Michigan high school graduate asks court to reconsider after judge says names of expelled students aren't public records

MICHIGAN — A recent graduate is contesting a judge’s recent decision to side with a Michigan school district in a lawsuit over a former student’s request for the names of expelled students, arguing that the school is hiding behind FERPA, a student privacy law.

The judge granted the school’s motion for a summary disposition in the case in December, but the student’s attorney, Philip Ellison, is asking the judge to reconsider in part because of a scheduling issue that he said prevented him from being present to fully make his case prior to that decision.

In April, then-senior Zach Olson asked the Hastings Area School System for (among other things) the names of all students expelled from the district since 2009. The school told him it couldn’t release the names because that information is protected by the Family Educational Rights and Privacy Act, so he sued the district in Mayciting violations of the state’s open meetings and public records laws.

“There were rumors around school that someone had pulled a knife or threatened people with weapons,” Olson told SPLC last year, “and I want to know, for my own well-being, the names of students who were expelled, to know who to avoid.” Ellison said Olson would be unable to comment further at this time because of the demands of his basic training schedule for the Army.

The dispute largely comes down to an interpretation of what the government considers part of a high school student’s educational records, in light of the Michigan Department of Education’s earlier brush with federal officials over the issue.

Daniel Martin, representing Hastings Area School District in the case, maintains that the records do fall under those protected by FERPA “as we understand it and as we have been told by the Family Policy Compliance Office.”

In 2003, the director of the U.S. Department of Education’s Family Policy Compliance Office, sent a letter to the state’s Superintendent of Public Instruction, outlining an “apparent conflict” between the state law and FERPA — specifically, the practice of allowing schools to publish the names of suspended and expelled students in meeting minutes.

“[T]he minutes of a local school board meeting that contain the name of a student and the results of a disciplinary proceeding constitute an ‘education record’ under FERPA,” LeRoy S. Rooker, the FPCO director, wrote in the letter.

Releasing board meeting minutes that include a student’s name, student number or “other personally identifiable information, without the prior written consent of the student’s parent,” would violate FERPA, Rooker explained. If not resolved, the letter warned, Michigan’s federal education funding could be on the line.

In response, the state legislature amended its Open Meeting Act in 2004 to read, in part: “A public body shall not include in or with its minutes any personally identifiable information that, if released, would prevent the public body from complying with [FERPA].”

The issue, says Ellison: The state law still isn’t specific about what records actually constitute those protected and not protected by FERPA. He acknowledges that the state was acting in response to the guidance outlined in the letter from the federal government but that it still, as stated in his motion to reconsider, “did not fully ban the disclosure of any and all student information or student records.” And while Rooker’s definition was clear in his 2003 letter, Ellison says the education department’s guidance isn’t the law — and that some courts have taken a different view in their enforcement of FERPA.

In his motion to reconsider, Ellison cites several cases that reinforced the limits of FERPA’s reach, particularly concerning records related to student discipline: Miami Student v. Miami University; Kirwan v. The Diamondback; Red & Black Pub Co, Inc v. Board of Regents and Bauer v. Kincaid. Further, Ellison said, records containing the names of those who are expelled are technically approved at the following meeting after that person is no longer a student at the school — and, in his view, don’t constitute records that relate to a student’s attendance that might otherwise be protected by FERPA.

Allowing the release of expelled students’ names wouldn’t just protect other students’ safety, Ellison said, it’s also a way to hold the school board accountable. Say a school district suspends five students for bringing weapons to school and then expels one student for the same offense: How would the sixth person know if he or she is being treated unfairly, he asked, if information about who’s being punished and how those decisions are made isn’t available?

“Access to information provides protection not just for the public but also the person who stands accused of these things as well,” he said.

At Hastings, Ellison said some of the offenses that led to expulsions raise additional questions. Since 2009, most of the expulsions involve violations related to weapons, assault or drug possession and distribution. But in one case, according to court documents, a 17-year-old student was expelled for “stealing another student’s stereo headphones.” Ellison said the names of the students involved are an important part of determining whether the school board acted appropriately.

Still, Martins said the school district isn’t trying to hide anything — it’s just trying to comply with the law, maintaining a “delicate balance” between its legal obligations to transparency and respecting students’ privacy.

“Schools are trying to walk that line,” he said.

By Casey McDermott, SPLC staff writer. Contact McDermott by email or at (703) 807-1904 ext. 127.