FPCO Clarifies Obligation to Disclose Outcome of a Discriminatory Harassment Complaint (K-12)

On February 3, 2015, we issued Legal Update No. 04-2015 entitled Recent Revisions to CSBA UCP Model Policy. Based on our review of the CSBA Model Administrative Regulation 1312.2: Uniform Complaint Procedures (UCP), we recommended that districts not disclose to a student victim the corrective actions taken against a student offender as a result of a uniform complaint investigation, as it would be in violation of the Family Educational Rights and Privacy Act (FERPA).

LEGAL UPDATE

April 1, 2015

To:  Superintendents, Member School Districts (K-12)

From:  Loren W. Soukup, Associate General Counsel

Subject:  FPCO Clarifies Obligation to Disclose Outcome of a Discriminatory Harassment Complaint

Memo No. 07-2015

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On February 3, 2015, we issued Legal Update No. 04-2015 entitled Recent Revisions to CSBA UCP Model Policy. Based on our review of the CSBA Model Administrative Regulation 1312.2: Uniform Complaint Procedures (UCP), we recommended that districts not disclose to a student victim the corrective actions taken against a student offender as a result of a uniform complaint investigation, as it would be in violation of the Family Educational Rights and Privacy Act (FERPA).

On February 9, 2015, after the issuance of our Legal Update, we received guidance from the U.S. Department of Education, Family Policy Compliance Office (FPCO), which administers FERPA, concerning this issue. According to the FPCO, FERPA does not prohibit districts from disclosing to the student victim information about the sanction imposed upon the student offender if the sanction directly relates to the student victim. For example, a student victim would be entitled to find out if the student offender was ordered to stay away from him/her as a result of discriminatory harassment, but the student victim would not be able to find out if the student offender was ordered to stay away from any other student. 

In making this determination, the FPCO relies upon the 1994 amendments to the General Education Provisions Act[1] which states that while FERPA applies in the context of various discrimination processes, such as UCP investigations, if there is a direct conflict between the requirements of FERPA and the requirements of any statute prohibiting discrimination to any applicable program, such as title VI of the Civil Rights Act of 1964, and that enforcement of FERPA would interfere with the primary purpose of that statute to eliminate discrimination, the requirements of the statute override any conflicting FERPA provisions.  

In light of the FPCO guidance, it is our recommendation that districts not remove the language set forth on page 12 of the CSBA Model Administrative Regulation 1312.2 concerning the sanction disclosure requirements. In addition, districts should ensure that all personnel conducting UCP investigations are aware that upon a request by the student victim, the district will be required to disclose the sanctions imposed upon the student offender if the sanctions directly relate to the student victim.

 

 

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