Lore V. Law for School Psychologists
Zirkel, Perry A., National Association of School Psychologists. Communique
Along career focused on legal issues in general and special education, including not only teaching and research but also extensive presentations and publications, has brought me to the realization that practitioners often have perceptions of applicable legal requirements that are significantly inaccurate. My first systematic examination of the severe discrepancy between various prevailing perceptions and practices, which I subsume under the rubric oflore, and obj ective specialized knowledge, which I refer to under the contrasting term law, was broad-based in the K-12 context (Zirkel, 2012b). Subsequent examinations were specific to particular subjects, such as Section 504 (Zirkel, 2012a), response to intervention (Zirkel, 2013a), or teacher evaluation (Zirkel, 2013c). Here, I select from and supplement these other treatments to focus on the pivotal position of the school psychologist, who often serves as the link between general education and special education and between the school and the community, including parents. The resulting legal issues are specialized and diverse.
Byway of caveat, the citations for law here are either primary sources, such as legislation, regulations, or court decisions, or previous systematic syntheses; however, due to their related legal significance as persuasive but not binding on courts (e.g., Zirkel, 2003), the policy interpretations of the administering agencies for the applicable federal legislation are selectively included for gaps between the legislation or regulations and the case law to date. The principal examples are the Office for Special Education Programs (OSEP) for the Individuals with Disabilities Education Act (IDEA) and the Office for Civil Rights (OCR) for Section 504 of the Rehabilitation Act. Also included are selected secondary sources specific to school psychologists, which appeared in previous issues of Communiqué.
The paired lore and law items below concern various legal issues of major concern for school psychologists. These issues concern test protocols, advocacy, other employee protections, IDEA evaluations and liability, response to intervention (RTI), and Section 504.
LORE: The parents are not entitled to inspect and review their child's test protocol (a) under the Family Educational Rights and Privacy Act (FERPA) or the IDEA, and, in any event, (b) due to the Federal Copyright Act.
LAW: In response to part a, above: Parents are entitled to inspect and review their child's test protocol under both FERPA and the IDEA, according to their respective administering agencies - the Family Policy Compliance Office and OSEP - if (a) the protocol is personally identifiable, or (b) where the test protocol or question booklet is not identifiable to the student and separate from the answer sheet, if the school maintains a copy of the student-identifiable answer sheet. In the second situation, the commentary accompanying the IDEA regulations clarified that "[t]he explanation and interpretation by the school could entail showing the parent the test question booklet, reading the questions to the parent, or providing an interpretation for the responses in some other adequate manner that would inform the parent" (Analysis of Comments and Changes, 1999, p. 12,264). In discussing the right to inspect and review education records more generally, the corresponding commentary to the 2006 regulations added:
The right to inspect and review records includes the right to a response from the agency to reasonable requests for explanations and interpretations of the records; the right to request that the agency provide copies of the records containing the information if failure to provide those copies would effectively prevent the parent from exercising the right to inspect and review the records; and the right to have a representative of the parent inspect and review the records. (Assistance to States, 2006, p. 46,645)
The commentary also explained, by way of contrast, that "FERPA's sole possession exception is strictly construed to mean 'memory-jogger' type information . …