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With the use of video surveillance systems fully entrenched in school districts nationwide, school officials have seen an increase in parental requests for access to such videos, particularly as they relate to disciplinary matters, bullying allegations, or allegations of misconduct.  Such requests are governed by the federal Family Educational Rights and Privacy Act (“FERPA”), which establishes privacy protections and parental access rights for education records of students.  On April 19, 2018 the Family Policy Compliance Office (“FPCO”), a wing of the US Department of Education’s Office of the Chief Privacy Officer, published guidance titled “FAQs on Photos and Videos under FERPA.”  The recent guidance provides clarification for school officials regarding when a photo or video of a student constitutes an education record under FERPA and who may access such images.

As a general matter, FERPA provides that a parent must be given the opportunity to inspect and review their child’s education records – meaning those records, files, documents, and other materials which 1) contain information directly related to a student and 2) are maintained by an educational agency or institution.  (See generally 20 U.S.C. §1232g(a)(4)(A); 34 C.F.R. §§ 99.10-99.12.)  If a video or photo meets these definitions, it may be considered an education record.  

With respect to video and photos, the recent guidance provides a series of factors clarifying when such images are “directly related” to a student.  The guidance notes that videos or photos are likely to be directly related to a particular student when the images are used for disciplinary action or other official purposes, contain a depiction of an activity (e.g. shows a student(s) in violation of a law or school policy, shows a student(s) getting injured or attacked), or the entity taking the image intends to make the student(s) the focus of the photo or video (e.g. ID photo, recording of a student presentation).  Based on these factors, a video or photo image may simultaneously be an education record of two or more students (e.g. where a surveillance video shows two students fighting on a school bus, the school maintains the video, and the school uses the video images to discipline both students).  

Conversely, the guidance notes that images are not directly related to students incidentally appearing in a photo or video, or who merely appear in the background (e.g. a student appearing in the background of a video capturing a fight involving two different students).  If not directly related to a student, the video or photo is not an education record of such a student.  The guidance notes that this determination should be made on a case-by-case basis after examination of the relevant video or photo images. 

Of particular importance to school officials, the guidance addresses the question of who may access video or photo images that are considered education records.  This question most often arises when a video captures an incident involving two students, and the parents of one or both students request access to the video footage.  FPCO clarified that when a video or photo is an education record of a student, the parent of a student to whom the video or photo directly relates may request to inspect and review the image.  Importantly, FPCO noted that the same applies in a situation where a video or photo directly relates to multiple students – that is, the school must allow the parent to inspect the portion of the video or photo that directly relates to their child, though the guidance advises schools to redact portions of the video or photo relating to other students if redactions can be accomplished without destroying the meaning of the record.  The guidance cautioned that FERPA provides parental rights to access and inspect education records of their children, but does not generally grant a parent the right to obtain a copy of such education records. 

In addition to addressing this common scenario, the guidance provides information regarding a school district’s ability to release video or photo education records to law enforcement, and clarifies when such videos or photos are considered law enforcement records under FERPA, and what such a distinction means. 

The full text of the April 19, 2018 FPCO guidance is available at:

https://studentprivacy.ed.gov/faq/faqs-photos-and-videos-under-ferpa

Policy guidance letters issued by federal and state agencies and their subdivisions, including the FPCO guidance discussed herein, are informal, nonbinding, and do not establish a policy or rule that would apply in all circumstances.  School district administrators should consult with legal counsel as needed to resolve matters related to parental requests to access videos or photo images that are, or may be, education records.

Attorneys at Berchem Moses PC are available to consult school districts regarding regular and special education matters in the State of Connecticut.  For further information, please contact Attorney Michelle Laubin at mlaubin@berchemmoses.com.  

If they have not already done so, school districts in Connecticut must take affirmative steps to align their policies and procedures with the State Department of Education’s (CSDE) Standards for Educational Opportunities for Students Who Have Been Expelled.  Originally promulgated in January 2018, the Standards detail the legal requirements for providing Alternative Educational Opportunities (AEOs) to students who have been expelled, and establish guiding principles for the development and implementation of mandatory Individualized Learning Plans (ILPs).  In addition to updating their policies and procedures, school districts are urged to develop standard forms to ensure the consistent implementation of ILPs, improve recordkeeping, and reduce the risk of liability in the event that AEOs are called into question.  

