Last week the Federal Trade Commission announced on its blog that it has updated its frequently asked questions (FAQs) about the interplay between schools and the Children’s Online Privacy Protection Act (COPPA). Although nothing in the guidance is new, it is a good reminder of the often confusing rules governing consent for online services and apps in the school context.
What is COPPA?
COPPA and the related FTC regulation implementing it generally apply to operators of commercial websites and online services (including mobile apps) directed to children under 13 that collect, use, or disclose personal information from children. Operators covered by COPPA and the FTC rule must do a number of things to comply with the rule, including providing notice to parents about what data they collect and how they use it, and obtaining verifiable parental consent, with limited exceptions, before collecting personal information online from children.
Under COPPA and the FTC rule, there are some circumstances where a school district can collect the required parental consent to avoid having to coordinate between parents and the online service providers. That issue is what the FTC FAQs address, and the FTC updated them to streamline and clarify the rules, which are often confusing to stakeholders.
The FTC FAQs
So what’s in the FAQs? Here are key takeaways for school leaders:
- Schools can consent to a website or app’s collection, use or disclosure of personal information from students, but only where they are contracting with third-party website operators to offer online programs solely for the benefit of their students and for the school system, and for no other commercial purpose. The FAQs provide the example of homework help lines, individualized education modules, online research and organizational tools, and web-based testing services as permissible types of websites and apps for which a school can provide permission. Although not addressed in the FAQs, schools should have a form in place to collect consent for the services and apps it is using so that it can show that it has obtained the necessary parental consent if needed.
- In contrast, where an operator intends to use or disclose children’s personal information for its own commercial purposes in addition to the provision of services to the school, it will need to obtain parental consent and schools cannot consent for parents.
- In order for an operator to get consent from a school, the operator must provide the school with all the notices required under COPPA and comply with other requirements of COPPA, such as deleting children’s personal information once the information is no longer needed for its educational purpose.
- Perhaps the main takeaway is that any agreement between the website or app and the school has to address the requirements of COPPA and make clear that the website or app will only use the data collected for permissible purposes. The FAQs include a set of very useful questions that school districts can ask website or app contractors to ensure that COPPA is being adequately addressed.
The FAQs also address a number of other issues, such as what notice the FTC advises should be provided to parents when a school district enters into an agreement that includes providing consent for students under COPPA. The FAQs remind schools that even if an agreement complies with COPPA, moreover, care must be taken to ensure the agreement also comports with other federal laws, such as the Family Educational Rights and Privacy Act (FERPA), the Protection of Pupil Rights Amendment (PPRA), and state laws. A state law in Illinois is working its way through the legislature and will likely be passed soon, and there are already laws on the books in numerous other states.
The FTC also advises that schools not allow individual teachers to decide when they can provide consent for students under COPPA. Rather, the school or school district should determine whether a particular site’s or service’s information practices are appropriate. I agree with this advice because even though it is not required by the law, it can keep schools out of quite a bit of trouble if teachers or other staff members misunderstand the legal requirements of these laws. School districts should put in place administrative procedures explaining to staff how to obtain authorization to use a particular website with students under age thirteen.
Finally, although not addressed in the FAQs, note that although COPPA does not require applying these rules to students over age 13, there may be practical and legal reasons to consider following similar steps for older students. For instance, some websites may require parental consent for students under age 18, regardless of whether they collect information from students or not. As a practical matter, school districts may want to have procedures in place to prevent inadvertently violating the terms of service for such sites.
In a recent decision, Ollier v. Sweetwater Union High School District, the Ninth Circuit Court of Appeals upheld a trial court finding that a public school district intentionally discriminated and retaliated against female athletes on the basis of their sex, violating Title IX of the Education Amendments of 1972. The case is notable for finding that the three-part Title IX test generally applied to higher education entities also applies to high schools. The court also notably rejected the school district’s argument that there is no Title IX violation if there are more sports teams for female students at school than male students, even if there are fewer spots occupied by female students at the school.
