The Standards: Public Integrity, Rule of Reason, Family Education Right to Privacy Act (FERPA); Amendment of Education Records C.F.R. 34 Sections 99.20, 99.21 and 99.22 of FERPA Regulations, New York State Education Department Commissioner's Rules & Regulations Truant and/or Unlawfully Detained (the two categories of unexcused absence in New York State), and North Tonawanda City School District Attendance Policy, North Tonawanda High School "Agenda" (2005-2006, p 7-11).
The Truths: Principal James V. Fisher, among other matters, egregiously and with intent to perpetrate fraud and malice, violated New York State Education Law when he issued a directive to Michael's Grade 9 teachers to deny me access to Michael's coursework for a period of 34 days, beginning October 13, 2005 through and including December 2, 2005.
At the time of the FERPA Records Amendment Hearing, City of North Tonawanda School District Superintendent Dr. John George (retired), Andrew J Freedman, Esq. (CNTSD School Board Attorney), and FERPA Hearing Officer Colleen A. Sloan, Esq. were aware that North Tonawanda High School Principal James V. Fisher's false report of Educational Neglect to New York State Office of Children and Family Services was determined "Unfounded" by Niagara County Department of Social Services. Therefore, City of North Tonawanda School District failed IN FACT to prove Michael TRUANT or UNLAWFULLY DETAINED from school; the two categories of unexcused absence in New York State Education Law, and the category by which City of North Tonawanda High School Principal James V. Fisher repeatedly directed Michael's absence from school be recorded as "unexcused", and the category by which Principal Fisher issued a directive to Michael's Grade 9 teachers to deny me access to Michael's coursework.
Each school official was also clearly aware that FERPA Hearing Officer Colleen A. Sloan, Esq. is required by law to render her DECISION consistent with New York State Education law.
Ms. Sloan instead makes every effort to forge a DECISION that attempts to conceal the fact that the City of North Tonawanda School District egregiously and illegally denied Michael his RIGHT TO EQUAL ACCESS TO EDUCATION, effectively denying Michael access to all coursework for the period mentioned and repeating Michael to Grade 9. Ms. Sloan in fact further perpetrates fraud, malices and misuse of a federal agency proceeding by mis-representing and/or omitting stated objections to the Hearing, and by further alleging testimony that never occurred from me, or Principal James V. Fisher related to home/hospital instruction. Ms. Sloan made every effort to join home/hospital instruction to the record in question with knowledge that home/hospital instruction services to Michael had no rational relationship to the attendance record in question.
In February 2006, Rhonda J. Mangus, mother of Michael A. Mangus (DOB [omitted]), requested that the North Tonawanda City School District ("District") amend certain education records of her son maintained by the District, including his attendance records. 1 James V. Fisher, Principal of North Tonawanda High School, sent Ms. Mangus a letter in which he, in effect, denied Ms. Mangus' request. 2 Ms. Mangus then requested that the District provide a hearing under the Family Educational Rights and Privacy Act ("FERPA") regarding her request for amendment of her son's attendance records. 3
I was designated by the District to serve as the hearing officer in this matter. 4 The hearing was held on March 21, 2006, beginning at approximately 9:40 a.m. in the Superintendent's Conference Room, 175 Humphrey Street, North Tonawanda, New York.
The Hearing was held in accordance with 20 USC 1232g(a)(2) and 34 CFR [Sections] 99.20 through 99.22, along with applicable Board of Education Policy and Administrative Regulations. 5 Ms. Mangus was given the opportunity to be represented at the amendment hearing by individual(s) of her choice, and she was accompanied by her attorney, James E. Rolls, Esq. Ms. Mangus was given a full and fair opportunity at the hearing to present relevant evidence. The District was represented by its school attorney, Andrew J. Freedman, Esq. Principal Fisher also appeared at the hearing.
The following represents my decision as hearing officer, along with a summary of the evidence presented at the hearing and the reasons for my decision.
FERPA itself establishes only minimal requirements for the conduct of a records amendment hearing. The federal regulations implementing FERPA at 34 CFR 99.22(c) state that an amendment hearing "may be conducted by an individual, including an official of the educational agency...who does not have a direct interest in the outcome of the hearing."6 The regulations allow, and the legislative history of FERPA supports, that even a school's own employees can under most circumstances conduct a record amendment hearing (including, presumably, the Superintendent).7 According to the Family Policy Compliance Office ("FPCO"), which administers FERPA and its implementing regulations, "districts should have some flexibility in conducting these hearings consistent with a rule of reason." FPCO has stated that "a rule of reason approach suggests that the deciding official...must be someone who does not have a personal or professional interest that would conflict with his or her objectivity in the hearing. Reason suggests that ordinarily a school or agency would not assign as a hearing officer either the individual who determined not to amend education records or someone who is in direct reporting or close collegial relationship with that individual."8
There was no evidence presented at the hearing that the Superintendent himself was specifically involved in the determination not to amend Michael's records. If, under FERPA, he could have conducted the hearing himself, then there is no reason he could not designate an outside party to do so without somehow influencing that person's decision. I am not an employee of the District; as such I am not in direct reporting or close collegial relationship with the Superintendent or with Mr. Fisher, the individual who did make the determination not to amend the records. I was not involved in Mr. Fisher's determination. There was no evidence presented at the hearing upon which to conclude that I have a personal or professional interest in the final outcome of the hearing, or that I could not be objective. Therefore, I did not recuse myself as hearing officer.
