Last fall, a 16-year-old student died after collapsing while playing during a football game. The student, Damon Janes, was in a helmet-to-helmet collision during the game’s kickoff. At the previous week’s game, he suffered two hits to the head as well. Janes’ parents have filed a notice of claim accusing Westfield Academy and Central School of failing to monitor him after the first incident. The boy’s parents also accuse the school of outfitting players with substandard helmets.

The Westfield/Brocton football team that Janes played for is shared between the Westfield and Brocton school districts. The Buffalo News requested correspondence between both school districts and outside entities discussing Janes’ death. They also requested videos of last season’s football games. The Westfield school district has declined to release any of the requested records. Alan Holbrook, the district’s business manager and district clerk, told The Buffalo News the records were protected by FERPA, the Family Educational Rights and Privacy Act. (Brocton school officials have not released the documents either, but are not citing FERPA. Brocton Superintendent John Hertlein told The Buffalo News that "this is really sensitive stuff, and I’m not messing with it.")

Source: The Buffalo News, Parents of high school football player who died file claim. (Jan. 27, 2014)

SPLC Executive Director Frank LoMonte: So before getting to the FERPA stuff, you’ve got to admire the innovation shown by Superintendent Hertlein in pioneering the “I’m not messing with it” exemption to the New York Freedom of Information Law. It’s like “Yolo!” for official government responsibilities. “You want me to do my job? Ha ha, yolo!” And hakuna matata, it’s all good!

Since Superintendent Hertlein is under the impression that people get to choose which laws they feel like obeying, going to school in his district ought to be a blast. “You want me to pick up that soda can I just threw on the floor? Sorry, I’m not messing with it.” “I’m supposed to learn the quadratic formula? Naw man, I’m not messing with it.” “Come to work with pants on? No thanks, bud, I’m not messing with it.” This must be the funnest district in America! (Or the scariest.)

(Free editing tip to the Buffalo News: This is where [brackets] can be your friend. For reader clarity, they really might’ve helped the story: “I’m not messing with [obeying the law].”)

So, are images of high school students playing football confidential? Well, that would be unwelcome news to the folks at Time Warner Cable. They just paid the New York State high school sports association big bucks for a 10-year exclusive contract to broadcast high school sports — and curiously, there appears to be nothing in the agreement requiring black rectangles across the players’ faces. 

Assuming the Westfield school district is right that the contents of a football game are covered by FERPA, the New York State Public High School Athletic Association has just signed over the right to broadcast confidential education records to every household in the state. (“Coming up next, stay tuned for the hilarious hijinks on, ‘That’s My New York High School Report Card!’”)

I’m actually super-hoping that Westfield turns out to be right. Because if high school sports videos really are FERPA records, then the student’s family has an absolute legal right to insert correcting information into the records if they believe the records are unfair. There are probably some old high school baseball videos showing me overthrowing the first baseman on routine ground balls, and I’m going to demand the right to insert corrective footage showing I really know how to make that throw, so that in case the White Sox happen to still have a working VCR around, they don’t get the wrong impression.

So yeah, this is completely stupid-slash-dishonest.

You’d sort-of hope that not being stupid-slash-dishonest would be pretty high on the attributes that a school board would be seeking in a superintendent, but maybe they leave that off the questionnaires in upstate New York. Maybe the interview consists of, “So, you’re okay living in Buffalo in January? You’re hired!” 

Videos of high school football: Not confidential. Not educational. Not FERPA. Not the least tiny little bit. But thanks for playing.

We rate this…

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A student who was the University of Michigan’s starting kicker for the past three seasons was expelled in December for sexual misconduct, The Michigan Daily reported this week. The expulsion stems from an incident reported in 2009.

An unknown source provided the Michigan student newspaper with official documents detailing kicker Brendan Gibbons’ punishment. In an article Tuesday, the paper noted it could not explain why sanctions “were not decided in this matter until recently.” 

The university has repeatedly cited FERPA, the Family Educational Rights and Privacy Act, as the reason why it cannot discuss the sanctions. A spokesman told the paper that administrators discussed “the letter of the law, the spirit of the law and long-standing University policies” and came to the conclusion it could not comment except to say that the case was handled according to university policies.

Source: The Michigan Daily, Former kicker Brendan Gibbons permanently separated from University for sexual misconduct (Jan. 28, 2014) and Citing FERPA and policy, University declines to release details in Gibbons case (Jan. 29, 2014).

Attorney Advocate Adam Goldstein: Let’s put aside for the moment the big issue—that Michigan appears to have learned about an allegation of sexual assault against a football player in 2009, but waited until the very end of the player’s career to adjudicate it.

