I am writing in response to the editorial entitled “Students restrained: What are Maine schools hiding?” to correct a number of misstatements, and to set the record straight concerning the claim that Maine schools are obligated to provide special education students’ education records to a newspaper.
The Forecaster has done its readership a disservice by including an editorial misstating both state and federal law (to the extent the legal advice or commentary was quoted accurately), and suggesting that Maine schools have in mind anything but the very best interests for children that walk through the schoolhouse gate.
The editorial quotes unnamed national sources and the attorney for the Maine Press Association, who apparently are not aware of the Maine statute or the federal statute and regulations which prohibit schools from releasing students’ educational records to the press. These laws do not require schools to release student records to the press, whether the records are redacted or not.
The Forecaster was, of course, provided with the legal authorities that fully supported the schools’ decisions not to release the information requested. These authorities included a direct quotation from the Federal Register that made perfectly clear the point that public schools are under no obligation whatsoever to release education records to anyone but a student’s parents, and the federal regulations which explicitly state that FERPA – the federal law that is incorporated into the Maine statute governing student record confidentiality – does not require redaction of personally identifiable information from student records. Recent U.S. Department of Education guidance emphatically drives home this last point.
Unfortunately, the editor of The Forecaster ignored those legal authorities and instead chose simply to declare that the schools were “violating the law,” merely out to “protect their employees” or had “something to hide.” These claims have no basis in law, or in fact, and the readers of The Forecaster deserve to know why six public schools determined that they could not lawfully (or in good conscience) produce the very detailed special education records The Forecaster wanted to peruse and share with entire communities in southern Maine. A decision to release such records to the public is by law one that only the parents themselves can make.
The fact that reporters’ and editors’ jobs are made more difficult by the existence of state and federal privacy laws does not give them a license to ignore what those laws actually say. It is beyond dispute that the Maine Legislature and U.S. Congress have determined that student education records are not grist for public consumption. That is why federal law expressly provides that school officials may lawfully refuse to release these records (even in redacted form) to persons other than a child’s parents. In fact, federal law provides that educational institutions can lose their federal funding if they release student records without parental consent, except in very limited circumstances (none of which include release of such records to a news outlet).
There are important policy reasons behind these legislative conclusions. However, if the reporters and editors of The Forecaster disagree with these policy considerations they should ask Congress and the Legislature to change the laws respecting the confidentiality of student records, instead of chastising Maine schools and school officials for following them.
Peter C. Felmly of Yarmouth is an attorney at Drummond Woodsum in Portland, where he represents several southern Maine school departments.