School districts may feel caught “between a rock and a hard place” when determining whether to permit a law enforcement officer or Child Protective Services (“CPS”) to interview a student at school without parental consent. Be mindful, law enforcement and CPS are treated differently under the law.
Interviews with Students
Without consent from the student’s parent, guardian, or a court order, law enforcement officers normally are not permitted to interview students at school; however, the school district must provide CPS investigators access to the student for an interview at school where the interview is in conjunction with an investigation by CPS. In both cases, school districts must be aware of whether the interview is a custodial situation that could be interpreted as an unlawful “seizure” in violation of the student’s Fourth Amendment rights. School districts must be mindful of their in loco parentis role with respect to the student while the student is in attendance at school.
New York State regulations specifically require school districts to provide assistance to CPS in the investigation of reports of abuse or mistreatment of children, “including providing such assistance and data to members of a multi-disciplinary team . . . when such members accompany a representative of [CPS].” That assistance includes making students accessible to CPS for interviews, notwithstanding lack of parental consent or a court order, when CPS determines that the student should be interviewed away from family or household members and/or the home where the abuse allegedly occurred. CPS representatives must also be given access to records relevant to an investigation of abuse. Additionally, School districts may not adhere to parental directives that CPS does not interview their child without the parent in attendance. Therefore, as long as it is determined that the interviewers are, in fact, CPS employees and that they deem it essential to interview the student without the parent being present, New York has deemed such situations to not be a “seizure” of the student implicating 4th Amendment considerations.
When law enforcement officers request to interview a student for a matter not related to a CPS investigation, school officials should be prepared (with the assistance of counsel) to investigate further into whether access to the student should be granted (e.g., whether there is a court order or consent from the student’s guardian). In most cases, if law enforcement requests the interview as part of a criminal investigation, even if there is concern that the parent’s presence may skew the interview, a school district may not allow the interview to take place at school and during the school day, while the school remains in loco parentis. Even if a law enforcement officer is requesting access to a child for an interview in conjunction with a CPS investigation, the regulations noted above generally require that the officer be accompanied by a CPS representative. Allowing law enforcement officers to interview students without a court order or consent of a parent or guardian, and when not accompanied by a CPS representative, could potentially result in the school district being liable for the unlawful “seizure” of the child, in violation of the Fourth Amendment.
School districts may also require CPS and law enforcement to comply with reasonable visitor policies and procedures. Additionally, the school district has the discretion to authorize a staff member to observe the interview.
Access to Video Images of Students
With surveillance cameras outside of school buildings, in school buses, and in school hallways, it is increasingly likely that many student disciplinary infractions will be captured on video. In many situations, however, the video images may be a student educational record, protected under the Family Educational Rights and Privacy Act (“FERPA”) and non-disclosable without written parental consent. The key will be whether the video image focuses on a particular student or students. If the video constitutes a student record, school districts may not freely share access to such video, even to law enforcement as part of an investigation, unless an exception under FERPA applies. Absent a situation falling squarely within one of the exceptions to the requirement that parental consent be obtained, access to video footage depicting students generally should be denied.
FERPA identifies multiple exceptions to the release of student data without written parental consent. For example, responding to a valid subpoena or court order is a basis upon which to grant law enforcement access to a video of an incident which occurred on school grounds. Requesting a law enforcement officer to provide such a document as part of his/her routine investigation is not unusual. Please be aware though, any subpoena for student records must be signed by a judge. (There may be a different analysis when it is the school district that is filing the criminal charge. In all cases, consult with legal counsel.)
Another potentially applicable exception to the FERPA requirement that written parental consent be obtained is the exception for health and safety emergencies. This exception is narrowly construed and must be limited to the period of the emergency. Additionally, the emergency must be an actual, impending, or imminent emergency, and must be an articulable and significant threat, such as a potential campus shooting.
Along the lines of potential threats to school districts, members of a properly created threat assessment team may be entitled to access student records under FERPA without parental consent. Although not all members of a threat assessment team are employees of a school district, such members may still qualify as “school officials” with “legitimate educational interests”. Although FERPA may allow such individuals access to a student’s educational records, they should sign a confidentiality agreement to provide greater protection of student data.
Often times the analysis of when and what exception applies under FERPA is fact specific. We encourage you to contact your school law attorney in the event an incident arises.