(I’d say I’d leave it to the Department of Education to decide if they feel that’s acceptable, but let’s face it, the DoE never does any damn thing unless there’s a mob with torches and pitchforks already calling for action. The idea that it’s possible to retire from the Department of Education blows my mind, since everyone working for it is basically on a permanent vacation. Forty years of FERPA with zero enforcement actions—what do you do in retirement, go to a golf course and play zero holes of golf?)

But as I said, let’s put that aside and talk about FERPA, which exempts final outcomes of disciplinary proceedings for sex offenses, but doesn’t compel disclosure. That disclosure would ordinarily be compelled by state law; here, the University is essentially saying that the personal privacy exemption under state law prevents them from disclosing any information about the discipline. 

This explanation is disgusting.

Michigan law exempts the disclosure of documents that would constitute a “clearly unwarranted invasion of personal privacy” (emphasis added). It’s not enough that the information in question would be considered private; there’s a balancing test of the public’s legitimate interest in knowing the information against the needs of the individual. 

In order for the University of Michigan to claim that it cannot release these records under state law, it has to agree with both of the following statements:

  1. "There is a right of privacy in being found responsible of a sexual assault." Because you need to have a privacy right for the invasion of that right to be unwarranted. Of course, this is a totally baseless statement. You don’t have a right of privacy in any criminal activity. It’s like saying that a student can rob a bank on campus and the school can’t release the security footage to the cops because it’d be an invasion of privacy. But the University of Michigan must think there’s such a right, or else they’re lying about why they think this is exempt from disclosure.

  2. "The public’s interest in knowing that someone found responsible of a sex offense is on the campus is not as important as the offender’s right to walk around and meet women who don’t know that.”  Because even if there’s a privacy interest, the invasion of that interest must be unwarranted, or else the records must be disclosed. So women on campus at the University of Michigan, your university just stated that they believe your right to know who was found responsible for sexual offenses is less important than the right of offenders to meet you at a party. Because if they didn’t believe that, then the exemption wouldn’t apply, and the disclosure of this record would be mandatory.

So, yeah. Disgusting. 

The NCAA should share some of the blame here, too (along with the University and the Department of Education, for being basically the Department of Rest and Relaxation when it comes to sexual assault on campus). The NCAA forces players to waive FERPA rights to determine eligibility.

That means Michigan either lied to the NCAA about this guy’s activity or the NCAA never asked about his activity. In which case, I’m baffled. The NCAA is interested in Ohio State players getting free tattoos and Penn State’s showers, but has no interest whatsoever in how many people responsible for sex offenses are on the field even though they shouldn’t be in school at all?

Anyway, as to the validity of the explanation, I’m going to go out on a limb and say that there’s no privacy right in being responsible for sex offenses.

(And if you think there ought to be a privacy right because the university disciplinary processes are basically kangaroo courts, well, you’re right about the processes, but wrong about the remedy. Letting people be railroaded in secret doesn’t help. That’s why public trials are a right in the Constitution.)

Oh, and hey, let me toss out the argument for the other side in advance: “This is an anomaly." Yeah, aren’t they all. Aren’t they all.

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Dozens of times a year, a journalist or parent asks for access to information necessary to evaluate whether schools are safe and effective – and gets turned away on the grounds of FERPA. Sometimes those uses of the federal student privacy law are legitimate, but often, they’re not. At times, they’re more than just illegitimate – they’re unconscionable.

At the Student Press Law Center, we’re accumulating quite a collection of “dog-ate-my-public-records” uses of FERPA. Some are so ignorant that they’re amusing, but others are no laughing matter. For the latter kind, we’ve created the “FERPA Fib of the Year.” Each year, we’ll recognize one “standout” school or college that goes beyond just a good-faith misunderstanding of FERPA and uses the statute to interfere with public accountability in an entirely indefensible way.

The candidate list for 2013 was a distinguished one, and settling on a single fibber was frankly difficult. Among the impressive contenders:

  • University of Delaware General Counsel Lawrence White authored a truly hallucinatory essay for the Chronicle of Higher Education insisting that “the U.S. Department of Education has provided lucid guidance” about the scope of FERPA privacy. Considering how many times the Department has reversed and contradicted itself – and how many times its interpretations have been rejected by courts as irrational – you’d have to ingest a near-lethal dosage of roofies for the DOE’s enforcement of FERPA to appear “lucid.” We wish Mr. White a speedy recovery.   
  • The University of Mississippi told a student photojournalist that shooting news photos of students leaving a lecture – where they were being chastised for anti-gay heckling during a theatrical performance – would violate FERPA. Everything about that interpretation was right except for all the words. What a person’s face looks like is not a piece of confidential education information. Student journalists can’t violate FERPA because they aren’t educational agencies that receive U.S. Department of Education funding. Other than that, the advice was perfect.

