Warrick County School Superintendent Brad Schneider says he can’t discuss the results of the Indiana school district’s investigation into a threat made on Facebook by a high school student because FERPA prohibits doing so. Schneider brought up the threat, made at the beginning of the school year, when discussing another alleged threat made by a student on Facebook, this time following the shooting at Sandy Hook Elementary School. The results of the recent investigation aren’t clear, either.
Source: Warrick Publishing, BHS, police respond to Facebook threat. (Jan. 2, 2013)
Former SPLC Executive Director Frank LoMonte: In the real world – that is, the world that you and I and everyone we know lives in – “privacy” refers to “things that are private.”
That is not the world inhabited by the legal geniuses at the Department of Education – which is the only reason that the answer to this FERPA scenario is not 100 percent obvious.
Let’s pay a brief visit to the real world. There, a principal’s statement that “we suspended a boy for 10 days for making a threat” would never in anyone’s wildest imagination be considered a release of confidential information, (a) because the statement tells us nothing about the kid, and (b) you give up the right to be indignant about your privacy anyway when you threaten violence against people, especially when you do it on Facebook.
Judges, for the most part, occupy the real world. Thus, judges in Montana applied FERPA correctly and ruled that a newspaper could be told what disciplinary penalties were imposed on two students who shot at classmates with pellet guns, once the students’ names were withheld.
If we stop there, then it’s nonsensical for the Warrick County school district to refuse to tell the public what was threatened and what penalty was imposed. Not just nonsensical, but affirmatively counterproductive to good education. With just Superintendent Schneider’s statement, there’s no way for the public to independently verify whether the school district used sound judgment – or grossly overreacted.
Now let’s step through the funhouse mirror into “DOE Wonderland,” where when they use a word, it means just what they choose it to mean – neither more nor less.
As of 2009, the Department changed its interpretation of FERPA to say that, if anyone within the school community might be able to match up the anonymous piece of information with a known student, then even the release of de-identified records can still violate FERPA.
It’s probably true that some people within the school know that Johnny Jones is the kid who made the Facebook threat. But those people also already know that he was kicked out of school for 10 days.
So a statement by the superintendent reassuring the public as to how threats are punished – reassurance to which the entire school community is kind of entitled – gives away nothing that Johnny’s friends didn’t already know.
That is the fatal fallacy of the Department’s 2009 FERPA reinterpretation – that releasing information already known to an entire class (or even known to the entire school) can be an invasion of privacy.
But being realistic, there is absolutely zero chance that the DOE would impose the “financial death penalty” on a school district because its superintendent, in a good-faith effort to inform the community, let the public know the nature of a threat and the severity of the penalty imposed. The department has never seen fit to sanction anybody for a FERPA violation – ever. It certainly would not start here.
While there is no indication of an ulterior motive in Warrick County, interpreting FERPA in this nonsensical way clearly invites mischief. A school district that grossly misuses its disciplinary authority – in ways that the public should know about – can conceal its wrongdoing behind “student privacy.” Unless the student and his family incur the embarrassment of “outing” themselves, citizens will never learn about, and put a stop to, disciplinary overkill.
It is utterly impossible to believe that Congress intended for FERPA to be used to keep the public in the dark about whether a threat of violence was or was not serious, and whether the school responded appropriately. Unless you work at the Department of Education, where they sometimes believe as many as six impossible things before breakfast.
We rate this: a questionable use of FERPA