To rid their schools of drugs, school officials will periodically need
to report drug-related crimes to police and to assist local law
enforcement authorities in detecting and prosecuting drug offenders.
In doing so, schools will need to take steps to ensure compliance with
Federal and State laws governing confidentiality of student records.
The Federal law that addresses this issue is the Family Educational
Rights and Privacy Act (FERPA),[21] which applies to any school that
receives Federal funding and which limits the disclosure of certain
information about students that is contained in education records.[22]
Under FERPA, disclosure of information in education records to
individuals or entities other than parents, students, and school
officials is only permissible in specified situations.[23] In many
cases, unless the parents or an eligible student[24] provides written
consent, FERPA will limit a school's ability to turn over education
records or to disclose information from them to the police. Such
disclosure is permitted, however, if (1) it is required by a court
order or subpoena, or (2) it is warranted by a health or safety
emergency. In the first of these two cases, reasonable efforts must be
made to notify the student's parents before the disclosure is made.
FERPA also permits disclosure if a State law enacted before November
19, 1974, specifically requires disclosure to State and local
officials.
Schools should be aware, however, that because FERPA only governs
information in education records, it does not limit disclosure of
other information. Thus, school employees are free to disclose any
information of which they become aware through personal observation.
For example, a teacher who witnesses a drug transaction may, when the
police arrive, report what he witnessed. Similarly, evidence seized
from a student during a search is not an education record and may be
turned over to the police without constraint.
State laws and school policies may impose additional, and sometimes
more restrictive, requirements regarding the disclosure of information
about students. Since this area of the law is complicated, it is
especially important that an attorney be involved in formulating
school policy under FERPA and applicable State laws.