(It’s impossible to imagine doing any job in America other than “college public-relations officer” so incompetently and still keeping it. If your job is to provide information and you provide misinformation, that’s like having a job where you’re supposed to sell clothes, but instead you give them away for free along with shopping bags of the store’s money.)

  • The University of Iowa administration belongs in a class by itself – if the words “class” and “University of Iowa administration” can coexist in one sentence – for applying FERPA in a manner literally less accurate than having decisions made by a blindfolded chicken pecking on a yes/no form.

First, the Des Moines Register revealed that Iowa was sharing confidential records — even grades — with the county sheriff’s office when a student or alumnus applied for a concealed-weapons permit. If you sat down and tried to design the exact factual circumstance that FERPA was enacted in 1974 to make illegal, this would be it: Sharing your files with the local police so they can use the information against you. You can’t get that one wrong. Yet somehow Iowa did.

And then in November, when the Iowa Press-Citizen reported on a string of reported campus sexual assaults, a university spokesman told the newspaper: “If [a rape] indeed does involve a student and disciplinary action is taken against a student, those records are confidential because they’re student records. So under federal law, we can’t release those details.”

That’s a terrific answer – in 1987.

But Congress rewrote FERPA in 1992 specifically and unequivocally to say that the outcomes of disciplinary proceedings in which a student is found liable for a crime of violence or a sex crime are no longer FERPA-protected. So Iowa’s explanation would be perfect with the addition of one little word: “Not.”

  • At California’s Bret Harte Union High School District, you can attend the swimming meets, take pictures, shoot video, and write down everything you see. But, according to the school district’s lawyer, you can’t ask to see a copy of the scoresheet. The district legal counsel told a local sports blogger that – even though high schools across America have harmlessly publicized the results of sporting events for 40 years without once blipping the federal FERPA radar – he’d decided this universally observed practice was now a privacy violation. To tell your client that it’s illegal to do what thousands of school districts have been doing for decades, you have to be pretty convinced that you’re the smartest school lawyer in the country. Otherwise, you might just be the dumbest.

But for a misapplication of FERPA that crosses the line from boneheaded into evil, we’re going with the Lowndes County, Georgia, school system. The district made the grieving family of 17-year-old Kendrick Johnson, who died under mysterious circumstances in the Lowndes High School gym, go to court to obtain surveillance video that might help explain his death.

Here’s why the family wanted the video: To see if the farfetched explanation they were given for their son’s death – that he accidentally rolled himself up in a gym mat and died – was true, or whether foul play was involved.

Since Kendrick’s parents have an absolute right to see their own child’s FERPA records, it wasn’t his privacy that the school was worried about. The only other people recognizable on the video might be (1) students participating in phys-ed class, which is done in front of a gym-ful of people and isn’t the least bit confidential, or (2) potentially, people who had a hand in Kendrick’s death. If those people feel like filing a FERPA privacy complaint with the U.S. Department of Education, they should have 20-years-to-life to do it.

Leaving aside the fact that a surveillance video isn’t a FERPA education record to begin with (as a New York court has already held in a similar case), there’s a recognized FERPA exception when release is necessary in furtherance of public safety. Wild guess, but “finding out whether a murderer is killing students on campus” is probably what the Department of Education had in mind when it created the “public safety” exception.

Putting FERPA ahead of the needs of a grieving family – and the need to reassure the public that a killer isn’t loose in the school – ought to disqualify you from any future workplace without a drive-thru window. Congratulations to the Lowndes County School District, for the most reprehensible misuse of FERPA of 2013 – or maybe ever.  

The public can’t find out how many times students are caught bringing guns into Ohio schools, or how those incidents are punished, because the Ohio Department of Education claims FERPA requires withholding those statistics, the Columbus Dispatch reported Dec. 10. According to the Dispatch, the Ohio DOE insists that reporting the number of gun-discipline cases and the outcomes of those cases could point to the identity of the disciplined individual if the district has fewer than 10 such cases. All but one district in Ohio had fewer than 10 cases last year, so the information from every other district was kept off-limits to the public. 

Executive Director Frank LoMonte: The holidays are time for fun, so let’s play a fun game. We’ll call it “Find the Privacy Violation.”

