Recently, State Superintendent of Public Instruction, Tom Torlakson, sent an email to school districts and other agencies throughout the state requesting that local education agencies (“LEAs”) and special education local plan areas (“SELPAs”) post a specific link to the California Department of Education’s (“CDE”) website related to litigation in Morgan Hill Concerned Parents Association, et al. v. California Department of Education. This NewsFlash provides more information about this request and clarifies that districts are not required to disclose any personally identifiable information about their students in response.
By way of background, Morgan Hill Concerned Parents Association and Concerned Parent Association (“Morgan Hill”) sued CDE in 2011, alleging among other things, that CDE failed to comply with its obligations to monitor, investigate and correct the non-compliance of LEAs with the Individuals with Disabilities Education Act, Section 504 of the Rehabilitation Act, and other state and federal laws. As part of the litigation discovery process, Morgan Hill requested documents and student data from CDE that was collected and stored by CDE. These documents contain personally identifiable information of students, including children with disabilities, children who requested an assessment or who were assessed for special education eligibility and children who are attending or who have attended a California school at any time since January 1, 2008.
In 2015, the U.S. District Court for the Eastern District of California ruled that the “educational records at issue” requested by Morgan Hill “may be disclosed without running afoul of [the Family Educational Rights and Privacy Act (“FERPA”)] as long as parents or students are notified of the disclosure by publication and a protective order restricts the use of the information to this litigation only.” Under the applicable FERPA exception allowing disclosure, such notification is required so that parents have the opportunity to seek protective action. In January 2016, the court issued a related order requiring CDE to post on its website the FERPA notification to parents, along with an objection form, for a period of 60 days, from February 1, 2016 to April 1, 2016. The order also requires that CDE “request that [SELPAs and LEAs] post the notice and objection form on their websites.”
Mr. Torlakson’s recent email is intended to comply with the court’s January 2016 order. The link accompanying the email includes the FERPA Notice and Objection Form, which CDE was ordered to post on its website. CDE requests that LEAs and SELPAs voluntarily post a link on their website to assist CDE in complying with the court order.
It is important to note, however, that only CDE has been named as a defendant in Morgan Hill Concerned Parents Association and, therefore, only CDE is required to comply with the January 26, 2016 order. School districts are not required to disclose any information directly to Morgan Hill or otherwise issue any FERPA notices or acquire consent to release information. However, they may choose to voluntarily post the information as requested by CDE. One reason for doing so is that the personally identifiable information of some district students may be subject to Morgan Hill’s discovery request to CDE. By complying with CDE’s request to post the link on the district’s website, the district would be providing information to parents that would allow them to object to the disclosure of their children’s personally identifiable information.
If a district wishes to comply with CDE’s request, it must post the link provided in Mr. Torlakson’s email on its website. If it does so, we recommend posting a brief statement explaining the reason for the posting and the fact that the district is not a party to the litigation. For example, the district could state:
The California Department of Education (“CDE”) is currently engaged in litigation with two non-profit associations comprised of parents and guardians of children with disabilities. The plaintiffs in that litigation have requested numerous documents, as well as student data collected and stored by CDE, which may include personally identifiable student information.
To comply with the Family Educational Rights and Privacy Act (“FERPA”), CDE has been ordered, among other things, to inform parents and students of the disclosure of such information. CDE has requested that school districts and SELPAs post the following link to CDE’s website: http://www.cde.ca.gov/morganhillcase. The link provides a Notice and Objection form to allow parents to object, by April 1, 2016, to the disclosure of personally identifiable information related to their children.
Please understand that the district is not a party to the litigation and is not required to disclose any student information, nor does it intend to do so. For more information, please contact CDE directly at (916) 319-0800.
If you have any questions regarding this matter, please call one of our six offices.
F3 NewsFlash prepared by Jonathan P. Read, Jose A. Mendoza and John W. Norlin.
Jonathan is a Partner in the F3 San Diego office.
Jose is an Associate in the F3 Inland Empire office.
John is Special Counsel in the F3 San Diego office.
This F3 NewsFlash is a summary only and not legal advice. We recommend that you consult with legal counsel to determine how this legal development may apply to your specific facts and circumstances. Information on a free NewsFlash subscription can be found at www.f3law.com.
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