You should have received a Notice of Disclosure of Student Records (“Notice”) from your child’s school district recently. It explained that Disability Rights New Jersey, The ARC of NJ, SPAN, and The Education Law Center (the “Plaintiffs”) have filed a lawsuit on behalf of all classified children in New Jersey alleging that too many children with disabilities are being educated in segregated classrooms for the disabled and are not in the “Least Restrictive Environment.”
We’ve heard from many confused parents who are not sure if they should allow access to their child’s records or not. Here is some information about the Lawsuit and requested records release that may help you with your decision:
What Is The “Least Restrictive Environment” (“LRE”)?
The law requires that classified children be educated with their non-disabled peers “…to the maximum extent possible.”
That last part is important. A determination of what the “LRE” is must be made based on each child’s unique needs. So, while some children may benefit from being educated with their non-disabled peers, other children may need a more segregated or specialized environment to enable them to learn.
What Is The Basis For This Lawsuit?
The Plaintiffs in this case based their allegations (in part) on a statistical analysis of where students are being educated, not on how specific placements were determined. New Jersey has a higher percentage of classified students in self-contained classrooms and specialized schools for the disabled than any other state. The Plaintiffs are alleging that overly restrictive placements are a systemic issue (i.e., that classified students are routinely segregated without reason or justification) and they have requested the student records of every classified child in the state of New Jersey to help them prove their claim.
Will My Child’s Records Be Released?
Yes, unless you file an objection. In this action, the Plaintiffs have requested that the State DOE (“Defendant”) turn over certain records of every classified child in New Jersey “under seal” (which means the records will not be made public, but will be available to the Plaintiffs, Defendants, their attorneys, and any experts they may hire to assist them in this case).
The letter you received in the mail is the “Notice” required to be given to you under the Family Educational Rights and Privacy Act (“FERPA”) informing you that your child’s records will be released unless you take the action described in the Notice. If you do not want your child’s records to be released for consideration in this lawsuit, you must file an “Objection to Disclosure” form (see below).
What Information And Records Will Be Released?
Some identifying information such as your child’s social security number will not be released at any time. However IEP’s, evaluation reports, your child’s name, date of birth disability category, and whether your child receives counseling services may be released. The Notice you received describes the information that has been requested, and you should read that section carefully.
If you do not object to the release of records, you will not be told which of your child’s records have been provided to the parties or when they have been released. In other words, if you agree to allow the release of records, you should assume all records available for your child will be released to the Plaintiff’s representatives and attorneys.
This would include any privately obtained reports you may have shared with the school as well as any outside evaluations the school has conducted over the years (including any reports from medical specialists). You cannot select which records are released. If you take no action, you are agreeing to the release of any and all records available for your child.
Who Will See My Child’s Records If I Release Them?
The Plaintiffs, their attorneys, and various experts employed by the parties (Plaintiffs or Defendants) may review the records. You will not be told who sees your child’s records or even if they are reviewed.
Why Do They Want My Child’s Records?
The records have been requested as part of “discovery,” which is a process of sharing information that the parties believe will help them prove or disprove the claims in the lawsuit.
Do I Have To Allow My Child’s Records To Be Released?
No, but you need to take action to prevent the release if you do not want your child’s records to be provided to the parties in the lawsuit. If you do not file an objection before March 11, 2010 you should assume your child’s records will be released.
How Can I Prevent My Child’s Records From Being Released?
If you do not wish to allow your child’s records to be released, you must file the “Objection to Disclosure of Student Records” form with Michael C. Walters, Deputy Attorney General, Department of Law and Public Safety, Division of Law, 25 Market Street, P.O. Box 112, Trenton, NJ 08625 by March 11, 2010. If you do not file this form, your child’s records will be released as requested by the Plaintiffs in this case.
Should I Object To The Release Of My Child’s Records?
This is an individual decision. In this lawsuit, the Plaintiffs have essentially told the court that they speak for parents of all children with special educational needs, and that as a whole, parents believe that too many students are being educated in segregated classrooms and out-of-District placements. If the Plaintiffs prevail, they are asking a judge to order the NJ DOE to take actions to ensure more classified students are educated with their non-disabled peers in programs within the schools they would otherwise attend if they were not disabled (i.e., in-district placements).
If you agree with the Plaintiffs that too many students are educated in segregated (e.g., self contained classrooms or specialized schools for the disabled), you would probably want to allow your child's records to be disclosed, in which case you do not need to file a form.
If you do not care whether your child’s entire special education record is released for review, you need do nothing.
If you object to the release of your child’s entire educational record, then you need to file the Objection form to prevent disclosure of your child’s records.
If you do not agree that there are too many students are being educated in out-of-District placements or segregated classrooms, then you are essentially not in agreement with the reasons behind the lawsuit, and you would probably not want to allow your child's records to be disclosed. Again in this case you need to take action by completing and sending in the Objection form to prevent the disclosure of your child's records.
If you object to the release of your child’s records for any reason, you must complete the form and return it by March 11, 2010.
Your child’s individual IEP will not be directly impacted by your decision to release or withhold these records, however, if this lawsuit is successful, districts will likely be required to educate more students with their non-disabled peers (i.e., in their “home schools”), which could have an indirect effect on your child’s IEP and placement.
A source from the NJ DOE has confirmed that, as a result of this lawsuit, the NJ DOE has “advanced its agenda” topromote placing students in their home schools more often and doing fewer out of district placements. So, although the Plaintiffs in this lawsuit are not asking for any changes to individual IEPs, the lawsuit has reportedly already had an indirect impact on out of district placements.
Whatever you decide, please make an informed decision.
If you have any questions regarding the above information, please feel free to contact us at (973) 252-4541
Special Education Alliance
Quality of life begins with education
10 Crenshaw Drive
Flanders, NJ 07836
Phone 973.252.4541
