A Pennsylvania court's view of HIPAA, FERPA, and student records

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. 

Yet another confederate flag case

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.

The rights of disabled students in higher education.

This past Spring, the U.S. Department of Education, Office for Civil Rights, issued two letters and a guide relating to students with disabilities and higher education. 

The first, addressed to institutions, summarized the rights and obligations of disabled students in higher education.  The second, addressed to parents, similarly explains rights and obligations and addresses how those rights and obligations differ in higher education than in public K-12 schools. 

The letters themselves do not offer any new insights or agency positions. But they serve as a useful reminder, particularly for parents, of how different circumstances are in higher education than in K-12.

The guide, Transition of Student with Disabilities to Postsecondary Education: A Guide for high School Educators, a question and answer format, is available here.

College-student disciplinary contract claims

The Pennsylvania Superior Court recently revisited – and rejected – breach of contract claims brought by a student dismissed from a private college. Reardon v. Allegheny College, --- A.2d --- 2007 WL 1576007 (Pa. Super.)  Thus, the Pennsylvania courts continue to adhere to a rather strict contract view of such claims, rejecting broader “due process” type claims.

The disciplinary procedures in the student handbook were the relevant contractual terms. The student did not argue that the terms were not bargained for, that she was unaware of the terms, or that the terms were ambiguous. The terms set forth “minimum procedural safeguards notice, the admission of relevant testimony, the right to call witnesses and present evidence, and the right to be represented by a member of the college community.” Reardon at pages 8-9. The student handbook did “not contain complicated procedural or evidentiary rules.” Reardon at page 8.

The court reiterated that, if a student cannot show a breach of any contractual terms, judges will not

review the college’s private, internal decisions, such as whether the dismissal was “just.” One might at first think this college-student contract rather unusual as it appears that, when the student claims the college did not perform as required, the college gets to unilaterally judge its own performance. But that is not the case. In a contracts class, we might say there is a difference between the customer claiming Acme Widget Co. failed to ship widgets versus Acme deciding to end its contract to sell widgets to the customer. Here, the court did consider student’s allegations of non-performance of the required terms, and concluded the college honored its promise to abide by the terms. But as such, the college’s decision (made in accordance with the terms) to “terminate” the contract was not reviewable. 

This case indicates that simple clarity of contract terms is preferred. That would tend to cut short any argument that the terms are ambiguous or similar contentions that distract attention from the plain words of the contract. Instead, the court will focus on compliance with simple, clear terms. And, being simple and clear, the terms should be easy for the college to follow in practice and thus “suffice to insulate the institution’s internal, private decisions from judicial review.” Reardon at page 6.


The BONG HiTS 4 JESUS decision, issued June 25, 2007, holds that a public school principal may, consistent with the First Amendment, restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use. Morse v. Frederick, at page 8. Schools “may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use.” Morse, at page 2. The decision is both clear and limited in holding nonsensical speech about illegal drugs can be prohibited in public schools.

The Supreme Court characterized the speech at issue, “Bong hits 4 Jesus” written on a 14 foot banner, as “cryptic,” perhaps offensive to some, funny to others, and meaningless to many. According to the student, it was just “nonsense meant to attract television cameras.” Morse at 6. And it was not political. Morse at 8. It nonetheless had an unmistakable message of some sort about drug use. “Gibberish is surely a possible interpretation of the words on the banner, but it is not the only one, and dismissing the banner as meaningless ignores its undeniable reference to illegal drugs.” Morse at 7. Accordingly, the banner, unfurled during a school activity, and its speech were not protected by the First Amendment. 

Analysis follows.

In the line of student speech case precedent, this case is more on the side of Fraser, which involved a student’s “elaborate, graphic, and explicit sexual metaphor,” than Tinker, which addressed a silent anti-Vietnam war protest involving black arm bands. Gibberish, even elaborate gibberish, involving either lewd and indecent speech or illegal drug use, is not protected. The Court appears to be creating categories of prohibited student speech, a point criticized in the dissent, that should be easy for school officials to apply in theory.

But in practice, the decision does not give guidance in the event student political speech, or perhaps just non-gibberish speech, includes illegal drug references, for example, “The President smoked dope, so can I” to support decriminalization. Justice Breyer wrote at 3, that he “cannot find much guidance in today’s decision.” Indeed, what if, as he rhetorically asks, the next banner instead reads “Bong hits 4 decriminalization?” Will the Court apply Tinker’s substantial disruption inquiry in that instance, or will the Court take a Fraser-Morse categorical approach? 

The Court hinted at this tension while discussing the case precedent, noting student speech can be subject to either Tinker’s or Fraser’s analysis, but declined to say which test applies and when. Morse at 8-11. As Justice Thomas, in his concurring opinion at 9-10, sees it, “our jurisprudence now says that students have a right to speak in schools except when they don’t. . .” and so Tinker should just be overruled. On this First Amendment issue, Justices Thomas and Alito stand far apart. Justice Alito’s concurring opinion draws a line up front by stating his view that political and social speech would likely be protected even if combined with drug references. Given the case precedents and divergent views on the current Court, the lack of wider guidance is not surprising.

Such guidance will have to wait for another, and surely inevitable, day. And given how the Justices align (or not) on the issue, that will likely be quite an interesting read.