NYCLU Letter to Chancellor Klein on School Officials' Invasion of Student Privacy

Joel Klein, Chancellor
New York City Department of Education
52 Chambers Street, Rm # 320, B4
New York, NY 10007

VIA FACSIMILE: (212) 374-5763

Dear Chancellor Klein:

We write to bring to your attention a recent egregious and illegal abuse of authority by administrators at I.S. 164 and to urge the Department of Education to remedy the situation immediately and implement policy and training that will prevent such incidents from occurring in the future.

In response to allegations that approximately twelve eighth grade students-eleven girls and one boy-from I.S. 164 had skipped school on April 11, 2003, to attend a “”hooky party,”” I.S. 164 administrators imposed an indefinite suspension for the girls unless and until they submitted to the school results of highly private and invasive medical examinations. It is our understanding that on or about April 14, 2003, the eleven girls were called into a meeting with Principal Lavern Reid, during which school administrator Vera Hamburger informed the girls that they would not be permitted back to school unless they submitted a letter signed by a doctor stating that they had received a pelvic examination, a pregnancy test, tests for sexually transmitted diseases (STDs) and an HIV test, and which listed the specific tests and examinations performed as well as all lab results. These school administrators later met again with the girls and several of the girls’ parents and reiterated that this doctor’s letter was a condition of the girls’ readmission to school. At least three of the girls were forced to miss at least one full day of classes because the letters they submitted to Ms. Hamburger were deemed “”insufficient”” because the health providers had refused to include the confidential test results.

It is our further understanding that school administrators did not make the same demand of the boy alleged to have participated in the “”hooky party.””

The school’s actions were unlawful and inexcusable. A school may not impose such medical preconditions on school attendance. This requirement violated the Chancellor’s Regulations, state and federal laws mandating equal access to education, and the state and federal Constitutions. In addition, the mandate ran afoul of state policy protecting the confidentiality of medical records.

State and local laws grant every young person in New York City the right to attend their zoned public school. [1] State and local laws may require that certain medical information be submitted to the schools as a condition of attendance, such as immunization and eye examination records,[2] but no law allows an individual school to precondition attendance on the submission of other medical information for no rational reason.[3]

Indeed, I.S. 164 administrators violated the students’ state and federal constitutional privacy rights by compelling them, with no justification, to obtain and reveal the results of highly personal and invasive exams. Furthermore, the school’s actions violated the students’ Fourth Amendment rights by compelling what constituted an unreasonable medical search. Prohibitions against unreasonable searches are recognized by the New York City Chancellor’s Regulations as well. [4]

The school’s actions also constituted illegal discrimination. Requiring a student to undergo and submit results of a pregnancy test as a condition of school attendance runs afoul of Title IX of the Education Amendments of 1972 and New York State law prohibiting sex and pregnancy discrimination in education. [5] The intentional discrimination-making these demands only against the girls involved-may well have violated the Equal Protection Clause of the Fourteenth Amendment. Moreover, the compulsion to provide results of an HIV test in order to attend school runs afoul of the Americans with Disabilities Act‘s[6] prohibition against discrimination by government entities based on actual or perceived HIV status.

I.S. 164’s actions also ran afoul of numerous laws and policy requiring that private medical information remain private unless a patient voluntarily waives confidentiality. Here, the school essentially forced the students’ medical providers to violate state law specifically forbidding release of HIV information [7] or the release of information pertaining to a child’s STD care. [8]

Finally, this illegal exclusion, by suspending the students indefinitely until such time as they presented results from their tests (and leading the students to believe that their results must all be negative in order to return), violated the Chancellor’s Regulation No. A-443, state law, and the Due Process Clause of the Fourteenth Amendment of the United States Constitution. The reasons given as well as the procedure followed by the school in instituting the girls’ suspensions failed to follow even the most basic principles required by regulation[9] and provided no opportunity for the students to be heard and object to the suspension or to appeal the decision.[10]

In addition to the host of laws and student protections that were so casually swept aside by the school’s actions, I.S. 164 administrators traumatized these 13- and 14-year old girls by requiring them to undergo, many for the first time, a private and extremely invasive medical procedure, in order to satisfy the stated “”requirements”” to return to school. Moreover, the school directed the students not to seek these services at the school-based health center, requiring many of them to incur extra costs and experience the further anxiety associated with receiving this sensitive treatment at an unfamiliar health facility with an unfamiliar provider. The potential lasting negative effect on the future comfort that these girls may feel in seeking appropriate reproductive health services cannot be understated.

