Presentation for the North Arlington Public School District Staff

September 8, 2015

Vittorio S. LaPiraFogarty & Hara, Esqs16-00 Route 208 SouthFair Lawn, New Jersey 07410vlapira@fogartyandhara.com

Legal Update on Harassment, Intimidation & Bullying and Confidentiality of Student Records

Part I (HIB):Interpreting and Applying the Definition

The definition of HIB “Harassment, intimidation or bullying” means any gesture, any written,

verbal or physical act, or any electronic communication, whether it be a single incident or a series of incidents, that is reasonably perceived as being motivated either by any actual or perceived characteristic, such as race, color, religion, ancestry, national origin, gender, sexual orientation, gender identity and expression, or a mental, physical or sensory disability, or by any other distinguishing characteristic, that takes place on school property, at any school-sponsored function, on a school bus, or off school grounds as provided for in N.J.S.A. 18A:37-15.3, that substantially disrupts or interferes with the orderly operation of the school or the rights of other students and that:

A reasonable person should know, under the circumstances, will have the effect of physically or emotionally harming a student or damaging the student's property, or placing a student in reasonable fear of physical or emotional harm to his person or damage to his property;

Has the effect of insulting or demeaning any student or group of students; or

Creates a hostile educational environment for the student by interfering with a student's education or by severely or pervasively causing physical or emotional harm to the student.

HIB defined (breaking it down)

What?

• Any gesture, any written, verbal or physical act, or any electronic communication,

• Electronic communication includes telephone, text messages, email, and can also include social media (Facebook, Twitter)

• whether it be a single incident or a series of incidents.

Why?

• That is reasonably perceived as being motivated either by any actual or perceived characteristic, such as race, color, religion, ancestry, national origin, gender, sexual orientation, gender identity and expression, or a mental, physical or sensory disability,

• or by any other distinguishing characteristic.

“Any other Distinguishing Characteristic”?

WHAT TO LOOK FOR…

Objectively Distinguishing

Readily Apparent

Not simply based on a relationship between the parties

“Any other Distinguishing Characteristic”?

Probably YES

Hair Color

Piercings

Braces

Glasses

Intelligence (nerds, “sped” kids)

Weight

Physical features (big ears)

POSSIBLE

Grade level

Political affiliation

Social standing

Popularity

Socio-economic status

Probably Not

Comparative strength between students

Comparative age between studentsComparative popularity between students

REMEMBER… the concept of a “power differential” was deleted from the early drafts of the definition of HIB. Note that the NJ DOE has recommended to change the regulation to allow power differential to be considered HIB.

HIB defined (breaking it down)

Where & When?

• That takes place on school property, at any school-sponsored function, on a school bus,

• or off school grounds as provided for in N.J.S.A. 18A:37-15.3, i.e., subject to certain restrictions.

Off Campus Standard

• The law applies to conduct taking place off school grounds, in cases in which a school employee is made aware of such actions and subject to the following restrictions:• Only when discipline is reasonably necessary for the

student’s physical or emotional safety, security and well-being or for reasons relating to the safety, security or well-being of other students, staff or school grounds, pursuant to N.J.S.A. 18A:25-2 and N.J.S.A. 18A:37-2; and

• Only when the conduct which is the subject of the proposed consequence materially and substantially interferes with the requirements of appropriate discipline in the operation of the school.

HIB defined (breaking it down)

How?

• that substantially disrupts or interferes with the orderly operation of the school or the rights of other students;

• AND• A reasonable person should know, under

the circumstances, will have the effect of physically or emotionally harming a student or damaging the student's property, or placing a student in reasonable fear of physical or emotional harm to his person or damage to his property; OR

• Has the effect of insulting or demeaning any student or group of students; OR

• Creates a hostile educational environment for the student by interfering with a student's education or by severely or pervasively causing physical or emotional harm to the student.

OFF SCHOOL GROUNDSOff school grounds HIB violations and other code of conduct

violations can result in school based discipline when:

1) Only when discipline is reasonably necessary for the student’s physical or emotional safety, security and well-being or for reasons relating to the safety, security or well-being of other students, staff or school grounds, pursuant to N.J.S.A. 18A:25-2 and N.J.S.A. 18A:37-2; and

2) Only when the conduct which is the subject of the proposed consequence materially and substantially interferes with the requirements of appropriate discipline in the operation of the school.