In Ollier, the court found that female athletes at a high school were supervised by overworked coaches, provided with inferior competition and practice facilities, and received less publicity than male athletes. The court found that there were fewer athletic opportunities for female students as compared to their respective enrollments. The court rejected the school’s argument that there were more sports teams for girls than boys at the school, which was an attempt to justify the disparity between opportunity and enrollment. The court explained that the Title IX test requiring substantial proportionality between female athletic participation and enrollment generally applied to colleges and universities also applied to high schools, and that the test focuses on the number of participating athletes, not the number of available spots on girls’ teams. The court determined that because the inequalities were the result of systemic administrative failures and the failure to implement policies and procedures to cure the inequities, the school district illegally discriminated against female athletes in violation of Title IX.
The court also found that the school district retaliated against the female athletes by firing the girls’ softball coach just a few weeks after the father of two of the athletes complained about the perceived inequalities in the programs. The coach had been warned that he could be fired at any time for any reason, which he understood to be a threat that he would be fired if the female athletes continued to complain. The court explained that coaches are often the best advocates for female athletes and that employment decisions affecting them can negatively impact the athletes.
With Guest Bloggers Laura Knittle and Julie Heuberger Yura
According to the U.S. Departments of Justice and Education, U.S. school districts are discouraging student enrollment based on their parents’ illegal immigrant status. The Departments issued guidance, a frequently asked questions document, and a fact sheet with advice on how school districts can provide all students with equal educational opportunities, regardless of their immigration or citizenship status.
The guidance focuses on information school districts require parents and guardians to provide to establish residency and a student’s age. Most school leaders know that they cannot ask directly about a student or parent’s immigration status during the residency process. But the Departments warned that even less direct requests for information might impermissibly discourage enrollment by non-citizen parents.
The following is a summary of the key advice in the guidance:
- A district may require proof of residency, such as copies of phone and water bills and lease agreements, and may restrict attendance to district residents, but it is never relevant to inquire into a students’ immigration status to establish residency. A district should review the list of documents it requires to establish residency to ensure no required documents unlawfully bar or discourage non-citizens from enrolling in or attending school. For instance, the Departments warned against requiring a parent to provide a state-issued driver’s license or identification card to establish residency.
- With respect to establishing age, a school district may not bar a student from enrolling because he or she lacks a U.S. birth certificate; schools must also accept other documentation such as family bibles, medical records, and previous school records. Indeed, the guidance materials suggest that schools should take proactive steps to reassure parents that they can provide other documentation, such as a foreign birth certificate, without fear that it would lead to questions about the family’s immigration status. For example, the Departments suggest that schools should publicize that it will only use a foreign birth certificate, baptismal record, or alternative document to establish the age of the child and not for any other purpose. Notably, the guidance does not address whether the Illinois requirement that schools must ask for a copy of a student’s birth certificate at the time of enrollment and report the lack of a birth certification to law enforcement runs afoul of federal law.
- Schools may comply with their federal and state obligations to report data such as race and ethnicity of student population, but may not use information collected about students to discriminate against them or deny enrollment because a student’s parents refuse to provide the required data. The guidance suggests, but does not require, that schools should wait until after a student is enrolled to ask for additional documentation not necessary for the enrollment process, such as demographic information required by state or federal law, in order to “create a more welcoming and inclusive atmosphere for all prospective students.”
- A school district may not deny enrollment based on a lack of a social security number, and if it requests a social security number it must notify parents that the disclosure of the number is voluntary and refusal will not bar a child’s enrollment, provide a statutory basis for making the request, and explain what it will do with the number if provided. The Departments reminded schools that any policy related to collecting and reviewing social security numbers must be uniformly applied to all students and not applied in a selective manner to specific groups of students.
Based on this guidance, school leaders should review existing enrollment policies to determine whether any have the unintended consequence of discouraging enrollment of immigrant students to public schools.
The big news in education technology this week is Yik Yak, a free, anonymous social networking application that allows users to post comments that can be seen by others within a 5- to 10-mile radius. The app was intended for use by college students and is described as a localized Twitter for campus communities. But the anonymity of the app allows users to bully others without any risk of identification, and has led to reports of severe bullying in schools across the country. As the Chicago Tribune reported, Yik Yak disabled its app within the Chicago area after at least four schools had to address bullying concerns on the app with their students and parents.
