Forecaster Forum: The whole truth about student privacy and the public's right to know

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School attorney Peter C. Felmly’s column regarding the secrecy of student records should have been titled “Why people hate lawyers,” because it exemplifies the worst tendency of school attorneys to make assertions that are literally true, but substantively misleading.

Mr. Felmly asserts in his column that the federal student privacy law, FERPA, does not require schools to make information available to the news media. That is true, but it is not the whole truth.

No one has ever claimed that FERPA entitles the public to any information about anything. FERPA is a privacy statute that requires schools to keep identifiable students’ educational records confidential.

But FERPA exists against a backdrop of pro-disclosure state laws, and those laws do, unequivocally, entitle The Forecaster to the information about schools’ use of student restraints that Mr. Felmly would keep concealed.

Maine’s Legislature has adopted a very broad definition of the records that a government agency – including a school – must make public on request: any documents that “contain information relating to the transaction of public or governmental business.” This plainly includes the transaction of business by schools.

It is true, as Mr. Felmly asserts, that FERPA does not require school districts to remove student identities and produce records documenting teachers’ use of restraints in redacted form. But it is not the whole truth.

Again, no one has said that FERPA requires public disclosure of anything. But the Maine Freedom of Access Act most assuredly does, and the Maine Supreme Judicial Court said in a 2005 ruling (Blethen Maine Newspapers v. State of Maine) that the proper course when an agency seeks to withhold documents on the grounds of personal privacy is simply to redact the names and release everything else. That is what school districts should do when asked how many times students have been placed in restraints and by which school employees.

Time and time again, when agencies have cried “FERPA” in the face of requests for newsworthy information, the courts have applied the law in a common-sense manner and ordered disclosure of everything but student names.

That is how the Montana Supreme Court ruled in a 2007 case (Board of Trustees, Cut Bank Public Schools v. Cut Bank Pioneer Press) in which a newspaper requested records of disciplinary action against students who shot their classmates with BB guns. And that is how Florida’s First District Court of Appeals applied FERPA in a 2009 ruling (National Collegiate Athletic Association v. Associated Press) that required disclosure of correspondence between a college athletic program and the NCAA about potential academic dishonesty.

The courts’ view of FERPA strikes a reasonable balance between public accountability and privacy. The ultra-literal, disclose-nothing approach that Mr. Felmly urges does not.

It is also true, as Mr. Felmly asserts, that disobeying FERPA can result in a catastrophic loss of federal education funding. But it is not the whole truth.

The FERPA statute allows the secretary of education to take away a FERPA violator’s federal funding only if he concludes that the school refuses to come into voluntary compliance with the law. In the 36-year history of FERPA, the secretary has never made this finding. In other words, simply honoring journalists’ requests for public records will not result in any financial penalty. Mr. Felmly knows (or should know) this very well.

Mr. Felmly concludes his column by suggesting that proponents of transparency go to Congress and seek revisions to FERPA. I invite him and all school attorneys to join us in mutually asking Congress to remove any ambiguity that permits Maine school districts to argue with a straight face for concealment of statistical data documenting the use of student restraints – information as to which there is no legitimate privacy concern, and a compelling public safety interest in disclosure.

Attorney Frank D. LoMonte is executive director of the Student Press Law Center, an Arlington, Va.-based nonprofit that advocates for improved public access to school records.