My Communications with Dr. Borchers RE: School Safety Issues

If you are one of the parents, school staff or students, past or present, that has experienced the problems I’ve referenced here, please contact Russel Langley at russl68@gmail.com

From: BRUCE BORCHERS [btborchers@ortn.edu]
Sent: Wednesday, July 03, 2013 11:39 AM
To: Baughn, Trina
Cc: City Council; Akagi James T.; Angi Agle; Dan DiGregorio ; Bob Eby; Jenny Richter; Keys Fillauer
Subject: Invitation to meet….

Good morning Ms. Baughn,

After reading your open letter to me in the Oak Ridger, I thought that I would reach out to see if you would be willing to meet with me in person to discuss your concerns about safety in the Oak Ridge Schools. I also will be meeting with Chief Akagi in the very near future.

Please know that I will be making every effort to forge a positive relationship with the City Council and Chief Akagi as I believe that it is the only way that ORS and The City of Oak Ridge can continue to be successful. This is a great community and will strive to help make this a place that families will want to move to because of the great schools and services provided by all of us.

Respectfully,

Dr. Bruce Borchers
Superintendent of Oak Ridge Schools
www.ortn.edu
865-425-9001

——————————————————————————–

Dr. Borchers,

Thank you for responding to my letter so promptly. I greatly appreciate your expressed commitment to address these issues and acknowledge the difficult burden you’ve unwittingly accepted. Unfortunately, your BOE chairman, Keys Fillauer, has publicly stated in this article that he desires to take this matter up in the court system.  Given that he is the long-sitting Grand Jury Foreman in Anderson County, I cannot take his threat lightly and therefore must first consult with our city attorney before I can agree to a meeting.

In the meantime, I strongly encourage you to meet with Chief Akagi as soon as possible. You will find him to be very candid about the issues I speak of.  Were you aware that the high school SRO has been attacked three times in her first year there?

I also encourage you to reach out to the community. You may want to start by reviewing the Facebook pages such as “Secret City Kids” and “What’s Happening Now In and Around Oak Ridge.” You will find a number of people who have openly shared concerns mirroring those I’ve presented. Perhaps you can reach out to them.

I hope you understand that, though we may not be able to meet in person right away, I remain entirely open to written communications and am willing to share carry out our conversations in the public eye so as to avoid any question of your or my intentions. To provide you with some insight, I’ve pasted a link below to some recent BOE meeting minutes and provided an excerpt that exemplifies some of my concerns. I hope that you will look into that matter fully and share your findings with the public.

Finally, with regards to FERPA, I will share with you my conversation with Dr. Smallridge below.  Our police chief has consulted with a number of other school systems and finds that Oak Ridge School attorneys interpret FERPA much differently than others. In fact, I urge you to consult the 2010 Tennessee Attorney General ruling on the matter. I believe you will find that ruling frees your school system to cooperate with law enforcement far beyond what your attorneys are claiming.

I look forward to your reply and have every confidence that you will see this matter through to the betterment of our schools and community.

Regards,

Trina Baughn

** May 2013 BOE Meeting Minutes: (click to view original complete document for the following excerpts)

See Section 24, pg 7:

SPEAKER: My name is ********* here in Oak Ridge. One of the subjects I want to bring up is something that’s been pretty hard-hitting to parents at Willow Brook and across the board and I’m sure it’s probably not something anybody wants to talk about. I didn’t really want to do it this way. I’ve tried contacting you, Dr. Bailey, left messages, no answers. I tried to set up an action agenda Item on this, since I couldn’t get any answers from anybody across the board and I was told that because It wasn’t a week prior that I couldn’t but it was a week prior but that’s a whole other issue. The big issue that a lot of people have questions about is the removal of the principal at Willow Brook, Ms. Mardee Miller. From a parent’s point of view, either this is a complete outrageous thing that’s happened or we are just not being told anything at all. As a parent, if it’s bad enough to remove completely, yank somebody out like this right at the end of the year then, obviously, it’s bad enough that, as a parent with my kids going there, I should know exactly what happened. I’ve tried to find that information. There Is lots of rumors. It seems like rumors just being wild and they have gotten crazy. I don’t know if any of you paid any attention, read any of the newspapers, the blogs, or anything else. Everything from the worst things you could imagine all the way to the bottom. We are trying to get information as concerned parents. If there Is nothing big enough to actually tell us about, if a student hasn’t been injured, damaged to the point where that person, Ms. Miller, is actually going to have charges brought against her, then there shouldn’t be a reason for her to be taken out like this. If it’s something, she’s been embezzling money, that’s a whole other reason, but we should still know this. There’s a whole bunch of parents, a lot of parents to the point they are terrified to even say anything because there is a feeling there was going to be reprisal against students. I’ve been told by teachers that there is a feeling there’s reprisals against them. That they are terrified if they say anything out against this, they are going to lose their jobs. This is ridiculous. I’ve been trying to get answers and I can’t get any.

