In training school nurses, school support personnel, and other school employees to conduct these health screenings, districts should remind staffers of their duty to protect the privacy of sensitive student information. On June 30, the Centers for Disease Control and Prevention released interim guidance for K-12 school administrators. That guidance emphasized that while symptom screening and contact tracing in schools may help slow and stop the transmission of the coronavirus, school officials must implement these measures in a way that complies with the Family Educational Rights and Privacy Act.

To that end, the CDC advised districts to follow the guidelines issued by the Student Privacy Policy Office in Questions and Answers on the Applicability of FERPA to Disclosures Related to COVID-19, 120 LRP 9700 (SPPO 03/12/20).

Under FERPA, a district must generally obtain prior written parental consent before it may disclose any personally identifiable information derived from a student’s education records to third parties. 34 CFR 99.30(a). According to SPPO, FERPA’s protections extend to health-related information if that information is included in education records maintained by a district or an agent for the district. See Questions and Answers on the Applicability of FERPA to Disclosures Related to COVID-19, 120 LRP 9700 (SPPO 03/12/20).

Disclosures during health or safety emergencies

FERPA permits districts to nonconsensually disclose education records, including health-related records, to appropriate parties if there is an articulable and significant threat to the health or safety of the school community. 34 CFR 99.31(a)(10); and 34 CFR 99.36. Under this “health or safety emergency” exception to FERPA’s consent rule, a district may, for example, disclose a student’s COVID-19 diagnosis to public health officials, medical professionals, and other individuals who need the information to stop the spread of the virus.

However, the health or safety emergency exception to FERPA is limited in time to the period of the emergency and generally does not allow for a blanket release of sensitive information. This means that school officials need to obtain parental consent before releasing information about a student’s health, including any coronavirus symptoms he may present, to the public. Questions and Answers on the Applicability of FERPA to Disclosures Related to COVID-19, 120 LRP 9700 (SPPO 03/12/20).

Follow these tips to ensure your school employees comply with FERPA’s privacy requirements:

• Clarify FERPA provisions in training. To ensure that school personnel don’t misinterpret the health or safety emergency exception to FERPA’s parental consent rule, districts should consider providing in-depth training on FERPA to all staffers who may be responsible for conducting health screenings when students return to school. This training should clarify the circumstances in which staffers may nonconsensually release students’ health-related information and records and to whom those disclosures may be made.
• Develop procedures for reporting coronavirus symptoms. Another way to prevent unauthorized disclosures of PII is to develop procedures addressing situations where a student arrives to school with a fever or other symptoms of COVID-19. For example, a district may direct school personnel conducting health screenings to immediately notify the school nurse if they suspect a student is ill. This may prevent staffers from inadvertently disclosing the student’s health information to the wrong person.
• Instruct staff not to gossip. Any unnecessary communications, such as verbal conversations and text messages, about a student’s illness or potential illness may violate FERPA’s nondisclosure provisions. Accordingly, if a student presents symptoms of COVID-19 during a health screening, the district should remind staffers not to gossip to other students, parents, colleagues, friends, or family members about the student’s condition.
• Consider conducting health screenings in partitioned spaces. If public health experts or state officials recommend that a district screen students for symptoms of COVID-19 before they enter the school building, the district should consider setting up partitioned spaces for those screenings. This may make it easier for staffers to protect the privacy of students.

For example, if a paraprofessional takes the temperature of a student and determines the student has a fever, the paraprofessional may show the results to the student and provide him instructions on what to do next without drawing the attention of his peers in the area. Similarly, if a school nurse must interview a student regarding his potential history of exposure to the coronavirus, conducting the interview in a separate, partitioned space or in an office may prevent others from overhearing the student’s personal information.

Editor’s note: While these tips do not necessarily bar parents from filing a FERPA complaint to the Student Privacy Policy Office for alleged privacy breaches, they may help districts reduce incidents of inadvertent disclosures. Districts should consult legal counsel to determine what steps may be necessary to protect student privacy in specific situations.

