Privacy Rights and Public-Safety Concerns: Debate Stirs Over Access to Youth Records
In March, a teacher at a Los Angeles junior high school was filling out a student's disciplinary slip when she felt a sharp blow to her back. She thought the boy had hit her.
What she did not know, until the students in her class told her, was that she had a knife in her back.
What she also did not know was that administrators at her school had been aware of the transfer student's history of violent behavior but had not, as a matter of policy, told her.
At a Milwaukee high school last year, the stabbing of a female student during a fight with a classmate forced officials to call in the police.
But when the officers arrived the principal told them he could not, under the district's disclosure policy, give them any information about the two girls involved--not even their names.
And in Jacksonville, Fla., school officials struggled three years ago to break an elementary-school pupil's habit of spying on others in the restroom. They were unaware that the boy had a police record--for sexual assault.
All three incidents illustrate what has become a confusing jumble of crossed purposes as educators, police, and youth-service agencies try to balance, in an era of increasing juvenile crime, the young person's right to privacy with the public's right to be safe.
The sharing of juvenile records--always a ticklish matter for schools and other public agencies--has taken on new importance, experts say, as the pressure mounts on those sectors to identify the nation's most troubled young people and intervene to provide help.
Many who work with troubled youths, however, say that restrictive laws and policies--and at times the fear of potential liability--prevent the kind of information-sharing that could help them target services. Too often, they say, they are working with only one piece of a puzzle.
"We seem to be paralyzed in our ability to help kids who are really in trouble," says Gary S. Higgins, chief of planning and research in the juvenile division of the Jacksonville, Fla., police department.
The sense of frustration may be most acute for educators, some note, because they are being asked to tackle a growing list of social problems at a time when increased cooperation from other public agencies is not yet forthcoming.
"Kids today have a whole set of problems related to the community that they bring to school," says Samuel D. Stellman, a University of Wisconsin professor emeritus who works at the university's Milwaukee Criminal Justice Institute. "Principals are saying they can't handle it, that the system has to change."
The National School Safety Center, in a new report, calls this unwillingness of agencies to share what they know "information territorialism."
The situation, it says, "allows serious habitual offenders to fall through the cracks of the juvenile-justice system, largely because youth-involved agencies do not fully cooperate with one another."
Many in youth-related fields believe, with Mr. Higgins and Mr. Stellman, that this insularity must be broken down.
They advocate the development of coordinated systems of interagency collaboration on youth records--systems that will protect the public and the youths in question, while safeguarding the rights to privacy and a fair start in life that juvenile statutes are meant to insure.
In its report, the nssc catalogues the state and federal laws that limit the transfer of information on juveniles, and offers a model for inducing better collaboration on what it calls "information management."
"The people who work with at-risk juveniles often simply do not have the data they need to operate effectively," writes Ronald D. Stephens, the center's executive director. "The practice of keeping juvenile records confidential ... has not kept pace with the vast changes in the juvenile-justice system, and the rapid expansion of serious juvenile crime."
But school personnel have tended to be among the most leery of sharing data on young people. So while other professionals, particularly those in law enforcement, see a growing importance in school data for preventive measures, educators in many locales remain cautious.
"There has to be some exchange of information," says Donald Bolton, administrator for student-attendance and adjustment services for the Los Angeles Unified School District. "The question is how much, and who needs to know."
But Jack T. Erikson, coordinator of student services for Orange County, Calif., suggests that proposals to share information are rarely a two-way street. "It seems like other agencies are always asking for information," he says, "but they never want to give any."
As the school-safety center's report points out, the notion that juveniles' records should be kept confidential is based on a belief that minors should be allowed to grow and change and not be labeled for life because of a behavior exhibited in one stage of their development.
There are a number of federal laws regarding confidentiality, the most notable of which for educators is the Family Educational Rights and Privacy Act of 1974, known as the Buckley Amendment.
It assures parents that they may review their children's student records, challenge the contents, and prevent disclosure of personally identifiable information without written consent. The law also accords these rights to students over the age of 18.