See N.J.S.A. 18A:37-14

Part II (HIB):Procedures and Timelines

Reporting Timelines & Requirements Reporting Timelines All acts of HIB shall be reported verbally to the school

principal on the same day when the school employee or contracted service provider witnessed or received reliable information regarding any such incident. The principal shall inform the parents or guardians of all students involved in the alleged incident, and may discuss, as appropriate, the availability of counseling and other intervention services.

All acts of HIB shall be reported in writing to the school principal within two school days of when the school employee or contracted service provider witnessed or received reliable information that a student had been subject to HIB.

Investigating Timelines Investigating Timelines: Initial Investigation

The investigation shall be initiated by the Principal or the Principal’s designee within one school day of the report of the incident and shall be conducted by a School Anti-Bullying Specialist (“ABS”). The Principal may appoint other personnel to assist in the investigation.

The investigation shall be completed ASAP, but not later than 10 school days from the date of the written report of the incident HIB. In the event that there is information relative to the investigation that is anticipated but not yet received by the end of the 10-day period, the ABS may amend the original report of the results of the investigation to reflect the information.

Investigating Timelines Investigating Timelines: Superintendent

The results of the investigation shall be reported to the Superintendent of Schools within two school days of the completion of the investigation.

The Superintendent issues a decision and may decide, as a result of the findings, to do the following: Provide intervention services,

Establish training programs to reduce HIB and/or enhance the school climate,

Impose discipline,

Order counseling, or

Take or recommend other appropriate action;

Investigating Timelines Investigating Timelines: Board of Education The results of each investigation shall be reported to the Board

no later than the next scheduled Board meeting after the investigation has been completed, along with information on any services provided, training established, discipline imposed, or other action taken or recommended by the superintendent;

The Board must, within five school days after the results of the investigation are reported to the Board, provide parents or guardians of the students who are parties to the investigation with information about the investigation, in accordance with federal and State law and regulation, including:

The nature of the investigation,

Whether the district found evidence of HIB; and

Whether discipline was imposed or services provided to address the incident of HIB

At the next Board meeting following its receipt of the report, the Board shall issue a decision, in writing, to affirm, reject, or modify the Superintendent’s decision.

Parental Rights of Appeal Following First Notification

A parent or guardian may request a hearing before the Board after receiving the information, and the hearing shall be held within 10 days of the request. The Board shall meet in executive session for the hearing to protect the confidentiality of the students. At the hearing the Board may hear from the School Anti-Bullying Specialist about the incident, recommendations for discipline or services, and any programs instituted to reduce such incidents.

Generally try to time the notification, if possible, to approximately 10 days before the next Board meeting.

If a parent requests a hearing, and there is no Board meeting scheduled within 10 calendar days, options include calling a special Board meeting, or (preferably) obtaining consent of the parent(s) to schedule the hearing outside the 10 day timeline.

This should almost always be on the same day that the Board issues its decision.

After the Board’s Decision

The Board's decision may be appealed to the Commissioner of Education, in accordance with the procedures set forth in law and regulation, no later than 90 days after the issuance of the Board's decision; and

Note: Parents can also file complaints with the Division on Civil Rights within 180 days of the occurrence of any act of HIB if they fall under a protected class under the LAD.

Sample Reporting TimelineSchool Day 1

Tuesday 09/08/15Student A bullies

Student B, allegedly because of race

School Day 1Tuesday 09/08/15Student B reports

the incident to Teacher

School Day 1Tuesday 09/08/15

Teacher MUST report incident to Principal the same

day

School Day 2Wednesday 09/09/15

Principal must initiate investigation, notify parents, and

refer it to the School A-B Specialist

School Day 3*Thursday 09/10/15

Teacher must provide a written

report of the incident to the

Principal within 2 school days of verbal

report

School Day 13*Thursday 09/24/15Investigation must

be completed by this date within ten

school days following receipt of

written report.

