Secret schools: the FERPA rabbit hole

Education is a $600 billion-a-year industry, and -- as the single largest expense of state and local government -- it deserves public scrutiny and demands public accountability. Yet it's already difficult for parents and journalists to get reliable information about the performance of schools, because so much is cloaked under federal privacy regulations. And thanks to the U.S. Department of Education, the burden is worsening from difficult to impossible.

Over the objections of open-government advocates, departing Bush Administration officials at the department pushed through ill-considered eleventh-hour revisions to the Family Educational Rights and Privacy Act, or FERPA, which took effect Jan. 9.

FERPA, a 1974 federal privacy law, merely says that schools and colleges cannot publicly release individually identifying student "educational records" without consent. It clearly was meant to apply to grades, transcripts, attendance sheets and other "educational" information that most everyone agrees should be private.

Because of ignorance, bad legal advice, or simply a desire to avoid public scrutiny, far too many school officials ignore the limited scope of FERPA and invoke the law to conceal anything and everything they can.

At the Student Press Law Center, our phone rings daily with calls from exasperated student journalists who've been told by their principal some variation of the wacky urban legend that FERPA prevents them from publishing a photo of the homecoming queen unless they get a signed parental consent form in advance. That's not only wrong, it's just plain dumb -- yet it is happening all over the country:

In Wisconsin, a college newspaper was told that tape recordings and minutes of public meetings in which student committee members took part were "confidential educational records," and the newspaper could have the tapes only with the students' voices edited out. A college in Virginia recently refused to release even the number of sexual assault cases handled by the college's "judicial affairs" office, invoking FERPA.

"Over-compliance" with FERPA is so rampant and so widely documented that you'd assume the Education Department -- which is in charge of interpreting the act -- would take every opportunity to clarify that the law should be applied narrowly. Sadly, the department has taken the opposite approach. The department's new regulations are making FERPA even more confusing to administer -- and when confused, schools inevitably err on the side of releasing nothing at all.

Up until January, it was fairly clear -- to the courts, if not to schools -- that documents with names, addresses and Social Security numbers blacked out were no longer confidential FERPA records and could safely be released. But the Education Department now is taking the position that schools may not release even blacked-out records if the school believes that the requester knows the individual that he is asking about, or that the record refers to an incident well-known to people within the school, even if not known to the requester.

Stunningly, this is the example that the Education Department gave in issuing its rule: if a requester wants to know how many students were punished for bringing guns to school in a particular year, and what punishments they received, the school should release no information at all, because people within the school will know which students brought guns to school. (Presumably, the concern is that, if only two people brought guns to school, and school records show that two people received three-week suspensions, people within the school will be able to figure out that Billy and Bobby were the ones suspended.)

You haven't fallen down a rabbit hole into Wonderland. This is really the department's position: that because everyone at school already knows what is in the records, that makes them secret.

We are already seeing the impact of these regulations in action. In February, the Springfield, Mo., school district released a new set of guidelines for handling school emergencies in light of the FERPA revisions. The district has always made available name-redacted reports of incidents reported to school police officers -- but now has started redacting not only student names, but the dates of the incidents and the schools at which they occurred, citing FERPA. So a typical police report will now say: "An unnamed person at an unnamed school on an unnamed date reported being robbed." Worse, the district's lawyers now say that, if a school is under security lockdown due to a safety threat, the district will no longer confirm which school is locked down; any announcement will simply say "a high school" or "an elementary school." Now there's a recipe for minimizing public panic.

This view was rejected most recently in the Montana Supreme Court's 2007 decision, Board of Trustees, Cut Bank Public Schools v. Cut Bank Pioneer Press. In that case, the Pioneer Press sought information about how two students at a local high school were punished for shooting people with BB guns. The Pioneer Press made a request under Montana's public records act for the results of the disciplinary proceedings, and specifically said that identifying information about the students could be blacked out. The school, citing FERPA, refused to honor the request.

The Montana Supreme Court ruled in May 2007 that FERPA did not justify withholding the records in redacted form. The Montana ruling followed similar FERPA interpretations by federal district courts in New York and Miami.

Because FERPA flies in the face of that overwhelming national consensus, it should be given the narrowest possible interpretation -- the opposite of the approach taken by the federal government.

Frank LoMonte is executive director of the Student Press Law Center in Arlington, Va., a nonprofit legal assistance center for student journalists and journalism instructors.