Amy K. Onaga, Esq., covers special education legal issues for , a 91¿´Æ¬ sister publication. Documents mentioned above are available to subscribers. 

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On June 4, 2020, Democratic attorneys general from 17 states and the District of Columbia sued Education Secretary Betsy DeVos to challenge ED’s new Title IX regulation. In their complaint, the attorneys general allege that the new rule strips away longstanding protections against sexual harassment for students attending K-12 schools and postsecondary institutions.

Title IX is a federal civil rights law that prohibits discrimination on the basis of sex in education programs and activities that receive federal funding. The new rule has implications for students with disabilities, who can seek monetary damages under Title IX against districts that allegedly fail to respond to complaints of sexual harassment. Some courts have held that Title IX cases do not require exhaustion of administrative remedies under the Individuals with Disabilities Education Act.

The lawsuit filed on June 4 claims that the new Title IX rule unlawfully narrows the definition of “sexual harassment” under Title IX. Among other concerns, the attorneys general took issue with a new provision stating that sexual harassment must be “severe, pervasive, and objectively offensive” to create a hostile environment. Under this new definition, the attorneys general argue, students must endure repeated and escalating levels of harassment before the school is required to act.

They also emphasized that the new definition of a hostile environment disregards the needs of young children and students with disabilities who may be unable to verbalize social-emotional and other safety concerns. “The impact of such trauma on a student’s ability to learn, and thus on access to education, may not be evidenced until much later, especially for students who may be nonverbal or have other difficulties expressing its impact,” the attorneys general said in the complaint.

The lawsuit also criticizes the new rule’s August 14 effective date as impractical. The complaint states that it is not enough time for schools to completely overhaul their systems for investigating and adjudicating complaints of sexual harassment, especially amid the ongoing COVID-19 pandemic that has depleted school resources and caused nationwide school closures.

The 17 states joining the lawsuit in addition to the District of Columbia are Maryland, Pennsylvania, Massachusetts, California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Minnesota, New York, North Carolina, Oregon, Rhode Island, Vermont, Virginia, and Washington.

How the new Title IX regulation may impact K-12 schools

Importantly, the attorneys general argue in the lawsuit that the new Title IX regulations fail to consider the unique challenges that may arise in the K-12 environment.

According to the complaint, a provision in the new Title IX rule prohibits schools from restricting the parties involved in a sexual harassment investigation from discussing the allegations of harassment. This provision allegedly precludes K-12 school officials from preventing young students from sharing sensitive information with their peers. Another provision requires the school to provide all evidence collected during the Title IX investigation to both parties and their third-party advisors.

The complaint suggests that these provisions may result in student privacy violations under the Family Educational Rights and Privacy Act, which generally requires schools to obtain prior written parental consent before disclosing education records to third parties.

The attorneys general also state in their complaint that the new Title IX rule usurps the ability of K-12 schools to address alleged sexual harassment through “constitutionally sound forms of discipline,” such as detention or a one- or two-day suspension, the complaint alleges. The lawsuit does not address how the new Title IX rule may impact schools’ disciplinary procedures for students with disabilities under the IDEA or Section 504 of the Rehabilitation Act.

Concerns from lawmakers

The concerns raised by attorneys general in the lawsuit echo those in a letter issued by several Democratic senators to DeVos on June 3. In that letter, U.S. Senator Patty Murray (D-WA), ranking member of the Senate Health, Education, Labor, and Pensions Committee, and 36 other senators stressed that DeVos’ final Title IX rule will weaken protections for student survivors of sexual harassment and assault. They also highlighted that it was inappropriate to ask schools to implement this new rule within 100 days amid the COVID-19 crisis and urged DeVos to rescind the rule and focus on school safety — whether the threat is sexual assault and harassment or COVID-19.

Amy K. Onaga, Esq., covers special education legal issues for LRP Publications.