School Day 15*Monday 09/27/15Principal submits

investigation results to Superintendent within 2 days of

completion

School Day 15*Monday 09/28/15

Superintendent issues

decision/discipline on the same day as

receipt of investigation report

School Day 17*Wednesday,

09/30/15Superintendent

reports matter to the Board at its next

meeting

School Day 18*Thursday, 10/01/15Written notification to the parents of all parties involved sent within 5 school days

of next Board meeting

School Day 21*Tuesday 10/06/15

District-imposed deadline for parents to provide notice for a hearing (must be

held within 10 days)

Following MonthBoard issues

decision affirming, rejecting or

modifying the Supt’s decision (next

regularly scheduled meeting)

*Assuming there are no school closures for the remainder of the month

Part III (HIB):Case Law Update

HIB Timeline for AppealsM.S. o/b/o A.S. v. Bd. of Educ. of Cranbury, EDU 2571-15, Initial Decision (__) aff'd by Commissioner (June 19, 2015)

Facts Parent challenged the board’s determination that her son, A.S., engaged in behavior that violated the Anti-

Bullying Bill of Rights Act.

The incident took place on or about May 22, 2014, but the parent’s appeal was not perfected until January 30, 2015.

The board filed a motion to dismiss contending that the parent’s appeal was filed beyond the 90-day period allowed under state regulation.

ALJ and Commissioner Decision The ALJ granted the motion to dismiss, noting that the parent was properly advised that she could

request a hearing before the board, and was properly advised that she could appeal the decision to the Commissioner no later than 90 days after issuance of decision.

The ALJ found that the board hearing occurred on September 29, 2014, with a written decision issued October 14, 2014. The parent then submitted an incomplete appeal, which was received by the Commissioner on December 30, 2014. The Commissioner responded, advising that if the appeal were perfected in a timely manner it would be allowed. Petitioner did not file a perfected petition until January 30, 2015.

The ALJ held that the parent failed to file the appeal within a timely manner and provided no evidence or law to allow relaxation of the 90-day time limit. Accordingly, the ALJ granted summary decision and the Commissioner affirmed.

Take away 90 day time limit will be strictly enforced!

HIB – Appropriate Discipline C.C. o/b/o S.C. v. Bd. of Educ. of Jefferson Twp., EDU 10872-14, Initial Decision (__) aff'd by Commissioner (May 12, 2015)

Facts HIB claim was filed against minor child, S.C. Superintendent determined S.C. committed an act of

HIB, and as affirmed by the board, S.C. received a one-half day in-school suspension and was denied three recess periods.

Parent filed a Complaint Investigation with the County Office of Education and filed an appeal with the Commissioner.

Parent claimed that the board and certain district personnel had substantially harmed his son through its investigation and response to the alleged acts of HIB

County Superintendent, ALJ and Commissioner Decision County Superintendent issued a report finding that: (1) the district’s investigation complied

with the Anti-Bullying Bill of Rights Act and (2) the suspension was appropriate.

The ALJ similarly found that the board properly implemented the Act. The ALJ noted that the HIB statute is intended to drive home the principal that cruel words will not be tolerated in a school environment. The ALJ further explained that the consequence to S.C. was adequately restrained and the actions of the district personnel and the board were consistent with the letter and spirit of the law and regulations.

The Commissioner affirmed, finding the board did not act in an arbitrary, capricious or unreasonable manner.

HIB – Reversing Board DecisionT.R. and T.R. o/b/o E.R. v. Bd. of Educ. of Bridgewater-Raritan Reg’l Sch. Dist.,EDU 10208-13, Initial Decision (9/25/14) aff'd by Commissioner (May 6, 2015)

Facts At the end of the 2011-2012 school year, P.H., an eighth-grade male student, “attempted to engage in

sexual activity” with E.R., a seventh-grade student, on school property. Students reported the incident, but the district did not conduct an HIB investigation at that time. When the parents of the female student called the district, they were advised that the district spoke with the male involved and advised him to “discontinue his activities.” Nonetheless, P.H. “continued to request sexual activities” from E.R.

The district finally agreed to conduct an HIB investigation, and found there was no finding of bullying. The report noted that the female student “liked the attention” and documented the incident as “Adolescent Sexual Curiosity.”

ALJ and Commissioner Decision

The ALJ issued a decision finding that the board acted in an arbitrary, capricious and unreasonable manner in determining that E.R. was not subjected to HIB. “P.H., an allegedly heterosexual male student, engaged in actions reasonably perceived as being motivated by E.R.’s actual characteristics such as gender (female) and sexual orientation (heterosexual). The Board’s argument that his conduct was somehow motivated instead by a unique and undefined personality trait of E.R. simply defies logic and is unpersuasive.”

