School employees violated student’s constitutional right to privacy by releasing poorly-redacted psychiatric evaluation to class of 11-graders

L.S. v. Mount Olive Bd. of Educ., No. 09-3052 (D.N.J. Feb. 25, 2011)  2011wl677490

Abstract: A federal district court in New Jersey has decided that a social worker and special education instructor employed by the school board are liable for violating a high school student’s federal and state constitutional right to privacy.  After dismissing claims against the school board and other school officials, the court determined that the two individuals had acted intentionally in disclosing the student’s confidential psychiatric evaluation to a class of 11-grade students, making them liable both for the constitutional violations and for negligence.

Facts/Issues: S.S. is a high school student who has struggled with diabetes and anxiety since the third grade. Due to symptoms of depression and a general phobia of attending school, S.S. completed substantial portions of the seventh, eighth, and ninth grades through home instruction at a local library. He attended just three days of the tenth grade before resuming home instruction.

On October 21, 2008, S.S.’s parents, attended a meeting with various school officials to develop an educational plan for S.S. under Section 504 of the Rehabilitation Act. One of those officials was Julian Johnson, a social worker employed by the board and S.S.’s case manager. That same day, Christopher Bosch, a special education instructor assigned to the classroom of Audrey Strahl, an English teacher at Mount Olive High School, was helping Ms. Strahl teach the famous J.D. Salinger novel, The Catcher in the Rye, to a class of 11th grade special education students. As an exercise, those students were instructed to prepare a psychological or psychiatric evaluation on Holden Caulfield, the novel’s protagonist.

Before the meeting involving S.S.’s parents and school personnel, Mr. Bosch asked Mr. Johnson for a sample psychological or psychiatric evaluation to distribute to Ms. Strahl’s students as a guide in preparing their own reports. “Shockingly,” said the court, “Mr. Johnson offered S.S.’s psychiatric evaluation to Mr. Bosch and instructed him to delete any information that would personally identify S.S. Mr. Bosch made a redacted copy of the evaluation and returned the original to Mr. Johnson. He then distributed copies of the redacted evaluation to Ms. Strahl’s students to be used as a template. Mr. Bosch’s redactions were as ill-conceived as the notion to distribute S.S.’s evaluation in the first place.”  Sufficient information remained in the the document to enable a student in Ms. Strahl’s class to identify him.  That student encountered S.S.’s parents after class, informed them that S.S.’s evaluation had been passed out in class, then gave them his copy of the redacted evaluation. The parents informed the Mount Olive High School administration, who promptly collected and destroyed all copies of the evaluation.

S.S.’s parents filed a complaint against the school board, the district’s director of special services, Ms.  Strahl, and Christopher Bosch, later amending the complaint to include Mr. Johnson and other officials.  The parents alleged causes of action under Section 1983 for violation of S.S.’s constitutional right to privacy under the Fourth and Fourteenth Amendments, and his rights under the First Amendment, as well as state constitutional claims, statutory violations including IDEA and FERPA, and general negligence.

The school defendants and S.S.’s parents filed cross-motions for summary judgment on specific claims.

Ruling/Rationale: The court first dismissed the parents’ claims under Section 1983 in their individual capacities, as well as any Section 1983 claims based on the First Amendment, as neither the complaint nor any evidence presented thus far provided a basis for violation of a First Amendment right.  The courts similarly dismissed the Fourth Amendment claim.

The court dismissed the parents’ Section 1983 claims against the principal, superintendent and director of student services for violation of S.S.’s constitutional right to privacy.  The parents claimed that the officials owed a duty to ensure the confidentiality of student records and breached this duty by failing to adequately educate and train school staff in the importance and implementation of the Board’s privacy policy, thereby causing the disclosure of S.S.’s psychiatric evaluation.  The Third Circuit, noted the court, has not adopted such an approach.   “Indeed, it has exclusively held that an individual ‘defendant in a civil rights action must have personal involvement in the alleged wrongs; liability cannot be predicated solely on the operation of respondeat superior.’” The allegations, found the court, in no way indicate any level of personal direction, actual knowledge, or acquiescence in the disclosure of S.S.’s evaluation.

The court also dismissed the parents’ Section 1983 claim against the board for violation of S.S.’s right to privacy.  The school board could be held liable under Section 1983 for a constitutional violation if it occurred as a result of a policy or custom established or approved by the board.  If the policy does not facially violate the law, the board could still be liable if its action was done with deliberate indifference as to its known or obvious consequences.  The school board could also be liable under Section 1983 if they fail to supervise or train their employees or personnel, and such failure exhibits a “deliberate indifference to the rights of persons” with which they come into contact. The court determined that the plaintiffs’ allegation fit squarely outside of these categories.  The board’s methods to maintain confidentiality in student records were not “so obviously inadequate as to exhibit a deliberate indifference towards the constitutional rights of students;” and the alleged failure on the part of the superintendent to conduct adequate training on the district’s privacy policies did not amount to deliberate indifference.

With respect to the parents’ claims under Section 1983 against Mr. Johnson and Mr. Bosch for the violation of S.S.’s constitutional right to privacy, however, the court determined that the parents were entitled to summary judgment. Noting that S.S. has a constitutionally protected right to privacy in his psychiatric evaluation under the Due Process Clause of the Fourteenth Amendment, and declining to apply the “shocks the conscience” standard, the court applied a standard requiring intentional, rather than merely negligent, conduct.  “[T]he disclosure of S.S.’s psychiatric evaluation was wholly intentional,” found the court.  “. . .[N]o reasonable juror could find that their conduct in disclosing S.S.’s evaluation amounted to mere negligence.”

The court then dismissed the parents’ similar claims based on the New Jersey constitution, finding in their favor on the right to privacy claim against Mr. Johnson and Mr. Bosch.  It dismissed all the statutory claims, including FERPA and IDEA, because an individual cause of action for damages is not available.  Finally, the district court dismissed all of the negligence claims except those against Mr. Johnson and Mr. Bosch because “no reasonable juror could find that they did not breach their duty to maintain the confidentiality of S.S.’s student records.”

L.S. v. Mount Olive Bd. of Educ., No. 09-3052 (D.N.J. Feb. 25, 2011)

[Editor's note:  The district court's introductory remark signaled its inclination to find some liability here:  "This matter arises out of the ill-conceived notion to use a 10th grade student's confidential psychiatric evaluation as a tool to teach the famous J.D. Salinger novel, The Catcher in the Rye to an 11th grade English class."]

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