By way of background, Conn. Gen. Stat. § 10-74j defines “alternative education” as a school or program maintained and operated by a local or regional board of education that is offered to students in a nontraditional educational setting and addresses the social, emotional, behavioral, and academic needs of such students (emphasis added).  Conn. Gen. Stat. § 10-233d requires local and regional boards of education to offer an AEO to (a) any student under sixteen (16) years old who has been expelled, and (b) any student between sixteen (16) and eighteen (18) years old who has been expelled for the first time, wishes to continue with his or her education, and complies with the conditions set by the board.  While school districts have long provided homebound tutorial and similar instruction for expelled students, such programs typically only address the basic academic needs of expelled students, and do not address the other areas of need that may have contributed to the situation that resulted in the expulsion in the first place.  This descriptor, that the program must address the student’s social, emotional and behavioral needs, signals to school districts that they must give additional thought to those unmet needs and plan programming to address the student’s needs as part of the AEO, hopefully returning the student to the general education setting at the conclusion of the AEO in a better place, ready to commit to staying and learning successfully in that setting.  

In 2016, the CSDE promulgated Guidelines for Alternative Education Settings, which applied to students who required an alternative education setting for reasons other than expulsion, such as academic, attendance, or social/emotional/behavioral issues.  The CSDE specifically cautioned, however, that the Guidelines were not to be construed to govern the mandatory AEO required to be offered to expelled students.  Instead, in January 2018, the State Board of Education (SBOE) adopted the Standards, which apply specifically to students who have been expelled.

The Standards clarify that, in accordance with Conn. Gen. Stat. § 10-233d, an eligible student who has been expelled must be provided with an ILP to inform and direct his or her learning goals and activities during the duration of the expulsion.  After issuing the Standards, the CSDE drafted a model ILP, but did not approve a finalized version for school districts to either adopt or use as guidance in the development of their own ILPs.  Some school districts, however, have responded proactively by updating their policies and procedures and creating their own AEO materials to conform with the Standards and applicable State law.

Those school districts looking to update their policies and procedures should first look to the Standards for step-by-step instructions to follow from the time an eligible student is expelled to the time he or she begins an AEO.  The Standards specify that district personnel should inform parents and students of the right to apply for early readmission at the time of expulsion, and subsequently meet with them to discuss potentially appropriate AEOs.  District personnel should then gather information regarding the student’s academic, social, and behavioral history from knowledgeable sources, and ultimately convene a placement meeting to identify an AEO and develop an ILP.  The Standards further dictate the steps that should be taken for periodically reviewing and revising students’ ILPs, transition planning and, ultimately, exiting them from their AEOs upon the expiration of their expulsion periods.  For expelled students with Individualized Education Programs (IEPs) or Section 504 Plans, the aforementioned steps and decisions must be made by the Planning and Placement or Section 504 Team, as appropriate.

Those school districts still in the process of developing AEO materials for expelled students should consider updating their policies and procedures to include step-by-step entry and exit procedures that correspond with the Standards, and developing standard forms for use during the AEO referral process and all ILP meetings, regardless of whether an expelled student requires special education and related services or not.  If an expelled student does require special education and related services, all such materials, including the student’s ILP, can be attached to his or her IEP or Section 504 Plan.  School district should also consider developing model behavior contracts for students to abide by while receiving their AEOs, which can be modified based on the circumstances of a student’s expulsion.  

School districts should also begin to develop the required ILPs to document the modality of instruction students will receive in their AEOs, such as small group instruction, individual tutoring, or online coursework.  As prescribed in the Standards, these ILPs also identify the student’s core classes at the time of expulsion, their progress in the curriculum of those classes, and the goals and interventions designed to remediate their academic and behavioral needs.  The ILPs specify the benchmarks that will be used to measures a student’s progress towards his or her goals, the timing and method for reviewing and communicating progress, and the requirements that must be met before exiting the student from the AEO.  Finally, the ILPs reference all relevant records, such as IEPs, Section 504 Plans, and academic and behavioral data, and provide for the timely transfer of records to and from the student’s AEO and the regular education setting.

