FERPA and School Safety
Author(s): Carolyn Stone, Ed.D.
May 1, 2008
Consider this hypothetical scenario: Clifton is a quiet, brooding young man who won’t make eye contact with others, seems sullen and withdrawn, and when he does speak it is negative and sarcastic, usually with the theme of others “incompetence.” Clifton appears to have no positive contact with his peers at school but reports that he is heavily involved in martial arts. When pushed, Clifton explodes, and even though he is slight of build, Clifton is so ferocious that he scares people much larger and stronger. Students say, “Don’t mess with Clifton because he is crazy.” Clifton has been referred to you by his algebra teacher, and within just a few short meetings, you are also convinced this young man is seriously troubled, the kind of student who causes you sleepless nights.
The long list random acts of student violence is all-too-familiar and painful. School counselors are continually balancing the need to support students like Clifton, who need our help in getting intensive mental health support and who have a right to privacy, with protecting the school community.
Questioning Situations
In five informal polls of more than 1,000 school counselors at legal and ethical workshops, the attendees overwhelmingly responded they could name a student they feared could be a future school shooter. Although it may seem discriminatory to predict something so vile, the unfortunate truth is that, school counselors see signs and symptoms in certain students that cause them grave concern. However, they are often uncertain where to go with the information. Beyond shepherding students like Clifton through the referral process to secure the most intensive counseling services they can attain, there are still nagging questions: “Should I do more? Is there another step I should take? Should I notify my principal as to my fears?”
Clifton, and students like him, isn’t threatening any particular person, but he is nonetheless a potential source of concern given his explosive, brooding behavior.
When deciding the best course of action, many believe educators’ hands are tied due to federal statutes protecting students’ privacy rights and antidiscrimination laws restricting how schools can deal with students who have mental health problems. Caught between privacy rights and school safety, educators look for support from the Family Policy Compliance Office, an arm of the U.S. Department of Education (USDOE). The Family Policy Compliance Office (FPCO) administers the Family Education Rights and Privacy Act (FERPA), federal legislation governing how student information and education records must be handled for students’ protection.
FERPA requires parental consent to release information to certain other parties;, however, “the law empowers school officials to act decisively and quickly when issues arise.” Using Clifton as our example, let’s work through FERPA and see how it guides us to support him while balancing the safety of other students.
During one of the counseling sessions, Clifton discussed another student with you in frightening tones: “Talk, talk, talk. I intend to take her big mouth and shut it once and for all time. I am done with listening to her constant dribble!”
Taking a Stand
If you think a child is dangerous based on observations and professional opinion what do you do? In an emergency, FERPA permits school officials to disclose without consent education records, including personally identifiable information from those records, to protect the health or safety of students or other individuals. At such times, records and information may be released to appropriate parties such as law enforcement officials, public health officials and trained medical personnel. This exception is limited to the period of the emergency and generally does not allow for a blanket release of personally identifiable information from a student's education records (FERPA 1974 34 CFR § 99.31(a)(10) and § 99.36.).
What is an emergency? The guidance offered by FERPA is reassuring when there is no question that the school is facing an emergency and danger is imminent. School counselors would agree that Clifton’s angry words about Sarah constitute a threat to her welfare and require immediate action. Following FERPA guidance we would report this to the administration who in turn would contact authorities and hopefully the parents of both the threatened student and the potential perpetrator.
If Clifton makes a less-obvious threat, “One day someone is going to shut Sarah’s big mouth once and for all, and I would love it if it were me,” we would need to place this in context of all we have learned about Clifton and try and will likely determine this is a threat and make the report to the administration who may choose to work through parents instead of law enforcement.
For school counselors, it is the subtleties that are the most troublesome, such as “I can’t put my finger on it, but I believe Sarah is in danger.” Suppose Clifton just refers to Sarah during each counseling session without threat but with venom in his voice when he talks about her. Are we now in an emergency situation? Is it time to breach confidentiality and approach administration? Do we call Clifton’s parents? Clifton’s case poses no clear-cut emergency in this third scenario, but FPCO expects us to exercise judgment when not any one particular comment of Clifton’s is substantial enough in isolation to cause concern but is clearly enough to cause concern when considered with all his comments about Sarah.
