Earlier this month, University of Utah’s president announced changes to the university’s fight song, Utah Man. Among the changes, “man” has been replaced with “fan.” The Salt Lake Tribune requested copies of nearly 1,300 emails sent by students, faculty and alumni regarding the changes. Citing FERPA, the Family Educational Rights and Privacy Act, the university redacted the names of students who submitted comments.

Source: The Salt Lake Tribune, More emails: The fight over the University of Utah fight song. (July 7, 2014)

Executive Director Frank LoMonte

We may not live forever on this jolly good old sphere, 
But while we do we’ll live a life of merriment and cheer.  
And when our college days are o’er and night is drawing nigh, 
With parting breath we’ll sing that song: 
A Utah Man am I!

Seriously, that’s the way the song ends. It’s about dying. And not just dying, but singing your college fight song while dying. Unless you’re actually killed at the game, who does that? (Is this how nursing homes in Utah know it’s time to gather the family? “Better come quick, Maude, he’s on the third verse.”) 

Okay, where were we? The FERPA thing. Yeah, that’s just stupid. Emails commenting on matters of public controversy on a college campus aren’t confidential education records. Anybody can send a complaint to a college, so there’s nothing “student-y” about an email. FERPA applies to documents that a college archives as part of a student’s record. If your college’s response to input on a disputed policy decision is to print a copy of the email and stick it in your permanent file, you might want to reconsider whether NSA University is really right for you. 

I guess an email about a campus dispute could be a confidential education record. If the email says, “I hope that you will give special weight to my opinion in light of my recent ‘A’ grade in Western Philosophy, as documented in my attached transcript.” 

On second thought, nah.

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Last month, a 12-year-old Beaver Ridge Central School student was arrested and charged with third-degree assault. He’s accused of stabbing a classmate in the back with a pencil, according to WNYF, the local Fox News affiliate. The school district’s superintendent told reporters she couldn’t say whether the student was disciplined because of FERPA, the Family Educational Rights and Privacy Act. 

Source: WNYF, Feedback: Beaver River student accused of stabbing another student with pencil. (June 27, 2014)

Attorney Advocate Adam Goldstein: I guess this is a legitimate use of FERPA, at least in the same way that using a baseball bat to open a jar of peanuts is a legitimate use of a baseball bat: it’s not a good idea, and it wasn’t the intended purpose when it was created, it swings the same way no matter how illegitimate the target. 

Let me back up. It used to be the case that, in all institutions, you couldn’t disclose the outcome of disciplinary hearings to the public. That changed for postsecondary institutions in 1998, when Congress amended FERPA to exempt the final outcomes of disciplinary proceedings for crimes of violence that are also violations of institutional rules.  (See 20 U.S.C. Sec. 1232g(b)(6)(B) and 34 CFR Part 99.31(a)(14).) 

So if your child tells you that someone got stabbed in the back with a pencil in his classroom, you’re entitled to know the disciplinary outcome (assuming the assailant was disciplined) if your child is a 17- or 18-year-old college freshman, but not if he or she is a 17- or 18-year-old high school senior.

Which strikes me as completely idiotic. If it is the position of the Department of Education that stabbing someone is childhood shenanigans in high school but turns into serious business in college, I think there is no evidence to support that assertion.

But that’s not the school’s fault. This is a place where the black-letter law of FERPA looks like it was written by an anti-social lunatic with a vendetta against minors.   

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A month ago, we wrote about how Boston College refused to release addresses for off-campus students, citing FERPA. They’re holding to that decision for now, but 21 other Boston-area colleges agreed to release the data at a meeting Wednesday with Mayor Martin J. Wash.

After the meeting, Boston College said its attorneys are studying the request to make sure it follows federal law, according to The Boston Globe.

The push for student addresses came after the Globe published an investigation into overcrowding and hazardous conditions in off-campus student housing, which led to at least one fatal fire that killed a 22-year-old Boston University student, Binland Lee. City ordinance permits only four unrelated people in a home, but students are living with as many as twelve people in a house to save money. Activists asked for universities to release students’ off-campus addresses to build a database to detect dangerous, overcrowded living situations, according to the Globe. Boston University was the only school to comply.

Boston College was the only school Wednesday to refuse to release data. The schools that agreed were: Association of Independent Colleges and Universities in Massachusetts, Benjamin Franklin Institute of Technology, Berklee College of Music, Boston Architectural College, Boston University, Emerson College, Emmanuel College, Fisher College, Harvard University, Massachusetts College of Art & Design, Massachusetts College of Pharmacy & Health Sciences, Massachusetts Institute of Technology, New England Conservatory, Northeastern University, Roxbury Community College, Simmons College, Suffolk University, Tufts University, University of Massachusetts Boston, Urban College of Boston and Wentworth Institute of Technology.

