on who is the subject of an imminent threat. Mr. King responded that it is not dependent on the subject of the threat.

Senator Newell asked for clarification on whether the school or the ED is making determinations about when to release information. Mr. King responded that schools make these determinations. Senator Newell asked whether school officials can share information within the school on a need-to-know basis. Mr. King said that if there is a health or safety emergency, then the school can disclose to anyone that needs to know, such as law enforcement or health officials. Senator Newell followed up by asking how the disclosure requirements may differ for students in foster care. Mr. King responded that there is a section in FERPA that allows for additional disclosures to be made to a case worker in that situation.

Senator Scheffel asked whether the ED has a database with a list of troubled youth and who has threat assessments. Mr. King responded not that he is aware of the ED maintaining a database with individual student data. He noted that there may be some records of which schools and school districts have threat assessment teams. Senator Scheffel asked how the ED is involved in specific situations at individual schools. Mr. King replied that the ED does not participate in threat assessments or other situations in specific schools unless there is a complaint and they are required to investigate.


10:38 AM

Linda Weinerman commented that the disclosure standard may be subjective and that different schools may judge the same situation differently. Ms. Weinerman asked whether the ED provides threat assessment training to schools. Mr. King said the ED has issued guidance to schools regarding threat assessment teams, but they don't set standards or require standardization within schools.

Representative Moreno asked how the ED defines school officials. Mr. King said a school official is an employee of the school or someone who is outsourced or contracted by the school.

Senator Scheffel asked about training provided by the ED. Mr. King said that they try to accommodate requests from schools, most of which is conducted by webinar and through technical assistance.

Gregory McDonald asked about the intersection between FERPA and Colorado's Senate Bill 15-213. Mr. King responded that he is not familiar with Colorado's law.

Representative Duran asked about the rational basis standard, noting that most of the time schools will have a basis for releasing information. Representative Duran asked if there was data on the number of times or percentage of cases where this standard was not met. Mr. King said complaints are rare and that in his experience as director, schools are cautious about how they set up threat assessment teams.


10:46 AM

Callan Clark introduced herself to the committee. Staff distributed a packet of school threat assessment materials (Attachment A). Ms. Clark said that there are themes, but not predictors about which students may be dangerous. She said school districts have very real limitations for intervention because a school can't require mental health treatment or arrest a juvenile. Absent outside interventions, Ms. Clark said that a school can only use disciplinary tools or it's own limited mental health services. She said that schools rely on parents to share information, however they can't compel medical records be released unless a parent consents or the student consents if he or she is over the age of 18. Ms. Clark said schools are concerned that students with disabilities, especially those with emotional or social communication challenges, will be forced into alternative schools and that there is a need to clarify the threat assessment process. Ms. Clark recommended that the School Safety Resource Center be designated as the lead agency for threat assessments and training. She said options for different threat assessment models should be made available to account for differences in geography, resources, and staffing. She continued by noting that school districts may need clarity about informational sharing -- i.e. what FERPA protects; who should get threat assessment information; guidance on sharing information with students and school safety personnel; searches of student property; and interacting with students with disabilities. Ms. Clark recommends that a local anonymous tip line be implemented and stated that school districts will need increased resource support and sufficient funds to adequately staff mental health supports.

15SchoolSafety1027AttachA.pdf15SchoolSafety1027AttachA.pdf

10:57 AM

Ilana Spiegel introduced herself as a parent of four children and reviewed her professional and personal background. She said that despite threat assessments, lives are still being lost. Ms. Spiegel said threat assessments don't predict or prevent harm because they capture a slice in time. She said students with disabilities may be subject to more assessments, causing labeling, mislabeling, and segregation of students. She said that there is an expectation of foreseeability with threat assessments, which is problematic because the test instruments are not designed to be diagnostic or predictive. She said that privacy is compromised for students as a result of these expectations, which is a major concern for parents.


11:05 AM

Stuart Stuller introduced himself as an attorney that represents school districts and reviewed his background as a professor. Mr. Stuller said that his clients include the Jefferson County and Platte Canyon School Districts. He briefly commented on the interaction between the ED and school districts, noting that the ED defers to school districts. He cautioned the committee about legislating decision-making concerning discretion to release student data.