The expected course of action would be to share your concerns about your gut reaction with Clifton’s parents. Ellen Campbell of FPCO stresses that school counselors should involve parents whenever they see potentially dangerous behavior in a student. Additionally, school counselors have to consider the need to share selective information with the person ultimately responsible for the safety of all students under the school roof, the principal.
With Clifton, administration has the unenviable task of determining when to call law enforcement;, our difficulty task is just as troublesome. The school counseling profession is built on trust, and confidentiality is an ethical imperative the profession guards with great care. School counselors struggle to balance protecting the trusting relationship while making sure we err on the side of caution with regard to student safety.
The setting in which school counselors work, more than any other factor, defines our role differently than that of counselors of other stripes. We are in a setting in which we have the added benefit of a teacher(s) who may have Clifton any where from four to 35 hours a week. If Clifton’s teachers and administrators are operating high on the personal social consciousness continuum we have a perfect storm to fight for Clifton’s well being. Armed with need-to-know information, teachers and administrators who are skilled and trustworthy can help monitor Clifton’s behavior through the appropriate lens and, more importantly, orchestrate opportunities for Clifton to have positive peer-to-peer and student-to-adult interactions. There is nothing quite as powerful as a school counselor/teacher team fighting to make change in a child’s life. All school counselors can name the teachers and administrators they have worked with that have resulted in a significant positive change in the course of a child’s life. Seeking intensive counseling for Clifton is of grave importance, but orchestrating an environment in the school that positively intervenes in his social isolation is also paramount.
Involving parents as a minimum response when we believe their children are at risk, whether the risk is immediate or a potential future risk, is critical. Although, FPCO is currently developing additional material to shed light on what constitutes an emergency, judgment continues to be a key component in determining the right course of action.
Family Policy Compliance Office interprets FERPA to mean that when there is a safety issue, educators should err on the side of caution and reveal student information needed to ensure safety. Only information pertinent and critical to the situation can be breached. Local discretion is not only allowed, it is encouraged. Consult, consult, consult; seek supervision to help you weigh the options.
Considering School Safety
If we record some of our observations and professional opinions about Clifton as well as some of our counseling sessions, are these confidential? Not all of the information collected and maintained by schools and school employees about students is subject to the access and disclosure requirements under Family Education Rights and Privacy Act (FERPA, 1974). One of the five categories exempt from the definition of “education records” under FERPA is records made by teachers, supervisors, school counselors, administrators and other school personnel that “are kept in the sole possession of the maker of the record and are not accessibly or revealed to any other person except a temporary substitute for the maker of the record.”
School counselors’ case notes are “sole-possession records” and not educational records (which parents are entitled to see) if the records meet specific criteria: 1) a memory aid, 2) not accessible or shared in either verbal or written form, 3) a private note created solely by the individual possessing it and 4) include only observations and professional opinions.
Parents have rights to educational records; therefore, if our case notes do not meet the above criteria we are legally required to respect the spirit and intent of FERPA and provide these case notes/educational records to parents upon request. The general belief that unless shared and accessible your case notes remain sole-possession records applies to our mental health colleagues, but application is more complex for case notes for school counselors because schools are governed by FERPA. Therefore, school counselors must write case notes through a different lens, only recording observations and professional opinions if we desire to meet the spirit of sole possession records. Writing a case note that does not record details but rather just your professional opinion and observations is tough to do.
Writing complicated, detailed case notes is not our reality;, however, when we do write case notes, we write with the understanding that parents can read what we write unless we have somehow managed to meet the criteria of sole-possession records and that our notes can be subpoenaed (in most states). Therefore, take great care to write professionally, and once subpoenaed, be careful not to purge or rewrite notes. You can correct misspellings or other errors by crossing out the error so it can still be read, correcting it and initialing the correction.
