Published in the Long Beach Press-Telegram, May 30, 1999. Reproduced with permission. We live in a world of instant news. The public is accustomed to up-to-the-minute information and expects to be informed the moment something newsworthy occurs-and that includes a school crisis or even the whisper of a story that involves your schools.
Certainly, the press and public have a right to relevant information about public institutions. That right is not, however, without limits. How far does the public's right to know extend, and what restrictions should be placed on that right in the interest of the school and the rights of students and employees? Your school attorney can help answer these questions. Meanwhile, we'd like to offer some suggestions that might reduce publicity and guide board members and administrators in responding properly when the need arises.
Privacy and DefamationPrivacy rights and the risk of defamation liability may control how and when you respond to the public or the news media. The right of privacy operates as a limit and a shield. On the one hand, privacy rights limit what information a school district may release about some item of general interest occurring on campus. If reporters seek private, personal, or confidential information about students or staff, you should carefully consider whether you can safely release this information without invading privacy interests and exposing yourself to legal liability.
The right of privacy can also operate as a shield. When it is in the best interest of employees, students, and the district to restrict the release of information, the assertion of the right to privacy will be appropriate and will best serve the district's interests. In fact, when there is a recognized right to privacy-for example, in student academic or disciplinary records as specified in both state and federal laws - the district must maintain the individual's right to privacy. Employees are also generally entitled to privacy in their personnel records.
Defamation liability may arise when a district decides it must release information or communicate through the media. In general terms, defamation is injury to a person's reputation. If the injury comes by way of print, such as a newspaper or magazine article, it is called Ebel. If it is through the spoken word-for example, statements to a television or radio reporter-it is called slander. Proof of defamation involves proof that the communication is defamatory, false, and "unprivileged" and has a natural tendency to injure or cause special damage. ("Privileged" communication is communication that is made in court, in an administrative proceeding, or in some other Context in which the speaker is legally shielded from liability.)
The important point to remember about defamation is that truth is always a defense. Thus, before you speak to the media, take care to gather and consider the facts, and then provide only known facts. Ensuring that the information you give the press is factual is good policy, and it should help you avoid exposure to a defamation suit.
Crisis SituationsNatural disasters, violent confrontations, and other crises will bring law enforcement officers or firefighters to your school-followed quickly by members of the press and the public. Consider some recent headlines: A tornado rips the roof off part of a school, an earthquake strikes a town, a sniper is shooting on or near a campus a student opens fire on fellow students or staff, an angry family member fires at a school employee. In situations like these, the media will inevitably want a story, and both the press and tie public may demand access to the campus.
School officials trying to deal with an emergency will find themselves barraged by demands. Do parents and others have the right to come on campus and demand immediate reports on the situation? Does the press have the right to come on campus and interview students and employees? The simple answer is, probably not. However, each situation is different and merits individual consideration.
Numerous statutes in the education and penal codes allow school districts to reasonably restrict access and to prevent disruption of the orderly processes of schools and campuses. If entry onto the campus during a crisis, even by parents, would be disruptive and prevent officials from effectively dealing with the emergency, access should be restricted. Check your state's laws.
Here in California, the attorney general has recently published an opinion that schools may limit access to the press, just as they do to the public generally, to ensure peaceful conduct of school activities. Further, the U. S. and California supreme courts have said that the press has no special privilege to invade the rights and liberties of others; nor does the First Amendment give the press a right of access to information that is not available to the public generally. School officials' stress during a crisis will be reduced if they are familiar with the district's right to restrict access to the campus.
When there are allegations of misconduct against employees or students, the public often hears of them before school officials (or law enforcement) can conduct an investigation. Be aware of an individual's right to privacy - and of the consequences to the school if that right is violated - and decline to comment. If the matter becomes public because of a criminal trial, there is less danger in responding; however, speak publicly with great care, if at all, to avoid inadvertently making incorrect statements. Also, be aware that juvenile criminal matters are generally sealed and unavailable to the public and the press.
In short, school officials should respond very carefully, if at all, to inquiries about employees or students, respecting the legitimate privacy rights of their staff and students.
A Safe WorkplaceSchools are frequently drawn into their students' or employees' domestic disputes. Both students and employees may be subject to stalking or threats of violence and may look to the school for protection. How to respond to these issues, especially if they become public, and at the same time respect the privacy interests discussed above, can challenge the most creative school leaders.
Employees may become the victims of threatened violence, either because of a personal relationship or because a parent or another member of the public makes threats. California has a Workplace Violence Safety Act that can be used to protect the employee and to assist the police in arresting the person threatening violence. (Your school attorney can tell you if your state has a similar law.)
To some extent, the California law is an exception to the rule that employers cannot reveal personal information regarding employees or students. California's Workplace Violence Safe Act is similar to the better-known civil harassment statutes, but it does not require that the affected employee seek the restraining order. Instead, the California law permits an employer to ask a court to grant a temporary restraining order and an injunction preventing a person from approaching, telephoning, or otherwise threatening an employee.
A school district that succeeds in obtaining a workplace harassment restraining order will have accomplished two things. First, the police can arrest an individual who engages in workplace harassment again, simply upon being properly advised of the existence of the restraining order or injunction. Second, the fact of the restraining order or injunction is a matter of public record and an exception to the usual requirement of confidentiality. If there is a credible threat of violence, an employer probably violates no rights, by alerting appropriate persons in the district to the potential threat.
Information About Sex-OffendersMany states, including California, have enacted so-called "Megan's Laws" requiring public dissemination of information about persons convicted of sex offenses. California's law requires that information regarding the residence, by ZIP code, of persons required to register as sex offenders and persons convicted of certain crimes be made available to members of the public who can either dial a 900 number or go to a sheriff's department or police department to view the statewide database on CD-ROM.
This law has posed two kinds of challenges for school districts.
First, many people have demanded that school districts obtain these CD-ROMs so that the data can be made available to parents. However, the law specifies that the electronic record must remain in the custody of the law enforcement agency that is authorized to retain it. School district police departments are not among the law enforcement agencies authorized to obtain the records.
Second, from time to time a school district learns that a sex offender listed in the database is living in the same ZIP code as a school. The best response in such a situation is heightened efforts at safety instruction for children, parent education regarding the need for supervision of children, and dissemination to school staff of the information actually available to the district. This may include photos and other information from law enforcement agencies. If a district has received such information from the police, there will be no violation of privacy rights by the school.
Background ChecksSome states have laws concerning background checks of school employees. (Your school attorney can tell you what the laws are in your state.) An example of such a law is the Michelle Montoya School Safety Act which took effect in California in the fall of 1997. It requires all K-12 schools to obtain fingerprints of all certificated and classified employees so that the state Department of Justice can do criminal background checks.
Under this law, the schools cannot employ or hire anyone convicted of certain specified violent or serious felonies, such as murder, rape, lewd acts on a child under the age of 14, felonies in which a firearm was used, robbery, and furnishing or selling drugs to a minor,
Parents and members of the media have expressed an interest in access to the information that a school district receives when it submits the fingerprints to the Department of Justice. However, the department has taken the position that the information it provides school districts under the law is confidential. It does not even want school districts to share the information with other school district employers. Such information would be exempt from disclosure under California's Public Records Act, which is similar to the federal Freedom of Information Act; disclosure would constitute an unwarranted invasion of an employee's privacy.
Moreover, the purpose of California's background-check law is to prevent the employment of people convicted of serious or violent felonies. The confidentiality rights of persons whose fingerprint reports show that they were not convicted of such felonies outweigh the rights of the public to information -bout other convictions.
Communication PlanAn effective communication plan, tied to the school's safety and. security plans is essential to good decision making and appropriate public responses. At a minimum, such a plan should: