In April 2012, two organizations, the
Morgan Hill Concerned Parents Association and the Concerned Parent Association,
filed a lawsuit against the California Department of Education (CDE) alleging
widespread, systemic non-compliance by local educational agencies with the
Individuals with Disabilities Education Act (IDEA) and Section 504. The suit
also alleges that the CDE fails to monitor, investigate, and correct such
non-compliance in accordance with the law. The CDE denies these allegations and
is actively defending the litigation. The Fremont Unified School District (FUSD) is not involved with the lawsuit or the subject of any of its allegations.
As part of the litigation discovery
process, the plaintiffs have requested numerous documents as well as student
data collected and stored by the CDE. Many of the requested documents and data
stored in the CDE databases contain personally identifiable information (PII)
of children, including children with disabilities, children who requested an
assessment or who were assessed for special education eligibility, and children
who are attending or who have attended a California school at any time since
January 1, 2008. Although the CDE has
contested the production of such information, the court at this juncture has
ordered the CDE to produce to plaintiffs’ legal counsel documents and data that
contain student PII sometime after April 1st, 2016.
“We certainly understand the concern our families may be feeling in this circumstance and are working to distribute as much information as possible regarding this situation,” said FUSD Superintendent, Dr. Jim Morris. “I want to be clear to our community that FUSD itself will not be distributing any student information as we are not part of this lawsuit – and that FUSD does not collect or record Social Security numbers of its students. There are also stipulations in the order to ensure any information released will be extremely limited.”
Included in the court’s order to produce documents and data is a Protective Order prohibiting the plaintiffs and their legal counsel from disclosing confidential information acquired in the course of the lawsuit, including PII, to anyone other than the parties, their attorneys and consultants, and the court. None of the information may be used outside the context of the lawsuit - no student’s identifying records will be disclosed to the public.
The Family Educational Rights and Privacy Act (FERPA) sets out the requirements for the protection of privacy of parents and students, including privacy of student records. Generally, parents and/or students must provide written consent before an educational agency may disclose PII. However, there are exceptions to this general rule. Specifically, an educational agency must provide PII when ordered by a court, which the CDE has been ordered to do in this litigation. The CDE is obligated to inform the parent or student that the court has ordered it to produce documents and/or data that includes those individuals’ PII and that such persons may object directly to the court regarding this disclosure. To comply with FERPA, the CDE posted the following link to CDE’s Web site, http://www.cde.ca.gov/morganhillcase, from February 1st - April 1st, 2016. The link provides the Notice and Objection Form required by FERPA. Families are advised submitting this form does not guarantee their child's information will be excluded, but their objection will be read and considered. Please contact the CDE with any questions at 916-319-0800, or click here for additional information.