A 1978 law--known as the Hatch Amendment--also barred schools from using federal funds to conduct certain psychological assessments without parental permission. Although it was narrowly tailored, some parents have argued that the act prohibits schools from being concerned with students' psychological state. (See story on page 5.)
Most states have adopted additional protections for juvenile records, according to the nssc, although these vary in agencies and types of information covered.
But many of the state laws do not specifically address the flow of information to and from schools, according to a researcher who compiled the nssc data. As yet, there has been no state-by-state survey of school-records laws and policies, she said.
According to the nssc report, many school districts cite the Buckley Amendment when dealing with cases that involve access to school records, and often refuse to release even the most basic information, such as name and address, without a court order.
In Texas, for example, where records are only available to certain agencies with court permission, officials of a suburban Dallas district were forced to ask the state attorney general whether they could release a dead student's academic and attendance records to her husband.
The attorney general ruled last month that the student's right to privacy ends upon death.
"It's a very gray area," says Gary Marx, associate executive director of the American Association of School Administrators. "But we would definitely side in favor of confidentiality."
In Wisconsin, the legislature is currently reworking state records8laws that have allowed school districts to adopt their own policies on the release of student information.
Many school systems, such as Milwaukee's, have refused even to identify a student without parental consent and a court order.
Milwaukee police officials, frustrated by their inability to penetrate school bureaucracy, often cite the story of a 5-year-old boy who got off at the wrong bus stop on his way home from school last year.
The boy did not know his address, and when police contacted the school to find out where he lived, school officials refused to release the information.
The legislature is considering a measure that would allow for the release of such basic--or directory--information as a student's name, address, telephone number, and attendance records.
"This is just common sense interpreted into law," says Representative Margaret A. Krusick, the Milwaukee legislator who sponsored the bill in the Assembly.
Under her measure, school districts would have to ask parents once each year to consent to the release of directory data.
Police officials would also be allowed to release data on a youth's alcohol and drug-abuse infractions to schools, but only for use within the school's substance-abuse programs, not for punishment.
The bill would also allow schools to be notified of criminal activity, especially any incident that resulted in a youth's being placed on probation. In the past, this piece of information has been withheld from schools, even though probation usually includes a condition of mandatory school attendance.
The proposed legislation stems from suggestions made by an advisory board to the Milwaukee County Children's Court Center, a group that includes Representative Krusick and Mr. Stellman of the Criminal Justice Institute.
In a report to state lawmakers, the board recommended that channels of communication be opened or expanded between schools, law-enforcement and social-service agencies, and juvenile courts.
"No longer," the report said, "can one agency work independently in helping these youths, since in almost every case, they bring multiple problems which require more cooperation between and among agencies.''
The bill has been opposed by the Wisconsin Alliance for Children, an advocacy group that does not favor records-sharing.
In written testimony prepared for the advisory board, alliance officials urged the board not to support a change in existing confidentiality laws, arguing that current law allows for the "sharing of necessary information."
"To weaken the confidentiality standards under the guise of concern over the social welfare of juvenile offenders denies the reality and volume of street crime facing law enforcement, and can only increase the potential for abuse of access," according to the group's statement.
State education organizations support the bill--but only, notes David Begel, a spokesman for the Milwaukee district, because it includes a safeguard requirement for parental consent.
"We are still very concerned about confidentiality, and will probablyel10lrequire parental consent with each information request if the bill passes," he says.
"These children are under our charge and there's a discomfort about releasing information willy nilly," Mr. Begel adds. "Part of keeping schools safe and protecting students is protecting information about students from going out to just anyone."
But Capt. Glenn A. Kasdorf of the Milwaukee Police Department's juvenile division argues that "confidentiality puts us between a rock and a hard place."
"There are so many bleeding-heart liberals who are so concerned about protecting the rights of the individual, while they're just obstructing the system," he says.
Captain Kasdorf acknowledges that current state law prevents police from sharing information with schools, and says he had hoped lines of communication between the two agencies would be opened more.
