Legal Mailbag – 10-30-19

By Attorney Thomas B. Mooney, Neag School of Education, University of Connecticut

The “Legal Mailbag Question of the Week” is a regular feature of the CAS Weekly NewsBlast. We invite readers to submit short, law-related questions of practical concern to school administrators. Each week, we will select a question and publish an answer. While these answers cannot be considered formal legal advice, they may be of help to you and your colleagues. We may edit your questions, and we will not identify the authors.

Please submit your questions to: legalmailbagatcasciacdotorg.

Dear Legal Mailbag:

I am a school administrator, and some students in my district have found that the bus is a good place for them to sneak in a few “hits” on a vape pen while being transported to and from school. The bus company has issued several “Bus Conduct Reports” for vaping violations to our administrative team over the past month or so. This brings me to my legal question.

The form itself is a carbon copy form with three copies under the original. The expectation is that the parents receive the top (white) copy, the office retains the (blue) second copy, and the third (pink) and fourth (yellow) copies are to be returned to the driver. The bus company keeps the pink copy, and the yellow copy is for the driver. The form itself is very comprehensive, and it consists of check-box options that include, but are not limited to, “Student Regretful and Cooperative (returned to the bus),” “Denied bus privileges until _____,” and “Suspended from school.”

The form is a great mode of communication to my administrative team for reports. However, I wonder whether we are violating FERPA by sharing with the bus company and its employees information about the disciplinary action taken by the school on a particular student.

Mum’s the Word, Say No More

Dear Mum:

You have raised a very good question, and Legal Mailbag recommends that your district revise these procedures.

Clearly, records documenting the suspension of a specific student are protected by FERPA and must be maintained as confidential. However, as with any other FERPA-protected record, people who work on behalf of the school district may have access to FERPA-protected records if they need the information to do their jobs. Under FERPA, such persons are considered “school officials” who are entitled to receive such information when they have a “legitimate educational interest.” By way of example, a teacher who has a student struggling in class may find it helpful to know how that student is doing in other classes; and, a coach may want to make sure that a student is earning grades that will maintain his eligibility to participate in interscholastic sports. In both examples, these district employees would have a legitimate educational interest in reviewing that information, and their doing so is permitted by FERPA.

You may wonder whether and how a bus driver could possibly be a “school official.” The FERPA regulations provide that:

(A) The disclosure is to other school officials, including teachers, within the agency or institution whom the agency or institution has determined to have legitimate educational interests.

(B) A contractor, consultant, volunteer, or other party to whom an agency or institution has outsourced institutional services or functions may be considered a school official under this paragraph provided that the outside party –

(1) Performs an institutional service or function for which the agency or institution would otherwise use employees;
(2) Is under the direct control of the agency or institution with respect to the use and maintenance of education records; and
(3) Is subject to the requirements of § 99.33(a) governing the use and redisclosure of personally identifiable information from education records.

34 Code of Federal Regulations § 99.31 (emphasis added). Accordingly, a bus driver can be a “school official” entitled to student information he or she needs to do his or her job. However, he or she is not entitled to information he or she doesn’t need. Moreover, he or she is bound by FERPA confidentiality requirements and may not disclose such information further.

While the quadruplicate form may be convenient, its continued use appears to be a FERPA violation. Here, the bus driver has a legitimate interest in some of the personally-identifiable student information, but not all of it, and the bus company has no legitimate educational interest in such information at all. Specifically, the bus driver needs know when a student is not eligible for transportation, but Legal Mailbag does not see a need for the bus driver to know whether the student has been expelled, suspended or simply excluded from transportation privileges. Accordingly, Legal Mailbag recommends that you do not return copies of the form with the student’s disciplinary status to either the bus driver or the bus company. Rather, you should provide a copy of the form to the parents and you should simply inform the bus driver when a student is not eligible for transportation. Moreover, you must tell the bus driver that this information is confidential and should not be disclosed further.

By posing your question, you are helping your district comply with FERPA. Tell your superintendent that you deserve a raise. Confidentially, of course.