We urge the Department to take appropriate action in addressing the egregious statutory and constitutional violations committed by I.S. 164 administrators. We would like to meet with you to discuss the implementation of appropriate policies and training regarding student privacy rights so that this situation is not repeated. Please contact us upon receipt of this letter.

Sincerely,

Rebekah Diller
Director
New York Civil Liberties Union Reproductive Rights Project

Anna Schissel
Staff Attorney
New York Civil Liberties Union Reproductive Rights Project

cc: Chad Vignola, General Counsel to the Chancellor
Fax: (212) 374-5596

Ms. Lavern Reid, Principal, I.S. 164
Fax: (212) 923-6929

Dr. Jorge Izquierdo, Superintendent, Community School District Six
Fax: (212) 795-9611

Dr. Lester Young, Director, NYC DOE Office of Youth Development and School-Community Services
Fax: (212) 374-5585

Dr. Roger Platt, Assistant Commissioner, DOHMH Bureau of School Health
Fax: (212) 676-2474

Dr. Terry Marx, Chief Physician for School Health
Fax: (212) 374-5599

[1] N.Y. Const. art. XI, § 1; N.Y. Educ. Law § 3202(1).

[2] See, e.g., N.Y. Educ. Law § 914(1); N.Y. Pub. Health Law § 2164 (mandatory immunizations for children).

[3] Although N.Y. Educ. Law § 3208(1) states that school attendance is required only for those students in “”proper mental and physical condition,”” N.Y. Educ. Law § 3208(2) establishes that a student may only be excluded from school on this basis where his “”mental or physical condition is such that his attendance upon instruction?would endanger the health or safety of himself or of others.”” None of the health conditions for which I.S. 164 administrators were demanding tests can be construed to constitute such a threat.

[4] New York City Board of Education, Regulation of the Chancellor (“”NYC Chancellor’s Regulation””) No. A-432 (Sept. 2000).

[5] 20 U.S.C. § 1681(a); 34 CFR 106.40(b)(1) (“”A recipient shall not?exclude any student from its education program or activity?on the basis of such student’s pregnancy”” or pregnancy-related condition). See also N.Y. Educ. Law § 3201-a.

[6] 42 USC §§ 12131-134 et seq.; 28 CFR § 35.130.

[7] N.Y. Pub. Health Law §§ 2780(7), 2782(1).

[8] N.Y. Pub. Health Law § 17.

[9] A principal may only “”suspend a student when the principal determines the student’s behavior presents a clear and present danger of physical injury to the student, other students or school personnel, or prevents the orderly operation of classes or other school activities.”” NYC Chancellor’s Regulation No. A-443(IV)(B)(1)(a). See also NYC Chancellor’s Regulation Nos. A-443(IV)(B)(1)(a) (“”Prior to suspending a student, the principal shall consult the Discipline Code?to determine if a principal’s suspension is an appropriate disciplinary option.””); A-443(IV)(B)(1)(d) (prohibiting imposition of suspension of more than five days); A-443(IV)(B)(1)(g) (“”If the principal decides that the proposed suspension is warranted?, the student shall remain in class pending completion of the principal’s suspension conference”” unless the student’s presence presents an immediate danger or threat of disruption.); A-443(IV)(B)(1)(k)-(l) (requiring principal to send letter to student’s parent with details of suspension including specific reasons for suspension, details of planned suspension conference and statement of student’s rights); A-443(IV)(B)(1)(m) (explaining requirements of suspension conference); N.Y. Educ. Law § 3214(3) (establishing criteria for suspension); Board of Education of the City of New York, Citywide Standards of Disciplinary and Intervention Measures 3-5 (July 2001) (truancy is not an infraction for which suspension may be imposed under this Discipline Code).

[10] See, e.g., NYC Chancellor’s Regulation Nos. A-443(IV)(B)(1)(e) (“”When a principal believes that suspension may be warranted, the student shall be informed of the charges against him/her. The principal shall give the student an explanation of the evidence and an opportunity to present his/her side of the event, unless it is not feasible to do so.””). See also Goss v. Lopez, 419 U.S. 565 (1975); LIH ex rel. LH v. New York City Bd. of Educ., 103 F.Supp.2d 658, 668 (Board of Education must follow procedures established by Chancellor’s Regulation) (E.D.N.Y. 2000).