But he opposes the proposed legislation, he says, because it would allow police to release information about a juvenile who had not yet completed the judicial process.
Charles A. Hayes, principal of Deer High School in a suburb of Milwaukee, also has reservations about the bill. Administrators will be able to keep schools safer if they know more about the violent activity of students off-campus, he says, but the proposed law is "limited." It may prevent public agencies from sharing more data when that is necessary, he maintains.
The University of Wisconsin's Mr. Stellman, like many others interviewed, stresses that the increasingly violent nature of juvenile crime makes the sharing of information a contemporary necessity.
"We have hardcore kids doing hardcore crimes, and they have to be targeted," he says, pointing to recent incidents that have focused public attention on the problem.
Last month's brutal rape and beating of a 28-year-old jogger in New York's Central Park by a group of 14- to 17-year-old boys, and the alleged sexual assault of a special-education student by a group of Glen Ridge, N.J., teenagers have spurred intensive media examinations of a phenomenon sociologists are yet to fully explain: the lowering age threshold for cruel and aggressive crimes.
In California, the violent acts committed by juvenile gang members prompted a state superior-court judge in Orange County to order last February that information on confidential records be exchanged between county agencies when the youth in question is a gang member, or "at significant risk of becoming a gang member."
Mr. Erikson of the Orange County Department of Education, says the order was issued in response to complaints that the lack of communication between agencies was impeding criminal investigations, the evaluation and placement of convicted youths, and the ability of educators to ensure a safe school environment, which is mandated by state law.
"We felt a sense of urgency in dealing with the gang and drug problems here, and that there had to be better communication," he says, noting that the ruling affects 30 school districts in the county.
Judge C. Robert Jameson initially ordered that parents be notified whenever information was requested under his guidelines. But in4March, he modified the order to allow the sharing of "oral communications" without parental consent.
School officials may now notify police officers verbally, for example, that a student on probation is "wearing gang clothing, or hanging out in the park late at night with other gang members," Mr. Erikson explains.
In such a transaction, he points out, no school records would be exchanged. And school officials providing such information would not have to be in agreement with the agency requesting the information that the student was a gang member or in danger of becoming one.
Violent gang activity has also forced school officials in Los Angeles to rethink district policy on records-sharing, according to Mr. Bolton of the city district's central staff.
Schools in the district are generally offered very little information by the police department or the court system on a student's off-campus activities, he says. Although the courts are legally allowed to notify schools when a student is convicted of a crime, no details are given.
Long delays in the release of information is also common, he says.
The district has two full-time staff members, Mr. Bolton says, who work as liaisons with law-enforcement officials to find out as much as is legally possible about students re-entering the system after serving time in a detention center.
The lack of such information--especially where it concerns gang activities--could cost a student's life, he says, if he or she is placed in a school in a rival gang's territory.
Although school officials are encouraged to "cooperate to the extent that they have to" with police investigations, Mr. Bolton says, he does not expect the district to become more expansive in sharing information itself.
"There's a need for more expedition of information," he maintains. "But we have to be very careful that we're not opening up school records for any and everyone to look through. To me, that's just plain dangerous."
"If a teacher finds out that a student is just out of a juvenile-court camp," he says, "the student is labeled as a 'jailbird' and the kid is doomed."
Such concern over "labeling" has been the basis for a Los Angeles district policy, currently under review, that bars school employees other than the principal from knowing about a student's behavioral history.
District teachers, like the one stabbed in a classroom last March, now can only be informed of these facts if the principal determines that is necessary. The policy is a common one among school districts nationwide. Many do not allow behavioral information or subjective evaluations to transfer with a student when he changes schools. The student is supposedly allowed a fresh start at the new location.
The 15-year-old student who stabbed the teacher at Olive Vista Junior High School in East Los Angeles had several violent incidents on his record from other schools. He had been moved to Olive Vista on his third "opportunity transfer"--a term used to denote a move that offers both punishment and a second chance.
Principal Charles C. Welsh of Olive Vista says he was aware of the student's previous problems, but did not notify other school employees because "the kid seemed to be making it."
Local teachers' union officials, however, were outraged by the incident.
"Not knowing information like that can put a teacher at a very great disadvantage," says Catherine Carey, a spokesman for United Teachers of Los Angeles. "Labeling is a problem, but if teachers know more about a problem student's background, they can give special treatment and know how to better handle that student."
Mr. Bolton notes that the new policy being developed will seek to strike a balance. "There's a fine line between not being too judgmental about students and, at the same time, protecting teacher interests," he says.
But labeling is, in a sense, the goal of an interagency program in Philadelphia designed to identify and seek help for the city's most troubled and crime-prone youths.
According to Albert J. Toczwydlowski, the city's deputy district attorney for the juvenile division, young people with four or more convictions are classified as "habitual offenders" in the program, and records on them are shared--to some extent--by police, the courts, social-service agencies, and schools.
Pennsylvania law specifically allows courts and law-enforcement agents to release information to each other and to institutions supervising the child, but it does not direct schools to allow such access.
School officials taking part in the program are willing to share academic and attendance records, but they will not release behavioral and disciplinary records, citing state and federal privacy laws.
To the deputy district attorney, the school system's intransigence on this issue has seriously jeopardized the success of the interagency collaboration.
"It's silly to treat such information as confidential when the juvenile court is doing a mental history of a youth and they don't know whether he was ever disciplined in school," Mr. Toczwydlowski maintains.
"It makes a big difference to the judge who has to decide that kid's future, and to me who's prosecuting the case, if the kid was an honors student who never got in trouble at school," he says.
Jacksonville, Fla., is also using the habitual-offenders model as an "organizing theme" for collaboration on juvenile records, Chief Higgins says.
In addition to collecting and sharing data on those deemed habitual offenders, city agencies are developing a system to track "high-risk youths," such as dropouts, runaways, and other troubled children, he says, with the objective of targeting services.
Police officers also collect "contact cards" on young people, noting suspicious behavior even when there is no cause for arrest, the police chief said. These are often shared with other agencies.
Schools are a "critical" part of the tracking process, Mr. Higgins says, because they spend more time with juveniles than any other agency. A school's record of a student's conduct "can be an excellent warning signal," he suggests, for potential criminal behavior.
Hodges H. Sneed, general director of student services for the Jacksonville Public Schools, stresses that the district will not release any information except directory data without parental consent and a court order.
School officials are concerned not only with state and federal confidentiality laws, he says, but also with protecting the integrity of the data collected.
Officials will do everything they can to obtain parental consent, including a home visit, Mr. Sneed adds. But sometimes the parents cannot be reached. "It really ties[our] hands," he says.
But Chief Higgins points out that Florida laws have been revised over the past two years to reflect "a greater demand for revelation regarding student records."
The new laws allow police to release the names of minors over the age of 16 who have been convicted of a felony.
According to Merril Sobie, an expert on juvenile law and professor at Pace University School of Law, almost every state's legal code now has a provision that allows juveniles 16 or older to be charged and tried as adults for severe felony crimes.
New York is the only state to allow juveniles younger than 16 to be tried in adult courts. If a juvenile is tried as an adult, Mr. Sobie says, his or her records would be public information.
The Florida revisions also require police to notify schools of a dangerous juvenile offender "where there's a need to know," Mr. Higgins says.
A contributor to the National School Safety Center's report, the Jacksonville police chief argues that "there are a lot of myths on the whole records issue."
"State statutes are often vague and nebulous," he charges. Because school lawyers seek to "absolutely eliminate liability," he says, they often advise districts to "retreat to risk management" and limit disclosure.
Mr. Stephens of the nssc maintains that the issue comes down to the difficult task of balancing privacy rights against "the larger right of students and teachers to safe schools."
As long as the information is used "to best help the student," he says, information should be shared. "It's a matter of public and personal trust."