New Laws Promote Student Health and Safety

November 2018
Number 68

California lawmakers demonstrated a concerted effort to promote student health and safety by approving several bills this session. Assembly Bills (AB) 1798, 2435 and 2816 were passed to create or expand requirements or funding for school districts in relation to bus transportation, air quality, and pesticide use.

Assembly Bill 1798 – Passenger Restraint Systems on All School Buses by July 1, 2035

Existing law requires passenger restraint systems on certain classes of school buses manufactured on or after July 1, 2005, and July 1, 2004, depending on capacity and weight. AB 1798 amends section 27316 of the Vehicle Code to require that, on or before July 1, 2035,all school buses in use in California must be equipped with a passenger restraint system, effectively phasing-in the requirement as old buses are retired and new buses are manufactured. While the new law creates a state mandated cost, the bill itself provides that no reimbursement is required because violation of the law is a crime.

Assembly Bill 1840 – Delays Implementation of School Bus Safety Alert Requirements until March 1, 2019

Following a few well-publicized incidents where students with special needs were left on school buses, in 2016 the Legislature enacted Senate Bill 1072, which required local educational agencies (LEAs) to install child safety alert systems in school buses and other specified student transport vehicles by the beginning of the 2018-19 school year. Many LEAs were unable to meet the original deadline due to a variety of factors, including the inability of manufacturers and installers to meet the demand for these devices. In response to these issues, the Legislature included a provision in the Education Budget Trailer Bill, AB 1840, that extends the deadline to install these safety devices until on or before March 1, 2019, with an additional six month extension for LEAs with average daily attendance of less than 4,000, or until September 1, 2019.

Assembly Bill 2453 – Air Quality

AB 2453 amends section 17074.25 of the Education Code and adds section 44391.3 to the California Health and Safety Code to expand the use of certain State aid apportionments to school districts, allowing modernization grant money to be used to update air filtration systems in order to limit student exposure to harmful air pollutants. The bill also authorizes schools and school districts located in communities with a “high cumulative exposure burden” to work with air districts to identify schools sites in need of air quality improvement and to be eligible for grants as part of a community emission reduction program. Improvements may include, but are not limited to, air filter installation or upgrade and vegetation buffer planting.

Assembly Bill 2816 – Report on Pesticide Use

The purpose of AB 2816 is to evaluate certain existing rules related to the use of pesticides at school sites, ostensibly in order for lawmakers and regulators to make improvements. Under the Healthy Schools Act of 2000 (the Act), school districts are required to follow the preferred method of managing pests, keep records of pesticide use for four years, and to notify staff and parents about expected pesticide use at school sites. The Act also requires the Department of Pesticide Regulation to establish a training program that must be annually completed by any person who intends to apply a pesticide at a school site. AB 2816 adds Section 17614.5 to the Education Code, directing the Department of Pesticide Regulation to submit a report to the Legislature on or before January 1, 2021, evaluating the implementation of the Act and providing recommendation for improvement. This new law will become inoperative on July 1, 2021, and be repealed on January 1, 2022.

Takeaways

Districts now have additional time to install child safety alert systems in their school buses and other student transport vehicles. Although these other new laws do not require immediate action on the part of local educational agencies, school districts should be mindful of future compliance with bus seatbelt requirements and opportunities for air quality funding. In connection with pesticide management, school districts should continue careful monitoring and compliance with existing law while awaiting the Department of Pesticide Regulation’s forthcoming report.

If you have any questions about AB 1798, 2453, or 2817 or about laws applicable to local educational agencies in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Ruth E. Mendyk

Partner

Nicholas G. Felahi

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

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The Pot Thickens: Legal Updates on Marijuana and Schools

October 2018
Number 56

Schools may soon be getting requests to permit students to take a marijuana-based epilepsy drug at school, thanks to a change in the way the federal government regulates it. Read on to learn more about Epidiolex and the state of the law regarding administration of medication at school, including marijuana based drugs.

Separately, but related to administration of marijuana based drugs, Governor Jerry Brown recently vetoed a state bill that would have permitted school boards to develop a policy allowing parents and guardians to administer medical marijuana on campus.