MR. FILLAUER: Fifteen seconds.

SPEAKER: So I would like to find out what Is going on exactly. Also, there Is a petition if we can’t have a good answer, we want her put back In her place with a full apology.

MR. FILLAUER:  Thank you. Anyone else?

MR. ******: My name is ******* here in Oak Ridge. I’m probably the only one that came, I know there are a lot more that would like to, Including many teachers, about Ms. Miller, what he was just speaking about. I would like to applaud what has been done. Last year right after one of the intercessions she took our children to a bar. I’m a youth pastor and I was approached by several people, including teachers. So I called Ms. Miller. She said they went to line dance. I said, that’s great, we can dance, there’s a dance studio within walking distance from the school. We have perfect facilities to do that. I then asked her If the parents knew and she said a permission slip was signed. And the rest of the community it didn’t matter. Because I brought that up that there are a lot of older people in our community that would not

like their kids at Cotton Eyed Joe’s. And she said that was it, that was her reason and that was all there was. I spoke with Mr. Green and he was very apologetic. At first he didn’t even know what  Cotton Eyed Joe’s was. I told him what the teachers from our school system told me about all the things that were there that the kids came home telling them. Nothing was done so I applaud you for what has been done. It was also said that we need her at our school just to be that smiling, friendly face in the mornings, that we need that. But every morning that I’m at the school I know of one kid in particular –

MR. FILLAUER: Fifteen seconds. 23

MR. ********: He has a learning disability. And every morning he comes to say, good morning, Ms. Miller. Go to class! Hurry! That’s not what we need. We can get that at home.

Thank you, Board.

MR. FILLAUER: Thank you. Tell me again your first name.

MR. *****: ********.

FERPA DISCUSSION WITH THE ORS BOE AND DR. SMALLRIDGE (former interim superintendent)

The BOE, City Council, Police Chief, City Attorney and city Manager were all copied on the following communications:

From: Donato DiGregorio
Sent: Thursday, March 21, 2013 1:14 PM
To: Trina Baughn
Cc: Robert J. Smallridge
Subject: Meeting with Ms. Baughn

Trina,

Regarding school administration interference with ORPD, I have a longer answer from the Superintendent (see below).

Dr. Smallridge has also requested that “If other concerns are brought up beyond the FERPA issue, let me know and I’ll do my best to address them.”

So, let me know, and I can pass on the concerns to the Superintendent.

Here is Dr. Smallridge’s email to me.

Dan,

I know the Chairman has responded to your questions. I just wanted to comment on Ms. Baughn’s statement about citizens and other police officers being  interfered with while attempting to do their job.  I can’t speak to everything that  happened in the past, except I believe a lot of the problem(s) centered around the Family Educational Rights and Privacy Act (FERPA) which as you know strictly limits what information we can release about a student. Even as recently as this past week we had a request from an SRO to give her student statements taken by an administrator regarding an incident that occurred on a school bus. We have reviewed this issue with school attorney Larry Giordano several times and he states unequivocally that we cannot release this type of information unless we have a judicial order or a subpoena. The Oak Ridge Police Department has been told this on more than one occasion; however, I’m afraid our failure to comply with their requests is being portrayed by the officers and perhaps police administration as interfering with their ability to do the job.

I have tried to accommodate Chief Akagi whenever he makes a request of us. I met with the Deputy Chief and Clint Lafollette (graphic arts) to see about developing  virtual drawings of our buildings. We provided school building floor plans and marked outside locations where his officers should be able to use wi-fi from their vehicles. We are in the process of providing school badges for the SRO, Chief Akagi, his deputies and Adopt-a Cop officers. We have made contact with the Oak Ridge  police dept.to<http://dept.to> request their assistance in doing a security review of each of our facilities.

