Do you have to cooperate with a Behavioral Threat Assessment?
No. Students and families in Vermont can decide for themselves whether there is any advantage to talking with the school staff on a Behavioral Threat Assessment team. However, if you don’t participate, the Threat Assessment will likely still go forward. The school won’t have your side of what happened. And the school can still take action based on the results of the Behavioral Threat Assessment.
Can a parent prevent a BTA from accessing the student’s school or medical records, including mental health records?
Probably not.
School-based health records
There are protections for student records (called FERPA, of Family Educational Rights and Privacy Act). However, there is one exception is that school and health records can be shared without consent for a “legitimate educational interest” or if necessary to protect the health or safety of the student or others. This likely includes a Behavioral Threat Assessment.
Non-school based health care records
There are protections for Health Records (called HIPPAI), but there are exceptions. One exception is Medical providers, including therapists, can disclose health care information if the provider believes a patient presents a serious danger to self or others, and (1) believes that sharing is necessary to prevent or lessen the serious and imminent threat, and (2) the person they share information with is reasonably able to prevent or lessen the threat.
Keeping medical and mental health records from being shared with a school under HIPAA depends a lot on the provider, and what the provider believes about the student being a serious danger.
What can a parent/guardian do if a school involves the police in a Behavioral Threat Assessment ?
Students have civil rights or due process rights of minors in interacting with police. This includes:
- The right to remain silent in response to questioning
- The right to refuse or sign any statement
- The right to refuse consent for a search of the body or property, including a personal phone or laptop (A pat down may happen anyway, and a search may occur if there is a search warrant, refusing consent can protect the student’s rights if they do end up in court.)
- If arrested, to invoke the right to remain silent, and to have a lawyer appointed immediately
What can a parent/guardian do if they believe a school is using BTAs in a discriminatory way?
The Office of Civil Rights at the U.S. Department of Education (OCR) is concerned about discriminatory discipline. In May 2023, OCR issued its most recent guidance on this, specifically about race discrimination in school discipline. It is clear that the Office of Civil Rights wants to know if schools are treating students of some races more harshly than others. This can include excess use of a BTA, whether it is part of a disciplinary action, or not. This is a form of discrimination called “pattern or practice.” OCR has also investigated districts that had policies that were explicitly discriminatory or had an extra impact on students of certain races.
If parents or guardians believe a school or district is using a Behavioral Threat Assessment in a discriminatory way, they can make a complaint to:
- Office of Civil Rights at the U.S. Department of Education — complaint form
- Human Rights Commission in Vermont — complaint form