Administration of Epidiolex at School-the First Food & Drug Administration (FDA) Approved Marijuana-Based Drug

Epidiolex-a drug that contains a non-psychoactive component of marijuana called cannabidiol or CBD (previously reported on here)-was approved by the Food & Drug Administration (FDA) in June 2018 to treat two forms of severe epilepsy that usually begin in childhood. On September 27, 2018, the Drug Enforcement Administration (DEA) announced that Epidiolex is now a Schedule V drug, the least restricted schedule of the Controlled Substances Act (“CSA”).

The DEA specifically placed in Schedule V “FDA-approved drugs that contain CBD derived from cannabis and no more than 0.1 percent tetrahydrocannabinols.” At this time, only Epidiolex falls into this category, as it is the only cannabis-based drug that has been approved by the FDA. Because Epidiolex is now a Schedule V drug, it can be prescribed by medical doctors. Epidiolex is expected to become commercially available in the next six weeks, according to GW Pharmaceuticals, the maker of the drug.

If a child has a valid prescription for a medication, which can now include Epidiolex, that he needs to take at school, a school must accommodate that child, provided that the school district’s applicable board policies and regulations and Education Code section 49423-the provision that allows for medication to be administered at school-are met. School districts should therefore be prepared to respond to requests for students to store and ingest Epidiolex at school before the end of 2018. All other forms of marijuana besides Epidiolex remain on Schedule I of the CSA and are still illegal under federal law.

Given the constant changes in this area of the law and the complicated nuances of existing law, Lozano Smith recommends that any school district that receives a request by a parent or guardian to provide his or her child with medical marijuana generally or Epidiolex specifically at school consult with legal counsel.

Governor Brown Vetoes Senate Bill 1127

Senate Bill (SB) 1127, which would have permitted school boards to develop a policy to permit parents or guardians to administer medical marijuana to students on campus, was vetoed by Governor Jerry Brown on September 28. In his veto message, Governor Brown stated that the bill “is overly broad as it applies to all students instead of limited cases where a doctor recommends medical marijuana for a student in order to prevent or reduce the effects of a seizure.”

A two-thirds vote in each house-which must occur within 60 days of the veto-would override the Governor’s veto and make SB 1127 the law. The Governor’s veto is rarely overridden in California, but it is still possible that SB 1127 could become law in January 2019. If the Legislature does not override the veto, the bill may be revised or reintroduced in 2019, when California will have a new governor. Lozano Smith will keep clients updated about the status of SB 1127 and related bills.

We encourage you to listen to the webinar Getting Blunt: An Update on Marijuana in Schools, presented by Aimee Perry and Alyssa Bivins, which discusses the issues raised in this article in greater detail. Look out for the next Getting Blunt webinar to remain up to date in this rapidly evolving area of the law.

If you have any questions regarding medication administration in general, or this ruling, contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Marcy Gutierrez

Partner

Aimee Perry

Partner

Alyssa R. Bivins

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Non-Binding Order from OAH Requires School District Administer Medical Marijuana on Campus

October 2018
Number 55

In a non-binding order, a California state administrative law judge from the Office of Administrative Hearings (“OAH”) ruled that a public school district must allow a student’s nurse to administer medical marijuana, as needed, on campus and transportation. The September 21, 2018 decision inStudent v. Rincon Valley Union Elementary School District (2018) OAH Case No. 2018050651 is unprecedented, but is not binding on other school districts.

Background

The case arose from a dispute over whether the Rincon Valley Union School District was required to allow the student to attend a district program and transportation since she required administration of a rescue medication for seizures during the school day, which contains Tetrahydracannabinol (“THC”)-the part of the marijuana plant that creates a “high.” The 5-year-old student has Dravet Syndrome, a disorder that causes severe and frequent seizures, and uses THC oil as a rescue medication to stop seizures when they occur.

Marijuana, medical or otherwise, is currently not allowed on public school campuses in California, as it is a Schedule I drug and is illegal under the federal Controlled Substances Act (“CSA”). Thus, for the past two years, the Rincon Valley Union School District paid for the student to attend a private preschool, where she could keep the THC oil at school, and have it administered by a nurse when she had a seizure, all pursuant to an individualized education program (“IEP”).