Hopefully, we can continue to build an improved relationship with Chief Akagi and the ORPD, although I think there will continue to be some situations where we will just have to disagree.

Bob

On Mar 23, 2013, at 2:44 PM, “Trina Baughn” wrote:

Dr. Smallridge,

In my review of FERPA both here<http://www2.ed.gov/policy/gen/guid/fpco/ferpa/index.html> and here<http://www2.ed.gov/policy/gen/guid/fpco/ferpa/students.html>, I find a number of statements that support sharing information with our officers:

One of the exceptions to the prior written consent requirement in FERPA allows “school officials,” including teachers, within a school to obtain access to personally identifiable information contained in education records provided the school has determined that they have “legitimate educational interest” in the information. Although the term “school official” is not defined in the statute or regulations, this Office generally interprets the term to include parties such as: professors; instructors; administrators; health staff; counselors; attorneys; clerical staff; trustees; members of committees and disciplinary boards; and a contractor, volunteer or other party to whom the school has outsourced institutional services or functions.

…FERPA allows schools to disclose those records, without consent, to the following parties or under the following conditions (34 CFR § 99.31):

*   Appropriate officials in cases of health and safety emergencies; and

*   State and local authorities, within a juvenile justice system, pursuant to specific State law.

In fact, I found no limits as to what kind of information could be shared with law enforcement. This statement indicates that the protection of any information that is shared is preserved when transferred to law enforcement:

However, education records, or personally identifiable information from education records, which the school shares with the law enforcement unit do not lose their protected status as education records because they are shared with the law enforcement unit.

With all of that said, can you provide me with the ORS policies and training materials that guide your staff in their decisions about what they can and cannot provide to local police? Surely it is not left up to the individual to apply his or her interpretation of a federal law.

Thank you,

Trina

—–Original Message—–
From: Robert J. Smallridge
Sent: Saturday, March 23, 2013 7:58 PM
To: Trina Baughn
Subject: Re: FERPA questions

Ms. Baughn

Thank you for your E-mail and comments regarding FERPA. While I have reviewed FERPA and am generally familiar with it’s contents, when it comes to specific legal interpretations, I rely on the school attorney. I will discuss the questions you raise with him and get back to you with a response, probably the first of next week.

From: Trina Baughn
Sent: Sunday, March 24, 2013 7:28 PM
To: ‘Robert J. Smallridge’
Subject: RE: FERPA questions

Dr. Smallridge,

This document from the Dept of Education provides additional clarity on the issue of cooperating with law enforcement: http://www2.ed.gov/policy/gen/guid/fpco/pdf/emergency-guidance.pdf

Nothing in FERPA requires an educational agency or institution to use only employees to staff its law enforcement unit. Local police officers and other law enforcement personnel employed by local or State authorities also may serve as the “law enforcement unit” of an educational agency or institution…Law enforcement unit officials should be designated in the school’s annual FERPA notification of rights as “school officials” with a “legitimate educational interest.”  This will permit the school to nonconsensually disclose personally identifiable information from students’ education records to its law enforcement unit officials in order to perform their professional duties and to assist with discipline and other matters.

In addition to the ORS policies and training materials I’ve requested, I’d also like a copy of the ORS annual FERPA notification of rights.

Regards,

Trina

From: Robert J. Smallridge
Sent: Tuesday, March 26, 2013 4:32 PM
To: trina.baughn
Subject: FW: FERPA Record Access Inquiry

Ms. Baughn,

Following is School Attorney Lawrence Giordano’s response to the questions and comments contained in your E-mails of March 23^rd and March 24^th. In addition to the City officials you cc’d in your E-mail, I am also forwarding the response on to the Board of education.