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Under both FERPA and the IDEA, a district must generally obtain prior written parental consent before disclosing personally identifiable information derived from students’ education records to third parties. 34 CFR 99.30(a)(1); and 34 CFR 300.622(a)

Additionally, the IDEA obligates districts to protect the confidentiality of personally identifiable information (PII) pertaining to students with disabilities that is collected, stored and used by school officials. 34 CFR 300.623(a)

At first glance, it may seem impossible for districts to comply with these privacy requirements as teachers working from home prepare to deliver IEP services through a computer or other electronic device. However, districts can protect the confidentiality of PII while meeting the needs of students with disabilities if they take certain precautions.

Consider these tips for educators:

– Use videoconferencing platforms that offer security. One of the first steps educators must take to protect student privacy is to use videoconferencing apps and services that prevent unauthorized individuals from entering the virtual session.

If a special education teacher must provide one-on-one reading services to a student with dyslexia, for example, the district should select a videoconferencing app that will allow the teacher to “lock” the classroom once she and the student have connected. That way, no other students, parents, staffers, or other individuals can enter the virtual session and learn about the students’ special education status or hear other sensitive PII. See also Protecting Student Privacy While Using Online Educational Services: Requirements and Best Practices (EDU 2014).

– Use headphones or earphones. It might be difficult to prevent disclosures of PII if others in a teacher’s home can listen in while the student speaks during an instructional lesson. To prevent confidentiality breaches that may occur this way, educators and service providers should connect earphones or headphones to their computers to ensure that only they can hear a student’s feedback.

– Modify your home workspace. A productive small-group or individual session may quickly result in a FERPA and IDEA violation if the teacher’s sibling suddenly enters the room to watch television and sees parts of the lesson. Teachers should carefully consider their home workspaces and take steps to improve the privacy of their online classrooms.

For example, the downstairs living room may not be the best place for a teacher to provide instruction to her class of special education students, especially if other family members frequent that space during the day.

Instead, the teacher could move her laptop or computer to an upstairs bedroom and close the door before she begins the day’s lesson. If the teacher lives in a small apartment, she could set up partitions in a corner out of hearing distance to block others from seeing or hearing her students.

– Set a schedule for instruction and services. Another way to prevent inadvertent disclosures of PII is to establish a schedule for instruction and plan around that schedule. This may help prevent family members from entering the teacher’s workspace while she provides services to a student with a disability.

A speech pathologist, for instance, may ask a spouse to entertain her children with a board game for two hours during the day so she can provide 30-minute speech sessions to four different students during that time block.

Consider these tips for working with families:

– Collaborate with the parents. Privacy breaches may occur if a student’s PII is disclosed to unauthorized individuals in the student’s home. Although FERPA and the IDEA give parents the right to access their children’s education records, they do not afford the same right to siblings, grandparents, and other extended family. See 34 CFR 99.10(a); and 34 CFR 300.613(a).

Teachers should work with parents ahead of time to ensure that they will be the only individuals present in the home or the room while the student receives the services outlined in his IEP.

– Obtain consent if appropriate. There may be instances where it may be impossible to prevent all disclosures of sensitive student information. For example, perhaps a student will need to receive services in the same room as his cousin because they both need a wired connection to the internet. In those circumstances, the district should consider requesting and obtaining electronic consent from the parents in case PII is accidentally disclosed during instruction. See 34 CFR 99.3.

Note: While these tips do not necessarily bar parents from filing an IDEA due process complaint or a FERPA complaint to the Student Privacy Policy Office for alleged privacy breaches, they may help districts reduce incidents of inadvertent disclosures. Districts should consult legal counsel to determine what steps may be necessary to protect student privacy in specific situations.

Amy K. Onaga, Esq., covers special education legal issues for LRP Publications.

For more information on the documents listed above, visit the website , a 91¿´Æ¬ sister publication available by subscription. 

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