One comment that has repeatedly been made about the recent Yik Yak scandal is that it shows how quickly social media moves and how difficult it is for school administrators to address new issues when they arise. For instance, the Yik Yak app only became popular within the last few months and so was not banned in many schools prior to these recent incidents. And even if banned and blocked through a school’s internet filters, if a school district allows students to access data plans on personal technology devices at school they still can access the app despite the filters and without school officials knowing.
The question arises, then: What can school leaders do to put themselves in the best position to deal with novel social media and technology issues when they arise? Here are a few ideas:
- In student handbooks or other informal guidelines, consider specifically banning student use of any social media program or other technology on school grounds or at school-related events and activities for the purpose of bullying other students. Also consider banning such use anywhere if it causes or reasonably could be foreseen to cause a material and substantial disruption to the school environment or invasion of rights of others in the school community. This way, discipline of perpetrators will be allowed even if a new program or technology used for bullying (such as Yik Yak) is not specifically prohibited and, if it is serious enough, even if it occurs off grounds.
- Also consider banning student use of data plans on personal technology devices at school. This will limit the circumstances when students can avoid a filter or other screening technology when implemented. It also allows school leaders to monitor student use of websites and technology through the Internet system, which is not possible when a student uses their own data plan.
- Educate students, parents, and other members of the school community about the harms that arise from bullying before an incident occurs. Such education should be broad enough to cover types of behavior that are now known or that may occur in the future. Your legal counsel is a good resource for training that meets these needs.
- Ensure that technology policies and procedures are up-to-date and broad enough to put the school district in the best position to address novel misconduct by students, staff, and other members of the school district community when it occurs. For school districts in Illinois, Franczek Radelet has a recent technology policy package created for that purpose.
Last week, the Department of Education issued a guidance package to help schools administer student discipline without discriminating against students on the basis of race, color, or national origin. The issue of discriminatory discipline is not new; indeed, the Franczek Radelet Education Insights blog warned about the issue early last year. Moreover, the guidance does not create any new law but rather provides information and examples of the Department’s expectations under existing law. Nonetheless, the new guidance is the first national guidance issued on school discipline and likely will be given some deference by courts interpreting the issue, and so is noteworthy and warrants particular attention from school leaders.
The core of the Department’s guidance can be found in a Dear Colleague Guidance Letter (DCL) that was prepared in conjunction with the Department of Justice. The DCL begins with the recognition that discipline is essential for the operation of safe and orderly schools. The DCL then cites statistics showing that discipline in public schools often falls disproportionately on students in minority groups and documents the harms on those students that results. The DCL warns that federal law prohibits discrimination by public schools in the administration of student discipline based on race, color, and national origin, and that the Department will investigate complaints of such discrimination and may require schools to take steps to remedy any issues it finds.
The DCL describes at length and provides examples of the types of discrimination that the Department investigates (“different treatment” discrimination, which is often thought of as intentional discrimination, and “disparate impact” discrimination, which results when there is not necessarily an unlawful intent behind discrimination but it nonetheless leads to an unlawful impact on a particular group). Notably, the DCL makes clear that discrimination can occur at all levels of the disciplinary chain of command, from the decision of a teacher to send a student out of class to the final disciplinary decision by administration. The DCL also clarifies that school districts can be responsible for discrimination not just by employees, but also by agents such as security guards or even law enforcement.
The appendix to the DCL provides recommendations for school districts, administrators, and teachers on how to avoid illegal discriminatory discipline. These recommendations fall into three categories: (1) climate and prevention, (2) clear, appropriate, and consistent expectations and consequences, and (3) equity and continuous improvement. A Guiding Principles document released with the guidance packet provides a succinct summary of these categories:
First, take deliberate steps to create the positive school climates that can help prevent and change inappropriate behaviors. Such steps include training staff, engaging families and community partners, and deploying resources to help students develop the social, emotional, and conflict resolution skills needed to avoid and de-escalate problems. Targeting student supports also helps students address the underlying causes of misbehavior, such as trauma, substance abuse, and mental health issues.