From: Giordano, Lawrence F.
Sent: Tuesday, March 26, 2013 1:49 PM
To: Robert J. Smallridge
Cc: ‘dsclark@tndagc.org’
Subject: FERPA Record Access Inquiry

Dear Dr. Smallridge,

I aplogize for my delay in responding.  I have been out of the office while ill.  Nevertheless, I will, once again, attempt to respond as succinctly as possible to this latest inquiry on why your school board is not legally permitted to routinely produce FERPA protected school disciplinary records to law enforcement on demand.  Before I begin I must state that, to my knowledge, the Oak Ridge Board of Education has never failed to comply with any legitimate law enforcement inquiry.  It is true, however, that the Board has not agreed to routinely provide state and federally protected confidential education records to law enforcement (or anyone else) on demand.  Such records are only produced when they are requested in the manner prescribed by law.

As you know, District Attorney General Clark and I have previously discussed this exact matter at great length and we long ago provided him, as law enforcement’s counsel, with a procedure that set forth exactly how law enforcement can gain access to targeted but confidential records without exposing either the Board or themselves to a risk of civil rights or privacy litigation and liability.  Given that General Clark and I have already had past success using recognized procedures (i.e. the proper issuance and service of a subpoena) to gain access to similar records, I am at a loss as to how or why this debate continues to distract both the Board and other Oak Ridge governmental officials.  We have already developed a road map that avoids liability risk to the involved agencies, so I think Council Person Baughn may be receiving incorrect information from her anonymous complainant(s).  Nevertheless, as you requested, here is our response to this most recent inquiry.

First, as is extremely common in area’s this complex, the emails you have received cite legal authority that has been “cherry-picked” and taken out of context.  That incomplete review of the law leads directly to a fundamental misinterpretation of FERPA and its regulations on this issue.  To understand the situation presented by Ms. Baughn and to properly understand the Board’s FERPA obligations, we need to first discuss the law of confidential records under Tennessee state law, the Tennessee Public Records Act, Tenn. Code Ann. 10-7-504(a)(4)(A).

Under Tennessee law, the records of students in public educational institutions shall be treated as confidential. Information in such records shall not be made available to unauthorized personnel of the institution or to the public or any agency, except those agencies authorized by the educational institution to conduct specific research or otherwise authorized by the governing board of the institution, without the consent of the student involved or the parent or guardian of a minor student attending any institution of elementary or secondary education, except as otherwise provided by law or regulation pursuant thereto, and except: 1) in consequence of due legal process; or 2) in cases when the safety of persons or property is involved. Statistical information not identified with a particular student may be released to any person, agency, or the public; and information relating only to an individual student’s name, age, address, dates of attendance, grade levels completed, class placement and academic degrees awarded may likewise be disclosed.

The state statute language “except in consequence of due legal process” means that in the face of a proper subpoena duly issued under Tenn. Code Ann. 49-50-1501 [ Educational Records as Evidence Act], otherwise confidential records are to be produced to the court in accordance with that statute.

The state statute language “when the safety of persons or property is involved” implies “immediate/emergency safety.”  Interpreting the state “safety” language in this manner (i.e. as implying “immediate/emergency safety”), is entirely consistent with the V-Tech Amendments to FERPA.

The V-Tech Amendments to FERPA are the specific source referred to in Ms. Baughn’s email for her general disclosure authority and they do no such thing.  The referenced white paper, apparently authored by the Family Policy Compliance Office of United States Department of Education, addresses the subject of emergency campus safety, and applies to elementary and high school campuses as well, under certain circumstances.

The key to the V-Tech Amendments to FERPA is a health or safety emergency. The V-Tech Amendments allow the school to disclose personally identifiable information from a student’s education records to appropriate parties in order to address a health or safety emergency. This exception to FERPA is limited to the period of the emergency and does not allow for a blanket release of information. The disclosure made under the health or safety emergency provision must be “in connection with an emergency” which means it must be related to an actual, impending or imminent emergency, such as a natural disaster, a terrorist attack, a campus shooting or the outbreak of an epidemic disease. Under this health/safety emergency provision, an educational agency or institution must determine whether to disclose personally identifiable information from education records on a case-by-case basis, taking in to account the totality of the circumstances pertaining to a threat to the health or safety of the student or others.

The school must determine that there is an “articulable and significant threat” to the health or safety of the student or other individuals and that a party needs personally identifiable information from education records to protect the health or safety of the student or other individuals. Under these circumstances, the school may disclose that information to appropriate parties without consent. [NOTE: Even if this exception applied, “that information” would be the personally identifiable information, i.e., students’ name, address (directory info), not a statement taken by the school system pursuing discipline!]

