Ethics and Law for School Psychologists. Susan Jacob

schools (defined as schools performing in the bottom 5 percent), for high schools where less than two-thirds of students graduate, and to improve educational outcomes for subgroups of children who chronically struggle to succeed at school (Sec. 111[c][4][C-D]). Funds are also targeted for literacy education, early childhood education, and for children who are English language learners, Native American, migratory, homeless, neglected, delinquent, or at risk for dropping out. In addition, some ESSA funds are provided as block grants to states. Of special importance to school psychology, these funds may be used for “initiatives to expand access to or to coordinate school counseling and mental health programs” (Sec. 4102[b][3][B][ii][II]), and the term school-based mental health services provider is defined to include state-certified or state-licensed school psychologists (Sec. 4102 [6]).

       Individuals with Disabilities Education Act

      Prior to 1990, the Education for the Handicapped Act (EHA) referred to a series of federal statutes concerning the education of children with handicapping conditions (e.g., Pub. L. No. 94–142). In 1990, President George H. W. Bush signed into law the Education of the Handicapped Act Amendments of 1990 (Pub. L. No. 101–476), which changed the name of EHA to the Individuals with Disabilities Education Act (IDEA). In 1997, President Bill Clinton signed into law the Individuals with Disabilities Education Act Amendments of 1997 (Pub. L. No. 105–117). This Act reauthorized IDEA and introduced several changes to improve the law. Most recently, President George W. Bush signed into law the Individuals with Disabilities Education Improvement Act of 2004 (Pub. L. No. 108–445) which re-authorized and amended IDEA. Additional amendments to IDEA were made in 2015 through the Every Student Succeeds Act (Pub. L. No. 114–95).

IDEA—Part B allocates funds to states that provide a free and appropriate education to all children with disabilities as defined by the law. To receive funds, each state must have developed a plan that offers every child with disabilities an opportunity to receive special education and related services in conformance with an individualized education program (IEP). The school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances. Students must be assessed on the basis of nondiscriminatory testing and evaluation procedures and provided with an IEP in the least restrictive environment appropriate for each child. The “least restrictive environment” is the educational setting selected from a continuum of alternative placements (ranging from a residential facility to the general education classroom) that is closest to the general education classroom but also meets the special education needs of the child with a disability. Individualized education planning decisions are made by a multidisciplinary team that includes the student’s parents, and a number of safeguards are required in the law to ensure parent participation in decision making. IDEA—Part C provides funds to states that offer early intervention programs for infants and toddlers with known or suspected disabilities in conformance with an individualized family service plan (see Chapter 4).

       Family Educational Rights and Privacy Act of 1974

      The Family Educational Rights and Privacy Act of 1974 (FERPA) was an amendment to the Elementary and Secondary Education Act of 1965 (Pub. L. No. 93–380). Under FERPA, no federal funds will be made available to schools unless they adhere to the student record-keeping procedures outlined in the law. FERPA record-keeping guidelines are designed to safeguard confidentiality of records and parent access to school records concerning their children. In accordance with FERPA, parents have access to all school education records of their children, the right to challenge the accuracy of those records, and the right to a hearing regarding their accuracy. Aside from parents, student records are to be available only to those in the school setting with a legitimate educational interest in the student, and, although there are some exceptions, parent consent generally must be obtained before records are released to agencies outside of the school (see Chapter 3).

       Protection of Pupil Rights Amendment

      The Protection of Pupil Rights Amendment (PPRA) was a 1978 amendment to the Elementary and Secondary Education Act of 1965. PPRA was amended in 1994 and 2001 (Pub. L. No. 107–110 § 1061). The 2001 amendment requires school districts that receive federal funds to notify parents when the school intends to administer to students a survey, analysis, or evaluation that reveals one or more of eight types of personal information, including political affiliations or beliefs; potentially embarrassing psychological problems; illegal, antisocial, and self-incriminating behavior; sexual behaviors and attitudes; and religious beliefs or practices. It also requires school districts that receive federal funds to ensure that parents have the opportunity to review the content of the survey or other instrument prior to distribution. School districts also must allow parents to have their child opt out of survey participation. Parent consent is required if the survey or other evaluation is funded by the U.S. Department of Education (DOE) (see Chapter 3).

      Federal Antidiscrimination Legislation

      Congress also has passed antidiscrimination or civil rights legislation that has had an impact on public school policies and practices. These statutes prohibit state and school authorities from discriminating against individuals on the basis of race, color, or national origin³ ; sex;⁴ or disability⁵ in any program or activity receiving any federal funding. A state department of education (SDE) may choose not to pursue monies available under federal grant statutes (e.g., funds for infants and toddlers with disabilities). School districts must comply with antidiscrimination legislation if they receive any federal funds for any purpose, however.

      Federal antidiscrimination laws also protect students from harassment based on race, color, national origin, sex, or disability. The term harassment means oral, written, graphic, or physical conduct relating to an individual’s race, color, national origin, sex, or disability that is sufficiently severe, pervasive, or persistent so as to interfere with or limit the ability of an individual to participate in or benefit from the district’s programs or activities (see U.S. Department of Education & Bias Crimes Task Force of the National Association of Attorneys General, 1999). Sexual harassment means unwanted and unwelcome sexual advances that are sufficiently severe, pervasive, or persistent so as to interfere with or limit the ability of an individual to participate in or benefit from the district’s programs or activities. The federal laws cited make schools responsible for taking reasonable steps to remedy harassment.

      The U.S. DOE Office for Civil Rights (OCR) provides guidance regarding the interpretation and implementation of antidiscrimination law in the schools and conducts investigations of schools after receiving a discrimination complaint. If evidence of discrimination is found, the OCR may order a school district to engage in remedial actions to correct the discrimination. If voluntary compliance cannot be achieved through informal actions, the OCR may take steps to suspend federal funding to the school.

      Federal statutory law does not explicitly prohibit discrimination in the public schools based on religion or sexual orientation, gender identity, or gender expression. However, in 2010, the OCR extended its protections to include discrimination and harassment based on a student’s religion. In addition, the OCR made known that, as part of national efforts to reduce bullying in schools and to ensure equal educational opportunity for all students, it explicitly interpreted Title IX as prohibiting harassment and bullying based on sexual orientation or nonconformity to gender role stereotypes. Furthermore, if harassment based on sexual orientation or nonconformity to gender-role stereotypes resulted in a hostile learning environment for a student, schools “have an obligation to take immediate and effective action to eliminate the hostile environment” (Ali, 2010, p. 8).

In 2016, the U.S. Department of Justice and DOE restated their Title IX obligations to LGBTQ+⁶ and clarified that schools should treat transgender students consistent with their gender identity (Lhamon & Gupta, 2016, May