The word privacy appears nowhere in the Constitution of the United States. The closest this document comes to discussing privacy is the Fourth Amendment: "The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures...” (Harrison, 207). This leaves room for broad interpretation by the United States Supreme Court, which has upheld many privacy rights. However, when it comes to student privacy and students’ rights in general, the Court finds it easier to waive students’ rights in favor of most of the established rules of the public educational system. Case in point is the Hazelwood v. Kuhlmeier judgment. The Supreme Court ruled 5-3 in favor of the school officials who censored the school newspaper. The principal had deleted two articles he believed to violate student and parent privacy. The court said that the school officials had broad power over the administration of the school (Ibid, 138-153). However, in essence the court upheld the schools’ authority to decide that the people written about (the students and parents) had the right to privacy.
Federal Statutes Protecting Privacy
“A school district has no inherent powers of government. A school district has only the powers that are granted by statute…” (Drury, 90). The legal challenges to educational practices in the name of privacy can rely on the Constitution, on state statutes and common law doctrines, and on federal statutes. Federal statutes are the most extensive on the topic of student and parental rights regarding privacy, however, the issue dealt with in the federal statutes deals mainly with student records. Some of the information obtained under the Hatch Amendment might, however, be utilized by parents to claim that students’ constitutional or common law tort rights of privacy have been invaded. These statutes need to be examined and thought about carefully in order for the students to fully understand where parents might have cause for objection to some of the material discussed in the classroom. I have provided the information as thoroughly as possible in way that makes the statutes accessible to all.
The code of Federal Regulations Title 34, Volume 1 part 99 is the Family and Educational Rights and Privacy Act (FERPA). In general, this act protects the privacy of students’ educational records. The regulations apply to, with some exceptions, educational institutions funded in part by the federal government and managed by the administration (principals, et al) ( HYPERLINK "http://www.clhe.org/3a2-1.htm" http://www.clhe.org/3a2-1.htm 5/22/00). The purpose of the regulations is to define the requirements for the protection of privacy of parents and students. The Act defines several key words and this is where interpretation occurs. Disclosure means “to permit access to or the release, transfer, or other communication of personally identifiable information contained in education records to any party, by any means, including oral, written or electronic” (Ibid). Education Records represents “those records that are directly related to a student; and maintained by an educational agency…”(Ibid). The term does not apply to other records including, but not limited to, those obtained or kept by the law enforcement agency of the school, or to employment records if the student works for the school. Personally Identifiable Information refers to several things including, “(a) The student’s name; (b) The name of the student’s parent or other family member…;(e) A list of personal characteristics that would make the student’s identity easily traceable; or (f) Other information that would make the student’s identity easily traceable.” (Ibid). Records are “any information recorded in any way, including, but not limited to, handwriting, print, computer media, video, or audio tape, film, microfilm, and microfiche” (Ibid).
The school must give all full rights of disclosure under the Act to legal parents unless provided with a court order or legally binding document relating to family members (i.e. divorce papers). The student preserves all rights given to the parent concerning disclosure of information (the student does not have full rights to access his/her own records until the age of 18); however, a school can grant other rights to the student not afforded to the parents. Parents are to be notified annually of their rights and in this notification must be stated that “they have the right to (i) Inspect and review the student’s education records; (ii) seek amendment to the student’s records that the parent or eligible student believes to be inaccurate, misleading, ore otherwise in violation of the student’s privacy rights; (iii) consent to disclosures of personally identifiable information contained in the student’s education records, except to the extent that the Act and Sec. 99.31 authorize disclosure without consent…” (Ibid). Section 99.31 deals with the conditions under which prior consent is not required. The disclosure must meet one of the following criteria: “(1) The disclosure is to other school officials, including teachers…whom the agency or institution has determined to have legitimate educational interests” (Ibid). Also, consent is not required if “the disclosure is to organizations conducting studies for, or on behalf of educational agencies or institutions to: (A) Develop, validate, or administer predictive tests; …(C) Improve education” (Ibid). In addition, information in connection with a health or safety emergency or information that has been designated as directory information does not require consent. See the FERPA regulations for specifics.
The Hatch Amendment (WAC 392-168-120, Section 439 of the General Education Provisions Act (GEPA) is the “Protection of Pupil Rights Amendment” (PPRA) which states that information collected from students through surveys, research, analyses, or evaluations that are supported by the U.S. Department of Education must be available to parents for review (Schlafly, 8). The law specifies that the terminology used means “any program or project in any applicable program designed to explore or develop new or unproven teaching methods or techniques” (my emphasis) (Ibid) Schools need to get consent to gather information from students concerning several private issues including but not limited to sexual behavior, illegal behavior, family life, confidential information (i.e. lawyer/doctor privileged information), and family income (Ibid). The law does not give the right for parents to be given copies of surveys but they can inspect them. Parents must file a complaint with the Family Policy Compliance Office (FPCO) if they feel their child’s right to privacy has been violated under FERPA or PPRA.
The above-emphasized quote from the Hatch Amendment is where the problem exists. The vagueness of “new and unproven teaching methods or techniques” creates a rift between educators and concerned parents. The aforementioned Values Clarification and Outcome-based Education methods (to be discussed in detail) are not really new methods because such ideas, in different terms, have been around since the 1920’s. In some instances schools have chosen not to continue utilizing the methods; however, many schools and school systems have been utilizing the methods with successful results. These methods require that teachers ask certain questions in order for the students to learn about themselves, their environment, their own educational process, citizenship, and many other aspects of being a well-rounded, productive member of society. The opposition feels that students go to school to learn facts and the bare mechanics of education, not to “get in touch with their feelings.” But how is that student, who learns just facts, going to be able to make real-life decisions?