TRANSPARENCY TUESDAY: A reminder that FERPA privacy of disciplinary records isn't all-or-nothing



A New Jersey court ruling released this week reinforces the now-well-established point that the public is entitled to disclosure of records from schools -- even sensitive ones that schools would prefer to classify as confidential -- with minimal edits to remove student names where necessary.

In K.L. v. Evesham Township Board of Education, parents sought access to the write-ups of four reported instances of bullying of their elementary school children. The school declined to release the records, relying in part on the Family Educational Rights and Privacy Act ("FERPA") and the equivalent New Jersey state privacy law. The parents brought suit, alleging a right of access both under New Jersey's Open Public Records Act and under a common-law right of access to government records.

During the course of the lawsuit, the school district in fact did produce a key document -- a disciplinary form describing a December 2009 attack on one of the plaintiffs' sons -- with only minor redactions. The redacted document removed only the attacker's name, but described what the attacker admitted he did and the punishment (in-school suspension) that he received.

The school district insisted that, because of FERPA, the writeup was not a public record under OPRA, and was being produced only because it was needed as evidence in the lawsuit. But in a unanimous ruling issued Monday, a three-judge appellate panel of the New Jersey Superior Court disagreed.

The court held that the record was, in fact, a public document covered by OPRA. Therefore, because the family was forced to sue the school district to obtain it, the school owed the family its attorney fees.

This is a significant point. Many schools insist -- incorrectly -- that even the parents of victimized kids are obstructed by FERPA from knowing how (or whether) their kids' attackers were punished.

The wiser view is exemplified by what the Montana Supreme Court decided in 2007 in the case of Board of Trustees, Cut Bank Public Schools v. Cut Bank Pioneer Press. In that case, the court ordered disclosure of records reflecting how two students were punished for shooting classmates with BB guns on school property, with only the student offenders' names removed.

With the year winding down, the FERPA litigation scoreboard is reflecting a rout: Common Sense 6, School Obstructionism 0.

Court after court -- in Arizona, in Florida, in North Carolina, in Illinois and now in New Jersey -- has applied FERPA's privacy protections in a balanced manner, resisting schools' insistence that the statute categorically prohibits the disclosure of any information that refers or relates to students.

For journalists who want to cover trends in school disciplinary enforcement, Monday's New Jersey ruling is additional ammunition to overcome blanket FERPA-based denials. FERPA requires only that schools and colleges enforce policies to safeguard the privacy of students' individually identifiable records. Once a document is purged of identifiers, it ceases being a private FERPA record and, if otherwise covered by state freedom-of-information law, must be disclosed.

How schools punish student wrongdoing is a matter of significant public interest, particularly in light of the growing body of research that finds racial discrepancies in the way suspensions and expulsions are handed down. Because schools with discriminatory practices have a particular self-interest in keeping their disciplinary decisions secret, it is perilous to let the very people whose judgments are being scrutinized decide how much scrutiny the public should be allowed. Journalists whose inquiries into school disciplinary practices are met with "the FERPA excuse" should push back hard -- and should not hesitate to trust the wisdom of the courts to apply FERPA sensibly.

Tagged: FERPA, public records, Transparency Tuesday