With Clifton, we would want to take more care and time in recording our observations and professional opinions, interventions tried, referrals made to outside agencies, conversations with teachers, reports given to administrators and parents and anything else that would be important to remember. These notes could be subpoenaed in all but a few states. Some states, such as California, give students partial privilege, rendering school counselor/student conversations confidential, but if Clifton harms someone there are caveats in state laws denying privilege to perpetrators. If you’re subpoenaed, the legal counsel for your school district can tell you if you must testify or if your student has privilege. Also the school district attorney can help you seek a motion to quash, a procedure that voids your obligation to respond to a subpoena.
Qualified Privilege
Even though Clifton didn’t issue an outright threat to Sarah, if our uneasiness with his venomous references to Sarah causes us to reveal his conversations with administration, who in turn report to law enforcement, can we be sued? If sued, the courts would likely find in favor of the educators who had a substantial interest in making this information known (N.C. vs. Bedford Central School District NY, 20074). Even if the court rules that the suspicions were unfounded, the courts would weigh Clifton’s right to privacy against the school district’s substantial need to keep students safe from harm. The court would find that the school district was engaged in professional communication , for the greater benefit and safety of all students, which would likely outweigh Clifton’s rights to confidentialityN.C. v. Bedford Central School District, NY, 4.
Qualified privilege gives educators the right to make comments about a student that may be unflattering if the purpose is to fulfill a professional responsibility. Gossiping about a student’s behavior in a social gathering is defamation of character and not qualified privilege. But sharing information through the proper channels to help your students and enhance their educational opportunities isn’t gossip.
The list of tragedies involving the untimely deaths of secondary school students underscores the need to do everything we can to protect the innocent who often just wander into harm’s way when a student is bent on violence. Yet, we cannot step all over our ethical imperative to safeguard our students’ confidences. FPCO is clear:, students and families’ right to privacy ends when others are in harm’s way. Our unique position makes us privy to sensitive information and requires us to work fervently to provide a safe and secure environment for students in which trust can be established and maintained. Without the assurance of confidentiality, many students would not seek our help. Breaching student confidentiality with teachers, parents and administrators requires continuously balancing the rights of students and parents against the criteria of substantial interest and the need to know.
Carolyn Stone, Ed.D., is an associate professor and school counseling program leader, University of North Florida. She is past president on ASCA’s Governing Board and can be reached at cstone@unf.edu. Contact the author for references to this article.
The long list random acts of student violence is all-too-familiar and painful. School counselors are continually balancing the need to support students like Clifton, who need our help in getting intensive mental health support and who have a right to privacy, with protecting the school community.
Questioning Situations
In five informal polls of more than 1,000 school counselors at legal and ethical workshops, the attendees overwhelmingly responded they could name a student they feared could be a future school shooter. Although it may seem discriminatory to predict something so vile, the unfortunate truth is that, school counselors see signs and symptoms in certain students that cause them grave concern. However, they are often uncertain where to go with the information. Beyond shepherding students like Clifton through the referral process to secure the most intensive counseling services they can attain, there are still nagging questions: “Should I do more? Is there another step I should take? Should I notify my principal as to my fears?”
Clifton, and students like him, isn’t threatening any particular person, but he is nonetheless a potential source of concern given his explosive, brooding behavior.
When deciding the best course of action, many believe educators’ hands are tied due to federal statutes protecting students’ privacy rights and antidiscrimination laws restricting how schools can deal with students who have mental health problems. Caught between privacy rights and school safety, educators look for support from the Family Policy Compliance Office, an arm of the U.S. Department of Education (USDOE). The Family Policy Compliance Office (FPCO) administers the Family Education Rights and Privacy Act (FERPA), federal legislation governing how student information and education records must be handled for students’ protection.
FERPA requires parental consent to release information to certain other parties;, however, “the law empowers school officials to act decisively and quickly when issues arise.” Using Clifton as our example, let’s work through FERPA and see how it guides us to support him while balancing the safety of other students.
