FERPA’s Hottest Topic: The Law Enforcement Unit Exemption

Schools are deeply invested in keeping their students safe.  In light of growing public concerns about overall school safety, both state and federal officials have recently suggested that Nebraska educators use a provision of FERPA to bypass some confidentiality concerns when they are sharing information with members of law enforcement.  Both the Final Report of the Federal Commission on School Safety, released on December 18th, 2018 (which we blogged about earlier) and the Nebraska Attorney General have encouraged schools to consider using the “law enforcement unit” exemption to the Family Educational Rights and Privacy Act of 1974 (FERPA) to allow the disclosure of safety and security information to third party officials.  

The Law Enforcement Unit Exemption

Generally speaking, FERPA requires parental consent prior to the disclosure of a student’s personally identifiable information contained in education records. FERPA defines the term education record as “records, files, documents, and other materials” that “contain information directly related to a student” and are “maintained by an education agency or institution.”  20 U.S.C. § 1232g(a)(4). However, “records of the law enforcement unit of an educational agency or institution” are not included within the meaning of “education record.” 34 C.F.R. § 99.31.  Law enforcement unit records are an exemption to FERPA coverage altogether, not an exception to disclosure. Consequently, the provisions of FERPA do not restrict the disclosure of law enforcement unit records at all.  Keep this “exemption” separate in your mind from the health and safety “exception” you already use to disclose education records to local police in cases of emergency.

As at least one tool for addressing crisis situations, the School Safety report noted that school districts may designate any office or individual as its “law enforcement unit” and disclose records which qualify as law enforcement unit records to other entities (like local police departments) at the school’s discretion. For example, a school district could appoint its principal as the law enforcement unit, and delegate to that “unit” the responsibility for administering the school’s video surveillance system for purposes of maintaining safety and security. That footage may then be disclosed without consent or an exception to consent as a “law enforcement unit” record not covered by FERPA.

If a school has designated a record under the “law enforcement unit” exemption, it cannot use the same record as a student record for discipline or special education purposes.  However, if the school makes a copy of the “law enforcement unit” record and uses it for educational purposes, that copy of the record is protected by FERPA.  Even in those cases, though, the original record does not lose its status as a law enforcement unit record.

It’s easiest to understand the law enforcement unit exemption by way of example.  Let’s say fist fight breaks out in a school hallway. Your principal is your “law enforcement unit,” and is also the person responsible for student discipline.  As she reviews the security footage, she realizes that a short segment of the footage captured the fight clearly. As the “law enforcement unit,” the principal could immediately disclose a copy of the raw footage to the police.  If the principal then chooses to expel the student who started the fight, she could make a copy of the same footage to use in the discipline matter. The original video footage which the principal released to the police is not a student record.  Instead it is a record of a law enforcement unit.  The copy of the video even though it is a copy of exactly the same footage does become a FERPA-protected education record when the principal decides to use it for a separate school purpose.

Now, before you run to designate a principal or an SRO as your “law enforcement unit,” beware.  There are many issues you will want to consider before using the “law enforcement unit” exemption to avoid all those difficult discussions with police about having to get a warrant or subpoena.  As an initial matter, you will need to have your board of education amend your records policies. You will need to provide notice to parents of your “law enforcement unit” designation. Once you have made this distinction, you invite other problems, such as the application of state public records laws.  For example, if the local TV station wants footage of the fistfight in the example above, the school would likely have to release a copy of the “law enforcement unit record” copy of the video (even if it is identical to footage kept in the student’s file). In our view, there are pretty significant tradeoffs to establishing a law enforcement unit and keeping those records exempted from FERPA coverage.

The Application of State Law

Like FERPA, Neb. Rev. Stat. § 79-2,104 limits access to students’ school files or records.  The statute protects against the unauthorized disclosure of a “school’s files or records maintained concerning such student” but does not define that phrase.  Understanding that Nebraska schools must comply with both federal and state record laws, the Nebraska Department of Education sought further clarification from the Nebraska Attorney General regarding the use of the law enforcement unit exemption by Nebraska schools.  

In response, the Attorney General’s office released an opinion (available here) that ameliorated  some of our concerns and affirmed that it also interprets FERPA and the state student record laws as permitting the disclosure of law enforcement unit records at the discretion of the school.  While the opinion did not specifically address our concerns with the interaction between the exemption and section 79-2,104, the opinion did not raise any issues with such disclosures under state record laws.  Further, the statutory language of section 79-2,104 makes clear that the legislature intended the law to parallel the protections of FERPA.

Conclusion

While some uncertainty remains regarding the use of the law enforcement exemption by Nebraska schools, both the Nebraska Attorney General and the President’s Commission on School Safety have found that the exemption may operate as a means for districts to share more information with local law enforcement.  The application of the exemption is dependent upon several conditions that must be met, and practically requires that the law enforcement unit records be maintained apart from the district’s protected education records. If your school is interested in appointing a law enforcement unit in order to utilize the exemption, we encourage you to contact your school’s attorney, or call Karen, Steve, Bobby, Coady, or Mandy.

