Pennsylvania Education Law Lawyer & Attorney : Fox Rothschild Law Firm : Education Statutory and Regulatory Changes

The Pennsylvania Superior Court considered, and rejected, the notion that two federal privacy statutes create privileges against disclosing student records during the course of litigation discovery. But a state law, however, might bar production of such records.

The case involved a former student’s discovery demands in a case against a private special school. Student alleged he suffered sexual abuse and sought records relating to other similar possible past claims against the school. The school opposed producing any such records citing various statutory confidentiality protections against disclosing records involving other students.

The court found that the Health Insurance Portability and Accountability Act of 1996, known as “HIPAA,” and the Federal Educational Rights and Privacy Act, known as “FERPA,”  set forth the parameters by which protected student records can be disclosed and that, generally, disclosure pursuant to court order is an exception to the non-disclosure rule. In this respect, the state court decision comports with the statutes.

More interesting is how the court viewed the argument about a privilege against litigation disclosure based on state law. The Pennsylvania Mental Health Procedures Act, known as the “MHPA,” is seen as creating a privilege, with the only exception being legal proceedings permitted under the MHPA. The court did not decide the ultimate issue but instead sent the case back to the trial court to consider with the school was a “facility” under the MHPA and whether the MHPA actually applied. 

The case is a good reminder that many times state laws can offer more protections (or obstacles depending on your position) than federal laws. 

• Email This
• Print
• Comments
• Trackbacks

I have been known to describe the current situation of public education as not sustainable. The pay and benefits, and job protections, are very generous. Most working schlubs would really like to have that set up. While I also freely admit that I would not be a good teacher in the sense of an objective assessment of cost-in versus product-out by which most of us are measured. Perhaps, however, changes will take hold that can save public education from itself. 

In Washington, D.C., the School Chancellor and the teachers’ union look set to make some real reform. According to The Economist,  in exchange for much higher merit-based pay, teachers would give up tenure protections. Teachers who excel get justified rewards while those who do not could be let go with ease. Backers believe not only will school and student performance improve by weeding out ineffective teachers, financial savings will come through greater system flexibility. Jonathan Alter, writing in Newsweek, also addresses the issue, albeit under a political guise. At least this time, I am not a lone voice on “educational sustainability.”

• Email This
• Print
• Comments
• Trackbacks

Once again, we suffer yet another juvenile escapade of confederate flag waiving. Read about it here. A few students in Bloomington, Minnesota irrationally thought it to be a quality prank to waive the confederate flag in the parking lot as students and parents were arriving for graduation ceremonies. The students were reasonably punished. Not surprisingly, the students and their supporters tried to hide behind the tiresome response tying the confederate flag to an admiration of Southern lifestyle (how these things evolve from prank to a post-hoc expression of lifestyle choice is never explained).

Astoundingly, reports indicate that many students protested in favor of the flag-waiving ignorants, with one quoted as saying the confederate flag “had nothing to do with slavery.”

A spokesman for the school noted “the Confederate flag represents hatred, bigotry, intolerance, slavery, . . . .” In addition to all that, proud Americans note that the confederate flag also represents armed insurrection against our Constitution and all the freedoms many generations of men and women fought and died for. The confederate flag is offensive to most for all these reasons and any justification that it is a mere prop in a sophomoric prank is nonsense.

We know that students are not learning history very well. Perhaps an appropriate punishment for these and other would-be pranksters is remedial history as they need to learn what it stands for.

• Email This
• Print
• Comments
• Trackbacks

Recently, a reader wrote with a question and a situation.   

“I was looking at your website, and I was unable to find the answer to this question.  Is ability grouping allowed under Pennsylvania law?  In other words, a school has four classes for each grade level, and the students are grouped into four ability levels, from high achieving to low.  I've heard conflicting answers would like your insights.”

As readers know, I cannot give specific legal advice through this Blog.  But I can give my thoughts, generally (and welcome to hear yours), about this situation, so here goes. 

• Email This
• Print
• Comments
• Trackbacks

A recent case  from the U.S. Court of Appeals for the Fifth Circuit gives a good lesson on how to document sexual harassment investigations. The lesson is also instructive on how a report can be used as evidence in all sorts of investigations in an education setting.

The case facts are not remarkable (the boorish behavior is seen repeatedly in sexual harassment cases). One employee uttered a number of improper comments, sometimes emphasized by physical gestures. Such actions ultimately lead to his termination. But before then, the employer investigated and interviewed a number of employees, all of whom confirmed the conduct in question, which lead employer to decide to fire employee. An appeal followed, a second investigation ensued and confirmed the first investigation and termination decision. Employee appealed to court.

• Email This
• Print
• Comments
• Trackbacks

The U.S. Sixth Circuit Court of Appeals, by a 2-1 decision, reinstated a lawsuit brought by local school districts and others challenging the No Child Left Behind law as an unfunded federal mandated. NCLB says that nothing in the Act “shall be construed to . . . mandate a State or [local school district] to spend any funds or incur any costs not paid for under this Act.” The schools argued that the federal government should not penalize the schools, such as withholding federal monies, if the schools do not spend local and state monies in order to comply with NCLB.

Congress can pass laws under the authority of the Constitution’s Spending Clause. But when doing so, Congress must also pay for the costs associated with implementing the law. If not, the law must give clear notice to the states of their obligations, such as whether the state and not the federal government must pay. 

• Email This
• Print
• Comments
• Trackbacks

I have never knowingly used anabolic steroids. Anyone seeing me during my long-past sporting days (let alone now) would confirm that nothing in my performance ever even suggested I did. I have, however, handled imported products containing lead, most recently my half-working Christmas lights.  One did nothing for me; the other remains to be known. But the presence of both substances are, in odd ways, connected to public education (if not to each other).

MLB issued its long awaited report confirming what pundits have longer said: some players have used anabolic steroids and MLB did not do much about it. (Click here for one of many news reports about the report.) The Pennsylvania legislature and the public schools, at least, did not take the head-in-the-sand approach but were out in front of the curve on this one.

• Email This
• Print
• Comments
• Trackbacks

Annual notices are one among the many things that school administrators must remember to do at this busy time of year. The National School Boards Association has issued a convenient summary regarding the multiple notices that schools (including higher education institutions in some cases) must provide to parents, students, and the public, complete with handy links to model forms and other information. 

You should note that the model forms links are to federal models and are not specific to a particular state's or district's requirements or needs. A district should consider its unique circumstances for each notice, for example, whether the FERPA notice covers independent contracts, such as private student evaluators, sufficiently to meet anticipated district needs. 

• Email This
• Print
• Comments
• Trackbacks