Jun 142013
 June 14, 2013  Breaches, U.S., Youth & Schools

Jason Tecza did not give up.

The former law student at University of San Francisco had sued the university pro se after his testing accommodation plan was accidentally included in materials given to a number of  his peers in a course. One of the causes of action was public disclosure of private facts. Other causes of action included violation of various California statutes as well as FERPA, Section 504 of the Rehabilitation Act, and the Americans with Disabilities Act.

Tecza’s first amended complaint was dismissed.  His second amended complaint was also dismissed, and he appealed. I’ve uploaded a copy of his reply brief here.

Oral argument was Wednesday.

There are not many cases on student privacy at the university level. FERPA does not provide for an individual cause of action (as the district court reminded Tecza in dismissing his complaint), and there are issues here that I think are significant.  Tecza argues that by seeing a sheet of paper with his name and an accommodation plan that granted him extra time in a separate location for testing, his colleagues could infer that he has a medical disability,  even though the paper did not list his diagnosis. The university argued that the very fact that he was not present in the testing room with his peers necessarily means that his receipt of accommodations was already somewhat public.   In addressing the claim of public disclosure of private facts, the district court held that although Tecza had met the “public disclosure” prong, he had not demonstrated that a “private fact” had been disclosed:

While the fact that plaintiff received testing accommodations may imply that he has an underlying medical condition that entitles him to such an accommodation, at no place  in plaintiff’s complaint does he allege that his disability was disclosed. It is plaintiff’s medical condition, not his testing   accommodation, that is an “intimate detail” of his private life; it is this “intimate detail” that USF promised to keep confidential.

Plaintiff has not provided one California case that indicates that a testing accommodation is a private fact. Due to the practical realities of implementing and administering testing accommodations to students experiencing a wide variety of illnesses and disabilities, it is perhaps obvious why no cases supporting such a position exist. As defendant has correctly observed, “by requesting and obtaining a different[] room for his quiet needs * * * [plaintiff] chose to separate his test location from the students at large, a fact that publicizes at some level, his status as an accommodated student.” Doc #7 at 13. To put it another way, the very existence of an isolated room component as part of plaintiff’s testing accommodation necessarily caused a disclosure to the students in his classes.

Even if plaintiff’s accommodation did not include an isolated room requirement, and therefore disclosure-by-procedure were not an issue, the mere existence of a testing accommodation does not lead to the conclusion that the student suffers from a disability that renders him “inferior” in some way to his peers.

Rather,if anything, an accommodation merely signifies that in order for a student to reach his full potential, he needs something different-a reader, a classroom aide, a sign-language interpreter. The fact that plaintiff may have suffered anxiety as a result of this disclosure is regrettable, but even if, as plaintiff alleges, his peers were informed that he received 4.5 hours and an isolated room to take a test, without more, such disclosure did not let others know the private reasons behind the accommodation.

Because plaintiff has alleged no facts that USF disclosed any medical information, the nature of his disability, that he has a learning disorder, or any other detail of his personal life, plaintiff has failed to state a claim for invasion of privacy. Accordingly, plaintiff’s first claim is DISMISSED.

So from the court’s perspective, it is not enough to demonstrate that it is likely that his peers would infer he has a disability (as they likely would infer). It’s not totally clear to me – or perhaps I just do not agree with the court – why having an accommodation plan is not a private fact, even if the nature of the disability is unknown. Most students are savvy enough to know that peers do not get a testing accommodation plan unless they have a disability and qualify under Section 504 or the Americans with Disabilities Act. Then, too, based on my experience in school settings, I know that some students will resent peers who get testing accommodations (with or without knowledge of the specific reasons). By disclosing to peers that Tecza received testing accommodations, USF increased the risk of social problems such as resentment.  Perhaps, as they reasonably argue, some disclosure may be unavoidable if a student is not taking examinations in the same room with peers, but I think that disclosing that the student receives extended time and not just a separate location makes it more likely for peers to infer an actual disability and/or to resent the student.

In his appeal, Tecza notes that in any case, the record in question was an academic record that should not have been disclosed.

So should his complaint have been dismissed? We’ll have to wait to see what the Court of Appeals for the Ninth Circuit rules.

h/t, Law360.com

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