The ALJ went on to find P.H.’s actions to have created a substantial disruption, noting that “substantial disruption or interference” appears to address free speech concerns. “By repeatedly requesting sexual favors from E.R. in the presence of other students, P.H. substantially interfered with the orderly operation of the school because ‘the essential lessons of civil, mature conduct cannot be conveyed in a school that tolerates lewd, indecent, or offensive speech and conduct,’” citing Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 683 (1986). The Judge also noted that students have a right to be “let alone.”

The ALJ’s decision was affirmed by the Commissioner.

HIB InvestigationsD.M. o/b/o K.B. v. BOE of the Twp. of West Milford, EDU 4873-14, Initial Decision (__) rev’d by Commissioner (Nov. 24, 2014)

Facts Parents alleged that their child was harassed in October 2013 and January 2014 to the point

that the child could not attend school and the district did not investigate in compliance with the Act.

The district denied that the student was subject to bullying and contended that neither the parent nor the child had filled out the HIB reporting form that would have provided the details necessary to investigate.

ALJ and Commissioner Decision The ALJ granted unopposed motion for summary decision in favor of the district holding

that the district had acted properly and exercised its managerial discretion.

The Commissioner rejected the decision finding 1) it was an error to apply the “default” standard of review and 2) all alleged acts of HIB require an internal investigation by an ABS, which the district did not undertake.

The Commissioner found that “as soon as the petitioner made a claim of HIB, the statutory requirements were triggered and the district had an affirmative obligation to conduct an investigation and follow the protocol outlined in N.J.S.A. 18A:37-15(b)6.”

The Commissioner also found that parents are not required to fill out a form to trigger an obligation on the district to investigate.

HIB – Parental Liability?V.B. v. Flemington-Raritan Regional BOE, Docket No.: HNT-L-95-13 (Law Div. March 12, 2014)

:Facts

Plaintiff, a 17 year-old, filed suit against the school district alleging that the school staff failed to address his complaints about being bullied.

In turn, the school district filed third-party complaints against the students who were allegedly bullying the plaintiff, claiming that their parents were made aware of their children’s conduct and that any failure to act may be deemed willful or wanton behavior.

The school district is seeking contribution from the students’ parents claiming that under the Joint Tortfeasor Contribution Law whenever one party’s injury is caused by the tortious conduct of two or more persons.

The students filed a motion to dismiss the school district’s Third-Party Complaint. Holding:

The Judge denied the students’ motion to dismiss holding that a contribution claim is available to school districts, holding that the districts should be permitted to bring claims against the bullies and their parents under the Joint Tortfeasor Contribution Law, even if the bullies and parents were not named as parties in the original suit. If the districts were found to be responsible for damages under the Anti-Bullying Bill of Rights Act and the Law Against Discrimination, the parents of the bullies could be required to contribute to the damages award.

The Judge stated that the school district’s negligence only occurred because of the occurrence of the Third-Party Defendants’ negligence and that both acts of negligence were required here for plaintiff to suffer harm. A final determination of liability will depend on the totality of circumstances, including whether the facts establish that the parents knew of the bullying and if so, whether their responses fell within the parameters of protected parental decision-making.

UPDATE: On August 8, 2015, the Judge dismissed all of the District’s complaints against the parents.

The Anti-Bullying Bill of Rights Act Does Not Alter Tort LiabilityThomas v. East Orange Board of Education 998 F.Supp.2d 338 (D.N.J. February 6, 2014)

Facts Guardian ad litem for minor child brought action in state court against public school

officials, alleging that their failure to prevent fellow students from bullying the child violated various State and federal constitutional, statutory, and common law rights. Action was removed to federal court. Defendants moved for summary judgment.

Federal District Court – New Jersey Student was not bullied because of her gender, as would support claim under

the New Jersey Law Against Discrimination (NJLAD). In a matter of apparent first impression, child's Southern-American heritage was not a protected characteristic, under the NJLAD.

Student did not engage in protected expression or other protected activity under the First Amendment nor did the officials violate equal protection clause.

Neither special relationship nor state-created danger exception applied to permit Plaintiff's substantive due process claims.

Officials' alleged breach of their duties under the New Jersey Anti-Bullying Act could not support negligent infliction of emotional distress claim. Lastly, Defendants were entitled to immunity under the New Jersey Tort Claims Act (NJTCA) from liability for negligent infliction of emotional distress.