So, let’s say little Riley Remington goes to school in Johnson County, Ohio. One day, he gets caught bringing his dad’s .38 into school, an event that makes local headlines. At the end of the year, the Johnson County School District releases its crime statistics, and reports that three kids brought guns to school last year.

“Hmm,” you think, “having read about Riley’s case in the local newspaper, I bet one of those three must have been Riley.”

See the privacy violation yet?

Right, me neither.

Just releasing the number of gun cases tells the public nothing about Riley. Either you already know Riley had a gun or you don’t. The statistic contains no confidential information.

So the Ohio Department of Education is simply wrong that releasing a numerical count of gun cases – no matter how small the pool of cases is – violates anyone’s privacy rights.

Don’t just take our word for it. Numerical data about guns in schools – and drugs and vandalism and gambling and all other sorts of disciplinary transgressions – has been routinely released by states for many years. Here’s last year’s report from the Virginia Department of Education. It shows in microscopic detail every infraction, by district, for offenses from arson (93 cases statewide) to sexual assault (one).

Both of these states can’t be right. Either the data is protected by FERPA – in which case the U.S. Department of Education will be showing up in Virginia any day with a repo man and a flatbed truck to start dismantling the public school system and carting the bricks back to Washington (totally not happening) – or it’s not, in which case it’s a matter of public record that must be disclosed under Ohio law.

 But wait, there’s a bonus round to this game!

The statistics won’t just say that three people brought guns to Johnson County schools. They’ll say three people were expelled for bringing guns to school.

Have we found that violation of Riley’s privacy yet?

Well, a federal statute – the Gun-Free Schools Act of 1994 – specifically requires a minimum one-year expulsion as the penalty for being caught with a gun at school. So the moment a newspaper reader learns that Riley brought a gun to school, she already knows that Riley got expelled.

So even if that statistic of three expulsions somehow confirms that Riley was one of the three – and remember, it doesn’t – that knowledge doesn’t give away anything confidential.

So, game over, right?

If only.

Even though anyone with the common sense of the average household hamster recognizes that no privacy violation has occurred, we’re unfortunately not dealing with hamsters. We’re dealing with U.S. Department of Education bureaucrats, who – if they actually were hamsters – would starve to death within days, unable to find the “off” switch to the spinning wheel.

The Department of Ed has given schools such befuddling instructions on how to respond to requests for statistical data that it’s essentially impossible to know whether you’ll be regarded as violating FERPA until after you do. 

Fortunately, the courts have been more sensible. For instance, in 2007 the Montana Supreme Court ordered a school board to release records reflecting the punishment imposed on two students caught shooting their classmates with pellet guns, with only the students’ names removed: “Since FERPA does not prohibit disclosure of records that do not reveal personally identifying information, there is no basis under FERPA for the Board’s refusal to release the public documents(.)”

If you can legally tell the public what penalty two kids got for shooting fake guns, then it’s probably okay to tell the public what penalty kids get when they shoot real ones. Just sayin’. 

It’s a little unsettling that the State of Ohio doesn’t think it’s important for parents to know about guns in their local schools if the number of incidents is less than 10. If you’re the kid whose school had nine gunmen in it, I guarantee that’s a noticeable amount. 

The United States Congress, the same people who enacted FERPA, certainly thought that this was important information for the public to know. The Gun-Free Schools Act requires every school district to report to the state annually on how many students were expelled for firearms, a report that each state must then submit to the federal Department of Education.

It’s possible that Congress required these government agencies to collect all that data purely for personal amusement (“Hey Charlie, get a load of this, Johnson County had eight shooters last year – okey-dokey, now bring me the shredder”). But probably not.

In fact, the U.S. DOE has itself released the exact information that Ohio claims the DOE forbids releasing.

Take a look at this federal audit report, which (see p.2) discloses that Wisconsin’s West Allis School District had one firearm expulsion, the Verona School District had one firearm expulsion, and so on. If the DOE really thinks it’s a punishable FERPA violation to disclose disciplinary statistics involving small numbers of violators, shouldn’t the Department stop doing it?

(Wait, we just thought of something. Since the U.S. DOE has released district-level gun statistics, and since the penalty for violating FERPA is that the DOE declares you ineligible to receive federal education funding… could the DOE just de-fund itself and instantaneously go out of business? Awe-some!) 

Since nothing about the disclosure of gun-expulsion statistics compromises any student’s privacy, the public’s interest in safe and accountable schools is being outweighed by … nothing.

Because Ohio may have been misled by “guidance” from the U.S. Department of Brain-Injured Hamsters Education – and heck, because it’s the holiday season – we’re going to give the state a generously curved grade of “just barely passing the straight-face test.” You’re welcome.  

