Calif. school district says swim meet records are private under FERPA

Here’s a message we got from a parent in California (edited for length):

“Our very rural public high school will not release to me, a parent and blogger, the official meet results of public school swim meets held at our pool and other league pools. I maintain a blog, like last year, celebrating results along with pictures and video. Also last year full results were released to another local blog  dedicated to local news. Meets are open to the public of course, and individuals can see and record the results real-time.

My first request was denied, they stated it put the team at a disadvantage. Last year our team claimed the championship meet so that didn’t make any sense. Then my first CA Public Records Act request was denied. They claimed a student’s name is part of the private education record.They offered to release times only.”

We spoke with the parent, Mary Boblet, over email to learn more about her requests and the school’s position. Boblet provided copies of her requests and the school district’s responses. She was told that the records she requested couldn’t be provided because they are considered “pupil records” under California’s Education Code and were likewise protected under FERPA, the Family Educational Rights and Privacy Act.

Source: Mary Boblet, parent and blogger, Bret Harte Swim Team Community.

Former Executive Director Frank LoMonte: You know what would come in handy here? A copy of the Merriam-Webster Collegiate Dictionary. For two reasons.

First, if you get the unabridged hardcover edition, those suckers weigh like 15 pounds, and that would probably be enough to thwap some sense into anyone who thinks that the outcomes of a swim meet are confidential.

Second, the dictionary defines privacy as follows: “Being apart from company or observation” or, alternatively, “freedom from unauthorized intrusion.”

What is there about an athletic event – held in a public arena where spectators are invited to attend – that is “apart from observation?” How is knowing the outcome of that open-to-the-public event an “unauthorized intrusion?”

FERPA is the Family Educational Rights and Privacy Act. It exists to protect – say it with me – PRI-va-cy. Things that are, you know, private. 

You can show up at a California high school swim meet and shoot all the video you want of teenagers in their swimwear and share that video with the entire world. That’s legal. It may be creepy, but it’s legal. But in the view of the Bret Harte Union High School District, it’s not legal to see the piece of paper with the outcomes.

Because we’d be protecting the privacy of … what, exactly? 

A Florida court dealt with a similarly frivolous privacy claim in a 2011 case, Bracco v. Machen. In that case, the University of Florida tried to classify videos of Student Senate meetings – meetings that, like swim meets, are open to the public – as confidential FERPA records. On the theory that public things magically become private when you record them.

A Florida circuit court judge wasted no time dispensing with the university’s Looney Tunes argument: “[B]ecause the meeting itself was open, it is hardly logical that a memorialization of it would be confidential.”

It is always possible to read any statute in an ultra-literal manner that leads to absurd results. It is the responsibility of people in authority – school district lawyers chief among them – not to do so.

What’s amazing about the opinion issued by the Bret Harte Union district’s legal counsel is, it doesn’t acknowledge how stupid it sounds. If you absolutely, positively believe that the law requires you to do something idiotic, you must have the self-awareness to say so: “Dear Ms. Boblet, I realize this is going to sound ridiculous, and as a person with at least as much common sense as a paperweight, I know the law can’t possibly be intended to work this way, but…" 

Ohh, but the school didn’t do that at all. Instead, they doubled down, arguing in their May 3 response that the results might be "harmful” or invasive of privacy – because the scores “may not be positive” or “demonstrate success.”

Genius! We’ve now got a “self-esteem exception” to the California Public Records Act!

In other words, even if you might be entitled to know to know which kids won the swim meet, we’ll certainly never tell you which kids lost. Because it wasn’t flopping around in the pool watching some other kid jump out and grab the trophy that was the traumatic part, it was being named in microscopically small type in the local newspaper afterward. (So to be clear, the school’s lawyer is now on record admitting that the school knowingly exposes its students to harm by allowing them to lose athletic competitions in front of hundreds of people. Ding, ding, ding – lawsuit dinner bell!) 

Let’s be real. Since high school sports were invented, coaches and athletic directors have been sharing stat sheets with the media. How do you think newspapers in rural Texas with three sportswriters are able to carry the results of 50 different games? If it’s an invasion of privacy and a violation of federal law to let the hometown weekly paper know that Johnny Quarterback threw for 250 yards and two touchdowns, then every school in America that competes in athletics is a FERPA violator.

Nothing about how schools handle sports scores is consistent with the way FERPA documents should be handled. If the results of a swim meet can’t be released, then neither can the baseball media guide that shows each kid’s batting average, or the football program that includes each runner’s and receiver’s stats.  

If a record genuinely is a confidential FERPA record, that means that it can be viewed only by (a) the student’s parents or (b) a school employee with a business need to know. The coach would be forbidden from, e.g., reading the results to other colleagues in the athletic department, to boosters of the swim team, to her husband, to the kid on the swimming team who stayed home sick… you get the idea.  

What exactly would be the point of writing down the outcome of an athletic competition if nobody can see it? Surely, if Johnny comes into the coach’s office and says, “I want to see my score from last month’s finals,” the coach doesn’t dig out the “family size” jug of Wite-Out and give Johnny only his own times. 

If Bret Harte Union High School District wants to classify swim-meet scores as FERPA records, then it had best be prepared to show that it affords students’ athletic statistics the same level of confidentiality as students’ grades. Perhaps issuing paper bags, without the eye-holes, to every sports fan would be a start?

We rate this: Not protected by FERPA at all