Updating  policies and procedures and developing AEO materials to align with the Standards will enable the district to comply with State law and minimize the risks of liability in the event that AEOs are called into question at the individual or district-wide level.  This will help to ensure the timely and consistent provision of effective and complete AEOs to expelled students, who are often the most in need of intensive instruction and supports.  Remember that the State Department of Education’s position, as articulated in the Standards, is that provision of homebound instruction 10 hours per week, alone, is unlikely to meet the Standards.

The Standards and a corresponding letter from the State Commissioner of Education to the Superintendents of Schools are available via the following web links:

https://portal.ct.gov/-/media/SDE/Publications/Standards-for-Expelled-Students.pdf?la=en 

https://portal.ct.gov/-/media/SDE/Digest/2017-18/Standards-for-Expelled-Students-Memo_.pdf?la=en 

Attorneys at Berchem Moses PC are available to consult school districts regarding regular and special education matters in the State of Connecticut, including the development of policies, procedures, and standard forms for AEOs.  For further information please contact Attorney Michelle Laubin at mlaubin@berchemmoses.com. 

The parent of a student receiving special education services in the Highland Community School District in Iowa had a long history of disagreements with the district regarding the program and services offered to her child pursuant to the child’s Individualized Education Program (“IEP”). See Cazwiell-Sojka v. Highland Community School District, No. 3:17-cv-00020 (S.D. Iowa February 21, 2018). After a breakdown in communication with the teachers and the administration in charge of implementing her child’s IEP, the parent sought to include her grievances as an agenda item during the “receive visitors” portion of the board’s meeting to make known her discontent with the child’s IEP and disapproval of the district’s personnel and their professional performance. The district had a policy which stated that “while constructive criticism was welcomed, the board [desired] to support its employees and their actions to free them from unnecessary, spiteful, or negative criticism and complaints that do not offer advice for improvement or change.” On the basis of this policy, the parent was able to speak about her concerns regarding her child’s education but was cut-off and informed she would not be allowed to “address personnel issues” during public comment. Was the district entitled to do that? The parent did not think so and sued. 

Is it a Public Forum?

Speech restrictions imposed by the government on property that it owns are analyzed under a “forum based approach.” See Hotel Employees & Rest. Employees Union v. City of N.Y. Dep’t of Parks & Recreation, 311 F.3d 534, 544 (2d Cir.2002) (internal quotations omitted). Some property is recognized as being traditionally a “public forum” such as a park or a sidewalk where speech can only be restricted if narrowly tailored to serve a compelling State interest, whereas mailboxes at a public school may not be considered such public forums. See Perry Ed. Ass’n. v. Perry Local Educators’ Ass’n., 460 U.S. 37 (1983)( an employee union wanted to place recruitment flyers in teachers’ inboxes but noting that the boxes were built specifically for communicative purposes about official school business by authorized users, the Court found that the boxes were not a “forum” open to general expressive use).

Is it a Designated Public Forum?

Government entities are free to designate a location or time where citizens can express themselves. In a designated public forum—a place not traditionally open to assembly and debate which “the State has opened for use by the public as a place of expressive activity”—government regulation of speech is subject to the same limitations that govern a traditional public forum. See Make the Rd. by Walking, Inc. v. Turner, 378 F.3d 133, 143 (2d Cir.2004). That is the case with public comments during board meetings. Once it is declared to be a “designated public forum,” any regulation on the content of a speaker’s message could be struck down if challenged and deemed unconstitutional. For example, a policy which forbade complaints against an individual employee without the employee’s consent was found unconstitutional because it allowed classic viewpoint discrimination (speakers could provide praise but not criticize employees). See Leventhal v. Vista Unified School District, 973 F.Supp. 951, 954 (S.D. Cal. 1997).

Are Regulations Reasonable and Content Neutral?

