Charter school employees

YOUR LEGAL RIGHTS AND RESPONSIBILITIES

Child abuse or neglect reporting requirements

Teachers are often the first adults to whom abused children turn for help, and educators who see the children every day and can observe their appearance and behavior are considered a primary source for helping to spot and stop a child’s suffering.

Reporting requirements and immunity provisions

Texas law requires any professional who has reasonable cause to believe that a child is being abused or neglected to make a report to the Texas Department of Family and Protective Services or any local or state law enforcement agency within 48 hours. However, if the suspected abuse or neglect involves a person responsible for the care, custody or welfare of the child, the report must be made to the Texas Department of Family and Protective Services only.

Reports must be made of any type of suspected abuse or neglect, not just acts of physical abuse. The obligation to report includes abuse that may occur in the future. Failure to report is a class B misdemeanor punishable by a fine of up to $2,000, 180 days in jail or both.

Abuse defined

The definition of abuse includes physical, sexual or mental abuse and also failure to make a reasonable effort to prevent a child from being abused. The contents of a report must include, if known:

1. the name and address of the child; 2. the name and address of the person responsible for the care, custody or welfare of the child; and 3. any other pertinent information concerning the alleged or suspected abuse or neglect.

Those reporting are not required to have proof that a child is being abused but must have reasonable cause to know or

suspect abuse. As long as the report is made in good faith, the reporter is protected from civil and criminal liability. The commissioner of education has enacted rules supporting state law that require school district policies to inform employees of their immunity from liability for good faith reports as well as the penalties for failure to report. Districts must provide training to new teachers on recognition and prevention of child abuse and/or neglect, including sexual abuse. For more information, see page 26.

Strict confidentiality provided

The Texas Family Code specifically states that both a child abuse report and the identity of an individual making a report are confidential and may be disclosed only by order of a court or to a law enforcement officer for the purposes of conducting a criminal investigation. A court may not order the disclosure of a reporter’s identity or a child abuse report unless a motion has been filed and the judge has conducted a private review of the requested information and determined that the disclosure is essential to the administration of justice and is not likely to endanger the life or safety of the child or reporter.

ABUSE HOTLINE

Call the Texas Department of Family and Protective Services’ 24-hour, toll-free telephone hotline to report suspected abuse or neglect: 800-252-5400. Nonemergency reports of child abuse also can be made online at www.txabusehotline.org.

Your responsibility to report

As a professional courtesy, you may choose to inform an administrator of your suspicions of abuse; however, this action does not satisfy or negate your responsibility under Texas law to make a report within 48 hours. The Texas Family Code states

that “a professional may not delegate to or rely on another person to make the report.”

Rules developed by the commissioner of education stress that district procedures may not undermine state law by requiring school personnel to report suspected child abuse to administrators prior to making the report to the proper authorities. Additional information on child abuse/neglect and reporting requirements is available on the Texas Department of Family and Protective Services website at www.dfps.state.tx.us.

Student record confidentiality requirements and parental rights

Federal law protects the confidentiality of student education records as well as personally identifiable information contained in such records. At the same time, federal and state laws guarantee parents access to this information.

FERPA

The Family Educational Rights and Privacy Act applies to education agencies or institutions that receive federal funds. FERPA gives personnel designated by the district as having a “legitimate educational interest” the right to access and view student records without parental consent. For employees who have a legitimate educational interest in the behavior of a student, a district does not need consent to release information from discipline records arising from conduct that “posed a significant risk to the safety or well-being of that student, other students, or other members of the school community.” District employees are charged with maintaining the strict confidentiality of student records and may release such information only with written consent of the parent, guardian or (in some cases) the student. FERPA establishes a penalty for violations of the law. Districts must annually notify parents of FERPA provisions relating to release of student directory information, such as name, address and phone number. Parents may elect not to disclose such information or limit such disclosure.

Closed school board meetings about students

A school district is not required to conduct a hearing in open session if it will disclose identifiable information about a student younger than 18. This prohibition does not apply if the student is 18 or older, or if the parents/guardians request an open hearing.

Testing

Texas Education Code Sec. 39.030 makes a student’s test scores confidential. They may be released only as permitted by FERPA. Public release of test information cannot contain the names of students or otherwise implicitly identify the students, but may contain information regarding ethnicity, grade, subject, etc. TEA prohibits encouraging or helping another person to breach test security and requires reporting of known violations. A supervisor who gives directions inconsistent with the rules should be referred to the test administrator.

Peer grading

In 2002, the U.S. Supreme Court decided Falvo v. Owasso ISD, a case in which a parent alleged that a teacher violated FERPA by permitting students to grade each other’s work. The court unanimously held that peer grading did NOT violate FERPA, while praising the practice as a learning experience. The court did not decide whether a grade book is an educational record.

Medical files

Under Sec. 38.009 of the Texas Education Code, a school administrator, nurse or teacher is entitled to access district student medical records for reasons established by district policy. A student cannot be required to undergo tests to determine a medical condition or status. Any person who views medical records must maintain the confidentiality of the records.

Parental rights under the Texas Education Code

Parents are entitled to access their child’s records, including attendance records, test scores, grades, disciplinary records, health records, student evaluations and reports of behavioral patterns; review teaching materials, including textbooks and aids; and review each test the child takes after it is administered to the child’s class. Recent legislation also provides that a parent is entitled to observe virtual instruction to the same extent they would be entitled to observe in-person instruction of the child. A 2002 Texas attorney general opinion addressed whether a parent has unrestricted access to a child’s counseling records. The opinion stated a very narrow exception to the general rule that all student records are available to parents. Under FERPA, a public school may withhold a minor’s counseling records from a parent only if the records are kept in the sole possession of the counselor, are used only as the counselor’s personal memory aid, and are not accessible or revealed to any other person except a temporary substitute for the counselor. In addition, state law provides that a licensed mental health practitioner may withhold a minor child’s records only if the practitioner determines that the release of such records “would be harmful to the patient’s physical, mental or emotional health.” Accordingly, to properly withhold a minor’s records from parents, a certified school counselor must also be a licensed mental health practitioner, e.g., a licensed professional counselor.

Situations requiring written consent of parent

A parent must consent in writing before a school employee may conduct a psychological examination, test or treatment (except with regard to investigation of child abuse) or make a video- or audiotape of a child (unless the recording is used only for purposes of safety and discipline, including student safety in special education settings, co- or extracurricular activities, purposes related to regular instruction, or media coverage of the school). A parent may remove a child temporarily from a class or activity that conflicts with religious or moral beliefs.

Student searches

Public school students are entitled to be free of unreasonable searches pursuant to the U.S. Constitution, although the standard for initiating a student search by school officials is less stringent than the probable cause requirement applicable to searches by law enforcement. School officials may search students if there is reasonable suspicion of finding evidence of wrongdoing. The scope of the search must be reasonably related to the objectives of the search and not be excessively intrusive in light of the student’s age and sex and the nature of the infraction. The U.S. Supreme Court approved the search of a student’s purse when the student was caught smoking and there was reasonable suspicion that the purse contained cigarettes. In a 2009 opinion, the Supreme Court held that a search that required a female student to strip to her underwear and pull the garment away from her body to look for prescription-strength ibuprofen was not reasonable. Due to the potential for civil rights liability, only trained administrators should conduct searches.