In May 2018, the student’s IEP team met to discuss her Kindergarten program. The parents wanted their child to attend Kindergarten at a public school and still have access to her THC rescue medication, while at school. The school district explained that allowing the student to possess marijuana on campus or on a public school bus would violate state and federal laws, banning such use of marijuana. Accordingly, the district offered the student in-home specialized instruction with nursing services. The parents did not agree with the district’s proposed in-home program, arguing that the student should be able to attend a public school like her non-disabled peers and have access to, and administration of her THC rescue medication at school and on school district-provided transportation.

Because the parents disagreed with the district’s proposed in-home program for their child, they filed a due process complaint, arguing that the IEP was not the least restrictive environment (“LRE”) and did not provide their child with a free appropriate public education (“FAPE”) under the Individuals with Disabilities Education Act (“IDEA”). They also filed a motion for “stay-put.”

They also filed a motion for “stay-put.”

Order Regarding Stay-Put

The right to “stay put” ensures that a child may remain in his or her current educational placement until a due process case is resolved. In determining a “stay put” placement, judges look to the last agreed-upon and implemented IEP. Additionally, if a child, like the student in this case, is “applying for initial admission to a public school, [the child] shall, with the consent of the parents, be placed in the public school program until all such proceedings have been completed.” (20 U.S.C. § 1415(j).) On July 19, 2018, the judge granted the parents’ motion for stay-put.

The stay-put order required the district to implement the student’s May 2017 IEP, and specifically afforded the student:

[P]lacement in a general education kindergarten on a public school campus among Student’s nondisabled peers; transportation from home to school and back on a school-operated bus or by such other means as the parties may agree upon; and thesame availability of nursing services and THC oil as a rescue medication during transportation and on the campus as was agreed upon and implemented by the May 22, 2017 IEP.

Because this case dealt with a student who was applying for initial admission to a public school-Kindergarten, the judge found that her “stay-put” placement was a “public school program” or general education Kindergarten class. The judge went on to hold that because “The IEP team also stated: ‘[Student] requires a program that can administer her emergency medication (THC oil) in the event of a seizure'” the district was required to provide her with her THC oil as a rescue medication.

Decision on the Merits

Pursuant to the stay put order, the student began attending Kindergarten, on the public school campus, pending the judge’s decision on the merits of the case-whether the district’s proposed home-instruction program offered the student a FAPE. The due process hearing was held on July 25, 2018.

At the due process hearing, the district’s Assistant Superintendent for Student Services testified that if it were not for the illegality of possession of THC on a public school campus, the public school would be the LRE for student. Based on this testimony and the progress the student made in her preschool program, the judge ruled that the district’s proposed in-home program was not the LRE for the student and therefore denied her a FAPE.

The judge then went further, stating that the possession and transportation of the THC rescue medication by the nurse assigned to the student was in compliance with California state law. As to the CSA-which at this time bars possession and use of any marijuana derivative-the judge stated that there is no “realistic prospect” that the student or student’s nurse would be prosecuted for violating the CSA. In conclusion, the judge stated that it was “not reasonable” for the district to exclude the student from campus based on a “theoretical concern for a federal law that is at present unenforced and unenforceable.”

The judge did not address potential risk for loss of federal funding due to allowing marijuana on campus. Also notably absent from the decision is any discussion of the discipline provisions of the Education Code, which permit discipline for possession and use of marijuana. The judge ordered the district to convene an IEP meeting within thirty days to “place student on a public school campus among her peers with her emergency medication available.”

This decision is not binding on any other school districts besides Rincon Valley Union School District, nor binding on other judges. Additionally and of note, this decision is a significant departure from a previous OAH order, where a different judge from OAH denied a student’s motion for stay put, where the IEP stated that a student with a seizure disorder needed access to cannabidiol (or “CBD,” another derivative of marijuana, but unlike THC, it does not create a “high”) on campus. (Student v. Sylvan Union School District (2014) OAH Case No. 2014010077 “Sylvan“).) The judge in the Sylvan case stated that, “OAH will not turn a blind eye, under the guise of stay put, to an IEP that calls for unlawful criminal activity under other state and federal statutes simply because the parties had previously agreed upon and implemented the unlawful provisions.”

Takeaways

Because this decision is not binding and it fails to address several components of state and federal law regarding the presence of marijuana on public school campuses, school districts and parents should not presume this case to mean that all students in California can now have access to medical marijuana on campus, or that districts are required to administer same. This area of the law continues to rapidly develop and change. Thus, a school district facing a request for a student to have access to medical marijuana at school should contact legal counsel.