We rate this…

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The family of a high school senior found dead inside a rolled-up gym mat last January has asked to see video surveillance footage from the school gym where his body was found. 

Kendrick Johnson’s family believes the video may show evidence that his death was not an accident, as the Lowndes County Sherrif’s Office has determined. So far, the school system has released only a few still images from the cameras. The Lowndes County School system attorney, Warren Turner, said the district cannot release the recordings because they are education records protected under FERPA, the Family Educational Rights and Privacy Act. 

Source: WTXL, Attorneys for Kendrick Johnson’s family want gym video. (Oct. 10, 2013)

Attorney Advocate Adam Goldstein: Let’s just get the law out of the way so we can truly ponder the magnitude of maladjusted selfishness that invoking FERPA in this instance requires.

FERPA rights generally terminate at death. However, when the rights involve a minor—and Kendrick Johnson was 17—the rights belonged, and still belong, to his parents.

You remember his parents—they’re the ones being told that they aren’t permitted to see the video because it might violate FERPA. 

You might also recall that FERPA is a right of access statute as well, ensuring that parents (or eligible students) can obtain copies of their own records. That’s true even when other students might be identified in the record, if those students relevant to the incident; other students could have their faces blurred. See the 2008 Notice of Final Regulations on 34 CFR Part 99 at page 78433. 

So in short, the school district is violating the FERPA rights of Johnson’s parents by refusing to hand over the video and citing FERPA as a basis for why it’s violating FERPA. 

And all of that said, none of it is really the point. 

Put aside that the law says the exact opposite of what the school says it does. When grieving parents asked to see details of their son’s death, the school sat down and said, “Let’s look for a reason not to cooperate.” 

I wish I had words to invoke in this district’s administrators the sense of shame to which they are apparently immune, but only the Almighty can give someone a soul. 

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Earlier this month, a performance of The Laramie Project” at the University of Mississippi was interrupted by members of the audience who yelled gay slurs throughout the play, which is about the murder of a gay student at the University of Wyoming.

After The Daily Mississippian reported on the incident, staff at the university organized a mandatory “dialogue session” aimed at preventing similar incidents in the future. The Daily Mississippian sent two photographers and a reporter to attend and report on the Tuesday meeting, but were told by Danny Blanton, the school’s director of public relations, that “attending the meeting and photographing or interviewing anyone who attended” would violate FERPA, the Family Educational Rights and Privacy Act. 

Source: The Daily Mississippian, Mandatory dialogue session for ‘The Laramie Project’ attendees. (Oct. 9, 2013)

SPLC Attorney Advocate Adam Goldstein: No. Just, no. That’s the short version.

You want the long version? Fine.

This is so stupid a misuse of FERPA that it would have to be twice as smart as it is to rise to the level of being merely wrong. 

FERPA is about education records. Education records are defined as those records maintained by the institution that are directly related to a student.

Here, there are no records yet. When those records would be created, they would be in the possession of students. The records would not be, and could not be, education records, even if the camera had a flux capacitor and was capable of transmitting the pictures back in time so that there was even a record in existence to wrongly invoke FERPA about.

Hey, it wouldn't be the dumbest idea they've had lately.

Furthermore, FERPA regulates the activities of school employees and agents. Nothing a non-employee student can do on his or her own can violate anyone’s FERPA rights, ever. 

So, Director of Public Relations Danny Blanton, you took a law that was inapplicable to the group of people you were addressing, applied to records it doesn’t cover and that don’t even exist, and used that to avoid any pictures of your mandatory don’t-be-a-bigot session. 

(This isn’t really part of the FERPA stuff, but is requiring people to show up to what is essentially a class the best idea you’ve had for how to stop people yelling bigoted stuff at Ole Miss? You give everybody in the room detention, basically? I wouldn’t go to Ole Miss just because I don’t want to accidentally be in the room when someone else is a bigot and says something and ends up screwing up my Thursday night plans. Because, come on, the odds of there not being a bigot in an auditorium in Mississippi feels kind of remote.) 

Is this what they taught you at Ole Miss? When there’s absolutely no right to get the thing you want, make stuff up out of thin air? And it’s not even a good lie. That’s the kicker. Lying is selfish, but using stupid lies is disrespectful. 

Can somebody at Ole Miss please hold a mandatory reeducation session for Danny Blanton on the evils of dumb lies? I promise not to take pictures. 

Even though FERPA wouldn’t apply. 

