December 28, 2018
Via Email and Certified Mail
Superintendent Genie Gee
Mingus Union High School District
1801 E. Fir Street
Cottonwood, Arizona 86326
ggee@muhs.com
Re: School Identification Policy
P.O. Box 17148
Phoenix AZ 85011
(602) 650-1854
acluaz.org
Dale Baich
President
Alessandra Soler
Executive Director

Dear Ms. Gee:
The ACLU of Arizona writes on behalf of Jennifer Lansman and
her daughter Jordan Pickett to demand that Mingus Union High School
District #4 (“MUHSD” or “District”) cease the practice of forcing students
who do not have the required credits for advancement to the next grade
level to wear distinct badges that divulge their educational achievement
level to students, teachers, school administrators, and the public.
MUHSD’s policy violates the Family Educational Rights and Privacy Act
(“FERPA”), Title II of the Americans with Disabilities Act (“ADA”),
Section 504 of the Rehabilitation Act, and the Equal Protection Clause of
the Fourteenth Amendment of the United States Constitution. If the
District does not cease the school’s current identification badge policy and
take necessary steps to protect the private educational information of
students, we will be forced to pursue further action.
Background
As we understand the facts, at the beginning of the 2018-2019
academic year, Mingus Union High School implemented a policy that
designates the color of students’ ID cards based on their personal
academic information. Mingus High School’s “scarlet badge” policy
requires 11th and 12th grade students, including Jordan, to wear special
identification cards with bright red backgrounds and large numbers
identifying the student’s expected grade level if the student has not
passed a class or otherwise completed a certain amount of credits. These
badges contrast with the grey-background badges worn by Jordan’s
peers. The policy requires Jordan and all other similarly situated
students to wear “scarlet badges” at all times while at school, forcing
struggling students to reveal their private academic information to
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 classmates, teachers, school administrators, and members of the public
without the student or their parents’ consent.
Not surprisingly, students forced to wear the bright red badges
have experienced increased bullying, public ridicule, and shaming by
other students and teachers. Jordan has heard other students call
classmates wearing the scarlet badge “stupid” and “problem kids.” Jordan
reports that because of wearing the scarlet badge, she receives less
individual instruction from teachers because they assume she is not
interested, motivated, or capable of learning. This all causes Jordan to
experience increased anxiety at school, feel ostracized from other
students, and feel stigmatized by teachers and administrators.
Jordan and other students raised their concerns regarding the
policy with the MUHSD school board on September 13, 2018. In their
statements, the students spoke of their experiences being bullied and
harassed, and the discriminatory effect that the policy had on students
with disabilities. In response, Mingus High School changed one student’s
badge from red to grey. Unfortunately, the District failed to repeal the
policy, and the practice of forcing students to publicly reveal their private
academic information continues. Jordan and other students deserve to
attend school without being branded by administrators and bullied by
fellow classmates. MUHSD’s current policy violates federal law and must
immediately cease.
I.

The Family Education Rights and Privacy Act
(“FERPA”) Prohibits the District from Revealing
Students’ Private Information

MUHSD’s current policy violates the Family Educational Rights
and Privacy Act (“FERPA”). FERPA provides that “[n]o funds shall be
made available under any applicable program to any educational agency
or institution which has a policy or practice of permitting the release of
education records (or personally identifiable information contained
therein) . . . of students without the written consent of their parents to
any individual, agency or organization.” 20 U.S.C. § 1232g(b)(1). FERPA
defines “education records” as “records, files, documents, and other
materials which – (i) contain information directly related to a student;
and (ii) are maintained by an educational agency or institution or by a
person acting for such agency or institution.” 20 USCA § 1232g(a)(4)(A).
Courts have found that a “plain reading of FERPA’s statutory language
reveals that Congress intended for the definition of education records to
be broad in scope.” Bryner v. Canyons Sch. Dist., 351 P.3d 852, 857 (Utah
Ct. App. 2015) (quoting Gonzaga Univ. v. Doe, 536 U.S. 273, 292 (2002)
(Breyer, J., concurring)). Accordingly, education records encompass a
variety of personal information, from disciplinary records to grade point
averages to video images to fingerprints. See United States v. Miami
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 Univ., 294 F.3d 797 (6th Cir. 2002) (disciplinary records are education
records); Owasso Independent Sch. Dist. No. I-011 v. Falvo, 534 U.S. 426
(2002) (unlike a student assignment, a grade point average is a
maintained education record); Bryner, 351 P.3d at 857 (video images
with sufficient personally identifiable information are education records);
34 C.F.R. § 99.3 (the definition of “personally identifiable information”
under FERPA includes biometric records such as fingerprints, DNA, and
handwriting).
Classmates, the public, non-educational school staff, and teachers
and school administrators who do not have a “legitimate educational
interest” in obtaining student private educational records and
information are not authorized to view student records or information
without express written consent. 20 U.S.C. § 1232g(b)(1)(A)-(L). By
compelling students to wear their educational records and information on
visible identification badges, MUHSD’s current policy requires the
release of private education records without consent, in violation of
FERPA. The public display of student education records through the
creation of “scarlet badges” exemplifies the type of student privacy
violation that spurred the passage of FERPA and must immediately
cease.
II.