We encourage you to listen to the webinar Getting Blunt: An Update on Marijuana in Schools, presented by Aimee Perry and Alyssa Bivins, which discusses the issues raised in this article in greater detail. Look out for the next Getting Blunt webinar to remain up to date in this rapidly evolving area of the law.

If you have any questions regarding medication administration in general, or this ruling, contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Marcy Gutierrez

Partner

Aimee Perry

Partner

Alyssa R. Bivins

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Ninth Circuit Shoots Down Challenge to Law Prohibiting Concealed-Carry Permit Holders from Possessing Firearms on School Property

September 2018
Number 46

In Gallinger v. Becerra, the Ninth Circuit Court of Appeals rejected a challenge to a 2015 change to California’s Gun-Free School Zone Act that removed an exemption allowing concealed-carry permit holders to carry firearms on school grounds, but maintained the same exemption for retired peace officers.

The Ninth Circuit held that lawmakers had a rational basis for approving this change, effected by Senate Bill (SB) 707, and also that the partial elimination of the exemption did not violate the Equal Protection Clause of the Fourteenth Amendment.

Background

A collection of public interest groups and individuals challenged SB 707 on two bases: that SB 707’s treatment of concealed-carry permit holders is analogous to a similar ban in the Assault Weapons Control Act (AWCA) struck down in Silveira v. Lockyer, and that SB 707 violates the Equal Protection Clause because it favors a politically powerful group and disfavors a politically unpopular one. The Ninth Circuit found both arguments unpersuasive.

The plaintiffs, citing Silveira, argued that distinctions between concealed carry holders and retired peace officers do not serve a valid legislative purpose. However, the Ninth Circuit distinguished its holding in Silveira, in which the court determined that the AWCA’s retired-officer exemption was “wholly unconnected to any legitimate state interest.” The court reasoned that it did not serve a valid purpose to exempt retired officers from AWCA’s ban affecting one specific type of firearm-assault weapons-but found that SB 707’s ban on all guns on school grounds did serve a legitimate policy interest. The Ninth Circuit determined that SB 707’s retired-officer exemption serves a valid public purpose, deferring to the Legislature’s reasoning that allowing retired peace officers to carry weapons on school grounds both provided for the officer’s safety and also the public’s safety. The court additionally determined that the legislative history of SB 707, which detailed the Legislature’s concerns about gun-rights organizations advising gun owners to bring firearms onto school campuses in the wake of several school shootings, provided sufficient rationale for ending the concealed-carry exemption.

The Ninth Circuit was similarly unpersuaded by the plaintiffs’ argument that SB 707 violated the Equal Protection Clause by disfavoring a politically unpopular group, concealed-carry owners, and favoring a politically powerful group, retired peace officers. The court held that there was no evidence of explicit legislative intent to harm concealed-carry holders. Evidence demonstrating that retention of the retired-officer exemption was the product of political lobbying also did not show impermissible discrimination: Favoring retired officers did not show a parallel intent to harm concealed-carry holders.

Takeaways

The court’s application of current events to legal aspects surrounding gun control is notable. In the Gallinger decision, the Ninth Circuit cited numerous school shootings to support both the Legislature’s purpose in banning concealed-carry holders-to reduce the number of guns on campus-and also, the Legislature’s intent to provide for safety by allowing retired officers to carry firearms on school campuses or in school zones. Going forward, school administrators and personnel responsible for school safety can rely upon the Gun-Free School Zone Act to prohibit firearms on school grounds, regardless of whether someone possesses a permit to carry a concealed weapon.

More broadly, Gallinger shows a significant level of judicial deference to the Legislature’s findings of public purpose related to school safety. Such safety policies and gun control legislation often inspire tension with an individual’s rights under the Second Amendment and the public’s right to access to government facilities. Recognizing a newfound emphasis on school safety, the court in Gallinger showed deference to the rationale advanced for both ending the concealed-carry exemption and upholding the retired-officer exemption.

For more information about this decision and its impact on school districts, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Thomas R. Manniello

Partner

Tilman A. Heyer

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Lawmakers Declare April 10 Dolores Huerta Day

August 2018
Number 40

The Legislature has declared that April 10 is Dolores Huerta Day. Assembly Bill (AB) 2644, which dedicates the day to the activist and labor leader, becomes effective January 1, 2019.

