2008 Winning Essay

A Matter of Privacy
By Emily Ann Walker, Rockbridge County High School

While mention of them is altogether absent from the Constitution, Americans expect privacy rights, as the recent unpopularity of the intrusive Patriot Act has demonstrated. However, the public also expects equality and protection, values that can come into conflict with an individual’s right to privacy. Over the years, legislators have dealt with various issues involving clashes among these fundamental principles, enacting new legislation to clarify their relationship. Yet, there remains significant ambiguity in the dispute between an individual’s right to medical record confidentiality and an institution’s right to protect its student body by requiring disclosure of an applicant’s medical history. An examination of the case involving Deanna Randall and Chesapeake University reveals that such an institution may require the disclosure of applicants’ medical records, although the applicant must permit such disclosure.

In this case, it is pertinent to consider the status of the university and the applicant. Chesapeake University is a large institution; thus, regardless of its status, it is likely that it receives some form of federal funding, subjecting it to crossover sanctions and causing it to fall under the same restrictions as a public university. Secondly, it will be assumed that the applicant, Deanna Randall, is 18 and therefore a legal adult.

The first issue in this case involves the university’s admission requirements. Deanna is protected under the Rehabilitation Act from discrimination based on her depression, considered a type of “hidden disability.” Chesapeake University would fall under this legislation, as Section 504 explains that it applies to “any program or activity that … receives Federal financial assistance.”1 However, is the university’s requirement of a full mental health history revelation a form of discrimination? No. Deanna’s admission to Chesapeake University will not be altered by the specifics of her mental health history, only her refusal to submit them. The US Office of Civil Rights notes, “Section 504 prohibits a postsecondary education recipient from making a preadmission inquiry as to whether an applicant for admission is a handicapped person.”2 Since the university has already extended an offer of admission, its inquiry is legitimate.

If Deanna is willing to forgo an education at Chesapeake University, she has every right to withhold all information concerning her mental history. Under the Health Insurance Portability and Accountability Act of 1996, only Deanna can authorize the disclosure of her own health records.3 If she desires entrance into the school, she must yield to its admission guidelines and reveal all requested information. Designation of documentation parameters is the school’s prerogative.

As a liaison between Deanna and Chesapeake University, Deanna’s guidance counselor exists to facilitate the transition from high school to college. Despite voicing reservations about Deanna’s ability to adjust to CU’s size, according to the Code of Virginia he has no right to inform the school about Deanna’s depression, as “no person to whom health records are disclosed shall … reveal the health records of an individual … without first obtaining the individual’s specific authorization to such redisclosure.”4

Should Deanna’s guidance counselor have the freedom to express his apprehension to the university? In the wake of the terrible Virginia Tech massacre it has become clear that communication among school officials is crucial to the prevention of similar tragedies. Following the notice of a student’s acceptance to a specific institution, efforts should be made by all involved parties to share information that will contribute to the safety of the students and the university community. At the same time, it is ultimately the student’s decision whether to attend a particular institution, and her or her privacy must be respected. If the school in question expresses legitimate concern about the safety of the entire student body after reviewing the provided mental health documentation, it is essential that a conversation occur amongst the appropriate university officials, the student’s counselor, and the student. The compelling concerns of the university regarding campus-wide safety always trump the student’s desire to withhold information.

In contrast, an unsolicited offer of information by the counselor to the university is unacceptable. If the institution has not indicated any misgivings about the student, there is no reason for the counselor to infringe on the student’s privacy rights. The Family Educational Rights and Privacy Act definitively prevent school officials from disclosing a student’s personal information without consent.5 While this would appear to apply as well to the event of an institution’s request for additional information on a student, in that situation it is counteracted by the right of the student body as a whole to be secure. In this instance, there is no recognized threat to the safety of the university’s student population.

The difficulty lies in achieving a balance between an individual’s privacy and the right of an institution to keep students safe. Americans highly value their rights while also expecting protection, making it tricky to design a generic ruling for conflicts in this sensitive area. Rather than viewing the issue as a clash between an individual and an institution, it helps to visualize the conflict as involving the right of an individual versus the cumulative rights of many individuals. In this sense, communal safety supersedes one member’s right to privacy. However, this threat to safety must be carefully verified before any action is taken, as ill-informed investigations could worsen a student’s condition unnecessarily. In court, the accused is innocent until proven guilty, and this ideal must guide collegiate reactions to the possibility of student violence.

In conclusion, the interaction between privacy rights and public protection requires thoughtful, nuanced regulation. In this case, Chesapeake University maintains the right to require the submission of Deanna’s medical records; yet, these can be furnished only with Deanna’s consent. In the event of threatened public safety, the school should seek further student information, but the counselor should not submit unsolicited information about Deanna. Public safety overrides Deanna’s right to privacy, although a thorough analysis of the situation must occur prior to a request for additional information and preventative action. As always, a careful consideration of all variables results in justice for all.


 

1 U.S. Department of Health & Human Services Office for Civil Rights, “Privacy and Your Health Information,” [Online Database], 2007, Available from http://www.hhs.gov/ocr/hipaa/consumer_summary.pdf; Internet, accessed 19 January 2008.

2 U.S. Department of Education Office for Civil Rights, “The Civil Rights of Students with Hidden Disabilities Under Section 504 of the Rehabilitation Act of 1973,” [Online Database], 2005, Available from http://www.ed.gov/print/about/offices/list/ocr/docs/hq5269.html; Internet; accessed 24 January 2008.

3 U.S. Department of Health and Human Services Office for Civil Rights, “Privacy,” [Online Database], 2007, Available from http://www.hhs.gov/ocr/hipaa/consumer_summary.pdf; Internet; accessed 19 January 2008.

4 Virginia General Assembly, “Health Records Privacy,” [Online Database], 2007, Available from http://leg1.state.va.us/cgi-bin/legp504.exe?000+coh+32.1-127.1:03+400912; Internet; accessed 24 January 2008.

5 U.S. Department of Education Family Policy Compliance Office, “Family Educational Rights and Privacy Act,” [Online Database], 2007, Available from http://www.ed.gov/policy/gen/guid/fpco/ferpa/index.html; Internet; accessed 14 January 2008.

Updated: Jul 10, 2012