privacy & legal issues, william allan kritsonis, phd

8/8/2019 Privacy & Legal Issues, William Allan Kritsonis, PhD

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Privacy Issues:Community,

Educators, andStudents

William Allan Kritsonis, PhD



T he Definition

T he definition of the right of privacyis simply ´ the right to be left aloneµ.

But in our society there is often acountervailing right to know.



T he Purpose

T he purpose of this chapter is toexamine the interplay betweenprivacy and the right to know in thecontext of T exas public schools.



T he Legal Framework

T he most specific reference to privacy in the U.SConstitution is found in the fourth Amendment,which states that ´ the right of people to be securein their persons, houses, papers, and effects, againstunreasonable searches and seizures, shall not be violated, and no warrants shall issue but uponprobable cause, supported by oath or affirmation,and particularly describing the place to be searched,

and the persons or things to be seized.



T he Legal Framework cont.

T he federal privacy law affecting education is the 1974 Family Educational

Rights and Privacy Act, also known as the Buckley Amendment. Unlike the fourth and the fourteenth amendments, FERPAapplies to any educational institutionreceiving federal funds. FERPA regulates

student record keeping activities by giving parents and students access to studentrecords, and the right to challenge thematerial contained therein.



T he Legal Framework cont.

T he law of torts (civil wrongs committed byone person against another) has had the

most to do with privacy. T exas courts recognized four personal

privacy torts but have been restricteddamage awards to situations where the

person bringing suit can show.



T he T exas Open Meetings and Public Information Acts



T he T exas Open Meetings Act ( T OMA) and T exas Public Information Act ( T PIA)

T he T exas Open Meetings Act( T OMA) and the T exas PublicInformation Act ( T PIA) seem to be instate of tension with evolving privacylaw because they are designed tofurther public access to governmentbusiness.



T exas Open Meetings Act

Chapter 551 of the T exasGovernment Code requires that

meetings of governmental bodies,such as the school board and aspecial education co-operative, beopen to the public.

Ch. 1 states that T OMA applies to the governing boards of open-enrollment charter schools, as well.



T exas Open Meetings Act cont.

T he law applies to a committee composedof one or more members of the board of

trustees of a school district that meets todiscuss public business or policy.

T he T OMA definition of ´meetingµencompasses staff briefing sessions where

board members receive information from or give information to a third party, including employees, as well as engage in questioning.




T he law explicitly spells out thenotice requirements regarding open

meetings. Written notice of the date,place, and subject of each meeting must be posted on a bulletin boardconvenient to the public in the

central administration buildings atleast seventy-two hours before themeeting.




Public meetings are those at whichpublic business or public policy is

discussed or at which formal actionis taken.

A closed meeting is required when a

school board discusses academicskills assessment instruments.



T exas Public Information Act

Formerly known as the T exas Open Records Act and modeled after the

federal Freedom of Information Act, the T exas Public Information Act isa companion to the complex openmeetings measure.



Educator Privacy Rights

Lifestyle behaviors related to marriage andprocreation, which have long been

recognized as Fourteenth Amendmentliberty right, usually are accorded at leastsome constitutional protection .

T he court of appeals ruled that a teacherhas the right to breast-feed a baby onschool grounds, though school officials candetermine where it can take place.



Educator Privacy Rights cont.

School boards have expressed a desire touse drug testing with employees,

particularly those in certain positions. Federal regulations adopted by theDepartment of T ransportation requiredrug testing of school bus drivers.

Drug testing may also cause legal issues torise to surface (right of privacy).



Educator Privacy Rights cont. T he law of defamation and privacy invasion is

most likely to surface in the education setting in the context of revealing the content of personnel

records. Four T exas statutes convey a qualified privilege

to employers with respect to employee decision-making.

T eachers also have privacy rights in connection

with information stored on a school computer. It now appears that teachers have a diminished

expectation of privacy in information stored onschool district- owned computers. (Voyles vs. theState of T exas (2004) )



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Student Privacy Rights:

involve both judicial andstatutory law Student personal privacy

² Critical Period of Intervention(CPI)

Student Records ² 1974 (FERPA)(20 U.S.C. §1232g)

Child Custody Issues

² Section I53.377 of Family Code

Student Dress and Grooming

² Fourteenth Amendment (Lansdale v. T yler JuniorCollege,. 1972)

² Public school got rejected



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Student Search and Seizure Standards for searches

² U.S. Supreme Court 1985 Fourth and Fourteenth Amendmentprotects from unreasonable searches.

Locker and Desk Searches

² Shoemaker v. State ² Students still need to be told that randomsearches can occur.

Sniffer Dogs ² U.S. Court of Appeals for the Fifth Circuit said Sniffer Dogs are not

considered searches- Police should be called if not granted access

Strip Searches

² Doe v. Renfrow, 1980 ² U.S. Court of Appeals for the Seventh Circuit

Student Drug T esting

² Vernonia School District v. Acton T esting program in 1989

Use of Magnetometers, Metal Detectors, and breathalyzers

² People v Dukes New York City 1992

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