During one of the counseling sessions, Clifton discussed another student with you in frightening tones: “Talk, talk, talk. I intend to take her big mouth and shut it once and for all time. I am done with listening to her constant dribble!”
Taking a Stand
If you think a child is dangerous based on observations and professional opinion what do you do? In an emergency, FERPA permits school officials to disclose without consent education records, including personally identifiable information from those records, to protect the health or safety of students or other individuals. At such times, records and information may be released to appropriate parties such as law enforcement officials, public health officials and trained medical personnel. This exception is limited to the period of the emergency and generally does not allow for a blanket release of personally identifiable information from a student's education records (FERPA 1974 34 CFR § 99.31(a)(10) and § 99.36.).
What is an emergency? The guidance offered by FERPA is reassuring when there is no question that the school is facing an emergency and danger is imminent. School counselors would agree that Clifton’s angry words about Sarah constitute a threat to her welfare and require immediate action. Following FERPA guidance we would report this to the administration who in turn would contact authorities and hopefully the parents of both the threatened student and the potential perpetrator.
If Clifton makes a less-obvious threat, “One day someone is going to shut Sarah’s big mouth once and for all, and I would love it if it were me,” we would need to place this in context of all we have learned about Clifton and try and will likely determine this is a threat and make the report to the administration who may choose to work through parents instead of law enforcement.
For school counselors, it is the subtleties that are the most troublesome, such as “I can’t put my finger on it, but I believe Sarah is in danger.” Suppose Clifton just refers to Sarah during each counseling session without threat but with venom in his voice when he talks about her. Are we now in an emergency situation? Is it time to breach confidentiality and approach administration? Do we call Clifton’s parents? Clifton’s case poses no clear-cut emergency in this third scenario, but FPCO expects us to exercise judgment when not any one particular comment of Clifton’s is substantial enough in isolation to cause concern but is clearly enough to cause concern when considered with all his comments about Sarah.
The expected course of action would be to share your concerns about your gut reaction with Clifton’s parents. Ellen Campbell of FPCO stresses that school counselors should involve parents whenever they see potentially dangerous behavior in a student. Additionally, school counselors have to consider the need to share selective information with the person ultimately responsible for the safety of all students under the school roof, the principal.
With Clifton, administration has the unenviable task of determining when to call law enforcement;, our difficulty task is just as troublesome. The school counseling profession is built on trust, and confidentiality is an ethical imperative the profession guards with great care. School counselors struggle to balance protecting the trusting relationship while making sure we err on the side of caution with regard to student safety.
The setting in which school counselors work, more than any other factor, defines our role differently than that of counselors of other stripes. We are in a setting in which we have the added benefit of a teacher(s) who may have Clifton any where from four to 35 hours a week. If Clifton’s teachers and administrators are operating high on the personal social consciousness continuum we have a perfect storm to fight for Clifton’s well being. Armed with need-to-know information, teachers and administrators who are skilled and trustworthy can help monitor Clifton’s behavior through the appropriate lens and, more importantly, orchestrate opportunities for Clifton to have positive peer-to-peer and student-to-adult interactions. There is nothing quite as powerful as a school counselor/teacher team fighting to make change in a child’s life. All school counselors can name the teachers and administrators they have worked with that have resulted in a significant positive change in the course of a child’s life. Seeking intensive counseling for Clifton is of grave importance, but orchestrating an environment in the school that positively intervenes in his social isolation is also paramount.
Involving parents as a minimum response when we believe their children are at risk, whether the risk is immediate or a potential future risk, is critical. Although, FPCO is currently developing additional material to shed light on what constitutes an emergency, judgment continues to be a key component in determining the right course of action.
Family Policy Compliance Office interprets FERPA to mean that when there is a safety issue, educators should err on the side of caution and reveal student information needed to ensure safety. Only information pertinent and critical to the situation can be breached. Local discretion is not only allowed, it is encouraged. Consult, consult, consult; seek supervision to help you weigh the options.