MUHSD’s “Scarlet Badge” Policy Violates the
Rights of Students with Disabilities

MUHSD’s policy is particularly egregious in its treatment of
students with disabilities. Section 504 of the Rehabilitation Act of 1973
(“Section 504”) and Title II of the Americans with Disabilities Act of 1990
(“Title II” or “ADA”) prohibit discrimination on the basis of disability in
public schools. Duvall v. Cty. of Kitsap, 260 F.3d 1124, 1135 (9th Cir.
2001). Both Title II and Section 504 prohibit public entities from
excluding or otherwise intentionally discriminating against a disabled
person in the provision of services, programs, or activities. 42 U.S.C.A §
12132; Duvall, 260 F.3d at 1135, 1138 (9th Cir. 2001). A school violates
Section 504 and the ADA by showing that if it was deliberately
indifferent to discrimination resulting from the student’s disability. Id. at
1139. Deliberate indifference means (1) that the school was aware of the
need for an accommodation, and (2) the harm was not the result of
negligence but rather resulted from the school’s deliberate behavior. Id.
Both prongs are clearly satisfied with respect to the District’s
policy. The implementation of the “scarlet badge” policy is a result of the
District’s deliberate decision-making and in no way a result of accident or
negligence. MUHSD has been on notice since the board meeting on
September 13, 2018, that the “scarlet badge” policy unfairly discriminates
against students with disabilities. The policy prohibits disabled students
who are forced to wear the “scarlet badge” from receiving certain
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 privileges afforded other students, like the right to leave campus, while
also leading to increased bullying and stigmatization of disabled
students. Since receiving notice of the policy’s discriminatory effects, the
District has taken no steps to repeal the policy and has purposely applied
the policy to students with disabilities despite knowing that the practice
has a discriminatory effect. MUHSD’s continued application of the
“scarlet badge” policy is unlawful and must be immediately halted.
III.

MUHSD’s “Scarlet Badge” Policy Violates the
Equal Protection Clause of the Fourteenth
Amendment

Finally, the policy of publicly shaming high school students who
are underperforming academically violates the Equal Protection Clause
of the Fourteenth Amendment to the United States Constitution. The
Equal Protection Clause directs that “all persons similarly circumstanced
shall be treated alike.” Plyler v. Doe, 457 U.S. at 216 (1982) (citation
omitted). A policy that does not implicate a protected class may still
violate the Equal Protection Clause if it constitutes an illegitimate
government objective or if the means employed to achieve the objective
are not rationally related to the objective. City of Cleburne, Tex. v.
Cleburne Living Ctr., 473 U.S. 432, 446-447 (1985). Forcing lowperforming students to publicly display their academic information
serves no legitimate educational interest nor is it rationally related to an
important educational goal.
Policies which are not supported by sound theory and rely on
vague and overbroad justifications serve no legitimate interest. Id. at
450. We can think of no legitimate interest that would make this policy
lawful. Furthermore, a policy that violates federal law serves no
legitimate end. Id. at 447-48. (“[S]ome objectives … are not legitimate
state interests.”). Thus, because the District’s policy violates FERPA, it is
also unconstitutional. Additionally, even a classification that “neither
burdens a fundamental right nor targets a suspect class” must still bear a
“rational relationship to some legitimate end.” Doe v. Pennsylvania Bd. of
Probation & Parole, 513 F.3d 95, 107 (3d Cir. 2008) (citation omitted).
“Although this is a low threshold, the Supreme Court has nonetheless
instructed that ‘even in the ordinary equal protection case calling for the
most deferential standards, we insist on knowing the relation between
the classification adopted and the object to be obtained.’” Id. at 107-08
(citation omitted); see also Romer v. Evans, 517 U.S. 620, 632 (1996)
(invalidating statute because it “lacks a rational relationship to
legitimate state interests”); Ledezma-Cosino v. Lynch, 819 F.3d 1070,
1075 (9th Cir. 2016) (“The absence of a rational relationship between a
medical disease and bad moral character therefore renders any
classification based on that relationship a violation of the Equal
Protection Clause.”).
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 The District’s “scarlet badge” policy, in which it publicly identifies
and shames underperforming students, does not bear a rational
relationship to a legitimate educational interest. Singling out students
who are struggling academically for public ridicule does not improve
educational achievement. In fact, it does just the opposite.
Because the District’s “scarlet badge” policy is unlawful, the
ACLU of Arizona demands that the District end it immediately. Please
respond to this letter by January 15, 2019, indicating whether the
District will end the policy.
Sincerely,
Kathleen E. Brody
Legal Director, ACLU of Arizona
cc:
Mingus Union High School District Board:
Anita Glazar, President
Lori Drake, Vice President
Steve Gesell, Member
James Ledbetter, Member
Anthony Lozano, Member

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