HIB – Patterns of HarassmentFranklin Parent/Guardian o/b/o Minor v. Franklin Township BOEOAL DKT No. CRT 4889-13; DCR DKT No. PHOSRE- 3029 (August 11, 2014)

Facts The complaint alleged race-based bullying and

harassment of a minor that lasted from 3rd grade though 6th grade.

New Jersey Division of Civil Rights Settlement agreement was executed by the district,

awarding $75,000 to an African-American victim of bullying and allocated $2,500 to the creation of an anti-bullying awareness program.

The Division of Civil Rights opined that responding to individual incidents of harassment may not be sufficient where the district administrators are aware of an overall pattern of harassment.

Part III (Student Records):Update on FERPA and NJ Regulations

The Federal LawThe Family Education Rights and Privacy Act of 1974 (“FERPA”) : A federal law that protects the privacy of

student education records.

Gives students and parents specific rights regarding the release of student education records.

Important that school staff are aware of obligations and limitations as they relate to the release of student information.

New Jersey statutes and regulations governing student records are similarly based on FERPA

The Federal Law (continued)Rights Under FERPA: FERPA gives

students the following rights regarding education records:

The right to access education records kept by the school;

The right to demand education records be disclosed only with student consent;

The right to amend education records; and

The right to file complaints against the school for disclosing education records in violation of FERPA.

Definition of a Student Record Apart from specifically enumerated exceptions, education

records under FERPA are those records that are: directly related to a student; and

maintained by an education agency or institution or by a party acting for the agency or institution.

Education records may be recorded in any manner, including, but not limited to, handwriting, print, computer media, video or audio tape, film, microfilm, or microfiche.

There is no statutory definition of the term information directly related to a student.

Many experts have suggested that it should be considered synonymous with “personally identifiable information” as also defined under FERPA.

Personally Identifiable Information “Personally Identifiable Information” includes, but is not limited to:

The student's name;

The name of the student’s parents or other family member;

The address of the student or student's family;

A personal identifier, such as the student's social security number, student number, or biometric record;

Other indirect identifiers, such as the student's date of birth, place of birth, and mother's maiden name;

Other information that, alone or in combination, is linked or linkable to a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty; or

Information requested by a person who the educational agency or institution reasonably believes knows the identity of the student to whom the education record relates.

Memory AidsAn education record does not include a record

kept in the sole possession of the maker and used only as a personal memory aide.

For example, if the sole possessor keeps personal memory aids on the computer, the computer should not be left on and logged into while unattended.

If others access personal memory aids, they lose their status as excluded sole possession records.

Release of Records and ConsentParents must provide a signed and dated written

consent before an educational agency may disclose personally identifiable information from a student’s records unless specific circumstances exist where prior consent is not required.

When Consent is Not Required Prior parental consent is not required to disclose

information in student records when the disclosure is to: Other school personnel with legitimate educational interests;

A consultant/contractor/volunteer to whom the educational agency has outsourced institutional services and who is under the direct control of the educational agency with respect to the use and maintenance of education records;

Officials of another school where the student seeks to enroll;

Authorized representatives of State and local educational authorities;

Organizations conducting studies for educational agencies;

Accrediting organizations to carry out their accrediting functions;

Parents of a dependent student;

Comply with a judicial order or subpoena;

Assist in a health and safety emergency;

Provide information for “directory information;”

The parent of a student who is a minor or attending postsecondary school.

Other Conditions of Release Personally identifiable information may be disclosed

only on the condition that the receiver of the information will not disclose the information to any other party without prior written consent.

An educational agency may disclose personally identifiable information in connection with an emergency, if knowledge of the information is necessary to protect the health and safety of the student or others.

If the education records contain information on more than one student, the parent may inspect only the specific information on his/her child.

Notable Changes Under 2009 Amendments to FERPA

Attendance: The new regulations add additional situations in which students “attend” classes but are not physically present, including attendance by videoconference, satellite, internet, or other electronic information and telecommunications technologies. This change ensures that students who receive instruction through distance learning and other contemporary modalities are covered as “students” and, therefore, that their records are protected under FERPA.