Considering School Safety
If we record some of our observations and professional opinions about Clifton as well as some of our counseling sessions, are these confidential? Not all of the information collected and maintained by schools and school employees about students is subject to the access and disclosure requirements under Family Education Rights and Privacy Act (FERPA, 1974). One of the five categories exempt from the definition of “education records” under FERPA is records made by teachers, supervisors, school counselors, administrators and other school personnel that “are kept in the sole possession of the maker of the record and are not accessibly or revealed to any other person except a temporary substitute for the maker of the record.”
School counselors’ case notes are “sole-possession records” and not educational records (which parents are entitled to see) if the records meet specific criteria: 1) a memory aid, 2) not accessible or shared in either verbal or written form, 3) a private note created solely by the individual possessing it and 4) include only observations and professional opinions.
Parents have rights to educational records; therefore, if our case notes do not meet the above criteria we are legally required to respect the spirit and intent of FERPA and provide these case notes/educational records to parents upon request. The general belief that unless shared and accessible your case notes remain sole-possession records applies to our mental health colleagues, but application is more complex for case notes for school counselors because schools are governed by FERPA. Therefore, school counselors must write case notes through a different lens, only recording observations and professional opinions if we desire to meet the spirit of sole possession records. Writing a case note that does not record details but rather just your professional opinion and observations is tough to do.
Writing complicated, detailed case notes is not our reality;, however, when we do write case notes, we write with the understanding that parents can read what we write unless we have somehow managed to meet the criteria of sole-possession records and that our notes can be subpoenaed (in most states). Therefore, take great care to write professionally, and once subpoenaed, be careful not to purge or rewrite notes. You can correct misspellings or other errors by crossing out the error so it can still be read, correcting it and initialing the correction.
With Clifton, we would want to take more care and time in recording our observations and professional opinions, interventions tried, referrals made to outside agencies, conversations with teachers, reports given to administrators and parents and anything else that would be important to remember. These notes could be subpoenaed in all but a few states. Some states, such as California, give students partial privilege, rendering school counselor/student conversations confidential, but if Clifton harms someone there are caveats in state laws denying privilege to perpetrators. If you’re subpoenaed, the legal counsel for your school district can tell you if you must testify or if your student has privilege. Also the school district attorney can help you seek a motion to quash, a procedure that voids your obligation to respond to a subpoena.
Qualified Privilege
Even though Clifton didn’t issue an outright threat to Sarah, if our uneasiness with his venomous references to Sarah causes us to reveal his conversations with administration, who in turn report to law enforcement, can we be sued? If sued, the courts would likely find in favor of the educators who had a substantial interest in making this information known (N.C. vs. Bedford Central School District NY, 20074). Even if the court rules that the suspicions were unfounded, the courts would weigh Clifton’s right to privacy against the school district’s substantial need to keep students safe from harm. The court would find that the school district was engaged in professional communication , for the greater benefit and safety of all students, which would likely outweigh Clifton’s rights to confidentialityN.C. v. Bedford Central School District, NY, 4.
Qualified privilege gives educators the right to make comments about a student that may be unflattering if the purpose is to fulfill a professional responsibility. Gossiping about a student’s behavior in a social gathering is defamation of character and not qualified privilege. But sharing information through the proper channels to help your students and enhance their educational opportunities isn’t gossip.
The list of tragedies involving the untimely deaths of secondary school students underscores the need to do everything we can to protect the innocent who often just wander into harm’s way when a student is bent on violence. Yet, we cannot step all over our ethical imperative to safeguard our students’ confidences. FPCO is clear:, students and families’ right to privacy ends when others are in harm’s way. Our unique position makes us privy to sensitive information and requires us to work fervently to provide a safe and secure environment for students in which trust can be established and maintained. Without the assurance of confidentiality, many students would not seek our help. Breaching student confidentiality with teachers, parents and administrators requires continuously balancing the rights of students and parents against the criteria of substantial interest and the need to know.
Carolyn Stone, Ed.D., is an associate professor and school counseling program leader, University of North Florida. She is past president on ASCA’s Governing Board and can be reached at cstone@unf.edu. Contact the author for references to this article.