Second, ensure that clear, appropriate, and consistent expectations and consequences are in place to prevent and address misbehavior. By holding students accountable for their actions in developmentally appropriate ways, students learn responsibility, respect, and the bounds of acceptable behavior in our schools and society. This also means relying on suspension and expulsion only as a last resort and for appropriately serious infractions, and equipping staff with alternative strategies to address problem behaviors while keeping all students engaged in instruction to the greatest extent possible.
Finally, schools must understand their civil rights obligations and strive to ensure fairness and equity for all students by continuously evaluating the impact of their discipline policies and practices on all students using data and analysis.
Another key recommendation is to use law enforcement appropriately. This portion of the DCL and related materials has received significant media attention, including from the ACLU and the Associated Press. As Attorney General Eric Holder explained in a press conference, “A routine school disciplinary infraction should land a student in the principal’s office, not a police precinct.” The DCL recommends, among other things, ensuring that school officials only utilize law enforcement when there are major threats to school safety or serious-school-based criminal conduct that cannot safely and appropriately be managed by the school’s internal discipline policies.
Also key are recommendations that schools monitor the impact of discipline policies before a complaint is filed. The DCL recommends that schools collect and use multiple forms of data, including a discipline incident database, regarding discipline incidents and conducting additional investigation where necessary. Notably, the DCL makes clear that schools are responsible for the following: (i) developing and implementing uniform standards for the content of discipline files, (ii) developing and training staff on uniform standards for entry and maintenance of files, and (iii) keeping data on teacher referrals and discipline to assess whether particular teachers may be referring large numbers of students by race for discipline so that follow up with teachers can be taken as needed.
The guidance package includes, in addition to the DCL and the Guiding Principles document, other resources for schools in implementing fair discipline policies. These include a Directory of Federal School Climate and Discipline Resources and a Compendium of School Discipline Laws and Regulations.
As reported by the Washington Post, President Obama is expected to sign a bill into law encouraging states to require schools to take greater efforts to protect students with food allergies. The bipartisan bill was proposed by Illinois Senators Dick Durbin (D-IL) and Mark Kirk (R-IL) following the deaths of two girls in Illinois and Virginia from severe food allergies.
The bill comes at a time of heightened focus by the media and the government on the issue of childhood allergies. A recent New York Times Sunday Reviewarticle, for instance, delved into the connection between food allergies and the decline of agrarian culture. And the Centers for Disease Control and Prevention recently issued voluntary guidelines for schools regarding managing food allergies in educational programs (more information from the CDC can be found here).
The bill also is in addition to numerous State law requirements for schools regarding allergies. In 2011, for instance, Illinois school districts were first required to implement a food allergy management policy under Illinois law. As one source reports, the Illinois law “allows schools to maintain a supply of epinephrine on site and for school nurses to administer epinephrine to any student suffering from a severe allergic reaction.” The guidelines required under the Illinois law must comport with Illinois State Board of Education and Illinois Department of Public Health guidelines on food allergies that were published in 2010. In all, twenty-seven states reportedly have laws allowing schools to administer epinephrine to students without a prescription.
The bill would expand on state law by offering a financial incentive to states that require schools to do all of the following:
- Allow a wider array of trained school personnel to administer epinephrine to students reasonably believed to be having an anaphylactic reaction;
- Maintain a supply of epinephrine in a secure location that is easily accessible to trained personnel of the school for the purpose of administration to any student of the school reasonably believed to be having an anaphylactic reaction; and
- Have in place a plan for having on the premises of the school during all operating hours one or more individuals who are trained personnel to administer epinephrine.
Notably, although many students with severe food allergies bring their own epinephrine injectors to school, the bill reportedly nonetheless would help numerous children who do not know they have life threatening allergies. Approximately a quarter of recent administrations of epinephrine in the school setting involved students who were not previously aware of their allergies and so would not have had a personal supply of epinephrine.
If the bill is signed into law, additional state action will be required for the mandates of the bill to reach school districts. Even if a state implements the mandates of the bill, moreover, other issues relating to food allergies in schools – such as specifics of education and training, implementation of individualized health care and food allergy action plans, procedures for responding to life-threatening reactions to food, and protocols to avoid exposure to food allergens – are not covered by the bill and so will remain subject to state law or, where there is none, school district discretion.