The new law encourages public schools and other educational institutions to observe this day by conducting activities that commemorate the life and accomplishments of Dolores Huerta. However, the legislation does not create a new mandatory paid holiday.

Huerta is known for working to improve social and economic conditions for farmworkers and for defending civil rights. She has received many honors for her civil rights work, including receiving the Eleanor Roosevelt Human Rights Award in 1998 and being inducted into the California Hall of Fame in 2013.

For more information about AB 2644 or about days of special significance in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Sarah Levitan Kaatz

Partner

Carolyn L. Gemma

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

The FBI and Secret Service Issue New Guidance on Addressing School Violence and Active Shooters

August 2018
Number 38

The Federal Bureau of Investigations (FBI) and the United States Secret Service’s National Threat Assessment Center (NTAC) have released two important documents that offer insight into the pre-attack behavior of shooters and advice to help prevent targeted school violence through the use of threat assessments.

The FBI report

The FBI report, which was issued in June, is part of an FBI initiative to understand why shootings in confined and populated areas, like schools, occur and how they can be prevented. The report attempts to identify specific pre-attack behaviors in order to help law enforcement, school officials, and others better identify, assess and manage individuals who may be on a path to violence.

The report makes 10 key findings. Notable among them as they relate to schools:

  • The 63 active shooters examined did not appear to be uniform in any way such that they could be readily identified prior to attacking based on demographics alone.
  • Active shooters averaged four to five pre-attack observable, concerning behaviors (e.g., strange interpersonal interactions, recklessness, violent media usage, impulsivity, firearm behavior, and physical aggression).
  • Active shooters under age 18 were more likely to have these concerning behaviors observed by student peers and teachers than their own family members at home.
  • The most common response by an individual observing a concerning behavior was to either approach the eventual shooter directly or do nothing.

The FBI intends the report to serve as a resource for schools and others to develop better threat assessment and mitigation strategies, including early and prompt threat assessment of students.

The NTAC Guide

NTAC is a branch of the Secret Service that conducts research, training, and consultation on threat assessments to prevent non-random acts of targeted violence. The NTAC guide, released in July, is the first phase of a federal initiative to provide updated research and guidance regarding prevention of school-based violence. Its purpose is to provide a model threat assessment process for schools, where the goal of threat assessment is (1) to identify students of concern, (2) assess their risk for engaging in violence or other harmful activities, and (3) identify intervention strategies to manage that risk. The guide provides a multi-step process for creating a comprehensive, targeted violence prevention plan that achieves this goal. The steps include:

  • Forming a multidisciplinary threat assessment team;
  • Defining prohibited and concerning behaviors;
  • Establishing a central reporting mechanism;
  • Determining the threshold for law enforcement intervention;
  • Establishing assessment procedures;
  • Developing risk management options;
  • Creating and promoting a safe school climate; and
  • Providing training to all stakeholders.

The guide cautions that there is no specific profile of a student attacker. Rather than focusing solely on a student’s personality traits or school performance, the guide suggests that much more can be learned about a student’s risk for violence by working through this threat assessment process.

Takeaways

Both documents are important new resources in addressing the unfortunate reality of violence in schools. School officials should consider the documents’ recommendations in conjunction with the annual school safety plan process, which includes a threat assessment component. Officials, however, should keep in mind that many of the recommendations in the report and guide may be subject to federal or state legal requirements, such as state law limits on school monitoring of student social media activity.

Finally, Assembly Bill (AB) 1747, which is making its way through the state Legislature, would make related changes to the requirements for school safety plans. In its current form, the bill would require schools to perform annual active shooter drills and require the tactical response portion of safety plans to include specific procedures for gun incidents at schools and school-related activities. Additionally, AB 1747 would mandate charter schools to develop comprehensive school safety plans. Lozano Smith is actively monitoring this legislation and will be prepared to offer specific guidance if it becomes law.

The FBI report, titled A Study of Pre-Attack Behaviors of Active Shooters in the United States Between 2000 and 2013, and NTAC operational guide, titled Enhancing School Safety Using a Threat Assessment Model: An Operational Guide for Preventing Targeted School Violence, can be found on the Public Safety Practice Group page of our website.

