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New Jersey lawyer focusing on special education law and employment law

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Student Records Are Confidential

Once in a while a case comes along, and you wonder: What were they thinking? Like bibliophiles who love to talk about their favorite novels and their favorite characters, lawyers like think about old and recent cases and talk about them.

L.S. and R.S. o/b/o S.S. v. Mt. Olive Board of Education (D.N.J. Feb. 25, 2011) is one of those cases that I think about from time to time because I spoke with some of the people who were connected with this case on an unrelated special education matter. Now when I think of L.S. v. Mount Olive, I can match some of the names with their faces.

It has now been one year since the court issued an opinion in this case — and this is a good time as any to discuss what happened.

Ms. Strahl is an 11th grade English teacher at Mt. Olive High School in Mt. Olive, New Jersey. In 2009, Ms. Strahl had her 11th grade class read “The Catcher in the Rye.” Also helping the class learn their lessons was Mr. Bosch, a special education instructor.

As an exercise in writing and analytical thinking, Ms. Strahl gave her class an assignment: write a psychological evaluation of Holden Caulfield, the protagonist of “The Catcher in the Rye.” To help the students with their assignment, Mr. Bosch sought to obtain a copy of a psychological evaluation report to distribute to the class and use as a template. Mr. Bosch visited Mr. Johnson, the school’s social worker, to see about obtaining a copy of a sample psychological evaluation report.

“Shockingly,” as the Court put it, Mr. Johnson pulled out a 10th grader’s psychiatric evaluation report and gave it to Mr. Bosch. The 10th grader, named S.S. in the case caption, had diabetes, anxiety, depression, and “a general phobia of attending school.” In fact, S.S. has had years of home instruction. (see p. 4) Mr. Johnson told Mr. Bosch to redact S.S.’s personally identifiable information before distribution. (see p. 5)

Mr. Bosch redacted S.S.’s name and address. But he did not redact S.S.’s age, religion, grade, family members, physical conditions, past medical and psychiatric history, exams, and diagnoses. Also NOT redacted was an indication that S.S. had been on home instruction in the past. (see p. 5)

After Mr. Bosch distributed S.S.’s “redacted” psychiatric evaluation report to the 17 students in Ms. Strahl’s English class, a friend of S.S. read the psychiatric evaluation report and wondered, “Is this S.S.?” The psychiatric evaluation report apparently contained sufficient information for the friend to identify S.S. as the subject of the evaluation report. The friend asked Mr. Bosch if the subject of the evaluation was S.S. (see p. 5)

Mr Bosch denied that it was S.S. (see p. 5)

Ironically, S.S.’s parents were meeting with school officials on the same day S.S.’s psychiatric evaluation was distributed to the class. (see p. 5)

S.S.’s friend happened to see S.S.’s parents after class. He walked up to them and gave them his copy of the redacted psychiatric evaluation he just received in class. (see p. 6)

S.S.’s parents immediately conferred with school personnel, and school personnel subsequently “collected and destroyed” all of the copies that had been distributed to the students in Ms. Strahl’s class. (see p. 6)

On the following day, S.S.’s parents filed a complaint with the New Jersey Department of Education, alleging that Mt. Olive breached S.S.’s confidentiality. The Department issued a report and found that Mt. Olive “district personnel are uninformed of the importance of maintaining the privacy of potentially disabled students and the confidentiality of the records of those students.” (see p. 6)

Several months later, S.S.’s parents filed a complaint in federal court and named as defendants the Board of Education, the superintendent, the principal, the director of special education, Ms. Strahl, Mr. Johnson, and Mr. Bosch, under various legal theories including the 1st Amendment, the 4th Amendment, the Constitutional Right of Privacy, FERPA, HIPPA, IDEA, 1983, and State law.

While the Court dismissed most of the claims, it did find that Mr. Johnson and Mr. Bosch were liable under Section 1983 and the New Jersey Constitution for violating S.S.’s federal and state constitutional right to privacy.

As of this writing, this case is still pending to determine the amount of damages that should be awarded to the plaintiffs.

If anything, this case teaches nothing except the patently obvious: student records are confidential and school personnel shouldn’t distribute student records to the public.

I just conducted a keyword search for psychological evaluation reports on the internet, and there are quite a few sample reports available online that would have been just fine for high school students who need a template. Obtaining an actual psychological evaluation report from the school’s files for class distribution was not only unlawful, it was completely unnecessary given that students could have downloaded sample reports online. I wonder what Holden Caulfield would have said about this.

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