Privacy
Course
Legal Protections [8:19]
We discuss the legal protections students have regarding privacy.
The Supreme Court stated in its well-known 1969 Tinker v. Des Moines Independent Community School District decision students do not shed their constitutional rights at the schoolhouse gate. The Court also said that students need to have a wide range of information for intellectual growth. This means that students have the right to read and research topics of personal and academic interest. However, if library users do not feel secure that their choice of research topics or reading will be kept confidential either by library staff or from inquisitive peers, they will not use the library. If they feel monitored, students' First Amendment rights are not supported, so protecting students' privacy in their use of school libraries is essential.
There is an important federal law that affects students' privacy in schools and the confidentiality of their records. The Family Educational Rights and Privacy Act, also known as FERPA protects students' educational records and determines what information in those records may be disclosed. Under FERPA, an educational record is defined as, "Any record maintained by an educational institution that is in any format and that allows the student to be identified from the information contained in it." FERPA gives parents the right to inspect and review their children's education records. Unlike state library records laws, FERPA was not written to shield library records, but rather to protect education records of students.
In recent years, the Family Policy Compliance Office, which oversees compliance with FERPA regulations has issued guidance stating that library circulation records and similar records in a library are educational records under FERPA. FERPA generally requires institutions to protect the privacy of education records. However, the law contains many exceptions that allow disclosure of students' education records without parents' consent.
FERPA permits release of information contained in student records to any school official who has a legitimate educational interest in the records. For example, this can be a teacher checking on a student's standardized test score. FERPA contains two other exceptions for disclosure of students' records. Records can be disclosed in health and safety emergencies, they can also be released in response to a court order or subpoena. As a result, FERPA permits disclosure of students' library records where state library laws and the ALA Code of Ethics would not.
States also have library records laws to protect the confidentiality of patron's library use. State library confidentiality laws always apply to public libraries and may apply to K-12 libraries. They may impose additional responsibilities on school libraries to protect student library records that go beyond FERPA's requirements. State library records laws vary in the types of libraries to which they apply, the records covered and when records may be released. As a result, school librarians must read and interpret them carefully. For example, the New York State Library records law is very broad and protective in its coverage. It protects users' records in public, school, college and university libraries and library systems. It protects library records including- and the law says it this way—but not limited to circulation records, computer database searches, interlibrary loan transactions, reference queries, requests for photocopies of library materials, reserve requests and the use of audio-visual materials. The records in New York State can only be released to library staff for conducting library business, to the library user him or herself or with a subpoena or court order.
On the other hand, Pennsylvania's library records law is very narrow and covers only circulation records. The information may only be released for proceedings in a criminal court case. State library records laws generally do not distinguish between adults and minors' rights. They simply refer to library users. However, in at least 15 states including Wisconsin, where I live, Georgia, Ohio and Vermont, the state laws allow parents and guardians to access library records of their minor children or wards.
What happens when FERPA and state library records laws seem to overlap, conflict with one another or just be a tangled mess? Not being lawyers, how can we, school librarians, understand how these laws work? Separately or together? Which law, federal or state has precedents? There are two possible courses of action to answer these questions. First, because of the complicated nature of state and federal privacy laws, when serious questions of minors' privacy arise, a school librarian should request that school administrators consult legal counsel. This is the best way to determine minors' legal rights under state library records laws and FERPA.
The second and more proactive strategy is to work with school administrators to create a school library privacy policy that extends the maximum privacy protection possible. This is a good time for me to emphasize that my comments in these lessons are not to be considered legal advice. I am not an attorney and they are my opinion based on my reading and experiences as a school librarian.
For additional personal understanding of minors' legal privacy rights in school libraries, I recommend reading the essay, "The Law Regarding Privacy and Confidentiality in Libraries." It's written by Deborah Caldwell-Stone who is an attorney and who serves as deputy director of the ALA Office for Intellectual Freedom. The essay is found in the Intellectual Freedom manual listed on the key privacy resources bibliography.
The First Amendment provides the right to privacy for all citizens, including minors. Adams covers how the right to privacy plays out in a school, including FERPA regulations and exceptions.
As Adams discusses, state confidentiality laws differ in their breadth and depth of coverage and may vary from federal law.
- Look for your state confidentiality laws related to library records. Do your state laws mention minors' rights?
- Check your local school board policy manual to find policies related to privacy and confidentiality of educational records.
MLA Citation
Collins, Karla. "Privacy: Laws and Policy." School Library Connection, November 2024, schoollibraryconnection.com/Content/Course/1979853?learningModuleId=1979860&topicCenterId=2247902.
Entry ID: 2136332
Additional Resources
About the Author
Helen R. Adams, MLS, is an online senior lecturer for Antioch University-Seattle in the areas of intellectual freedom, privacy, ethics, and copyright. A Wisconsin resident, she formerly worked as a school librarian and served as president of AASL. She is chair of the ALA Intellectual Freedom Committee and a member of the AASL Knowledge Quest Advisory Board. She authored Protecting Intellectual Freedom and Privacy in Your School Library (Libraries Unlimited 2013) and co-contributed a chapter on intellectual freedom to the second edition of The Many Faces of School Library Leadership (Libraries Unlimited 2017).
MLA Citation
Adams, Helen R. "Privacy. Legal Protections [8:19]." School Library Connection, ABC-CLIO, September 2015, schoollibraryconnection.com/Content/Course/1979853?learningModuleId=1979860&topicCenterId=2247902.
https://schoollibraryconnection.com/Content/Course/1979853?learningModuleId=1979860&topicCenterId=2247902
Entry ID: 1979853