Oct 302011
 
 October 30, 2011  Laws, Youth & Schools

@EducationNY pointed me to this news story by Christine Clarridge:

Five months before she allegedly attacked two schoolmates with a knife, nearly killing one, a Snohomish High School student underwent counseling after she threatened to kill another student’s boyfriend.

The 15-year-old Snohomish girl was allowed to return to school only after she presented proof she had attended counseling.

The earlier threats would have never been made public if the information wasn’t contained in court documents charging the girl with first-degree attempted murder and first-degree assault in last Monday’s attack.

Some Snohomish parents were surprised to learn of the earlier threat and have expressed concern that they weren’t notified.

But student information, including mental-health records, is tightly held by school districts because of federal privacy laws. The district says it cannot even discuss whether counselors or teachers were made aware of the earlier threats because of privacy laws.

The case underscores the delicate and complicated balancing act faced by schools in their efforts to meet the educational and privacy rights of individual students, as well as their need to ensure the safety of the larger student body.

Read more on Seattle Times.

Back in 2007, following the “Virginia Tech Shooter” case, that college also alleged that it could not do certain things because of federal privacy laws. There was tremendous public debate, and FERPA was subsequently amended to make clear that schools could protect student safety and what the exemptions to privacy were. Past media coverage can be found in the archives for this blog.

So FERPA was amended to prevent another “hands tied” Virginia Tech type of situation and yet Snohomish claims that its hands were still tied?

Back in 2007 and 2008, both Daniel Solove and I argued that the problem was not with FERPA but with how schools were interpreting it. The amendments enacted in 2008 should have made clear that student privacy does not trump public safety. So why this failure – again? Well, what if you don’t really know whether the student poses a current threat? What if a psychiatrist sent a letter asserting that the student is not a risk to others? Under such circumstances, can a school district disclose past problems? Some would argue – and I would agree – that they cannot disclose under such circumstances. But what they probably can do is not rely on a psychiatrist’s one-time assessment and require regular re-assessments as a precondition of return to school and staying in school. And what they probably can do is ensure that the student is seen each week for counseling in school by a professional who can assess if there is any change in mood or behavior. And what they probably can do is follow up regularly with the student’s parents, offering them resources and support to ensure that the student’s mental health or needs are getting met.

There is no way to predict with absolute certainty whether a student will become violent, but there are some factors or predictors. FERPA and HIPAA should not be obstacles to getting students needed care or help, and I don’t think that they are. I tend to think that districts are so afraid of litigation that in some cases, they err on the side of protecting privacy instead of student safety.

A district’s duty to provide safe schools applies not only to the students who might become victims but also to the student who may become the attacker. Just as my patients know that as a mandated reporter, there are certain secrets I can’t keep, students need to understand that there are certain secrets their schools can’t keep secret, either, and that their school will do what it has to do to keep them and their peers safe.

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