The phrase “articulable and significant” threat means that if a school official can explain, why, based on all the information then available, the official reasonably believes that a student poses a significant threat, such as a threat of substantial bodily harm to any person, including the student, the school official may disclose personally identifiable information without the consent of parent/student to any person whose knowledge of the information will assist in protecting a person from threat. This is a flexible standard, showing deference to school administrators, provided there is a rational basis for the school’s decision about the nature of the emergency and the appropriate parties to whom the information should be disclosed.

If there is no health or safety emergency, then the new exceptions to FERPA do not apply.

It should be noted that even the white paper acknowledges that “under FERPA a principal who took official action to suspend a student may not disclose that information absent consent or an exception that permits the disclosure.”

Finally, in the absence of a health or safety emergency, the law enforcement unit does not qualify for a FERPA exception unless it satisfies at least 3 requirements.  It must: (1) perform an institutional service or function for which the agency or institution would otherwise use employees; (2) it must be under the direct control of agency or institution( i.e. the school) with respect to the use and maintenance of education records; and (3) it is subject to the redisclosure requirements in the 34 CFR 99.33(a) governing the use and redisclosure of personally identifiable information from education records. The paper cited by Ms. Baughn specifically notes “[I]f police officers or other outside parties do not meet the requirements for being a school official under FERPA, they may not have access to personally identifiable information from students’ education records without consent, unless there is a health or safety emergency, a lawfully issued subpoena or court order, or some other exception to FERPA’s general consent requirements.”  Oak Ridge Police Officers, including all SROs, are NOT under the “direct control” the Oak Ridge Schools.  Rather, we have been reminded repeatedly by the Police Chief that all of his officers are under the direct control of the City of Oak Ridge’s Police Chief and Police Department, not the authority of the School Board. I do not mean to imply that control should be otherwise.  I am only stating that the schools are not in direct control of the Oak Ridge officers seeking these confidential records and, thus, the officers do not meet the non-emergency exception to FERPA.

The language that Ms. Baughn cites, regarding “designating law enforcement unit officials as school officials with a legitimate educational interest,” for FERPA notice purposes, may only occur after the law enforcement unit first meets the three threshold requirements cited above, and, even then, making such a designation is a recommendation, not a requirement. Otherwise, such a designation would easily be classified as an illegal ruse intended to circumvent the purposes of FERPA.  Finally, if the health/safety emergency arises, as described under the V-Tech Amendment, the school may provide personally identifiable information to law enforcement as permitted.  No other circumstances or exceptions are described by the cited authority.

It must be, further noted that, even given the notions described above, the exceptions to the Tennessee Public Records Act do not embody any notion of “designating” law enforcement officials as school officials with a legitimate educational interest in a student’s confidential records. Under Tennessee law, the statutory exception “except in consequence of due legal process or in cases when the safety of persons or property is involved” must be triggered.

In closing, please note that a plain reading of the very white paper cited by Council Person Baughn specifically reminds the reader that student disciplinary records, in elementary and high schools. are protected under FERPA as education records.

I have spoken with Attorney General Clark as recently as this morning —he returned my call despite being ill and at home—on the issue of law enforcement’s need to obtain FERPA records for law enforcement purposes.  I believe both he and I agree that we have established a mechanism that provides law enforcement with reasonable and legal access to these documents through the use of subpoenas.  He and I have agreed to review this issue again when he returns to his office.  I am copying this response to General Clark so that he will know that I have made this representation to you, and so that he can correct my beliefs and/or comments if I have misstated them in any manner.

I hope this email assists you in responding to Council Person Baughn’s inquiry.  Please call me if you have any questions or concerns.

With best regards,

Larry Giordano

From: Trina Baughn
Sent: Tuesday, March 26, 2013 7:00 PM
To: Robert J. Smallridge
Subject: RE: FERPA Record Access Inquiry

Thank you, Dr. Smallridge. I will review and discuss with our city attorney, manager and police chief. I will schedule that discussion once you’ve provided me with the ORS policies and training materials that guide your staff in their decisions. I have no problems picking those materials up from the SAB if you will notify me when they are ready.

