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There was a question asked on another forum. An instructor received a student's project assignment and was very disturbed by the contents (it was a diary of a serial killer which included splattered blood on the pages and drawings of a disturbing nature - yes, it did meet the assignment's criteria).

My guess is that they have a Stephen King on their hands, not a serial killer - but with school shootings becoming more common, how would I know?
Anyway, just in case it could save someone else, I advised they take it to a mental health professional for review (just content; no name).

In case the professional thought it was disturbing (not creative writing) I added this near the bottom:

Don't tell me that when someone poses a credible threat to the public the name can't be disclosed, maybe you can't disclose it but someone or some process can. It would be bad to hear that they need the name today, and you don't know if you can, and you don't know who they can talk to about it.

So, I know that there are laws that protect student grades/identities/etc. and I'm not opposed to those.

If a psych has a duty to report actionable things to the police if a patient confides them (not patient confidential protected) I figured it would probably be legal for an instructor to take something that disturbed them to a mental health professional for a consult to ask if that professional thought it was disturbing... or if it just looked like creative writing.
(No student data released at this point except showing the assignment; name concealed)

Two comments are basically saying that they don't think it would be legal.

So here's my question:
Would an instructor be legally allowed to show an assignment to a (non-specific) mental health professional because they thought it was so disturbing that maybe the public was threatened/endangered?
To keep it simple let's assume the student isn't a minor and isn't in High School.

I'll happily delete my answer if they cannot.


P.S.
1. I did ref law.stackexchange but no on else posted anything.
2. The closest thing I found searching this site was a reference to the Joint Guidance on the Application of FERPA and HIPAA - which seems only to concern info collected by the school (not assignments) and who this can be disclosed to.

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There are certain privacy laws regarding what schools can reveal about students. To completely answer the question, we would have to know the state and school district involved, but we can get a pretty good estimate of the legal situation from applicable federal law, 34 CFR Part 99 (FERPA). That regulation addresses disclosure of student records, and they define "record" as

any information recorded in any way, including, but not limited to, handwriting, print, computer media, video or audio tape, film, microfilm, and microfiche

which would include any written assignment (which is somehow written, and contains "information"). The regulations also refer to "personally identifiable information", which includes the student's name, which would normally be included on any assignment turned in, but could be removed if the teacher wants to in some way redistribute the essay.

Subpart D addresses disclosing PID from a record, and generally consent is required (which could be from the parent, in the case of a minor), except as specified in §99.31. This would include for example those within the agency or institution who have been found to have an legitimate educational interest. This would include for example another teacher, the principle, the school psychiatrist (if there is one), but not the lunch lady or janitor. This would also include the psychiatrist who contracts with the school for consultation (but isn't an employee) as long as they are under the direct control of the school. It will also include disclosure to state and local educational authorities, under certain circumstances. (This is just a fragment of the conditions for non-consensual disclosure: the short version is, if the disclosure is to the school psychiatrist, it is allowed).

§99.36 then addresses "health and safety emergencies", which allows disclosure "if knowledge of the information is necessary to protect the health or safety of the student or other individuals", where the agency "may take into account the totality of the circumstances pertaining to a threat to the health or safety of a student or other individuals", and if it "determines that there is an articulable and significant threat to the health or safety of a student or other individuals, it may disclose information from education records to any person whose knowledge of the information is necessary to protect the health or safety of the student or other individuals".

One thing to note is that this regulation imposes restrictions on the school but not directly on the employee. The institution is expected to construct rules that implement the institutional requirements on their employees. If a disclosure is contrary to federal regulation, the penalty is visited by the government on the institution; the institution will then (hopefully) have established policies that employees will have to follow. Federal regulations do not anticipate that a teacher will make a sua sponte decision that a certain child may be a threat to public safety and therefore discloses a record. Instead, the teacher would probably make a disclosure within the organization, at which point the organization makes a decision whether the record needs to be turned over to the police, or someone else within the organization.

As for the specific case described, since the document presumably does not contain personally identifiable information, the disclosure restrictions do not apply. They do not apply to "legitimate" disclosure within the organization, and may not apply to certain kinds of disclosure outside the organization, but probably would prohibit disclosure to a neighbor who happens to be a child psychologist. The organization may well have promulgated rules that apply to employees which grossly misrepresent what the FERPA rules actually say (my employer did, "out of an abundance of caution"), so it is possible that the disclosure is contrary to FERPA-inspired local policy.

  • All my homework did have personally identifying information on it. I assume this project does. – David Thornley Dec 13 '18 at 22:47
  • That's where "name concealed" becomes highly relevant. – user6726 Dec 13 '18 at 23:35

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