Records (Student Records)

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Originally appeared in the CAS Weekly Newsletter.
Written by attorney Thomas B. Mooney.

Dear Legal Mailbag:

I very much enjoy the Legal Mailbag, and I have a simple question for you. I’m wondering what can and cannot be placed in students’ cumulative files. In particular, I’m wondering about DCF 136 Forms, school records of behavioral/academic interventions, etc.

Thank you,
A Fan …
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On November 29, 2017, the House of Representatives Energy and Commerce subcommittee on Digital Commerce and Consumer Protection held a hearing on the use of computer algorithms and their impact on consumers.[1]

This was the latest in a series of recent efforts by a variety of organizations to explore and understand the ways in which computer algorithms are driving businesses’ and public agencies’ decision-making, and shaping the digital content we see online.[2]

In its simplest form, an algorithm is a mathematical formula, a series of steps for performing mathematical equations. The witness testimony and questions from the members of the Subcommittee highlighted a number of issues that businesses and government regulators are facing.

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The requirements of the European Union (“EU”) General Data Protection Regulation (“GDPR”) come into effect on May 25, 2018.   These regulations promise to usher in sweeping changes to the way institutions, companies, and other organizations collect and handle the personal data of EU residents.

The GDPR is a holistic set of data privacy requirements that address the entire life cycle of collection, use, and disclosure of the “personal data” of EU residents. While we anticipate jurisdictional challenges that may someday limit the GDPR’s reach outside of the EU, the law as currently drafted purports to affect institutions of higher education, companies, and other organizations, such as boarding schools, worldwide. This means that the GDPR will affect not only institutions that do business with or operate inside of the EU, but will also affect institutions in the United States that processes the personal data of persons residing in the EU.[1]

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On September 28, 2017, Connecticut Governor Dannel P. Malloy and Commissioner of Education Dr. Dianna R. Wentzell issued a joint memorandum  to Connecticut superintendents of public schools outlining local educational agency (“LEA”) obligations to homeless youth displaced by natural disasters. It is anticipated that many school-age students will seek refuge in Connecticut in light of the devastation rendered in Puerto Rico by Hurricane Maria. Public school districts are uniquely poised to supply a degree of normalcy to such students through educational opportunities and referrals to other services.

Under Subtitle VII-B of the federal McKinney-Vento Homeless Assistance Act, 42 U.S.C. §§ 11431-11435, (the “Act”), children and youth in homeless situations are afforded certain educational protections. Under the Act, “homeless children and youth” include individuals who “lack a fixed, regular, and adequate nighttime residence” and often includes those students displaced by disasters, including those students staying in accommodations set up by relief and community agencies. Such students displaced by disasters generally meet the Act’s definition and, as noted in the joint memorandum, such students will also qualify for free school meals, as well as health and other related services.

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In light of the Trump administration’s rescission of 2016 federal guidance from the U.S. Departments of Justice and Education concerning school district obligations to transgender and gender nonconforming students, on February 23, 2017, Governor Dannel P. Malloy, together with Commissioner of Education Dianna R. Wentzell, issued clarifying guidance to Connecticut Superintendents of Schools reaffirming the protections afforded to such individuals under relevant Connecticut state law.  Along with this joint guidance, Governor Malloy issued Executive Order 56, directing the Connecticut State Department of Education (“SDE”) and the Connecticut Commission on Human Rights and Opportunities (“CHRO”) to consult and develop guidance for school districts concerning the best practices and legal requirements for protecting the rights of transgender students.

Following Executive Order 56, SDE recently developed two guidance documents summarizing civil rights protections and best practices for supporting gender nonconforming students.  The new guidance includes both a document entitled “Guidance on Civil Rights Protections and Supports for Transgender Students”, which provides an overview of legal requirements and best practices, and a Frequently Asked Questions document, which addresses discrete issues related to such topics as privacy, student records, and access to sex-segregated areas, such as bathrooms and locker rooms.  Further, the guidance urges districts to develop and implement professional development programming for staff based on the extensive information in both documents.

As noted, the guidance touches on several important and practical topics, including the construction and applicability of several laws, on-the-ground practical solutions and considerations, and administrative concerns.  We have summarized some of the main points below, and encourage further review of the guidance in its entirety.…
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Cybersecurity of network of connected devices and personal data securityOn January 19, 2017, the U.S. Department of Education issued new Family Educational Rights and Privacy Act (“FERPA”) regulations that change the name of office…
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