In an interview explaining the Aurora school district’s bus safety procedures, Superintendent Russ Bennett told the Aurora Advocate that each school bus is outfitted with security cameras to record student activity. The recordings can be viewed by administrators in the event of an incident, he said, but not by members of the public because they are protected by FERPA, the Family Educational Rights and Privacy Act.
Former SPLC Executive Director Frank LoMonte: I want you to take a good look at this school bus and tell me what you see.
It’s not a trick question.
Windows, right? Lots and lots of transparent panes of glass.
Unless your mother makes you wear a bag over your head on the way to school (and if she does, then FERPA is the least of your worries), what you look like riding a bus is not the least bit confidential.
We know that school bus videos aren’t FERPA records for several reasons:
1) Because it’s stupid. If a document is a FERPA record, that triggers a set of affirmative legal rights, including the right to have an administrative hearing to challenge the accuracy of the record and to insert corrective information into the record so it isn’t misleading or incomplete. Are schools prepared to let parents splice clips of home movies into their surveillance videos?
2) Because the Department of Education has told us that what kids look like isn’t a secret. In a December 2003 opinion letter, the DOE’s chief FERPA enforcer said it’s not a privacy violation to let a visiting parent sit in on a class, even though the parent will see the faces and hear the voices of other people’s children: “FERPA does not protect the confidentiality of information in general; rather, FERPA applies to the disclosure of tangible records and of information derived from tangible records."
In other words, unless the driver is reading kids’ report cards aloud while driving (and if that’s happening, we all need a look at that video), it’s not a privacy violation to see what goes on inside of a bus.
3) Because the courts have told us so.
In a common-sense application of both FERPA and state privacy law (school attorneys, you can Google "common sense” here, it might be worth a look), a state appellate court in Louisiana v. Mart ordered the release of a newsworthy recording of a school-bus brawl. (Note: the Mart case was partially overruled by a later case, on a point of procedure entirely unrelated to resolution of the open-records issue.) The judges in Mart, learned and scholarly people whose decades of intensive legal training familiarized them with the workings of windows, said:
[W]e find that the school board failed to demonstrate that the students had a reasonable expectation that their identity or their reaction to the crime would be shielded from public view. The students were riding on a public school bus and their actions were visible to all around them.
Similarly, a New York trial court concluded in 2005 that school surveillance videos aren’t confidential education records: “FERPA is not meant to apply to records, such as the videotape in question which was recorded to maintain the physical security and safety of the school building and which does not pertain to the educational performance of the students captured on this tape."
Listening to a school lawyer try to explain why a school bus video is a FERPA record is like watching an especially slow-learning dog chase his own tail. The reasoning goes like this: "What the kids look like on the bus isn’t a secret education record. The video is the secret education record.”
But… but… but… it’s a video of what kids look like on the bus. Putting something non-secret onto a videotape doesn’t alchemically transform it into a secret.
We know this, because a Florida judge told the University of Florida that an otherwise-public Student Senate meeting was not imbued with magic FERPA dust when the university made a recording of it: “[B]ecause the meeting was open, it is hardly logical that a memorialization of it would be confidential.”
The slumbering U.S. Department of Education (where Secretary Arne Duncan astoundingly told reporters last week that it was news to him that schools might be overusing FERPA) was asked six-and-a-half years ago to issue guidance clarifying the FERPA status of school-bus videos. We’re still waiting. (In that request, a lawyer for school boards enlighteningly pointed out that schools don’t actually “maintain” the videos – which is a prerequisite for a record to be covered by FERPA – because they routinely erase and reuse them.)
Clarification is badly needed, because the Department unhelpfully muddied the issue in a February 2004 letter ruling that said a parent could not view a school surveillance tape of a fight if the tape showed any kids fighting other than her own. (Try saying with a straight face: “A parent does not have a right to know who beat up her child because we wouldn’t want to violate the attacker’s privacy.”)
We don’t need the Department of You Woke Me Up For That? to tell us the answer to this one. It’s as clear as a 10-year-old’s face smushed against a bus window.