State superintendent of schools says student privacy won’t diminish

Chris Reykdal, state superintendent of schools, says a new parental bill of rights will not “diminish student privacy rights” protected by federal law.

The new law went into effect June 6. It gives parents of K-12 students the ability to easily review school materials and medical records and opt their children out of assignments involving questions about their sexual experiences or their family’s religious beliefs, according to a Washington State Standard article.

The law has received backlash from LGBTQ+ advocacy groups and even prompted a lawsuit spearheaded by the ACLU of Washington and others, which argues that students, parents and school districts will be harmed because of it, according to the Washington State Standard article. The lawsuit also contends the initiative was drafted in a way that violates the state Constitution.

According to a June 5 news release from the Office of Superintendent of Public Instruction, while the initiative overlaps or mirrors existing law in many places, some provisions conflict with current law––particularly around students’ right to privacy in school.

The initiative states that parents and legal guardians have the right to inspect their child’s public school records, a right that is already outlined in existing law. However, the initiative defines what constitutes as a “record,” to include items such as medical or health records; records of any mental health counseling; and any other student-specific files, documents, or other materials maintained by the school, according to the news release.

Some of these records contain personal information and are protected under the Federal Education Rights and Privacy Act (FERPA) and the Health Insurance Portability and Accountability Act (HIPAA, privacy laws restricting release of medical information), and as such, cannot be disclosed without the student’s consent, according to the news release.

“I want to be clear: This initiative did not change, reduce, or diminish student privacy rights in Washington schools that are protected by federal law,” Reykdal said. “There is no question that students are best supported when their families are actively involved in their education. But if a student does not feel safe coming out to their family and they turn to a trusted adult at their school for support, they have a right to receive that support without fear of being outed by their school.”

FERPA does not require the disclosure of any information related to a student’s gender status outside of a specific request to review and inspect records, according to the news release. Further, FERPA does not compel a school to share information that a school official obtains through personal knowledge or observation––and not from an education record––unless the school official uses the information in a manner that produces an education record.

“In Washington state, we recognize that LGBTQ+ youth often face barriers and challenges at higher rates than their peers, and we have worked hard to create learning environments where all students feel welcomed and included,” Reykdal said. “However, we are seeing a disturbing trend of some policymakers implementing state and local policies that aim to undo these protections.

“Our state’s guidance has maintained that, in order to protect student privacy and safety, schools should communicate with students who disclose they are transgender or gender expansive about the student’s individual needs, preferences, and safety concerns. It is the student’s decision when and if their gender identity is shared, and with whom.”

On May 23, the ACLU of Washington, Legal Voice, and QLaw filed a lawsuit on behalf of 10 nonprofit organizations to prevent the initiative from taking effect because the initiative contradicts existing federal and state laws.

The King County Superior Court on June 4 denied the plaintiff’s motion for a temporary restraining order, which would have prevented the initiative from taking effect on June 6 as scheduled by the Legislature. On June 21, the court will consider a preliminary injunction.

To support schools in implementing the initiative, the Legislature directed the Office of Superintendent of Public Instruction (OSPI) to develop comprehensive technical guidance.

Until additional clarity is provided on the areas where the initiative conflicts with existing state and federal law, school districts should not make changes to any policies and procedures that are implicated by the conflicting sets of law, according to the news release. When in doubt, school districts should follow federal privacy laws.