Everyday Legal Issues

1. Everyday Legal Issues By Jill Coyle May 4, 2012

2. Today’s Outline • Data Privacy • Maltreatment Reporting • Custody and Divorce • Break • Duty of Care • Special Education Issues • Bullying & Social Media

3. Data Privacy and Student Records

4. The handling of student records is governed by state and federal law. • Minnesota Statute 13.32 (Minnesota Government Data Practices Act) • 20 USC 1232g (Federal Educational Rights and Privacy Act “F.E.R.P.A.”)

5. Most student information collected or maintained by schools is classified as “private.” • Private information may not be released to members of the public without consent or as otherwise specifically permitted by law.

6. Name Address, telephone and email (but not in all school districts) Date and place of birth Major field of study Participation in activities and sports Weight and height of athletes Dates of attendance Enrollment status Degrees, honors and awards received The most recent educational institution attended Photograph Grade level A limited amount of student information is classified as public directory information. Directory information typically includes:

7. A very limited amount of data may be classified as “confidential.” • Confidential data is not accessible by the data subject.

8. Three Classifications • Public • Private • Confidential

9. Private data may only be shared within the School District on a need-to-know basis. • Avoid teachers’ lounge gossip • Consider keeping student identity private when discussing a situation with colleagues. • “Need-to-know” extends to volunteers and contractors.

10. Private data may not be shared outside the District without consent or as otherwise permitted by law. • Exercise extreme caution with disciplinary information. • Exercise extreme caution with disability information. • Exercise extreme caution with your community conversations.

11. Parents have a right to access all of their own child’s private data. • Use caution when e-mailing colleagues. • Don’t put something in writing that you will later regret. • Watch out for “commingled” data. • Noncustodial parents do not generally lose the right to access student data. • The “Desk Drawer Exception” is a very limited exception. • Data can’t be shared with anyone other than a substitute teacher. • Data must be destroyed at the end of the year.

12. Keezer Data • Unrecorded mental impressions don’t count as data. • Exercise extreme caution before assuming information is only an “unrecorded mental impression.”

13. Civil Remedies and Penalties • Lawsuit for damages or compliance (M.S. 13.08) • Attorney’s fees • Civil penalty • Injunction (M.S. 13.08) • A willful violation is a misdemeanor (M.S. 13.09) • Cause for suspension or dismissal (M.S. 13.09)

14. DATA SHARING WITH LAW ENFORCEMENT • Formal Police Requests • Mandatory • Permissive • Health and Safety Emergencies • Subpoenas and Court Orders • Maltreatment Investigations

15. DATA SHARING WITH LAW ENFORCEMENT Treating an SRO as a school staff member can be risky. Let’s discuss best practices. . .

16. Legal Issues – Data Sharing by Police • Disposition Orders • Probable Cause Notices

17. Maltreatment Reporting Reference: M.S. § 626.556

18. Who is a Mandated Reporter in a School District? • “A Professional or professional’s delegate who is engaged in …education.” • Virtually all school employees are mandated reporters.

19. What is the Threshold for Making the Decision to Report? • You must make a report if you know or have REASON TO BELIEVE that a child is being neglected or physically or sexually abused, or has been abused or neglected within the preceding three years. • You do not need to know for sure; the investigation is the responsibility of law enforcement and social services.

20. What is Sexual Abuse? • Criminal Sexual Conduct • (1st-5thDegree) • Child Prostitution • Threatened Sexual Abuse

21. What is Physical Abuse? Non-accidental physical, mental or threatened injury inflicted by a person responsible for the child’s care, or any physical or mental injury that cannot reasonably be explained by the child’s history of injuries, or any aversive or deprivation procedures, or regulated interventions that are not authorized by law.

22. What is Physical Abuse? [continued] Physical abuse may include: • Throwing, kicking, burning, biting or cutting a child. • Striking a child with a closed fist. • Shaking a child under age three. • Any action resulting in a non-accidental injury to a child under 18 months. • Unreasonable interference with a child’s breathing.

23. What is Physical Abuse?[continued] • Threatening a child with a weapon. • Striking a child under age one on the face or head. • Purposely giving a child poison, alcohol, or dangerous, harmful or controlled substances which were not prescribed for the child in order to control or punish the child. • Purposely giving a child unprescribed substances that substantially affect behavior, motor coordination, or judgment or that results in sickness of internal injury, or subjects the child to otherwise unnecessary medical procedures.

24. What is Physical Abuse?[continued] • Unreasonable physical confinement or restraint not permitted by law including tying, caging or chaining. • Corporal punishment (hitting, spanking or unreasonable physical force) by a school staff member.

25. Physical Abuse Does NOT Include: • Reasonable and moderate physical discipline by a parent or legal guardian which does not result in an injury. • Reasonable force by a school staff member to restrain student or prevent bodily harm or death to another or to correct (teachers and principals only). • This does not include hitting, spanking or unreasonable physical force that causes bodily harm or substantial emotional harm.

26. What is Neglect? • Provide necessary food, shelter, clothing, health care, medical care, supervision/child care or other necessary care. • Ensure that the child is educated as required by law. • Protect from seriously endangering conditions or actions. Failure by a person responsible for a child’s care to:

27. Neglect also includes: • Prenatal exposure to controlled substances. • Chronic and severe use of alcohol or a controlled substance by a parent or person responsible for the care of the child. • Emotional harm from a pattern of behavior which contributes to impaired emotional functioning of the child. NOTE: Neglect does not include a parent’s refusal to provide sympathomimetic medications.