Peer-grading: Under FERPA a school may not disclose a student’s grades to another student without the prior written consent of the parent or eligible student. The new regulations create an exception to the definition of “education records” that excludes grades on peer-graded papers before they are collected and recorded by a teacher.

Outsourcing: The new regulations expand the “school officials” exception to include contractors, consultants, volunteers, and other outside service providers used by a school district or postsecondary institution to perform institutional services and functions.

Health and Safety Emergencies The new regulations remove the language requiring strict

construction of this exception and add a provision that says that, in making a determination an educational agency or institution may take into account the totality of the circumstances pertaining to a threat to the safety or health of the student or other individuals.

If the school determines that there is an articulable and significant threat to the health or safety of a student or other individuals, it may disclose information from education records to appropriate parties whose knowledge of the information is necessary to protect the health and safety of the student or other individuals.

The recordkeeping requirements of FERPA require an educational agency or institution to record the articulable and significant threat that formed the basis for the disclosure and the parties to whom the information was disclosed. If there is a rational basis for the determination, the DOE will not substitute its judgment for that of the educational agency or institution in deciding to release, the information.

Relevant Decisions Involving FERPA

Family Policy Compliance Office (“FPCO”) Letter to Anonymous, 113 LRP 35722 (June 19,

2013)

Facts District investigated several students and prepared one report. While pursuing a

restraining order against the parent of one of the students, another parent learned that the report was shared with a parent, who shared the report with their attorney.

FPCO Letter The FPCO issued a letter stating that under the FERPA each parent has the right to

inspect and review or be informed of information contained in their child’s educational record. However, FERPA would not permit the school to provide one of the parents with a copy of the educational record that is directly related to two students unless the other parent gave written consent.

Where an educational record that refers to two or more students cannot be separated easily and still remain understandable to the parent, each parent has the right to inspect or review or be informed of the information in the educational record.

If there is a court order, the school may nonconsensually disclose the information after making a reasonable effort to notify the parent in advance of compliance so that the parent can seek protective action.

Relevant Decisions Involving FERPAK.L. v. Evesham Twp. BOE, 32 A.3d 1136 (App. Div. 2011),

cert. denied, 40 A.3d 732 (N.J. 2012)

This case involves the interplay between FERPA and the Open Public Records Act (“OPRA”).

There, the parent of two minor students filed suit under OPRA after the board refused to disclose school bullying records (requested through an OPRA request) that discussed the parent’s children along with other students. The board initially took the position that the parent was not entitled to the records, since they included information about other students. However, during the pendency of the lawsuit, the board released one record relating to plaintiff’s child and redacted the name of the other student discussed in the report.

As a result of this delayed disclosure, the court found the board’s initial refusal to be a violation of OPRA because the parent was entitled to his own child’s student records. However, the parent was not entitled to information relating to other student. “Under FERPA, the board was not permitted to disclose information about the other student to plaintiff, but it was required to provide access to the parts of the record that pertain to plaintiff’s own son. The board fulfilled that obligation by redacting the name of the other student.”

Common Pitfalls to Avoid Sharing files with parent attorneys and advocates.

Sharing records based on verbal consent. 

Sharing personally identifiable student information online.

Talking to parents about other students.

Disclosing information about other students at IEP or 504 meetings.

Venting frustrations about students in the teacher's lounge or via email.

Releasing information when subpoenaed (a court order is usually required).

Disclosing the amount of discipline a student received to another student or another student’s parents.

New Jersey Law Governing Confidentiality of Student Records

N.J.A.C. 6A:7.1 et seq. (“Student Records”)

“Student record” means information related to an individual student gathered within or outside the school district and maintained within the school district, regardless of the physical form in which it is maintained. Essential in this definition is the idea that any information that is maintained for the purpose of second party review is considered a student record. Therefore, information recorded by any certified school personnel solely as a memory aid, not for the use of a second party, is excluded from this definition.

“Access” means the right to view, to make notes, and/or to reproduce the student record.

Access to Student Records Only authorized organizations, agencies or persons as

defined shall have access to student records, including student health records:

The student who has the written permission of a parent or the parent of a student under the age of 18 whether or not the child resides with that parent except per N.J.S.A. 9:2.4;49: (1) The place of residence shall not be disclosed; and (2) Access shall not be provided if denied by a court.

Students at least 16 years of age who are terminating their education in the school district because they will graduate from a secondary school at the end of the term or no longer plan to continue their education.