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Believing that women and older workers are discriminated against in hiring, the graduate student union at the University of California requested statistical data from the university. The students asked to see “the salary, total earnings, appointment and classification for employees hired in different departments,” according to The Daily Bruin. The university has denied the records request because providing such information would violate FERPA, the Family Educational Rights and Privacy Act, a spokeswoman told the paper.

Source: The Daily Bruin, Graduate student union suspects UC of discrimination. (Oct. 3, 2013)

SPLC Attorney Advocate Adam Goldstein: The information as requested is purely anonymous statistical data, so it’s not even a close enough call to make it dramatic; unless there are so few women hired by these departments that releasing the information would make the sole female employee identifiable, this isn’t even identifiable information.

(Note that, if this is the case, it’s possible someone has already noticed that there’s only one female employee, because occasionally there are external manifestations of sex that are not secret and can be observed. I’m referring, of course, to things like trying to spark up workplace conversations about Gray’s Anatomy.)

But even if the information wasn’t purely statistical, Let’s all have a look at 34 C.F.R. § 99.3(b)(3)(i)(A)-(C), shall we? This is a list of things that aren’t considered protected by FERPA. 

b. The term [“education record”] does not include: […]

(3) (i) Records relating to an individual who is employed by an educational agency or institution, that:

(A) Are made and maintained in the normal course of business;

(B) Relate exclusively to the individual in that individual’s capacity as an employee; and

(C) Are not available for use for any other purpose.

So the question is, are records of salaries, earnings, appointment and classification of employees made in the ordinary course of business and related exclusively to employment status? Presumably, the school isn’t intending to grade people on their age and race? 

So even if there are identifiable employees in this data, it shouldn’t be protected by FERPA anyway. So what’s the real motivation here, University of California? Because FERPA doesn’t work.

I mean, it could be worse. You could’ve made yourself look guiltier by responding with, “Cmon, bro, be cool.” Or “bros before Meredith or Cristina or April.” Whoever they are

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In an interview explaining the Aurora school district’s bus safety procedures, Superintendent Russ Bennett told the Aurora Advocate that each school bus is outfitted with security cameras to record student activity. The recordings can be viewed by administrators in the event of an incident, he said, but not by members of the public because they are protected by FERPA, the Family Educational Rights and Privacy Act.

Source: Aurora Advocate, Bennett: Aurora school district has methods to deal with bad bus behavior (August 21, 2013)

SPLC Executive Director Frank LoMonte: I want you to take a good look at this school bus and tell me what you see.

Photo by PRA, used under a Creative Commons Attribution 2.5 Generic License

It’s not a trick question.

Windows, right? Lots and lots of transparent panes of glass.  

Unless your mother makes you wear a bag over your head on the way to school (and if she does, then FERPA is the least of your worries), what you look like riding a bus is not the least bit confidential. 

We know that school bus videos aren’t FERPA records for several reasons:

1) Because it’s stupid. If a document is a FERPA record, that triggers a set of affirmative legal rights, including the right to have an administrative hearing to challenge the accuracy of the record and to insert corrective information into the record so it isn’t misleading or incomplete. Are schools prepared to let parents splice clips of home movies into their surveillance videos? 

2) Because the Department of Education has told us that what kids look like isn’t a secret. In a December 2003 opinion letter, the DOE’s chief FERPA enforcer said it’s not a privacy violation to let a visiting parent sit in on a class, even though the parent will see the faces and hear the voices of other people’s children: “FERPA does not protect the confidentiality of information in general; rather, FERPA applies to the disclosure of tangible records and of information derived from tangible records.” 

In other words, unless the driver is reading kids’ report cards aloud while driving (and if that’s happening, we all need a look at that video), it’s not a privacy violation to see what goes on inside of a bus. 

3) Because the courts have told us so. 

In a common-sense application of both FERPA and state privacy law (school attorneys, you can Google “common sense” here, it might be worth a look), a state appellate court in Louisiana v. Mart ordered the release of a newsworthy recording of a school-bus brawl. (Note: the Mart case was partially overruled by a later case, on a point of procedure entirely unrelated to resolution of the open-records issue.) The judges in Mart, learned and scholarly people whose decades of intensive legal training familiarized them with the workings of windows, said: 

[W]e find that the school board failed to demonstrate that the students had a reasonable expectation that their identity or their reaction to the crime would be shielded from public view. The students were riding on a public school bus and their actions were visible to all around them. 

Similarly, a New York trial court concluded in 2005 that school surveillance videos aren’t confidential education records: “FERPA is not meant to apply to records, such as the videotape in question which was recorded to maintain the physical security and safety of the school building and which does not pertain to the educational performance of the students captured on this tape.” 