Illinois recently joined twenty other states and the District of Columbia in legalizing medical marijuana. Four other states are considering passing similar legislation in the near future. How do primary and secondary schools adapt when the state allows employees and students to legally possess and use marijuana for medical purposes? The following are a few issues that K-12 schools may face.
Drug Possession and Use
What if an employee or student shows up at school, on a school bus, or at a school-related event with marijuana? Or uses marijuana at those places? When caught, the individual presents a doctor’s prescription for the drug. Is the prescription a get-out-of-jail-free card for school discipline?
The Ninth Circuit Court of Appeals joined a growing number of federal courts of appeals that have addressed when public schools can discipline students for off-campus, online misconduct. The case involved multiple threats by a Nevada high school student, made on his own computer on his own time, that he would commit a school shooting. The court held that the school’s discipline of the student did not violate his constitutional rights, but took care to make clear that its holding was limited to threats of serious school violence. The court saved for another day the more difficult issue of when other types of non-threatening off-campus, online misconduct – such as harassment or bullying of staff or other students – can be the subject of school discipline.
In Wynar v. Douglas County School District, a student of Douglas High School in Minden, Nevada sent a number of troubling instant messages through MySpace to classmates from his home computer. In the messages, he bragged about having a stockpile of weapons, threatened to shoot and “take out” particular students on the anniversary of the Columbine school shooting, and boasted that his victims would outnumber those in the Virginia Tech shooting – the deadliest school shooting to date. After some of the student’s friends reported the messages to school authorities, school officials interviewed the student, who admitted that he wrote the messages but claimed they were a joke. The school district expelled the student for 90 days for violating a policy against threatening other students. The student sued, arguing that his off-campus speech was protected by the First Amendment of the U.S. Constitution. (more…)
Mlive.com and the NSBA Legal Clips recently reported that a Michigan School entered into an agreement with the Department of Education Office for Civil Rights (“OCR”) to resolve allegations that the district failed to properly address claims of sexual assault by one student on two other students. The case provides an important reminder of the stringent standards to which OCR holds school districts when investigating claims of sexual harassment and violence against students.
In 2010, two female students in the Grand Rapids school district reported being sexually assaulted by a prominent male athlete. One of the students and her parents later reported on fifteen occasions that the student was repeatedly harassed in retaliation after the assault. The student reported being shoved in the hallways, bullied online, and taunted at school sporting events. The student eventually dropped out of extracurricular activities and later out of school.
OCR found that the District did not adequately investigate or respond to the complaints of assault and retaliation. The following are key takeaways that can be gleaned from OCR’s decision:
Discriminatory discipline has been a hot topic this year in public schools, and the focus on this topic makes it one that school leaders should not ignore.
A Spotlight on Discriminatory Discipline
In January, a major study showed, among other findings, that black and Hispanic students are suspended at higher rates than their non-Hispanic white counterparts, and that the differences often are not attributable to different levels of misbehavior.
In late March, a Mississippi school district entered into a consent decree with the U.S. Department of Justice to address reported discriminatory use of “exclusionary discipline” such as suspension, expulsion and school-based arrest, often for minor infractions, among black students, and use of harsher discipline for black students, even when white peers of similar ages and with similar disciplinary histories committed comparable misbehavior at the same schools.
In April, the Legal Aid of North Carolina filed a complaint with the Department of Education’s Office for Civil Rights (OCR) alleging that a North Carolina district violated a civil rights law, Title VI of the Civil Rights Act of 1964, by suspending black students and students with disabilities at far higher rates than white students and students without disabilities.
Finally, this week parents and students reportedly filed a lawsuit against police officers and the school board in Compton, California, seeking $41.4 million in damages for disproportionate use of unlawful arrest, excessive force, racial profiling, and racial discrimination by police and police liaison officers in schools.
Tips and Tricks
Although the severe abuses alleged in these cases are extreme, and although disproportionate disciplinary numbers do not always establish discrimination, the spotlight on discriminatory discipline make clear that schools and school districts with disproportionate disciplinary records are at risk of legal challenges from all directions.
Here are a few tips and tricks for school leaders who wish to take a proactive approach to prevent students of one group from being disciplined more or more harshly than others and to mitigate the risk of lawsuits and complaints like those described above: