Education Newsletter - October 2018

by Barley Snyder

The Jury is In: Districts Note School Climate Benefits of Youth Courts

NewsletterBy: William Zee and Kalani Linnell

Youth courts offer an alternative to traditional school discipline and juvenile justice programs based on restorative justice principles. In contrast to the lasting negative effects of retributive and punitive discipline systems, evidence shows that restorative practices are more likely to strengthen communities by resolving conflict, reintegrating offenders and decreasing recidivism rates. Youth courts, in particular, replace adult-imposed discipline with peer-imposed solutions. They are designed to harness the power of positive peer pressure and social expectations to transform students from passive punishment recipients into active community members who are accountable to one another and the community itself. A youth court participant revealed in an anonymous survey at a Chester County middle school that youth court “helps me solve problems instead of punishing people.”

The hallmark feature of a youth court is peer participation with varying levels of adult support, supervision and training. Most youth courts restrict participation to students who have admitted wrong-doing. Peer-imposed sanctions of youth courts are appropriate where the offense is a minor school-based infraction, such as cheating, tardiness, truancy, cell phone use or disrespecting authority, fellow students or property. Punishments range from apologies, research essays, and community service to counseling and jury duty. Youth courts typically are not utilized for violent offenses or unlawful behavior that requires referral to law enforcement.

The offenders in youth court have admitted guilt and are looking to their peers to help repair the harm. In many youth courts, the jurors and other student participants are past youth court offenders. Their training teaches them that the “law isn’t as much argument as it is getting to the cause of why something happened.” Students observe that the disposition serves a complex purpose. According to participants in that Chester County survey, unlike traditional punishment, peer sanctions “don’t hurt [the offender] more than they already are.” The students have noted that dispositions decrease the potential for recidivism. One student in the survey observed that “without a disposition, the respondent would just do the same thing again.”

In contrast, adults impose punitive punishments in an attempt to control student behavior in traditional school discipline and juvenile justice programs. These tactics involve a series of escalating exclusionary punishments that often fail to address underlying causes of misbehavior. Students who are subject to discipline are more likely to be truant, less likely to graduate, and highly likely to reoffend. In addition to negative outcomes for individual students, extreme punishments tend to disproportionately affect students of color and students with disabilities.

Traditional models of discipline are not designed to address the environmental and systemic issues underlying student misbehavior. As a result, some traditional school discipline and juvenile justice programs can negatively affect school climate and in extreme cases can stifle educational growth and perpetuate injustice and inequality.. Such toxic effects bleed into the community while restorative programs, including youth courts, offer an opportunity for positive growth.

Youth courts combat the problems associated with traditional disciplinary programs and the “school to prison pipeline” through strategies that treat, rebuild and empower the offender, the victim, and the community. Student offenders are given a voice and encouraged to tell their story to peers who better relate to their experience. Punishments are designed to restore damage inflicted to the community as well as any individual victims. Providing students with an opportunity to be heard helps repair relationships between teachers and students by allowing teachers and students to work together to understand the other party’s perspective. The positive effects are measurable: graduation rates and academic outcomes improve for students exposed to youth courts while recidivism declines. An alumni from the surveyed Chester County youth court, who became involved with a youth court after fighting, described being on the same path as his older sibling who faced “jail time...then continued to live their life as if it was worth little.” After going through youth court as a respondent and then a participant, he became a leader in his school and attended college. He credits youth court, a “program that is designed to help youth make better decisions in life.”

Schools that create positive communities by incorporating restorative justice techniques can counteract the negative impacts associated with traditional disciplinary programs. Youth courts empower students by providing opportunities for meaningful participation in their community and training students how to be good citizens. Not only have such approaches proven more effective than traditional disciplinary programs at modifying student behavior, but they also provide valuable teaching opportunities through emphasis on civil discourse and effective communication.

Although no school discipline approach is a panacea, restorative practice initiatives like youth courts offer a promising alternative to addressing harm in the school setting through methods that reinforce rather than ignore the educational mission.

FERPA and Videos: What You Need to Know

NewsletterBy: Kalani Linnell

A thief in your school community has been targeting unattended backpacks in crowded common areas. As you and a school police officer review general surveillance footage looking for clues, you see a person rifling through another student’s backpack in the cafeteria before the school day begins. But because of the camera angle, the thief’s face is hidden. Students at a nearby table are using their cellphones to take selfies and you realize that they may have captured the thief’s face. After following up with those students, you obtain a video which does indeed contain clear footage of the perpetrator in the background.

You have two videos: one from the school’s surveillance system and one from the cellphone of a student not involved with the theft. You use these videos to discipline the culprit and thefts from backpacks cease. Can a parent of a theft victim review the videos?

Student privacy issues arise when a photo or a video qualifies as an education record under the Family Educational Rights and Privacy Act (FERPA). As a general principle, the personally identifiable student information FERPA protects from non-consensual disclosure is limited only to “education records” which are “records, files, documents, and other materials” that “contain information directly related to a student” and are “[m]aintained by an educational agency or institution or by a party acting for the agency or institution.”

Parents – and an eligible student if the child has turned 18 – are entitled to inspect and review their child’s education records under FERPA. Additionally, FERPA prohibits disclosure of education records or personally identifiable information contained in those records to anyone other than the parents or eligible student unless the school obtains prior written consent or one of the few statutory exceptions applies. A tension arises when school officials are required to give the parents of one student access rights to an education record containing protected information of a different student.

The Family Policy Compliance Office of the U.S. Department of Education released guidance to help schools navigate the complex interaction between FERPA and video records. Schools are required to determine whether the video qualifies as an education record and, if possible, redact or otherwise edit the footage to protect the privacy of other students. The office recommends a case-by-case determination and provides factors to consider.

In determining whether the video directly relates to the students it depicts, schools should consider whether the video:

  • Was used for disciplinary action (or other official purpose) involving the student or the victim of the disciplinary incident
  • Depicts an activity that resulted, is resulting, or would reasonably result in the use of the video for disciplinary action or other official purpose
  • Shows a student violating a law
  • Shows a student getting injured, attacked, victimized, ill, or having a health emergency
  • Intentionally makes a specific student the focus of the video (i.e., recording of a student presentation)
  • Includes audio or visual content that otherwise contains personally identifiable information found in a student’s educational record

If none of those factors exist and if the student’s image is incidental or captured as part of the background, the video is likely not directly related to a student. Similarly, a video that does not have a specific focus on any individual but that shows a student participating in school activities that are open to the public is likely not to be deemed directly related to a student.

The videos in the original scenario each have several context clues that suggest treatment as an education record. Both videos were used to discipline a student, so the videos are directly related to that student and to the theft victim. In the cell phone video provided to the admistrator, the students in the foreground were the focus of the video. The cell phone video is not only directly related to the thief and the victim, but is also directly related to the students who were taking selfies.

The education record classification inquiry does not begin and end with the determination that a video is directly related to a student. The second requirement is that the school maintains the record. Thus, the cell phone video taken by a different student was not part of anyone’s education record until a copy was provided to the school, which then maintained the video as part of a student’s disciplinary record. Similarly, a video created and maintained by a law enforcement unit of the school for law enforcement purposes would not be considered an education record unless the school police provided a copy to the school for disciplinary purposes.

Assuming the video qualifies as an education record for more than one student, schools are required to protect the privacy of all the students to whom the video directly relates while also allowing individual parents to access the video as part of their child’s education record. This requires the school to redact or otherwise edit the video to protect the identity of students to whom the video directly relates other than the student of the parent viewing the video. Schools are not required to redact prior to providing access if redaction would destroy the meaning of the record.

Given the ubiquity of recording devices, schools should be prepared to face questions about student privacy in video footage. When possible, a school should attempt to obtain consent from the parents of all students in a video prior to allowing individual parents to access it. If faced with a scenario involving non-consensual access, schools should attempt to protect the privacy of other students through redaction prior to releasing the record.

By taking reasonable steps to protect student privacy, schools can provide access and prevent unauthorized disclosure of videos that become part of a student’s education record.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Barley Snyder | Attorney Advertising

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