The adult student and the student’s parent who has the written permission of such student, except that the parent shall have access without consent of the student as long as the student is financially dependent on the parent and enrolled in the public school system or if the student has been declared legally incompetent by a court of appropriate jurisdiction. The parent of the financially dependent adult student may not disclose information contained in the adult student’s record to a second or third party without the consent of the adult student.

Access to Student Records (continued)

Certified school district personnel who have assigned educational responsibility for the student shall have access to the general student record but not to the student health record except under conditions permitted by law.

Certified educational personnel who have assigned educational responsibility for the student and who are employed by agencies listed below shall have access to the general student record but not to the student health record except under conditions permitted by law.

An approved private school for the disabled;

A State facility;

Accredited nonpublic schools in which students with educational disabilities have been placed; or

Clinics and agencies approved by the Department of Education.

Access to Student Records (continued)

A district board of education, in order to fulfill its legal responsibility as a board, has access through the chief school administrator or his or her designee to information contained in a student’s record. Information shall be discussed in executive session unless otherwise requested by the parent or adult student.

Secretarial and clerical personnel under the direct supervision of certified school personnel shall be permitted access to those portions of the record to the extent that is necessary for the entry and recording of data and the conducting of routine clerical tasks. Access shall be limited only to those student files which such staff are directed to enter or record information and shall cease when the specific assigned task is completed.

Access to Student Records (continued) Accrediting organizations in order to carry out their accrediting functions.

The Commissioner of Education and members of the New Jersey Department of Education staff who have assigned responsibility which necessitates the review of such records.

Officials of other district boards of education within the State of New Jersey or other educational agencies or institutions where the student is placed, registered or seeks to enroll (subject to certain specific conditions).

Officials of the United States Department of Education who have assigned responsibilities which necessitate review of such records.

Officers and employees of a State agency who are responsible for protective and investigative services for students referred to that agency.

Organizations, agencies and persons from outside the school if they have the written consent of the parent or adult student, except that these organizations, agencies and persons shall not transfer student record information to a third party without the written consent of the parent or adult student.

Organizations, agencies and individuals outside the school, other than those specified in this section, upon the presentation of a court order.

Bona fide researchers (only through the Superintendent).

Appeal Rights for Parents and Adult Students Student records are subject to challenge by

parents and adult students on grounds of inaccuracy, irrelevancy, impermissive disclosure, inclusion of improper information or denial of access to organizations, agencies and persons. The parent or adult student may seek to:

Expunge inaccurate, irrelevant or otherwise improper information from the student record;

Insert additional data as well as reasonable comments as to the meaning and/or accuracy of the records; and/or

Request an immediate stay of disclosure pending final determination of the challenge procedure as described in State regulations.

Fees The Board may charge a reasonable

fee for reproduction, not to exceed the schedule of costs set forth in N.J.S.A. 47:1A-2, provided that the cost does not effectively prevent the parents or adult students from exercising their rights under this subchapter or under rules and regulations regarding students with disabilities.

Relevant Decision Involving State Student Records Law

G.L. and S.L. o/b/o S.L. v. Bd. of Educ. of Borough of New Providence, EDU 07224-12, Initial Decision (Oct. 1, 2014), aff’d by Comm’r (Jan. 2, 2015) In August, 2009, S.L. was denied entry into the school’s gifted and

talented program because her scores on a particular test were below the school’s cutoff point. Parents submitted an appeal letter to the board. Subsequently, the mother ran for the school board. On April 24, 2011 an individual identified as “nokool-aid4me” published an online comment regarding the mother’s campaign, stating that she was only running because she was upset that the district denied S.L. entry into the gifted and talented program.

In response, the parents filed suit against the board. They asserted the board failed to maintain the confidentiality of S.L.’s student records.

Against the board’s objections, the court agreed that the appeal letter was a student record but found there was no evidence the board violated the student’s rights. There was no evidence to show that the board left student documents “lying around” and there was no evidence submitted to demonstrate the identity of the blogger or how the blogger came to learn the student was not accepted into the talented and gifted program. “Was using G.L.’s child as a target beyond the boundaries of fair election commentary? Yes. But unfortunately, there has been no showing of nexus between the blogger and the school administration.”

Decision was affirmed by the Commissioner.

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