The use of the forum can be limited to speech consistent with its purpose and a board may enforce reasonable regulations that are “content neutral,” or applied even-handedly to all speakers. Content-neutral restrictions are those that are both viewpoint and subject matter neutral. See Boos v. Barry, 485 U.S. 312, 320 (1988) (content neutral restrictions do not contain any restrictions based on either the ideology of the message or the topic of the speech, whereas content-based restrictions are those that endeavor to restrict or prohibit speech based on either the viewpoint or subject matter). While a school board cannot differentiate based on a speaker’s opinion, speakers can be limited to subjects relevant to that agency’s purview.  See Jones v. Heyman, 888 F.2d 1328, 1332 (11th Cir.1989)( speaker’s admonishing of the commission to act more prudently in its spending habits was not the topic of debate, and the mayor quickly directed the speaker to comment only on the relevant issue or be removed to which the speaker responded “I don’t think you’re big enough,” and was expelled). Similarly, a government body may also remove a speaker who causes a disturbance – shouting, refusing to leave after the expiration of a time limit – without violating the First Amendment. See Conn. Gen. Stat. §1-232 (allowing boards to remove persons who are willfully interrupting a public meeting, clear the room (except for members of the press) and continue in session); see also White v. City of Norwalk, 900 F. 2d 1421 (9th Cir. 1990) (upholding an ordinance that prohibited speech during council meetings that “disrupts, disturbs or otherwise impedes the orderly conduct of the Council meeting”).

What is the Main Take Away?

The parent who sued the Highland School District in Iowa survived a motion to dismiss because the Court in the Southern District of Iowa believed that the school district’s policies denied her the right to speak and petition the government and were unconstitutionally applied to her. Id. at 20.  The Court found that the policies supported “constructive criticism” but denied the opportunity to voice “negative criticism”. Id.at 22. The case remains active and proceeding in court. The main take away is that boards of education need to have a clear policy regarding public comments that take into account whether the language or implementation of the policy survives scrutiny under the First Amendment. For example, while board members may consider “asking” or “requesting” that speakers not discuss certain matters, e.g. personnel, it is important to remember that in doing so, they cannot restrict speech content once the meeting has been designated as a public forum. Unless, of course, the speaker is disruptive, e.g. uses profanity or engages in threatening behavior. Another suggestion is to consider limiting the discussion to agenda items and enforcing such practice in a content-neutral fashion.  In addition, when dealing with issues that are sensitive in nature such as personnel matters, boards routinely defer discussion to executive session under Conn. Gen. Stat. § 1-225(f). For these reasons, it is also important for board members to be clear on how to effectively use executive sessions to discuss these matters. 

Recently, the U.S. Supreme Court ruled that government workers who choose not to join a union cannot be charged for the cost of collective bargaining and related activities.

In a 5-to-4 decision, a majority of the Court noted in Janus v. AFSCME, Council 31, that “agency fees” violate, “the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern.”

As we have reported before, this case stemmed from an Illinois public sector employee who challenged a requirement that government workers who opt out of a union still have to pay partial dues (known as an “agency fee”) to cover the union’s cost of negotiation and other functions associated with policing and enforcing the contract.  This decision overrules the Court’s own 41-year-old precedent, which said workers did not have to pay for unions’ political activities but could be required to contribute to other costs of representation, such as negotiating wages and benefits and processing grievances.  The Court’s decision frees those non-members from having to pay the fees.

Significantly, and what will have an immediate impact on employees and employers is that the Majority held that an employee must affirmatively consent to pay the agency fee: “Unless employees clearly and affirmatively consent before any money is taken from them, this standard cannot be met.”  The Court did not specify the form this “affirmative consent” must take, but most likely will be in the form of a signature card explicitly authorizing the withdrawal of agency fees in accordance with Janus.  

Employees who elect to be union members and pay the full union dues, as opposed to paying just an agency fee, are not affected directly by this decision.  However, the decision could serve to inform all members that paying dues or an agency fee is now optional.

So what are the practical implications for public sector employers?  First, you must immediately cease from withholding agency fees from non-union members.  Secondly, you can expect your unions to want to meet with all bargaining union members, including those who pay full dues and those who pay just the agency fee, to convince them to remain union members, and to try to get non-members to sign a card affirmatively consenting to withholding agency fees.  In addition, you may find that unions will want to either modify or “open” the union dues section of the collective bargaining agreement to strengthen their position, and/or solicit support in signing up agency fee payers.

As we have learned, many public sector unions have already printed up (and in some cases handed out) new authorization cards which may or may not be sufficient under this new enhanced consent requirement.  Therefore, it is advisable that before deducting agency fees, to seek proper counsel from experienced labor and employment law attorneys.