Privacy Problems for Public Schools

Abstract

T he welfare of children is central to the mission of public schools. Teachers, counselors, and admi istrators strive to create a safe environment where each student can learn, grow, and develop to his or her full potential. Educators provide this environment by getting to know individual students and by tailoring the school's programs and services to each student's needs and interests. Some very real obstacles to this public school mission are found, however, in the laws and court decisions that presently define the privacy rights of students and their families. The Family Educational Rights and Privacy Act of 1974 (FERPA) and the Hatch Amendment to the General Education Provisions Act of 1978, as well as ambiguous and inconsistent court rulings, pose real problems for educators. FERPA was originally drafted to bring fairness and consistency to the way schools handle student records. Before its passage, access to student records was largely controlled by state statute, state educational agency rules, local school board regulations, and common law principles that varied greatly from state to state and from one school district to another (Butler, Moran, and Vanderpool 1972). Studies such as that done by the Russell Sage Foundation in 1970 showed that privacy rights at the time were, for the most part, abused, nonexistent, or not communicated to parents and students. Schools often collected and retained information about students and their families without the informed consent of the family, and, even when consent was given, information was used for purposes other than those for which it had been collected (Splain 1976). FERPA has redressed these wrongs by giving parents and students access to school records and the right to question and challenge the content of these records and to determine to whom the records shall be released. The Hatch amendment has extended family privacy rights by restricting a school's access to personal information regarding students and their families. As a result of the amendment, -there are some questions that simply cannot be asked without prior parental permission. Specifically, parental consent must be given for student participation in any program, test, or psychological or psychiatric exam or treatment with the purpose of revealing (1) political affiliation; (2) mental and psychological problems potentially embarrassing to the student or family; (3) sex behavior and attitudes; (4) illegal, antisocial, self-incriminating, and demeaning behavior; (5) critical appraisals of other individuals with whom respondents have close family relationships; (6) legally recognized privileged and analogous relationships, such as those of lawyers, physicians, and ministers; or (7) income. The courts have also had a hand in defining the privacy rights of minors and their families. There have been several significant cases in which the privacy of students has been a central legal concern or where the privacy rights of students and their parents have conflicted. Court opinions in these cases have given mixed and often ambiguous messages regarding student and family privacy rights. This article will illustrate the potential problems that family and student privacy rights pose for public schools and the inherent conflict between the perceived mission of the public school and the legal parameters within which it must function.