Listening to a school lawyer try to explain why a school bus video is a FERPA record is like watching an especially slow-learning dog chase his own tail. The reasoning goes like this: “What the kids look like on the bus isn’t a secret education record. The video is the secret education record.”

But… but… but… it’s a video of what kids look like on the bus. Putting something non-secret onto a videotape doesn’t alchemically transform it into a secret.

We know this, because a Florida judge told the University of Florida that an otherwise-public Student Senate meeting was not imbued with magic FERPA dust when the university made a recording of it: “[B]ecause the meeting was open, it is hardly logical that a memorialization of it would be confidential.”

The slumbering U.S. Department of Education (where Secretary Arne Duncan astoundingly told reporters last week that it was news to him that schools might be overusing FERPA) was asked six-and-a-half years ago to issue guidance clarifying the FERPA status of school-bus videos. We’re still waiting. (In that request, a lawyer for school boards enlighteningly pointed out that schools don’t actually “maintain” the videos — which is a prerequisite for a record to be covered by FERPA — because they routinely erase and reuse them.)

Clarification is badly needed, because the Department unhelpfully muddied the issue in a February 2004 letter ruling that said a parent could not view a school surveillance tape of a fight if the tape showed any kids fighting other than her own. (Try saying with a straight face: “A parent does not have a right to know who beat up her child because we wouldn’t want to violate the attacker’s privacy.”)     

We don’t need the Department of You Woke Me Up For That? to tell us the answer to this one. It’s as clear as a 10-year-old’s face smushed against a bus window

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The way colleges investigate and punish (or don’t punish) sexual assault is under a national microscope, with the U.S. Department of Education opening Title IX sex discrimination cases against schools accused of inadequately responding to campus rapes. At the University of Southern California, several students have come forward to say they felt victimized a second time by a disciplinary system that imposes little-to-no penalty on student rapists. The university, reports ABC News, won’t say how rapists are being punished: “USC officials said students accused of rape had been expelled from the college in the past, but would not confirm the number of expulsions, citing privacy concerns.”

Source: ABC News, Students Turn to Feds for Action on Alleged Rapes (July 25, 2013)

SPLC Executive Director Frank LoMonte: The quote attributed to USC by ABC News doesn’t refer to FERPA by name; it just says “privacy.” But whether the college is relying on the federal educational privacy statute or the common law of privacy that exists under state law, the answer is the same: Nope.

Statistics simply are not confidential, either as a matter of the Family Educational Rights and Privacy Act or as a matter of state privacy law. The statement that “ten students were expelled in 2012” contains absolutely nothing traceable to an individual student that would compromise privacy.

In fact, Congress has gone quite a bit further and said that all information about disciplinary cases in which a person is found liable for conduct equating to a violent crime or sex crime is exempt from FERPA privacy — that’s everything, names included. Since FERPA says, in so many words, that even student names aren’t even confidential after a finding of fault is made, there is no good-faith privacy argument for withholding mere numerical totals.

Like many schools confronted with a demand for embarrassing information, USC’s concern is less for “student privacy” than for “we-screwed-up privacy.” Because the number that ABC News asked for is almost certainly scandalously close to zero.

We know this because, just this past week, Yale University admitted that none of the six people found liable for non-consensual sex during the first half of 2013 got expelled, and in fact only one received even a lengthy suspension. More commonly, the punishment for rape is some combination of “disciplinary probation,” sensitivity training, and/or a reprimand. (At the University of Colorado, one rapist’s punishment was an eight-month suspension and a $75 fine. That’s less than half what you’d pay at Colorado for parking in a handicapped space without a permit.)

USC is a private institution and doesn’t have to obey state open-records laws, but the college at least ought to be honest about it. USC can say how many students were expelled for sexual assault. It just won’t say. Those concerned about campus safety at USC ought to let their president know that “won’t” isn’t good enough.

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Here’s a message we got from a parent in California (edited for length):

"Our very rural public high school will not release to me, a parent and blogger, the official meet results of public school swim meets held at our pool and other league pools. I maintain a blog, like last year, celebrating results along with pictures and video. Also last year full results were released to another local blog  dedicated to local news. Meets are open to the public of course, and individuals can see and record the results real-time.

My first request was denied, they stated it put the team at a disadvantage. Last year our team claimed the championship meet so that didn’t make any sense. Then my first CA Public Records Act request was denied. They claimed a student’s name is part of the private education record.They offered to release times only.”

