"If only someone would fix this ... oh wait, that's MY job."



“If it was up to me and the law allowed it, I would put out student attendance data and hold parents accountable. And while we're at it, let's put out funding and facilities data and hold school boards and politicians accountable.”

That would be an unremarkable quote if it came from some school-reform do-gooder, or a candidate for school board, or an editorial columnist.

But the quote is remarkable, because it came from the secretary of the U.S. Department of Education, Arne Duncan -- who, while publicly stumping for greater transparency in school data, is running an agency that continually classifies more and more information essential for public accountability as "confidential."

Left hand, meet right. Right, meet left.

Duncan's agency is in charge of interpreting and enforcing FERPA, the Family Educational Rights and Privacy Act. FERPA was intended to safeguard the confidentiality of students' individually identifiable "educational records." But the Department has repeatedly defined "educational records" in an irrationally broad way, giving schools and colleges political cover to conceal information from the public that is neither "educational" nor confidential.

Just recently, a school district in Maine refused to release public records that would help journalists with Falmouth's newspaper, The Forecaster, verify whether schools are excessively restraining unruly students. The newspaper wanted to know how often teachers use restraining holds to immobilize students, and whether the holds are being used only by properly trained and certified personnel -- newsworthy information addressing a vital issue of student safety.

Anticipating a privacy objection, the newspaper agreed to accept reports of each restraining incident with all identifying information about the students blacked out.

Still, the school district -- waving the FERPA flag -- refused.

School attorneys claimed that even a statistical report that Miss Crabtree used restraining holds six times over the past school year might somehow be traced back to individual students and compromise their privacy. That, of course, ignores that the newspaper-reading public has no idea which students are assigned to Miss Crabtree. The only people in a position to know are (a) officials at the school, who are already privvy to the restraint reports or (b) the other kids in the class, who saw exactly who was being restrained before their very eyes.

Release of the information requested by The Forecaster has zero chance of giving away any confidential information. And the information is indispensable for parents to know whether the schools are doing their jobs properly -- otherwise, accountability is replaced with "trust us."

The Falmouth case, and other recent misuses of the statute, should trigger a four-alarm emergency signal that FERPA is not working. Because the only penalty for violating FERPA is financial sanctions from the Department of Education -- a school cannot be sued for disclosing confidential FERPA information -- the Department has the ability with a single public declaration to restore some sane balance between legitimate privacy interests and the public's right to know. The declaration (got a No. 2 pencil, Secretary Duncan?) could say something like this:

"We will never, ever financially penalize any school or college that in good faith honors a legitimate public-records request for newsworthy information. If you 'guess wrong' and you release information that we later decide was FERPA information, we'll issue a clarifying opinion so that the mistake doesn't happen again, but we will of course not impose crushing financial penalties for making a gray judgment call. We interpret FERPA to apply only to information that (a) is not already widely known, (b) pertains directly -- and not tangentially -- to individually identified students, and (c) is kept in a central school records repository. Nothing else is a 'FERPA record,' and if your state's public-records law applies to it, then you must disclose it."

Secretary Duncan, it is "up to you."

The courts have been abundantly clear -- over and over -- that the scope of FERPA is more limited than your agency acknowledges. The public is entitled to more information than schools and colleges are releasing. Your agency can fix this.

If your talk about accountability isn't just talk, it is a short walk from your office to that of the DOE's Office of Family Policy Compliance, the FERPA enforcement branch. Bring a copy of that August 25 "transparency" speech. It's a beauty. Especially that part where you say, "The truth is always hard to swallow but it can only make us better, stronger and smarter. That's what accountability is all about -- facing the truth and taking responsibility and then taking action.” Make reading that speech a required homework assignment for everyone whose job is interpreting FERPA. Test them -- rigorously -- for reading comprehension. And expel the ones who fail.

Tagged: FERPA, FOI