11:10 AM

Michael Roche introduced himself as a partner with Lathrop & Gage and as the Davis family attorney. Mr. Roche said that he agreed with Mr. King and that FERPA was never intended to be an impediment to school safety. He stated his belief that in cases where it is such, that has happened as a result of misinterpreting FERPA, which does not create liabilities for schools. Mr. Roche said that the U.S. Supreme Court has ruled that schools cannot be sued for damages under FERPA. He reviewed disclosures of information and concluded that, due to the language about legitimate educational interest, schools should be disclosing information about students who appear to be in crisis to teachers. Mr. Roche said that he believes teachers are very committed to students and are capable of exercising good judgment. Mr. Roche said that one way FERPA is implemented is through the code of federal regulations, which makes clear that records of a school's law enforcement unit (school resource officers and campus security) are not school records and are not protected. He said that another category of information is what teachers, administrators, and security personally observe. Mr. Roche said that information is not protected -- it can and should be shared because its not educational.

Mr. Roche said he thinks it is important to ask the forthcoming teacher panel about their role in conducting threat assessments. He said the point is not to predict school violence, it is to prevent it. Mr. Roche opined that there is no useful profile for a school shooter, but that there are useful behaviors that can help prevent targeted school violence. Mr. Roche reviewed threat assessments, noting that often the rational basis standard is used, which is the lowest legal standard and essentially says that if a school can explain what it is doing, it is fine. Mr. King said he was not aware of any complaints being asserted under that standard because it is so low and that FERPA has not been used to defund schools.

Mr. Roche continued by saying that Colorado's stated policy in interpreting FERPA is to facilitate the exchange and sharing of student information to the greatest extent possible, but that this is not happening. He said that Littleton Public School's policy demonstrates a core misunderstanding of what FERPA permits. According to Mr. Roche, this school district's policies say that, even in the case of an emergency, it can only disclose information to specific authorities, which is not what FERPA says. He provided an example of how the Arapahoe County sheriff released data, but the school district would not. He expressed the concern that FERPA is being used as a shield behind which schools can hide when they are uncomfortable. Mr. Roche commented that he believes a central clearinghouse is needed and the information sharing must support the threat assessment process. He complimented the School Safety Resource Center's work. Staff distributed a federal report that was issued in 2007 following the incident on the campus of Virginia Tech (Attachment B), which Mr. Roche discussed, noting that generally schools undershare information versus overshare information.

15SchoolSafety1027AttachB.pdf15SchoolSafety1027AttachB.pdf

11:28 AM

Senator Scheffel asked Ms. Clark about the effectiveness of the Safe2Tell program. Ms. Clark responded that it is used and is effective.

Senator Newell asked Ms. Clark about other programs within the Englewood School District. Ms. Clark discussed a program called Public Schoolworks, which is connected to their website and operates like Safe2Tell, but is connected to the district's administration.

David Crews asked whether the School Safety Resource Center can support school districts with threat assessments. Chris Harms responded that the center has been providing this support and will continue to help train schools.

Staff distributed a packet of information about school-based health care (Attachment C). Senator Newell asked about the Health Insurance Portability and Accountability Act (HIPAA). Mr. Stuller responded that HIPAA does not necessarily pose a concern for schools because if the school is in possession of a student record, the governing law is FERPA. Ms. Spiegel said there are concerns when outside personnel are involved. Senator Kerr reviewed information in Attachment C, which discusses the intersection of FERPA and HIPAA on page 3. Ms. Clark said HIPAA stops entities from sharing information with schools unless the parent consents. Senator Newell asked how schools balance these laws and whether schools encourage parents to share HIPAA data. Ms. Clark said it is a fine balance and depends on the individual student, but a school's goal is to partner with the family to support the student.

15SchoolSafety1027AttachC.pdf15SchoolSafety1027AttachC.pdf

Representative Willett asked about FERPA and discovery issues. Mr. Roche responded that discovery is limited by law. Mr. Roche said that he has reviewed the legislation that the committee is considering, and that in his view, none of the proposed bills will conflict with FERPA. Representative Willett commented that he applauds Bill 3 because it requires full compliance with federal law. Representative Willett asked whether the attorneys on the panel believe that schools can meet that standard. Mr. Stuller responded that having done teacher dismissal hearings which have similar requirements, the answer is yes. According to Mr. Stuller, school officials are more worried about school shootings than they are about being sued.

Sharyl Kay Lawson thanked the panelists for their participation and commented that as a special education teacher, it can be difficult to help kids when parents don't share information.


11:46 AM

The committee recessed for lunch.