Keeping secrets from the secret-keepers -- FERPA officially "jumps the shark"



Oh, it's so hard not to enjoy this. So let's not even try.

For years, school boards and their lawyers have been telling journalists and parents that just about any piece of substantive information they might need is top-secret under federal privacy law and exempt from state public-records statutes.

Trends in discipline, statistics about school violence -- you name it, some enterprising school attorney can figure out how to squeeze it into the "black box" that is the Family Educational Rights and Privacy Act. Even if there is no legitimate privacy interest at stake, and a compelling public interest in disclosure.

Given the spiral of FERPA abuse,  it was inevitable that schools would become so secretive that they'd start concealing information even from themselves.

Welcome to Cherokee County, Georgia, which is facing the prospect that a fledgling charter school could face legal action under the Georgia Open Records Act for withholding a roster of its currently enrolled students...

From its own school board.

You read that right. According to news reports, the Cherokee Charter Academy -- which is seeking a four-year contract for funding from the suburban Atlanta school district -- is resisting the school board's demand that, as a condition of action on its funding request, the school turn over a list of current students and its projected enrollment for the coming four years.

This is one of those fights where you just want to fix a big ol' gooey tub of popcorn, pull up the La-Z-Boy, and enjoy the spectacle of school boards reaping the result of decades of FERPA abuse by their own bretheren, who've stretched FERPA so far beyond recognition that a ham sandwich can be classified as a confidential student record.

As a legal matter, FERPA does not preclude the internal sharing of information within a school system when necessary for the conduct of routine school business. If the school district asked any ordinary public school for its roster of students so as to verify that the school was getting paid for real attendees and not phantoms, it would be unfathomable for the school to refuse.

Moreover, virtually every school considers a list of attendees to be "directory information" that can freely be disclosed (except in the rare case that a parent affirmatively opts out) without violating FERPA. This is essential for the school to function, or else routine business -- posting the Honor Roll, selling football programs, publicizing the school play -- would grind to a halt. The school that you attend is hardly a "secret" -- you list the school on your resume, the yearbook is shelved in the public library, you get on the bus in public without a bag over your head. So the Academy's privacy objection is unlikely to withstand legal scrutiny.

School boards of course do not particularly care whether the media or parents are victimized by bogus claims of student privacy. But when FERPA excesses start hitting home, perhaps we will at last see progress toward a rational definition of what is and is not "confidential."

Until that happens, let's all take a moment to relish the sight of a school board enduring the "keep-away" game that boards have played on the rest of us for so many years.

Tagged: FERPA, public records