For more information about these new resources, legal requirements for school safety plans, or other school safety issues, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Trevin E. Sims

Partner

Joshua Whiteside

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

School Surveillance Video May be a Student Record, Triggering FERPA Obligations

August 2018
Number 37

School surveillance video can be considered a student record under certain circumstances, triggering a school district’s obligation under the federal Family Educational Rights and Privacy Act (FERPA) to allow parents to view it.

In an informal guidance letter, the director of student privacy policy with the U.S. Department of Education’s Family Policy Compliance Office (FPCO) concluded that a school surveillance video depicting eight students who were involved in a hazing incident is a student record under FERPA. (U.S. Dept. of Ed., Letter to Wachter (Dec. 17, 2017).) The guidance states that FERPA does not generally require school districts to provide parents or eligible students requesting student records with copies of the records. However, it does not address any obligations a school district may have under state public records law.

Background

The Wattsburg Area School District in Erie County, Penn. requested the guidance after a parent of one of the students who was disciplined for their participation in a hazing incident requested a copy of the surveillance video depicting it under the Pennsylvania Right to Know Act.

The district asked FPCO whether the video is an education record of each of the students disciplined for their involvement in the incident, if it is an education record of all the students involved, and whether the district is permitted to release it to an individual parent of an involved student without first obtaining consent from the parents of each student involved in the incident.

The district additionally noted that it could not afford software that would blur the faces of the other students in the video.

FERPA protects the privacy of students’ education records and specifically, the personally identifiable information they contain. “Education records” are those records that are both directly related to a student and maintained by an educational agency or institution or a by party acting on behalf of an educational agency or institution.

FERPA provides parents and eligible students the right to access their educational records, and provides them some control over disclosure of the personally identifiable information in their records. Under FERPA, schools are prohibited from disclosing student records or the personally identifiable information they contain without prior, written consent from the parent or eligible student unless the disclosure meets an exception to the consent requirement.

FPCO agreed that the surveillance video was an educational record because it was (1) maintained by the school administration in the offending students’ disciplinary files and not the school or district’s law enforcement unit, (2) was directly related to the hazing incident and the group of students involved in it, and (3) was used to discipline the students who perpetrated the hazing.

The guidance also concludes that the parent of an individual student disciplined for the incident should be allowed to view the video despite the fact that other students were depicted in it because it did not appear that the video could be segregated or redacted without destroying its meaning. If it is possible to disclose only a portion of the video in a way that would fully depict the student of the requesting parent’s involvement in the hazing incident, however, the guidance letter says that such segregation of the information of other students would be required.

The guidance letter confirms that FERPA generally does not require schools to provide copies of educational records unless circumstances prevent a parent or eligible student from exercising their right to inspect and review the records-for example, if the student does not live within commuting distance of the school-and the school does not make other arrangements that would allow the parent to do so. In these situations, the guidance recommends that the district obtain the written consent of the parents of other students depicted in the video before disclosing a copy.

While different facts will result in different outcomes under the guidance, the FPCO’s position is generally consistent with FERPA, which provides:

If any material or document in the education record of a student includes information on more than one student, the parents of one such student shall have the right to inspect and review only such part of such material or document as relates to such student or to be informed of the specific information contained in such part of such material.


(20 U.S.C. § 1232g, subd. (a)(1)(A); 34 C.F.R. § 99.12, subd.(a).)

This said, the conclusion that relevant parents be allowed to inspect and review joint records (1) despite the fact that other students are depicted, and (2) where the video is incapable of segregation or redaction without destroying its meaning, appears to constitute a different approach than previously advised by the FPCO in 2003, where guidance at that time provided: “In cases where joint records cannot be easily redacted or the information segregated out, the school district may satisfy a request for access by informing the parent about the contents of the record[,]” presumably through an oral or written summary of the record’s contents. (See Letter to Attorney for School District (Oct. 31, 2003).)

Takeaways

School districts should be reminded that the FPCO guidance is only informal. If a school district receives a request to provide access to any video surveillance, legal counsel should be contacted for further guidance.

Client News Brief App For more information regarding Letter to Wachter or FERPA in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our .

Written by:

Sloan R. Simmons

Partner

Aimee Perry

Senior Counsel

Kristy J. Boyes

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.