Ringing in the New Year with New School Board Members

Many school administrators preparing for their January board meetings have asked about the appropriate process for dealing with new board members, so we have prepared a short list of frequently-asked questions for your reference.

Do New School Board Members Have to Take an Oath?

School board members are not really required to take the oath of office that other elected officials are obligated to take.  Section 11-101 of the Nebraska statutes contains an oath of office that “state, district, county, precinct, township, municipal, and especially appointed officers” must take.  In Frans v. Young, 30 Neb. 360, 46 N.W. 528 (1890), the Nebraska Supreme Court held that boards of education are not required to take the oath prescribed by this section, because the term “district” applies only to judicial districts, and the term “municipal” to villages, towns, and cities.    

What if We Want to Continue Having Board Members Take the Oath of Office?

Most Nebraska school boards have ignored Frans v. Young and continue to administer the oath of office found in section 11-101 to new board members.  There is no harm in taking the oath and maintaining this long-standing tradition. Here is the oath which you can complete and have board members sign.   

Even if your board decides to stop publicly administering the oath, new board members may still insist on taking the oath.  Denying a public official the right take an oath might well violate the official’s First Amendment rights. In Newdow v. Roberts, 603 F.3d 1002, 1006 (D.C. 2010), a federal court held that President Obama had a “First Amendment right” to conclude his Oath of Office with “So help me God.”

What If I Have Just One Board Member who Refuses to Take the Oath?

We do not believe that you may lawfully prohibit a board member from serving in the event he or she chooses not to take the oath.  There is a growing consensus among courts that an oath like the one from Nebraska’s statutes is probably unconstitutional.  Although there is no Nebraska Supreme Court case interpreting the constitutionality of the oath, the U.S. Supreme Court and several other state and federal courts have looked at oath requirements unfavorably.  For example, in Nicholson v. Board of Comm’rs, 338 F. Supp. 48, 56 (M.D. Al. 1972), a federal court in Alabama held that the phrase “So help me God” administered in an oath “infringes upon the free exercise clause of the first amendment.”  Likewise, in Vogel v. County of Los Angeles, 68 Cal. 2d 18, (Cal. Sup. Ct. 1967), the California Supreme Court held that an oath violated the First Amendment where it required the promisor to swear he or she was “not a member of any party or organization, political or otherwise, that now advocates the overthrow of the Government of the United States…by force or violence or other unlawful means . . . .”

These cases are just a few examples of numerous courts which have invalidated oaths like those found in Nebraska’s statutes.  A Nebraska court may find these laws to be unconstitutional as well.

What if I don’t have enough old board members to constitute a quorum to open the January board meeting?

Simply open the meeting with your new board members.  The new board members may sign their oaths before the meeting opens, or you may open the meeting and swear in the new board members as the first thing you do.

May the old board members act on the board’s old business and the new members act on its new business?

No.  At most, board members whose terms have expired may perform ceremonial acts.  They may not take any formal action because they automatically lose their authority to act on behalf of the school district when their terms expire, regardless of when their replacements are seated.  Some districts mistakenly have the old board act on old business and then pass the meeting over to the new board to deal with new business. However, this should be avoided because it exposes the board to a charge of having non-members take action on behalf of the school district.

What Can Be Done at the Meeting to Show Appreciation for Both Incoming and Outgoing Board Members?

Many districts use the January meeting as a time to thank board members whose terms are expiring and to welcome new board members.  This is an important interpersonal issue that you should not ignore. However, be sure that your board has complied with the legal requirements for changing membership on the board and that any gifts or items given in recognition of their service are given in compliance with the requirements and limitations of the Local Government Miscellaneous Expenditures Act (sections 13-2202 to 2204).  For example, section 13-2203(2)(iii) permits one recognition dinner per year for elected and appointed officials, employees, and volunteers. The “maximum cost per person for such dinner shall be established by formal action of the governing body, but shall not exceed twenty-five dollars.”  Section 13-2204(3) authorizes the expenditure of public funds “for plaques, certificates of achievement, or items of value awarded to elected or appointed officials, employees or volunteers [.]” Before spending money for such items, “the governing body shall, by official action after a public hearing, establish a uniform policy which sets a dollar limit on the value of any plaque, certificate of achievement, or item of value to be awarded.”  This limit may not be changed more than once in any 12-month period. These requirements are most easily met by adopting a board policy that sets the expenditure limits.

What Else Can We Do to Get New Board Members Oriented?

We know that the first few months on the board can be overwhelming for both the new board members and their administrators.  KSB is going to try to help with this problem. On February 11 at 6:00 p.m. C.S.T., we will host a 50-minute live webinar titled “Five Things Every New School Board Member Should Know Right Away.”  The idea is to invite new board members to arrive at your February meeting an hour early so that they can participate in the webinar before their second board meeting. Of course, veteran board members are welcome to participate as well.  If your board cannot participate in the webinar live, we will record the session and make it available on our website. If you would like to register for this webinar, click here.  

If you have any questions about seating new board members or any other matter, please contact your school attorney or Karen, Steve, Bobby, Coady, or Mandy at (402) 804-8000 or ksb@ksbschoollaw.com.