At the hearing, Mr. Rolls objected to Michael's attendance records maintained by the District to the extent any of the records indicate that Michael was absent without excuse from the period beginning October 13, 2005 through and including December 2, 2005. For example, Michael's Student Progress Report for the second marking period ending January 20, 2006 indicated a total of 34 instances of "unexcused" absence for that period.9 A "Student Absence Summary" prepared from District computerized records on March 2, 2006 confirmed that Michael was marked absent 34 times from October 13, 2005 through December 2, 2005, and that each of those absences was recorded by the District as "unexcused."10
According to Mr. Rolls, Ms. Mangus does not dispute the that her son was in fact absent on each of the above dates. However, Mr. Rolls indicated that the basis for Ms. Mangus' objection to the attendance records is that all of those absences should have been recorded as excused absences.
According to Mr. Freedman, Michael's absences on the above dates were properly designated and recorded by the District as "unexcused," in accordance with District policy and regulations which specify those absences the District regards as "excused" and "unexcused."
Excused: An absence, tardiness or early departure may be excused if due to personal illness, illness or death in the family, impassable roads due to inclement weather, religious observance, quarantine, required court appearances, attendance at health clinics, approved college visits, approved cooperative work programs, military obligations, road test, school field trip, take your child to work or other such reasons as may be approved by the Board of Education.
Unexcused: An absence, tardiness or early departure is considered unexcused if the reason for the lack of attendance does not fall into the above categories (e.g., family vacation, hunting, babysitting, hair cut, obtaining learner's permit, oversleeping).
Students at the High School are further informed via the Student Handbook that the following will be considered "legitimate excused absences" from school:12
Illness (medical appointments)
Local impassable roads
The evidence at the hearing established that students receiving approved home instruction are considered by the District to be "in attendance."13
According to Ms. Mangus, her son received a written death threat on October 12, 2005. As a result, she immediately took her son out of school, informed the school that he would not return until the matter was investigated to her satisfaction, and requested that his teachers send work home for him.14. Ms. Mangus stated that she requested home instruction for her son, and Mr. Fisher told her she needed to bring in a doctor's note. She stated that at first she told Mr. Fisher that she would not get a doctor's note; that her son's absences were due to the circumstances surrounding the threat he received. However, according to Ms. Mangus, Michael ultimately was diagnosed by his doctor as depressed. Michael's pediatrician sent a letter to the District dated November 21, 2005, indicating his belief that Michael was depressed and as such should be afforded home instruction.15 Ms. Mangus stated that Mr. Fisher requested that she then complete an additional form in order to receive home instruction. According to Ms. Mangus, she provided the completed form to the District as requested. Michael has received home instruction since December 5, 2005. Ms. Mangus stated that this situation with her son was an extraordinary circumstance, and as such the records of Michael's attendance should reflect all of his absences from October 13, 2005 through December 2, 2005 as "excused." Mr. Rolls stated that the examples of what is considered "unexcused" absence in District Policy (i.e., vacation, haircut, etc.) include "nothing remotely reflecting was was going on here," and "if any [absence] deserves to be excused, this does."
Referring to District Policy and the Student Handbook, Mr. Freedman reiterated that only certain types of absences are considered "excused" by the District. Mr. Freedman stated that whenever a student is absent, parents are required to submit a legitimate written excuse for the absence; if no such excuse is provided, the absence is considered unexcused. Mr. Freedman indicated that Ms. Mangus never provided documentation to the District that would have placed Michael's absences during the period in question into one of the categories of absences considered "excused" by the District. Mr. Freedman stated that during this time Ms. Mangus voluntarily chose to remove her son from school and keep him home, based on her perception that school was an unsafe environment for her son. According to Mr. Freedman, the District never suspended Michael or indicated that he could not return to school following the alleged threat. In fact, the District took steps to compel Michael's attendance.
