I foresee parent or student lawsuits for defamation about incidents in permanent records.
See, the record doesn't affect the kid financially in junior high or high school. There were no actual damages the way it used to be done, so allegations in the permanent record were not actionable even if they were false. No damages = no actionable defamation.
Now, if colleges insist on seeing the permanent record, then any false accusations in it are defamations with actual damages. Since the kid is not a public figure, it's enough that the charges are false--the kid doesn't have to prove intent to defame and either knowledge of falsity or reckless disregard for the truth. Falsity is enough.
In a defamation case, the burden of proof is not going to be on the student to prove the allegation is false. It's a bad statement about the kid by the school or school personnel, and it causes actual damages.
This makes it defamation under the law.
Truth is what's called an "affirmative defense" against defamation.
What it means is the defendant says, "I did say bad things about the plaintiff that caused him actual damages, but what I said was true."
The burden of proof to show that the defamatory statements were true is on the defendant--in this case the school.
The school can legally say, "We suspended Joe Schmoe Kid on such and such a date" or, "We gave Joe detention on such and such a date."
If they say why they suspended or gave Joe detention, unless they can prove it in a court of law, they have a big risk of Joe winning. The school districts will definitely spend a lot of money defending against defamation suits when Joe's family has deep pockets, because the very fact that Joe isn't a public figure has been defamed (whether true or not), and has actual damages, makes his lawsuit have enough merit to go to trial. His parents won't have to worry about having to pay the school district's legal fees.
Also, based on the history of employment law lawsuits--which you better believe plaintiffs' lawyers will file as briefs with the judge--districts will have a great deal of liability just for saying Joe was suspended or given detention.
That's why employers only give dates of employment now when called for references.
It won't be enough for colleges to insist the student give a waiver on the permanent record's release to be considered. The school will then have liability because the kid will have actual damages for the permanent record being on file whether the school releases it or not.
What will happen, at minimum, is that permanent records will become like credit ratings only more so. If the parents or kid can credibly demonstrate that the allegation may be false, the school better delete the information from the kid's record.
More likely, almost all districts will have a policy of destroying all permanent records--if only in the form of expunging everything.
Translation: "Here's Joe's permanent record like you requested. No, there's nothing in it, nothing at all."
Colleges won't have a leg to stand on to complain to the school about negative material simply being deleted from the record. They insisted on getting the record, they got it.
Sure, this is not the situation as it stands now, but correction of this particular problem is only a handful of high profile lawsuits away.
I am not a lawyer, this is not specific legal advice to anybody.
However, based on my amateur knowledge of slander and libel laws, the bad idea of students' permanent records following them to college will die horribly as soon as it starts being challenged in court.
Let me put it another way. I am not a lawyer, but I would love to be the plaintiff's lawyer for Johnny Haaahvahd or Jenny Yale when a couple of these cases get into court. Big money.
I'm pretty surprised that school districts' legal departments aren't all over this like white on rice already--and I'd bet that some are. I'd bet a lot of districts are just quietly going through seniors' permanent records around September and deleting, deleting, deleting before the kids start getting their college applications in. Or deleting everything when the kids first go through the school counselors for the application process, maybe depending on whether the places the kid's applying to are known to ask for records.
You'll also get parents' lawyers requesting copies of student files from the district (and getting them) and requesting the removal of uncomplimentary material (and getting it).
Julie
