School: We can’t tell you how many weapons a student brought to school because of FERPA
Last week, a 17-year-old Rockingham, N.C., student was arrested and charged with bringing a firearm onto school property, the Richmond County Daily Journal reported.
The student’s name and some information about the arrest were available publicly, because the student was charged as an adult. But school administrators balked at many of the questions posed by the Daily Journal. Among the questions that Superintendent George Norris would not answer:
- How many weapons did the student have?
- What kind of weapons, including caliber or length?
- Were the weapons loaded or was ammunition nearby?
- Where were the weapons found?
- Did the student cooperate?
- Who was the student (including date of birth, address and specific charges)?
- Why did the student bring the weapon to school?
- Was bullying an issue in this case?
“All of the information that we have about these questions will be contained in educational records that cannot be released because they are confidential under FERPA,” Norris told the Daily Journal.
Source: Richmond County Daily Journal, Student accused of carrying gun. (May 20, 2013)
Former Executive Director Frank LoMonte: I suppose it’s possible that telling the public how many guns a student brought to school is equivalent to giving away the student’s name. If the student’s name is “Two-Gun McGillicuddy.” (And if that’s the case… really, Mr. and Mrs. McGillicuddy, what were you thinking?)
FERPA protects only information that is confidential and that, if disclosed, would be linkable to a known individual student. So let’s take a piece of information like Request #4, “Where were the weapons found?” Unless the school’s response is, “Why, they were found right in Two-Gun McGillicuddy’s car trunk, just where he left them,” exactly how would release of that fact compromise a student’s privacy?
(1) Let’s suppose we’re concerned about the knowledge of the people inside of the school, who know McGillicuddy was caught with guns and will consequently know which student the school is talking about, even if his name is not mentioned. Remember, these people already know McGillicuddy is the gunman. At that point, what privacy interest is compromised if the school issues a statement: “Student X kept the guns in the trunk of a car.” Will his classmates suddenly say, “This completely changes my opinion of T.G. Sure, I was going to forgive him if he kept guns in his locker like a normal kid. But the trunk of his car?”
Or would the McGillicuddy family have grounds to complain to the Department of Education that little T.G.’s privacy was violated? “We were perfectly fine with everyone in school knowing that T.G. liked to carry guns. But now that they know where he hides them, why, it’s just not safe for T.G. to come to school anymore – he’s completely lost the element of surprise."
(2) Let’s suppose we’re concerned, instead, with the knowledge of people outside of the school – people with no idea who McGillicuddy is. Again, the school issues a statement: "Student X kept the guns in the trunk of a car.” Exactly how will that revelation be the “a-ha” piece of information causing people outside of the school to link that information to McGillicuddy?
Will the neighbors say, “I saw that McGillicuddy boy loading shotguns into the trunk of his Trans Am and heading off in the direction of the school, and then later I saw a bunch of police cars outside his family’s house, and I saw on the news where a kid got arrested for bringing guns into the school – but until that TRUNK part, why, I never would have made the connection!”
So in other words, the set of audience members for whom disclosure of the location, number or caliber of the weapons or ammunition would reveal something previously unknown about McGillicuddy is a big fat empty set of zero. The school indisputably could have answered, at least, all of the factually descriptive questions without implicating FERPA at all.
Here’s how you know the school doesn’t get it. Their own answer tells you so: "All of the information that we have about these questions will be contained in educational records that cannot be released because they are confidential under FERPA.“
There’s a vast difference between asking for access to a student’s records (nope) versus asking for facts that might appear in those records.
For example: Johnny’s attendance file says he was absent from school on Tuesday the 21st because of the flu. You walk into the front office and say, "Hey, what was Tuesday’s date?” Should the secretary tell you, “I’m sorry, I can’t tell you Tuesday’s date, because that information appears in Johnny’s confidential FERPA file."
Well yes, it appears in a confidential education record – but that’s not how you know it. The Department of Education, before it was completely taken over by nitwits, used to understand this distinction very well, as evidenced by a 2006 DOE opinion letter issued to a Maryland school district:
FERPA applies to the disclosure of tangible records and of information derived from tangible records. FERPA does not protect the confidentiality of information in general, and, therefore, does not apply to the disclosure of information derived from a source other than education records, even if education records exist which contain that information.
While it’s true that information about T.G.’s weapons might appear in the disciplinary writeup in his FERPA-protected school file, that information would appear in any number of other non-FERPA-protected records, such as police officers’ notes. The most likely way for the school P.R. spokesman to get the information requested by the news media here would not have been to dig out T.G.’s disciplinary file – it would’ve been to ask the cops. And information coming out of the mouth of a cop is not "FERPA information.”
So this seems like an open-and-shut case of a rogue, judgment-impaired school district misapplying federal confidentiality law, right? Ah, not so fast.
Common sense tells you – and the common law of privacy agrees – that there is no “privacy interest” in being arrested on criminal charges. It does not compromise any legitimate privacy interest to reveal the name of anyone – even a minor – accused of a serious crime; in fact, the Supreme Court has told us that there is a constitutional right to publish the names of juveniles charged with criminal offenses.
But common sense and FERPA are only distant acquaintances.
In 2008, Department of
Nitwits Education issued a jaw-dropping interpretation of FERPA that comes right out and says that FERPA secrecy overrides the public’s right to know which kids are bringing guns to school and how they are being punished:
[I]t might be well known among students, teachers, administrators, parents, coaches,volunteers, or others at the local high school that a student was caught bringing a gun to class last month but generally unknown in the town where the school is located. In these circumstances, a school district may not disclose that a high school student was suspended for bringing a gun to class last month, even though a reasonable person in the community where the school is located would not be able to identify the student, because a reasonable person in the high school would be able to identify the student.
In other words, it is the stated, official position of a powerful federal government agency run by highly educated people not only that a school can’t tell you the names of the kids who brought guns to school – but that the fact that guns were brought into the school is none of the public’s business.
Because of a law protecting “education records.”
Unless the kid is enrolled in, I don’t know, “A.P. Calculus and Marksmanship,” this of course makes no sense except on Planet D.O.E., that parallel universe where laws of physics (and logic) cease to apply.
Since schools are all about grading on the curve, let’s give this one a generous “Two Arnes” grade, recognizing that the Rockingham superintendent was – while acting in defiance of common sense, sound judgment and North Carolina’s open-records law – acting perfectly consistently with a nonsensical DOE interpretation that, the first time it is challenged in court, will be flattened like a spider in a “Garfield” cartoon.
(Oh, and finally, in a fact that matters everywhere except Planet D.O.E., it’s worth noting that nothing about what happened at Richmond County Transitional School is the least bit confidential, because it all came out in police and court records, and everything – including the student’s name and photo – was carried by the local media. The fact that information is already widespread public knowledge means that it by definition is no longer “private.” But neither the broken FERPA statute, nor the equally broken DOE regulations interpreting it, make any allowance for universally known facts.)
We rate this: a questionable use of FERPA