Ohio judge thinks sealed court testimony in school bullying suit is a FERPA record

An Ohio newspaper is trying to obtain transcripts of the testimony of Sandusky High School employees in a racial-harassment lawsuit brought by the family of two bullied girls. The school district settled the case in September 2014, paying the family $110,000. 

But a federal magistrate judge sealed the deposition transcripts, citing the Family Educational Rights and Privacy Act. The judge told the Register he has never read the depositions, but he assumes they contain “great measures of FERPA-protected material.”

Source: Sandusky Register, “Jayda won, but they hide documents,” (11/26/2014)

Former SPLC Executive Director Frank LoMonte: While Judge Knepp’s position isn’t entirely unsympathetic – the testimony probably does include the names of kids accused of bullying 16-year-old Jayda Jackson – it’s a certainty that the depositions do not contain “great measures of FERPA-protected material.”

Because they don’t contain any FERPA-protected material.

Because there is no such thing as FERPA-protected material.

As the U.S. Department of Education has explained, FERPA doesn’t protect information; it protects records. Records maintained in a school’s central office as part of an individual student’s permanent file. 

School employees might have brought school records to the depositions, or might have been shown school records as lawyers asked questions during the deposition. But even then, the subsequent release of information from those records wouldn’t violate FERPA, for at least two reasons.

First, if actual FERPA records were produced for use in the Jackson family’s lawsuit, they were produced in response to a subpoena. And the FERPA statute says, in so many words, that producing records in response to a subpoena is allowed. See 20 U.S.C. Sec. 1232g(b)(2)(B).

Second, FERPA forbids the release of education records by educational institutions – that is, by schools, colleges, districts, state education departments and other recipients of federal education funding. 

The U.S. District Court for the Northern District of Ohio is not a recipient of federal education funding. So Judge Knepp is incapable of violating FERPA, no matter how hard he tries.

What Judge Knepp may have inartfully meant (thus earning him a forgiving Two-Arne rating here), is that court records can be withheld from public disclosure in unusual circumstances if they contain highly embarrassing personal information.

While the Supreme Court affirmed in 1978 that court records are presumed to be open to public inspection, it’s possible to override that preemption of openness if a judge makes the finding that disclosure is so harmful to individuals identified in them that the harm outweighs the public’s right to know.

Before refusing to open the depositions to public inspection, the judge should have gone through that First Amendment balancing exercise. And that would have required the judge to actually read the records, instead of just assuming they contain “great measures of FERPA-protected material.” (A factor weighing in favor of non-disclosure is that counsel for all parties in the Jackson case apparently agreed to a confidentiality order. So the judge may have reached the right outcome – for the wrong reason.)

Because there’s no indication that the judge actually balanced the interests of disclosure versus privacy, the ruling would be vulnerable on appeal if challenged. In any event, FERPA belongs nowhere in the conversation. A federal judge can’t violate FERPA, nor can a school be penalized under FERPA for the involuntary release of testimony – by a different branch of government – that the school did its best to keep confidential.

We rate this: a questionable use of FERPA