EDEA 630 Chapter 12 PowerPoint

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Information about EDEA 630 Chapter 12 PowerPoint

Published on January 28, 2008

Author: Silvestre

Source: authorstream.com

Chapter 12:  Chapter 12 Defamation and Student Records What is defamation?:  What is defamation? “Defamation is the imputation of immorality, dishonesty, or dishonorable conduct to another by spoken or written word.” (Alexander & Alexander, p. 594) Libel is written defamation. Slander is spoken defamation Criticism vs. defamation:  Criticism vs. defamation Criticism is ad argumentum; that is, it concerns issues and public matters and does not enter the realm of private affairs. Defamation is ad hominem, or personal, denigrating or ridiculing a person. The harm of defamation:  The harm of defamation Defamation “tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” (text, p. 594). It is considered malice and is treated as a tort, which means that a person found guilty in a civil action can be assessed fines and damages. Privileged communication:  Privileged communication Teachers and administrators handle a good deal of sensitive information, thus are susceptible to accusations of defamation. In matters where the discussion of sensitive matters serves a potentially useful purpose and common public interest, school officials have a qualified privilege. Privileged communication:  Privileged communication As long as there is no malice of intent in the discussion of sensitive issues, a school official is protected from tort liability for defamation. Types of privilege:  Types of privilege Qualified, or conditional privilege is limited to school and business issues and does not extend to nonprofessional communication. Absolute privilege gives one complete protection from prosecution and is given to only a very few officials (e.g., those who perform vital government functions). Qualified privilege:  Qualified privilege To be granted a qualified privilege from defamation, 1) the communication must be made in good faith; 2) the defendant must believe the communication to be true; 3) there must be reasonable grounds for this belief; 4) and if communication is made in answer to a question, it must not have gone beyond the scope of a reasonable answer. Per se and per quod defamation:  Per se and per quod defamation Defamation is considered per se if it: a) imputes a criminal offense punishable by prison or involving moral turpitude; b) imputes to the plaintiff and existing venereal or other loathsome communicable disease; c) imputes to the plaintiff conduct, characteristics, or a condition incompatible with proper conduct of his or her business, or; d) implies unchastity of a woman. Per se defamation:  Per se defamation If defamation of one of the four previous types is found to have taken place, the plaintiff need show no resultant harm, loss, or damages as a result in order for the defendant to be found guilty. Penalties for per se defamation can be criminal and involve substantial financial damage awards to the plaintiff. Per quod defamation:  Per quod defamation Per quod defamation covers areas other than those outlined in per se cases, and in order for charges to be sustained, the plaintiff must show that he or she suffered actual damages as a result of the defamation. Public officials:  Public officials The courts have defined a public official as: “For the most part those who attain [the status of public figure] have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes…those classed as public figures have thrust themselves into the forefront of particular controversies…” p. 599. Public vs. private citizens:  Public vs. private citizens Private citizens are everyone else…the “regular” people, including teachers and most school administrators. Under common law, a private citizen’s reputation is protected against false imputations by a publisher, however a public official’s is not. Burden of proof:  Burden of proof The burden of proof in a suit between a private person and a publisher falls on the publisher, while in the case of a public official and publisher, the burden of proof falls on the public official. Key characteristics of defamation:  Key characteristics of defamation Malice: This involves evil disposition, either implied or actual. Truth: This is an absolute defense against defamation. There can never be defamation if an allegation is true. Hett v. Ploetz:  Hett v. Ploetz This case involved a teacher who received a negative recommendation from his former supervisor. Because the supervisor reported information truthfully and within the bounds of a request, and because no malice could be shown, the recommendation was protected by a conditional privilege. Libel for parody, satire, or humor:  Libel for parody, satire, or humor See Case note 2, p. 603 (6th ed.). In this case, a teacher who was parodied in a yearbook sued for libel. The court ruled that the context needed to be considered, and since it was obviously humerous, no damages were awarded. Deselle v. Guillory:  Deselle v. Guillory Parents who convey information about teachers to