On February 7, 2002, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the Evansville Community School District. This is the department's decision regarding that complaint. The issue is whether the district failed to ensure that copies of the special education and disciplinary records of a student with a disability were transmitted to appropriate authorities to whom district staff reported a crime allegedly committed by the student on or about January 11, 2002.
According to both the student's mother and the district, the student took an educational assistant's keys out of a classroom and to his home on January 11, 2002. The student had taken items in the past and staff had discussed strategies for addressing this behavior. When the educational assistant couldn't find her keys in the classroom after school ended that day, she suspected the student had repeated this behavior and called the student's home. The student's mother was not home, so the educational assistant spoke to the student and his sister. The student told her that he had taken the keys, but he wouldn't tell her where he had put them. The student would not return the telephone to his sister to allow the educational assistant to speak to her again. Later, the student's sister called the educational assistant back and offered to have the keys returned. The assistant declined and called the police to file a report on the incident and have her keys returned.
District practice is that police referrals are made by administrative staff. The educational assistant is not an administrative staff person, and she did not seek administrative approval to report the incident to police. When the district learned of the assistant's police report, it did not seek parental consent to transmit copies of the student's special education and disciplinary records to the police.
The district indicated that it took no action because the aide called the police after school hours as a private citizen and not as a representative of the district. However, the student's conduct occurred at school while under the supervision of school staff and during the course of the aide's employment. Under these circumstances, the police referral must be considered a referral from the school.
Special education law specifically permits a school to report a crime committed by a student with disabilities to the police. If a school district reports a crime committed by a child with a disability to the appropriate authorities, the district must ensure that copies of the child's special education and disciplinary records are transmitted to those authorities for consideration. However, a district may transmit copies of the child's special education and disciplinary records only to the extent that the transmission is permitted by the Family Educational Rights and Privacy Act (FERPA). Under FERPA, as well as state pupil record confidentiality law, parental consent must be obtained before personally identifiable information is disclosed to the police, unless specific exceptions such as a court order apply. Transmitting the records to the police is a required act that a district must at least attempt to accomplish. In order to transmit records to the police as required, a school district must seek parental consent. If the parent refuses consent, the district has met its obligation.
In this case, when the district learned that an employee reported the student for an incident that occurred in school during school hours, the district should have taken steps to ensure that copies of the student's special education and disciplinary records were transmitted to the police to the extent permitted by FERPA. In order to meet this requirement, the district should have sought parent consent. The parent in this case presumably would have granted that consent. The department addressed this issue in Information Update Bulletin 00.02, question # 31. The department will, however, revise the language in that bulletin to more clearly address this requirement. Within 30 days of the date of this decision, the district must submit a corrective action plan to the department that ensures that district administrative and special education staff are aware of the requirements regarding transmitting records to the police when a school reports a crime committed by a student with a disability.
This concludes our review of this complaint.
//signed 4/5/02 by SJP
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy