When students at Lakes High School walked out of classes in protest Sept. 26, they said they were angry because the Clover Park School District hadn’t told them about an alleged on-campus sexual assault.
The incident at the Lakewood school, involving two special-education students, occurred in May but had become the subject of a recent TV news story.
According to Lakewood police, a special-needs girl was sexually assaulted in a staff bathroom after a substitute bus driver allowed her and a special-needs boy to leave a school bus unsupervised.
“We didn’t know a predator was walking the halls,” one Lakes student said during the protest. “Why did they keep it silent from us?”
“Don’t they and their parents have the right to know about this?” a commenter on The News Tribune website wanted to know.
The answer: Maybe not — at least not through the school. School districts point to federal and state laws that limit what they are allowed to disclose about students who commit sexual assaults at school, or students who are convicted of off-campus sex crimes and later return to the classroom.
In the Lakes case, the girl’s family filed a legal claim for damages against the school district, alleging it failed to protect her from the boy, who had a history of sexual assault. School district attorney Mike Patterson said an effective supervision plan for the boy was in place, but the substitute bus driver didn’t know about it.
LAWS IN PLAY
Student and parental angst over these kinds of situations is everywhere.
Two days after the Lakes protest, Facebook postings about a sex offender attending Peninsula High School near Gig Harbor prompted Principal Dave Goodwin to send a note to families. He let them know the student in question was not a current Peninsula District student. (Although he once was.)
Federal law protects confidential student information.
Shannon McMinimee, former legal counsel for Tacoma Public Schools
Goodwin urged Peninsula parents and students to contact the school if they had safety concerns, rather than relying on social media for information. He also pointed parents to an online link to the statewide school safety center, part of the state superintendent’s office.
“We are guided by the Family Educational Rights and Privacy Act (FERPA) and what we can report is extremely limited,” Goodwin wrote.
FERPA is a federal law that gives parents — and students, after they turn 18 — the right to control who sees their educational records. School districts argue that includes not only grades and transcripts, but school disciplinary records and other communications about a student in their school files.
“Federal law protects confidential student information,” said Shannon McMinimee, former legal counsel for Tacoma Public Schools who is now in private practice.
Federal law allows a school district to share information with a victim’s family, if it has a direct impact on the victim, McMinimee said.
School districts can say, for example, that an offending student no longer attends the school or district. They can tell a victim the perpetrator will attend different classes or have a different schedule.
“We can tell them that we’ll make sure your paths don’t cross,” she said.
While school districts and their attorneys tend to err on the side of caution in interpreting FERPA, some say schools go too far.
“Educational institutions and their lobbyists like FERPA just the way it is now — as a catch-all excuse for anything they don’t want to tell the public about,” said Frank LoMonte, an attorney and director of the Student Press Law Center in Washington, D.C.
“FERPA expressly contains an exception for records created by law enforcement agencies,” said LoMonte, a frequent FERPA critic. “If the school receives information from a judicial or law enforcement agency, then by definition that information is not covered by FERPA, because it does not come from an education record. The U.S. Department of Education has said over and over again that facts derived from sources other than education records can be disclosed without violating FERPA.”
Educational institutions and their lobbyists like FERPA just the way it is now — as a catch-all excuse for anything they don’t want to tell the public about.
Frank LoMonte, Student Press Law Center
But state law in Washington directs principals who receive notification from courts or law enforcement about a sex offender student to keep information confidential. It can’t be disseminated outside school, except in special circumstances, such as when a student transfers to another school or district.
“We take advice from law enforcement and from our own legal counsel,” said Lance Goodpaster, an assistant superintendent in the Parkland-based Franklin Pierce School District.
State law says that whenever a minor is convicted of certain violent crimes, sex crimes, liquor or drug violations, the court must notify the student’s principal. The principal, in turn, must notify the student’s teachers and others who will supervise that student. State law also dictates a similar process when students are convicted of kidnapping a minor.
Patterson, a Seattle attorney who represents school districts around the state, said districts are frustrated when parents challenge them to reveal more. He said insurers want to figure out a way that would allow schools to “communicate more information but at the same, respect the privilege under the law.” That’s because if families sue school districts over school-related sexual assaults, insurers must pay damage claims that prevail in court.
In 2011, then-state Rep. Kirk Pearson, R-Monroe, proposed legislation that would have allowed parents and legal guardians of students who attend a school with a convicted sex offender to be notified. Notification would have included the student’s name, crime and sentence.
Pearson is now a state senator. His 2011 measure never made it to a vote. Neither did a similar Senate bill he introduced in 2013.
SEX OFFENDER STUDENT RIGHTS
Handling students accused or convicted of sex crimes or other serious offenses creates dilemmas for school officials.
As educators, they need to balance overall student safety and the need for order with each student’s right to a public education. That right extends even to those who commit crimes or are accused of them.
“It’s a really tough issue,” said Nathan Olson, spokesman for the state Office of Superintendent of Public Instruction.
“By state law, the alleged perpetrator has a right to get an education,” he said. “If you put up a notice next to the principal’s office, chances are that student is not going to get a good education.”
Notifying the entire faculty or student body could create more disruption and possibly result in threats or violence against the student in question, educators say. And in cases where there are allegations but no court or legal findings, the situation becomes even murkier.
If special-needs students are involved, more federal laws protect their privacy and ensure they are not needlessly segregated from other students.
“We don’t want to create an unsafe situation,” said Kathryn Weymiller, director of community outreach for Peninsula schools. “We look at it through a safety lens: What do we need to do for all students and for this student? How can we make sure we are creating an environment that is as safe as possible?”
Goodpaster said when a school receives notification from the legal system about a student’s offense, it triggers a meeting that includes him, the principal, the district safety director and others, including the student offender’s probation officer and family. The job of the school officials is to construct a safety plan.
“We want parents’ input,” he said. “The plan is as much for that student (the offender) as it is for the rest of the community.”
A safety plan might include one-on-one supervision, spelling out who will be responsible for supervising the student in various settings from the classroom to the lunchroom. It might call for special transportation arrangements.
McMinimee said over the past five years, more reports of student-on-student sexual incidents that involve very young children have emerged. When that happens, she said, educators should call in help from police and state Child Protective Services.
“You always have to worry that the child perpetrating (the assault) is being victimized elsewhere,” she said. In addition, young children might act out sexually because they have been exposed to sexually explicit material, either online or elsewhere.
LAW ENFORCEMENT’S ROLE
Immediately after the social media buzz about Peninsula High, Weymiller asked principals throughout the district how many sex offenders were present in their schools. The answer: zero.
Goodpaster echoed her assessment.
“It’s a rarity,” he said.
But he agreed the public might think otherwise.
“Social media adds another element to this whole equation,” he said. “It makes it very difficult.”
Law enforcement deals with these issues every day. Schools do not.
Nathan Olson, state superintendent’s office
Like adult sex offenders, juvenile sex offenders must register with the local sheriff’s department. They also must notify the sheriff before attending a public or private school.
If the crime is categorized as a more serious one — a determination based on the likelihood a student will re-offend — the offender’s information and the block where he or she lives is published on a website maintained by the Pierce County Sheriff’s Department.
Olson notes that schools rely on courts and law enforcement officials to notify the public about sex offenders. The state’s model policy urges schools to refer parent and student questions about student offenders to law enforcement.
“Law enforcement deals with these issues every day,” Olson said. “Schools do not.”