The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



STATE OF MICHIGAN

JENNIFER M. GRANHOLM, ATTORNEY GENERAL


CHILDREN AND MINORS:

CONSTITUTIONAL LAW:

CRIMES AND OFFENSES:

LAW ENFORCEMENT:

PRIVACY:

SCHOOLS AND SCHOOL DISTRICTS:

Validity of section 1308 of Revised School Code under federal Family Educational Rights and Privacy Act

Validity of section 1308 of Revised School Code under Const 1963, art 4,  25


Section 1308(10) of the Revised School Code, which requires parental waivers allowing access to records under specified circumstances, does not amend section 2165 of the Revised Judicature Act of 1961 in violation of Const 1963, art 4,  25, prohibiting the Legislature from amending an act unless the act is reenacted.

Section 1308(4) of the Revised School Code, which requires that school officials provide certain information to law enforcement agencies, does not violate the federal Family Educational Rights and Privacy Act.

Section 1308(10) of the Revised School Code, which requires that a parent or guardian of a pupil involved in a reported incident sign a waiver allowing school officials access to pertinent pupil records concerning certain incidents, does not violate the federal Family Educational Rights and Privacy Act. In order to be valid, section 1308(10) must be construed as contemplating a waiver that is knowing, intelligent, and voluntary.


Opinion No. 7059

August 1, 2000


Honorable Laura Baird
State Representative
The Capitol
Lansing, MI


You have asked three questions concerning reporting duties and privacy rights under section 1308 of the Revised School Code1 (Code), added by 1999 PA 102.

In 1999 the Legislature enacted a series of bills, including 1999 PA 102, that address crime and violence in Michigan's schools. The Senate Legislative Analysis of these bills described the rationale for this legislation as follows:

The issue of school violence periodically captures the nation's attention when there is an incident of shootings in school, such as those at high schools in Paducah, Kentucky, in 1997; Jonesboro, Arkansas, in March 1998; and Littleton, Colorado, last April. In Michigan, school safety is an ongoing concern. This State enacted Public Act 328 of 1994 to require schools to expel a pupil for possessing a dangerous weapon in a weapon-free school zone, or committing arson or criminal sexual conduct in a school building or on school grounds. Since the law took effect, hundreds of students reportedly have been expelled for possessing guns, knives, and other weapons.

While Public Act 328 addresses several aspects of school violence, additional concerns remain. . . . Related issues involve the reporting of school violence, cooperation between school officials and law enforcement authorities, and alternative education for expelled pupils.

Senate Legislative Analysis, SBs 183 and 206 and HBs 4240 and 4241, as enrolled, July 21, 1999, p 1.

Section 1308(1)(a) of the Code directs the Superintendent of Public Instruction, the Attorney General, and the Director of the Department of State Police to adopt, publish, and distribute a Statewide School Safety Information Policy to school boards, county prosecutors, and local law enforcement agencies within 90 days after section 1308 becomes effective. Section 1308(1)(b) requires that no later than 180 days after its effective date, school boards, county prosecutors, and local law enforcement agencies shall meet and confer regarding implementation of the policy and shall begin compliance with the policy.

Section 1308(2) of the Code states that the policy shall identify the types of incidents occurring at school that must be reported to law enforcement agencies. Section 1308(2) also requires that the policy address law enforcement protocols and priorities for the reporting process, including the manner by which incidents must be investigated (section 1308(2)(a)), the definition of the types of incidents that must be reported to law enforcement (section 1308(2)(b)), and protocols for responding to a reportable incident by law enforcement and school authorities. Section 1308(2)(c). If a reportable incident occurs at school, school authorities must report the incident to the appropriate state or local law enforcement agency in the manner set forth in the policy. Section 1308(3).

As soon as 1999 PA 102 became effective on July 6, 1999, the Superintendent of Public Instruction, the Attorney General, and the Director of the Michigan Department of State Police began the process of adopting and publishing the policy. On October 4, 1999, the final Statewide School Safety Information Policy (Policy) was distributed. The Policy outlines the reporting obligations of schools, law enforcement agencies, county prosecutors, and courts.

Your first question asks whether section 1308(10) of the Revised School Code, which requires parental waivers allowing access to records under specified circumstances, amends section 2165 of the Revised Judicature Act of 1961 in violation of Const 1963, art 4,  25, prohibiting the Legislature from amending an act unless the act is reenacted.

Const 1963, art 4, 25, provides that:

No law shall be revised, altered or amended by reference to its title only. The section or sections of the act altered or amended shall be re-enacted and published at length.

Under this constitutional provision, "you cannot amend statute C even by putting in statute B specific words to amend statute C, unless you republish statute C as well as statute B." Alan v Wayne County, 388 Mich 210, 281; 200 NW2d 628 (1972).

Section 1308(10) of the Code, which requires parental waivers under specified circumstances, provides:

If a pupil is involved in an incident reported to law enforcement according to the statewide school safety information policy under this section, then upon request by school officials, the pupil's parent or legal guardian shall execute any waivers or consents necessary to allow school officials access to school, court, or other pertinent records of the pupil concerning the incident and action taken as a result of the incident.

(Emphasis added.)

This statutory provision requires parental waivers "to allow school officials access" to pertinent records concerning a reported incident.

In contrast, section 2165 of the Revised Judicature Act of 1961 deals with the disclosure of privileged information by school personnel as follows:

No teacher, guidance officer, school executive or other professional person engaged in character building in the public schools or in any other educational institution, including any clerical worker of such schools and institutions, who maintains records of students' behavior or who has records in his custody, or who receives in confidence communications from students or other juveniles, shall be allowed in any proceedings, civil or criminal, in any court of this state, to disclose any information obtained by him from the records or such communications; nor to produce records or transcript thereof, except that testimony may be given, with the consent of the person so confiding or to whom the records relate, if the person is 18 years of age or over, or, if the person is a minor, with the consent of his or her parent or legal guardian.

This statutory provision creates a privilege that prohibits school personnel from disclosing, in a civil or criminal proceeding, information contained in certain school behavioral records or information obtained from confidential communications between school personnel and students. This privilege, which attaches to confidential communications between school personnel and students, has been recognized and applied by Michigan Courts. People v Pitts, 216 Mich App 229, 234-235; 548 NW2d 688 (1996); Samson v Saginaw Professional Building, Inc, 44 Mich App 658, 671; 205 NW2d 833 (1973), aff'd on other grounds 393 Mich 393; 224 NW2d 843 (1975).

Section 1308(10) of the Code does not amend section 2165 of the Revised Judicature Act of 1961 either directly or indirectly. When an incident is reported, section 1308(10) of the Code requires a parent, upon the request of school officials, to sign any waivers necessary to allow school officials access to pertinent records of the student concerning the incident. This provision does not authorize or require school personnel to disclose any information in a civil or criminal proceeding that is privileged under section 2165 of the Revised Judicature Act of 1961. Indeed, to the extent that disclosure of the information described in section 1308(10) of the Code takes place, the disclosure is made to school personnel, not by school personnel.

It is my opinion, therefore, in answer to your first question, that section 1308(10) of the Revised School Code, which requires parental waivers allowing access to records under specified circumstances, does not amend section 2165 of the Revised Judicature Act of 1961 in violation of Const 1963, art 4,  25, which prohibits the Legislature from amending an act unless the act is reenacted.

Your second question asks whether section 1308(4) of the Revised School Code, which requires that school officials provide certain information to law enforcement agencies, violates the federal Family Educational Rights and Privacy Act.

The Family Educational Rights and Privacy Act2 (FERPA) is a federal act that protects the privacy interest of school students and their parents with regard to the disclosure of student education records. Under FERPA, the Secretary of the United States Department of Education (Department) has promulgated administrative regulations to implement the act. 34 CFR Part 99.1 et seq. FERPA and its implementing regulations generally prohibit the release of a student's education records without the prior consent of the student, or if the student is a minor, the prior consent of the student's parent. 20 USC 1232g (b)(1) and (b)(2)(A); 34 CFR 99.30. The regulations include a specific procedure by which a parent or eligible student may give prior consent to the disclosure of records covered by FERPA. 34 CFR 99.30. FERPA and its implementing regulations contain a number of circumstances where prior consent of the parent or eligible student is not required for the release of the education records. 20 USC 1232g(b)(1)(A)-(J); 34 CFR 99.31.

Section 1308(4) of the Revised School Code, which requires the sharing of specified information between law enforcement agencies and school officials, provides as follows:

If provided in the statewide school safety information policy under this section, a local law enforcement agency that has jurisdiction over a school building of a school district shall report to the school officials of the school building incidents reported to the law enforcement agency that allege the commission of a crime and that, according to the incident report, either occurred on school property or within 1,000 feet of the school property or involved a pupil or staff member of the school as a victim or alleged perpetrator. Upon request by a law enforcement agency, school officials shall provide the law enforcement agency with any information the law enforcement agency determines it needs to provide this report to school officials.