28. How is a Report Made? State law requires that anyone having first hand knowledge of abuse or neglect must verbally report the concerns to law enforcement or social services within 24 hours followed by a written report within 72 hours.

29. What will happen if a staff member fails to make a mandated report? Anyone working with children, including teachers and support staff, have a legal responsibility to report suspected abuse or neglect. Therefore, charges can be filed against an individual who is a mandated reporter, has knowledge of abuse or neglect, and does not report it.

30. What if the Reporter is Wrong? • Minnesota statutes protect all mandated reporters from any civil or criminal liability for reports submitted in “good faith.” • Employers are prohibited from retaliating against employee reporters.

31. Will the Identity of the Reporter be Kept Confidential? The name of the reporter is confidential and can be released only by court order. Some cases may be referred to court and a mandated reporter may be subpoenaed to testify.

32. Will Reporters Find Out the Action Taken as a Result of a Report? YES. Any person mandated to report shall receive a summary of the disposition of the report, including whether there was enough information to proceed with an investigation, the determination of the investigation, and the services which were offered to the family. The release of this information can be denied if it might be detrimental to the child’s welfare.

33. What Happens if the Alleged Perpetrator is a School Employee and the Abuse/Neglect Occurred in School? • Employees are mandated by law to report a coworker’s abuse or neglect of a student. • If the alleged perpetrator is a school employee or agent, the report of maltreatment must be made to the Minnesota Department of Education (MDE).

34. Minnesota Department of Education (MDE) Contact Information 24-Hour Reporting Hotline • 651-582-8546 • FAX: 651-634-2277

35. What are the Potential Consequences to the Employee Perpetrator? • Case screened out by MDE/law enforcement/social services. • Investigation followed by exoneration. • Investigation followed by employee consequences (training, counseling, warning, written reprimand, suspension, demotion or termination). • Investigation followed by MDE corrective action. • Investigation followed by action on license (conditions, suspension, termination). • Investigation followed by criminal charges. There is a wide range of consequences including:

36. What Should Accused Employees Understand About the Investigative Process? • School districts should investigate allegations of misconduct (including child maltreatment) by school staff members even when the allegations may be unfounded. • Other agencies (MDE, social services, law enforcement) may also investigate. • An investigation into an employee’s conduct does not mean the employee is guilty. Employees are often exonerated. • School districts should precautions to protect the confidentiality of the investigation.

37. Custody and Divorce

38. Physical Custody • Visitation • Legal Custody • Parental Rights

39. Presumption of Parental Right to Access • (Minn. R. 1205.0500, subp. 2) • The school shall presume a parent has the authority to access data on the child unless the school has been provided with evidence that there is a state law or court order governing such matters as divorce, separation or custody or a legally binding instrument which provides to the contrary.

40. Minn. Stat. 120A.22 COMPULSORY INSTRUCTION • Subd. 1a. Noncustodial parent access to records. • Upon request, a noncustodial parent has the right of access to, and to receive copies of, school records and information, to attend conferences, and to be informed about the child's welfare, educational progress, and status, as authorized under section 518.17, subdivision 3. The school is not required to hold a separate conference for each parent.

41. Minn. Stat. 13.32 EDUCATIONAL DATA. • Subd. 10a. Access to student records; school conferences. • (a) A parent or guardian of a student may designate an individual… to participate in a school conference involving the child of the parent or guardian. The parent or guardian must provide the school with prior written consent allowing the significant individual to participate in the conference and to receive any data on the child of the consenting parent or guardian that are necessary and relevant to the conference discussions. The consenting parent or guardian may withdraw consent, in writing, at any time.

42. Let’s Talk About… • Conversations with G.A.L.s • Requests for letters or affidavits for use in a custody proceeding • Subpoenas to testify

43. Sample Subpoena Letter The purpose of this letter is to inform you in writing that Independent School District No. has received a subpoena for your child’s school records and/or to testify about your child. The records and/or testimony were subpoenaed in a matter captioned [fill in caption on subpoena]. The records and/or testimony were subpoenaed by . Federal law (34 CFR 99.31(a)(9)) requires the School District to notify you of the subpoena in advance of compliance in order to provide you time to seek a protective order if you so desire. The School District plans to produce the subpoenaed records and/or testify on , unless you have obtained a protective order by this time. Thank you for your attention to this matter.

44. Let’s Talk About… • Orders For Protection (OFP) • Harassment Restraining Orders • Safe at Home Program

45. Duty of Care

46. A “TORT” is a civil wrong • Negligence is an unintentional tort. • Negligence is the failure to exercise due care. • Negligence is actionable if injury or loss results.

47. Duty  Breach  Causation  Injury

48. Immunity • Discretionary • Official

49. Let’s Talk About… • Suicide Ideation • Drug/Alcohol Use • Pregnancy

50. Let’s Talk About… • Killen v. ISD 706 (overruled) • S.W. v. Spring Lake Park Sch. Dist. No. 16 • Verhel v. ISD 709 • DOE v. ISD 2154