Understanding the guidelines under which your staff operate will hopefully shed some light on the specific points of misunderstanding between your administration and our officers. Given your request for additional officers and the responsibility placed on those officers once inside our schools, clarity is imperative. At this juncture, I am unclear how we can expect our officers to adequately protect our children without the cooperation of your staff, but will seek additional information from our police chief before drawing a final conclusion.

Regards,

Trina

From: Lynne Lammerhirt On Behalf Of Robert J. Smallridge
Sent: Monday, April 01, 2013 10:40 AM
To: ‘Trina Baughn’; Robert J. Smallridge
Subject: RE: FERPA Record Access Inquiry

Ms. Baughn,

Some of the key elements that are used in informing and training school staff about legal issues relating to students and law enforcement in the Oak Ridge Schools are as follows:

1.            Oak Ridge Schools Discipline Code. This booklet is reviewed with administrative staff annually and updated as needed. It is sent home with all students at the beginning of school in the fall. The handbook covers illegal offenses including Tennessee Code Annotated (TCA) citations and potential consequences for different offenses. It provides guidelines for staff in reporting illegal activities. You may pick up a copy of the Discipline Code in my office at your convenience or you may view it online at http://www.ortn.edu/?DivisionID=4667&DepartmentID=4550&ToggleSideNav=ShowAll .

2.            School Security Act-TCA 49-Part 42 provides information relating to student offenses and the responsibilities of school officials to report certain offenses. This law is reviewed periodically as needed with school administrators.

3.            Memorandum of Understanding (MOU). Currently, there is a School Resource Officer MOU between the Oak Ridge Police Dept. and the Oak Ridge Schools dated 11/3/09. It appears to be very limited in terms of spelling out respective roles and responsibilities. At some point prior to me assuming my current position, it was apparently determined that a new MOU should be jointly developed and agreed to by the City and schools. A draft of the MOU has been prepared and revised by officials and attorneys for both the Schools and the City. The new MOU is much more detailed and includes purpose, mission, goals and objectives, organizational structure, SRO Program Structure, duties and responsibilities of the City and schools and enforcement. I think this new MOU will be very helpful in clarifying the duties and responsibilities of the schools and City relative to the SRO Program. Once approved, it will be used by the schools for inservice training relative to the SRO Program and related legal issues.

4.            Meetings/discussions with school staff and as needed with the school attorney regarding legal issues relating to the SRO Program.

You state in your email as follows:  “At this juncture, I am unclear how we can expect our officers to adequately protect our children without the cooperation of your staff, but will seek additional information from our police chief before drawing a final conclusion.”

This statement seems to imply that our staff has been uncooperative with the police department. If there are specific examples where a member of our staff has been uncooperative, it has not been brought to my attention. I would be more than willing to sit down and talk directly with any person who feels he/she has experienced an instance of non-cooperation on the part of our staff. Absent such contact, I must strongly disagree with any implication that our staff has been uncooperative.

Thank you,

Bob Smallridge

From: Trina Baughn
Sent: Monday, April 01, 2013 11:59 AM
To: Robert J. Smallridge
Subject: RE: FERPA Record Access Inquiry

Dr. Smallridge,

I appreciate the information you have provided, though it does not spell out what I was anticipating. What specific information are teachers or administers allowed to provide to the SRO or any other law enforcement official and what specific information are they prohibited from providing?

I am perplexed by your lack of knowledge about incidents in which staff has been uncooperative. I had understood that there had been multiple meetings between yourself, our city manager and perhaps our police chief in which you were informed of things like students being hidden from police, withholding cell phones containing possible illegal materials and refusing to identify students involved in potentially illegal activities on campus. In any event, I’ve requested a report of all such incidents for the last few years. Hopefully, that will help put us all on the same page.

Trina

From: Robert J. Smallridge
Sent: Monday, April 01, 2013 5:09 PM
To: ‘Trina Baughn’
Subject: RE: FERPA Record Access Inquiry

Ms. Baughn,

I have nothing to add to the information I’ve already provided you. As I indicated previously, I am more than willing to meet together with City and school personnel in attempting to resolve a perceived problem or difference of opinion. However, I have no intention of trying to deal with alleged incidents or allegations that occurred prior to my taking office as Interim Supt. and that should have been handled at the time they occurred. Thank you.