We spoke with the parent, Mary Boblet, over email to learn more about her requests and the school’s position. Boblet provided copies of her requests and the school district’s responses. She was told that the records she requested couldn’t be provided because they are considered “pupil records” under California’s Education Code and were likewise protected under FERPA, the Family Educational Rights and Privacy Act.

Source: Mary Boblet, parent and blogger, Bret Harte Swim Team Community.

Executive Director Frank LoMonte: You know what would come in handy here? A copy of the Merriam-Webster Collegiate Dictionary. For two reasons.

First, if you get the unabridged hardcover edition, those suckers weigh like 15 pounds, and that would probably be enough to thwap some sense into anyone who thinks that the outcomes of a swim meet are confidential.

Second, the dictionary defines privacy as follows: “Being apart from company or observation” or, alternatively, “freedom from unauthorized intrusion.”

What is there about an athletic event — held in a public arena where spectators are invited to attend — that is “apart from observation?” How is knowing the outcome of that open-to-the-public event an “unauthorized intrusion?”

FERPA is the Family Educational Rights and Privacy Act. It exists to protect — say it with me — PRI-va-cy. Things that are, you know, private. 

You can show up at a California high school swim meet and shoot all the video you want of teenagers in their swimwear and share that video with the entire world. That’s legal. It may be creepy, but it’s legal. But in the view of the Bret Harte Union High School District, it’s not legal to see the piece of paper with the outcomes.

Because we’d be protecting the privacy of … what, exactly? 

A Florida court dealt with a similarly frivolous privacy claim in a 2011 case, Bracco v. Machen. In that case, the University of Florida tried to classify videos of Student Senate meetings — meetings that, like swim meets, are open to the public — as confidential FERPA records. On the theory that public things magically become private when you record them.

A Florida circuit court judge wasted no time dispensing with the university’s Looney Tunes argument: “[B]ecause the meeting itself was open, it is hardly logical that a memorialization of it would be confidential.”

It is always possible to read any statute in an ultra-literal manner that leads to absurd results. It is the responsibility of people in authority — school district lawyers chief among them — not to do so.

What’s amazing about the opinion issued by the Bret Harte Union district’s legal counsel is, it doesn’t acknowledge how stupid it sounds. If you absolutely, positively believe that the law requires you to do something idiotic, you must have the self-awareness to say so: “Dear Ms. Boblet, I realize this is going to sound ridiculous, and as a person with at least as much common sense as a paperweight, I know the law can’t possibly be intended to work this way, but…” 

Ohh, but the school didn’t do that at all. Instead, they doubled down, arguing in their May 3 response that the results might be “harmful” or invasive of privacy — because the scores “may not be positive” or “demonstrate success.”

Genius! We’ve now got a “self-esteem exception” to the California Public Records Act!

In other words, even if you might be entitled to know to know which kids won the swim meet, we’ll certainly never tell you which kids lost. Because it wasn’t flopping around in the pool watching some other kid jump out and grab the trophy that was the traumatic part, it was being named in microscopically small type in the local newspaper afterward. (So to be clear, the school’s lawyer is now on record admitting that the school knowingly exposes its students to harm by allowing them to lose athletic competitions in front of hundreds of people. Ding, ding, ding — lawsuit dinner bell!) 

Let’s be real. Since high school sports were invented, coaches and athletic directors have been sharing stat sheets with the media. How do you think newspapers in rural Texas with three sportswriters are able to carry the results of 50 different games? If it’s an invasion of privacy and a violation of federal law to let the hometown weekly paper know that Johnny Quarterback threw for 250 yards and two touchdowns, then every school in America that competes in athletics is a FERPA violator.

Nothing about how schools handle sports scores is consistent with the way FERPA documents should be handled. If the results of a swim meet can’t be released, then neither can the baseball media guide that shows each kid’s batting average, or the football program that includes each runner’s and receiver’s stats.  

If a record genuinely is a confidential FERPA record, that means that it can be viewed only by (a) the student’s parents or (b) a school employee with a business need to know. The coach would be forbidden from, e.g., reading the results to other colleagues in the athletic department, to boosters of the swim team, to her husband, to the kid on the swimming team who stayed home sick… you get the idea.  

What exactly would be the point of writing down the outcome of an athletic competition if nobody can see it? Surely, if Johnny comes into the coach’s office and says, “I want to see my score from last month’s finals,” the coach doesn’t dig out the “family size” jug of Wite-Out and give Johnny only his own times. 

If Bret Harte Union High School District wants to classify swim-meet scores as FERPA records, then it had best be prepared to show that it affords students’ athletic statistics the same level of confidentiality as students’ grades. Perhaps issuing paper bags, without the eye-holes, to every sports fan would be a start?

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