School Email Not An Educational Record Under the Individuals with Disabilities Act
In E.D. ex. rel. T.D. and C.D. v. Colonial School District, Case No. 09-4837 (E.D. Pa., Mar. 31, 2017), Plaintiff parents filed a violation of the Individuals with Disabilities Act (IDEA) and the Rehabilitation Act case on behalf of their daughter against Defendant, alleging that Defendant failed to provide the child with a free appropriate public education (FAPE) during kindergarten and first grade.
During the minor child’s kindergarten year, she was repeatedly evaluated and placed into different programs to improve her skills. At the end of the year, her teacher testified that she had made progress. However, in first grade, she ran into further difficulties, and emails exchanged internally by the school expressed doubts about her progress. Eventually, Plaintiffs removed her from the school and enrolled her in private school. They sought to have an expert observe classes at the school, which Defendant initially agreed to allow; however, Defendant then denied the expert access after learning that the expert intended to develop an expert report for litigation. Plaintiffs did not deny that the visit was to partially help them assert their procedural rights under the IDEA. Plaintiffs requested a due process hearing for tuition and compensatory education. After a six-session due process hearing, the hearing officer found in favor of Defendant. Plaintiffs appealed to the District Court and asserted additional claims for retaliation and interference.
As part of their assertion that they were denied due process, Plaintiffs alleged that Defendant had withheld certain evidence, including a school email from the Director of Pupil Services indicating that the school planned to hold back their daughter in the first grade due to lack of progress. Plaintiffs argued that this email would have been used to impeach the testimony of witnesses who testified that they were not going to hold the child back a grade.
The IDEA allows access to “education records,” and the court first needed to determine whether the emails sought were “education records” for purposes of the Act. The court looked to a previous decision, which found that “education records” must be “maintained” by the school, and while physical records could be “maintained,” emails had “a fleeting nature.” The court found that the emails appeared to be “casual discussions” and not records maintained by Defendant. Therefore, the court found that there was no denial of due process by Defendant when it denied access.