school officials are protected by a conditional privilege. Even if the information or allegations are not proven to be true, parents who report them in good faith and without malice are protected. Phillips v. Lincoln County:  Phillips v. Lincoln County In this case, a parent sued a teacher who challenged a student’s nickname (Boo) on the grounds that it was also a street name for marijuana. Parents claimed that by challenging the use of the name, the teacher had been negligent, invaded the student’s privacy by implying that she used or condoned marijuana use, and intentionally caused the student emotional distress. Phillips v. Lincoln County:  Phillips v. Lincoln County The court found that the teacher was merely trying to have the student use her given name in class and was not maliciously intended to bring about the alleged claims. Milkovich v. Lorain Journal:  Milkovich v. Lorain Journal In this case, a newspaper accused a coach of lying under oath, although it was never proven. The coach sued the paper, but the Ohio Court of Appeals said that the newspaper had a privileged right to an “opinion”. The U.S. Supreme Court overturned the decision, saying that and opinion was not protected speech Richmond Newspapers v. Lipscomb:  Richmond Newspapers v. Lipscomb In this case, the Virginia Supreme Court ruled that a teacher, as a private citizen, was not required to prove actual malice in order to recover damages for libel. The teacher was awarded compensatory damages from both the newspaper and reporter, however punitive damages against the reporter were not imposed since malice couldn’t be proven. Johnson v. Robbinsdale:  Johnson v. Robbinsdale In this Minnesota Case, the principal of a school was publicly criticized by parents for implementing a new lunch schedule. The principal sued for libel, however the court ruled that she was a public official and as such, had to prove actual malice as the basis of the criticism. Because she was unable to prove malice, the case against the parents was dismissed. School officials as public officials:  School officials as public officials Read the case notes on pp. 619-621 regarding the differing court interpretations about school officials as public officials. What do you think the ruling would be in Hawaii? Student records:  Student records Because of the potential for containing private or sensitive information, student records need to be protected. Those who have access to them may not reveal information to anyone not requiring the information, and if they do reveal it, it must be factual and done without malice. Family Educational Rights and Privacy Act (FERPA):  Family Educational Rights and Privacy Act (FERPA) FERPA was established in 1974 and sets standards for schools to follow in handling student records. Parents have the right to review all records schools maintain on their children, and they have the right to challenge the accuracy any information contained therein. Parental consent must be obtained before student records may be released to any other agencies. FERPA:  FERPA Upon reaching 18 or entry into postsecondary school, students assume signatory power over their own educational records. FERPA has extensive requirements about the handling of student records. Failure to follow FERPA regulations and procedures can result in the loss of federal funds. No Child Left Behind Act:  No Child Left Behind Act Under this Act, high schools are required to provide military recruiters, upon request, access to secondary students and directory information about the students. Parents must be given the opportunity to opt-out of providing this information, however. Individual right to damages:  Individual right to damages The courts have ruled that individuals who claim that their FERPA rights have been violated may not collect personal damages. The only avenue for redress is through denial of federal funds to the district. Posting student grades:  Posting student grades Teachers may post individual student grades if they scramble scores and delete names so individual students cannot be identified. Student-graded work:  Student-graded work In 2002, in Owasso v. Falvo, the Supreme Court ruled that students could grade one another’s work because it did not constitute student records, thus wasn’t protected by FERPA. After some controversy preceding the case, the Court ruled that this was a longstanding practice and to discontinue it would create an unreasonable burden on teachers. Unanswered questions:  Unanswered questions In Owasso, the Court did not address the question of whether or not the teacher’s grade book constitutes and educational record, nor whether the practice of calling out student grades in class was an impermissible release of records. What does common sense tell you? FERPA and personal notes:  FERPA and personal notes Personal notes kept (generally over a short term )by a teacher or counselor about a particular student are not considered educational records under FERPA if they are available only to the note writers and not exchanged with others.

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