"Directory information," including names and mailing addresses, is not protected under FERPA unless a student specifically signs an opt-out form, SPLC Executive Director Frank LoMonte wrote last month. He pointed out that Boston College’s own privacy policy includes directory information as public information.

— Dani Kass

After The Williams Record published a woman’s account of the way the university handled a 2012 report that she had been sexually assaulted by a fellow student, students and alumni have responded by petitioning the liberal arts college to adopt new policies when it comes to investigation reports, The Boston Globe reported. Williams College has defended its actions but says it cannot comment on the case because of privacy laws. 

Source: The Boston Globe, Williams College roiled by report of rape. (May 24, 2014)

SPLC Attorney Advocate Adam Goldstein: Mmmm, no.

I mean, sure, there are lots of things the school couldn’t say under FERPA. But there’s a whole lot it can talk about that isn’t covered by FERPA, too. And since what they said was they “can’t comment,” that’s entirely wrong.

To put it another way, an administrator saying he can’t comment on this situation because of FERPA is like a guy saying he can’t eat at McDonalds because the screws on the playground hurt his teeth. You can’t hide behind the short list of things you can’t say as an excuse to sweep the things you won’t say under the rug. 

First, since the player was found responsible, the school can release the sanction and the findings of the panel that found him responsible. 

Second, anything that isn’t from a record is something the school can discuss. And third, anything that isn’t specifically about a particular student, the school can discuss.

So, for example, the school could explain why it thinks that a three semester suspension is an acceptable sanction for sexual assault. It could answer whether it has a practice of telling students not to report sexual assault to the police. It could talk about what steps it takes, in general, to protect victims. 

But, of course, Williams College doesn’t want to answer any of those questions. Because there’s no reason under the sun to tell someone not to report a violent crime, or to defend the sanction of three months of free vacation as a punishment for rape. 

And if you’re not going to explain yourself, Williams College, then shut up altogether, because nobody wants to hear you pat yourself on the back for how you handled this. 

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In a visually arresting multi-part series, the Boston Globe looks at the hazardous conditions in off-campus student housing, where cash-strapped students cram into firetraps never meant to hold eight, 10 or 12 occupants. Overcrowding has been faulted for at least one recent fatal fire and several near-misses, despite a city ordinance that limits occupancy to no more than four unrelated people per home.

A spokesman for Boston College expressed dismay when told how many students are packed into the neighborhood’s aging homes, but said BC can’t do anything about it. Even though the college has a database showing where its students are living, BC claims it can’t share that information with city code enforcers because of federal student privacy laws.  

Source: The Boston Globe, ”Shadow Campus” (May 5, 2014)

Executive Director Frank LoMonte: Let’s go ahead and assume for laughs that Boston College is correct — and (spoiler alert!) they’re not — that releasing college students’ home addresses is a violation of FERPA, which (if you get caught) carries the worst-case downside of a nasty warning letter from the U.S. Department of Education.

If you thought it would spare one of your students from a horrible fiery end, wouldn’t you maybe suck it up and take that risk?

Because, since the Department of Education has never penalized anybody for violating FERPA, would they reeeally want to start after 40 years of inaction by making an example out of the school that’s trying to save kids from burning to death?

Nonetheless, taking no chances that they might be the first college in four-going-on-five decades to get scolded (heavens!) by the DOE, the good folks at Boston College have decided to play it safe. “Safe,” except for the people who might get bitten by rats or crippled jumping from burning buildings. 

(That BC’s Jack Dunn actually answered the Globe's question with “FERPA” tells you how reflexively college spokespeople grab for “the FERPA answer” no matter what the question is. It's like the Swiss Army Knife of college spokesmanship, except that Swiss Army Knives occasionally are the right tool for the job. Let’s hope Mrs. Dunn never asks Jack if he’s glad they got married.)

In point of fact, nothing in the Family Educational Rights and Privacy Act prohibits Boston College from giving the City of Boston access to its database of student addresses so inspectors can see whether students are quadrupling-up inside houses that can’t safely hold them.

The FERPA statute says colleges can designate basic identifying facts, including name and mailing address, as “directory information.” Once something is directory information, then by definition it’s not confidential under FERPA and (except for the rare student who signs an opt-out form), can freely be disclosed. 

The college’s own privacy policy says that mailing addresses are “directory information,” as they are at basically every college in America (hence the name, “directory”). Nobody thinks your home address is a piece of confidential educational information.

Boston College might’ve had any number of legitimate responses when the Globe asked why BC doesn’t rat out its students to the city housing department. FERPA confidentiality wasn’t one of them. 

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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.

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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.  

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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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