Mr. Fisher confirmed that on October 12, 2005, Ms. Mangus came to him and informed him that Michael had received an anonymous death threat in his agenda planner, and that she was taking him home. Mr. Fisher stated that given the circumstances, he did not object to Michael leaving school on that day. Mr. Fisher outlined the steps he followed to respond to Ms. Mangus' request for home instruction, including the District's requirement that certain documentation be completed (including information as to the treating psychologist/psychiatrist) whenever the request for home instruction is based on a diagnosis of depression.16
Mr. Freedman stated that it was not until December 5, 2005 that Ms. Mangus provided the above documentation as requested by Mr. Fisher, but as soon as she did, "the categorization of Michael's absences changed."
District records indicate that Michael was in fact on "home teaching" as of December 5, 2005; his absences were no longer recorded as "unexcused."
Based soley on the above evidence presented at the March 21, 2006 hearing, I find that Michael Mangus' attendance records, specifically those that indicate that he was absent a total of 34 times without excuse from the period from October 13, 2005 through and including December 2, 2005, are not inaccurate, misleading or otherwise an invasion of the student's right of privacy.17
According to FPCO, the right of a parent or eligible student to challenge information in education records is not unlimited. A school is not required by FERPA to afford a parent the right to seek to change substantive decisions made by school officials, as opposed to ministerial or computational errors. See, e.g., Tarka v. Cunningham, 917 F.2d 890 (5th Cir. 1990), where the court denied a student's challenge to a grade under FERPA, stating that "students' grades as reflected in educational records can only be inaccurate or misleading if they do not reflect what the grader intended or if they are mathematically incorrect."
Case law and administrative decisions construing FERPA suggest that in order for a record to be deemed "inaccurate" or "misleading," it must be found to be "incorrect" at the time it was written, or, it must be found that because of an omission, or the means of expression, the content of the record casts the student in a false light or gives an erroneous impression. Compare, e.g., Carter v. Orleans Parish Public Schools, 555 IDELR 419 (5th Cir. 1984), where the parent successfully sought expungement of record that identified his children as mentally impaired when in fact they were not; with Nenana City Public Schools, 18 IDELR 489 (SEA AK 1991), where review officer denied parent's request to remove an IEP from her son's file that reflected services that had been subsequently changed, as the IEP was appropriate when it was written.
Here, Ms. Mangus does not assert that Michael's record of attendance is inaccurate or misleading because he was absent a lesser or higher number of days than actually recorded, or that he was absent on different days [than] actually recorded, or that he was not absent at all. Ms. Mangus asserts that Michael's record is inaccurate or misleading based on the perceived circumstances surrounding the threat against him, his medical condition, or both, the District would have more accurately determined and recorded each of Michael's absences as excused instead of unexcused.
Regarding absences related to a medical condition, the evidence at the hearing established that Ms. Mangus did not initially claim that Michael was being kept out of school because of any medical condition. The evidence established that she initially informed the District, both in writing and by telephone, that she was keeping her son out of school because of the threat made against him. Although she later provided the District with a letter from Michael's pediatrician stating his belief that Michael was depressed, she did not provide the District with specific information regarding Michael's diagnosis and treatment in accordance with its procedures for requesting home/hospital instruction for his condition, until on or about December 5, 2005. The evidence clearly established that once that information was received, the District immediately began providing Michael with home instruction, and his records accurately reflect his status as "in attendance" from that date forward. Therefore, I cannot find that Michael's attendance from October 13, 2005 through December 5, 2005 is inaccurate or misleading based on his medical condition.
Regarding absences based on perceived circumstances surrounding the threat against Michael, Ms. Mangus' attorney conceded that this may have been her personal choice. The evidence clearly established that such circumstances were not specifically included in the District's definition or list of examples of "excused" absences. Ms. Mangus basically argues, however, that the District made the wrong decision when it decided that her son's absences do not "go with" those other types of absences specifically considered excused.
There is no question in my mind that deciding to characterize Michael's absences based on perceived circumstances surrounding the threat against him as "unexcused" versus "excused" was a substantive decision by the District. There is no right to challenge such substantive decisions under FERPA.
The FERPA regulations provide that if, as a result of an amendment hearing, it is determined that the challenged information in the education is not inaccurate, misleading or otherwise in violation of the privacy rights of the student, the district shall inform the parent of the right to place a statement in the record commenting on the contested information in the record or stating why he or she disagrees with the decision, or both. If the district places such a statement in the student's education records, the district must maintain the statement with the contested part of the record for as long as the record is maintained, and, disclose the statement whenever it discloses the portion of the record to which the statement relates.18
I recommend that the District inform Ms. Mangus of the above right.
Dated: April 21, 2006
s/Colleen A. Sloan
Colleen A. Sloan, Esq.
ERIE 1 BOCES Labor Relations Services
Please Note: I have not yet placed a statement in Michael's record. I did forward correspondence to Ms. Sloan regarding her Decision, which will appear in the next post. The exhibits referenced here will be posted at a later time.