The Statewide School Safety Information Policy requires that local law enforcement agencies report to school officials incidents occurring within the agencies' jurisdiction.3

Section 1308(9) of the Code provides that the reporting of information by school personnel under section 1308(4) is expressly subject to FERPA:

Reporting of information by a school district or school personnel under this section is subject to section 444 of subpart 4 of part C of the general education provisions act, Title IV of Public Law 90-247, 20 U.S.C. 1232g, commonly referred to as the family educational rights and privacy act of 1974.

Thus, the Legislature has expressly conditioned the obligation of school officials to report information to a law enforcement agency upon compliance with FERPA. Consistent with the legislative intent expressed in section 1308(9) of the Code, the Statewide School Safety Information Policy does not require school officials to disclose information to a law enforcement agency in violation of FERPA. Indeed, the section of the Policy dealing with "School Reporting" expressly recognizes the limitations imposed by FERPA. See Policy, Part IV, p 3.

It is my opinion, therefore, in answer to your second question, that section 1308(4) of the Revised School Code, which requires that school officials provide certain information to law enforcement agencies, does not violate the federal Family Educational Rights and Privacy Act.

Your third question asks whether section 1308(10) of the Revised School Code, which requires that a parent or guardian of a pupil involved in a reported incident sign a waiver to allow school officials access to pertinent pupil records concerning the incident, violates FERPA.

As discussed above, FERPA regulates and limits disclosure of student education records by school authorities to third parties. The purpose of FERPA is "(1) to create a right of access to student records for parents and students; and (2) to protect the privacy of those records by preventing unauthorized access by third parties." United States v Miami Univ, 91 F Supp 2d 1132, 1140 (SD Ohio, 2000). See generally 20 USC 1232g and 20 USC 1232g(a) through (e); 34 CFR 99.4 (rights of parents generally), 99.5 (rights of eligible students), 99.7 (right of parents or eligible students to annual notification of their rights), 99.10 (right to inspect or review educational records), 99.20 (right to request amendment to education records), 99.21 (right to have a hearing under certain circumstances), 99.30 (right to consent before records are released). "[T]he statute is intended to benefit student and parent privacy interests, by ensuring that school districts have a policy or practice of not releasing educational records without parental consent." Achman v Chisago Lakes Independent School Dist, No. 2144, 45 F Supp 2d 664, 673 (D Minn, 1999). Indeed, the very purpose Congress sought to achieve when it enacted FERPA was to deter schools from indiscriminately releasing student education records. Id.; Bauer v Kincaid, 759 F Supp 575, 590-591 (WD Mo, 1991).

To protect education records from indiscriminate disclosure by schools covered by FERPA, Congress and the Department have established detailed procedures that a school must follow before it discloses education records to third parties. Under FERPA, generally if an education record contains personally identifiable information about a student, the parent or eligible student must consent in writing before the record may be disclosed. 20 USC 1232g(b); 34 CFR 99.30. Unless written consent is provided or an exception to the consent requirement exists, the school cannot release an education record containing personally identifiable information. See 20 USC 1232g(b); 34 CFR 99.30. Throughout FERPA and its regulations, the prior consent requirement is described as a "right" of the parent or eligible student. See 20 USC 1232g(b); 34 CFR 99.4, 99.5, 99.7, and 99.30.

The term "consent" means "to give assent" or "voluntary allowance of what is planned or done by another." American Heritage Dictionary, 2d College Edition, (1985), p 312. The term "waive" means to "relinquish or give up (a claim or right) voluntarily." Id., p 1360. In keeping with these definitions, courts have held that a consent or waiver of a known right must be knowingly, intelligently, and voluntarily given. People v Farrow, 461 Mich 202, 207-208; 600 NW2d 634 (1999) (voluntariness of consent to search residence); United States v Mezzanatto, 513 US 196, 200-201; 115 S Ct 797; 130 L Ed 2d 697 (1995) (waiver of various federal statutory and constitutional rights); United States v Mendenhall, 446 US 544, 557-558; 100 S Ct 1870; 64 L Ed 2d 497 (1980) (voluntariness of consent to search one's person); Schneckloth v Bustamonte, 412 US 218, 222-235; 93 S Ct 2041; 36 L Ed 2d 854 (1973) (voluntariness of consent to search vehicle); Boykin v Alabama, 395 US 238, 242-243; 89 S Ct 1709; 23 L Ed 2d 274 (1969) (voluntariness of guilty plea); Johnson v Zerbst, 304 US 458, 464-465; 58 S Ct 1019; 82 L Ed 2d 1461 (1938) (waiver of Sixth Amendment right to counsel).

FERPA and its implementing regulations clearly contemplate that the prior consent required under this statute must be knowingly, intelligently, and voluntarily given. Under 34 CFR 99.7, an educational institution must give parents and eligible students annual notice of their rights under FERPA. This regulation requires that the annual notice inform parents or eligible students of their right to "[c]onsent to disclosures of personally identifiable information contained in the student's education records, except to the extent that the Act and 99.31 authorize disclosure without consent." 34 CFR 99.7(a)(2)(iii). Section 99.30 governs the manner in which the prior consent to disclosure must be given and requires that the consent be in writing, signed, and dated by the parent or eligible student; that the consent specify the records that may be disclosed; that the consent state the purpose of the disclosure; and that the consent identify the party or class of parties to whom the disclosure may be made. 34 CFR 99.30(a) and (b). The parent or eligible student must also be provided with copies of the records disclosed, if the parent or eligible student so requests. 34 CFR 99.30(c).

FERPA and its implementing regulations describe a number of specific circumstances in which the consent of the parent or student is not required prior to disclosure of the student's education records. An examination of these specific and narrow exceptions further demonstrates that the consent required by FERPA is intended to be knowing and voluntary.

For example, under 34 CFR 99.31(2), education records containing personally identifiable information may be disclosed without prior consent where the disclosure is to officials of another school or postsecondary institution where the student seeks to enroll. But, the disclosing school must make an attempt to give the parent or eligible student notice of the disclosure, and, upon request, must give the parent or eligible student copies of the records disclosed and an opportunity for a hearing if the parent or eligible student believes the record to be incorrect or misleading, or if the parent or eligible student believes the disclosure would violate the student's rights of privacy or other rights. 34 CFR 99. 20, 99.31(a)(2), and 99.34. 34 CFR 99.31(a)(9) allows disclosure of education records in order to comply with a judicial order or lawfully issued subpoena, but also requires that the disclosing school must make a reasonable effort to give the parent or eligible pupil notice of the subpoena "in advance of compliance, so that the parent or eligible student may seek protective action."4 34 CFR 99.31(a)(10) allows the disclosure of information where the disclosure is in connection with a "health or safety emergency," but the circumstances that constitute a health or safety emergency are narrowly and specifically defined. 34 CFR 99.31(a)(10). Under 34 CFR 99.31a(13), disclosure of personally identifiable information may be made to the victim of any crime of violence as defined under federal law, but the disclosure is limited to the results of the disciplinary proceeding conducted by the educational agency against the alleged perpetrator of that crime.

The above examples demonstrate that Congress and the Department of Education have attempted to strike a delicate balance between the parent or eligible student's right to consent to disclosure of education records and the circumstances under which disclosure without consent is appropriate. Section 1308(10) of the Code contains what appears to be a mandatory parental waiver "to allow school officials access to school, court, or other pertinent records" concerning reportable incidents that occur under the Code. Because the waiver allows school officials access to records, consent to disclosure of the records to school officials under FERPA will often be unnecessary because those officials presumably already possess the student's education records. Where school officials do not have access to the records under FERPA, the Michigan Legislature has expressly required that such disclosure be made in compliance with FERPA. Section 1308(9) of the Code. Thus, it is clear that the Legislature has required school officials to comply with FERPA, including its prior consent provisions, when access to education records is sought.

You have also inquired whether section 1308(10) of the Code can be construed to mandate parental consent or waiver of other rights that may exist with respect to the disclosure of school, court, or other pertinent records. Records that may come within the purview of this section, however, are virtually unlimited. Some records may fall within other statutory or constitutional protections, some of which specify their own consent or waiver provisions. As noted above, courts have consistently held that a consent or waiver of a known right must be knowingly, intelligently, and voluntarily given. Where such rights are implicated under section 1308(10) of the Code, in order to be valid, the statutory language must be construed as contemplating a consent or waiver which is knowing, intelligent, and voluntary.

It is my opinion, therefore, that section 1308(10) of the Revised School Code, which requires that a parent or guardian of a pupil involved in a reported incident sign a waiver allowing school officials access to pertinent pupil records concerning certain incidents, does not violate the federal Family Educational Rights and Privacy Act. In order to be valid, section 1308(10) must be construed as contemplating a waiver that is knowing, intelligent, and voluntary.


JENNIFER M. GRANHOLM
Attorney General

1 MCL 380.1 et seq; MSA 15.4001 et seq.

2 20 USC 1232g.

3 The Policy limits the law enforcement agencies' reporting obligations to "crimes committed on school property," to "crimes committed off school property that they have reason to believe may pose a significant threat of imminent danger to students, staff or school property," or to other crimes that the local communities decide should be reported. See Policy, Part IV, page 3, titled "Law Enforcement Reporting."

4 The regulations do not require prior notice of the disclosure under a federal grand jury subpoena or a subpoena issued for a law enforcement purpose and the court orders the information not to be disclosed.