Jeff Bergosh Blog: What is FERPA Part III: What about Hearsay Information that is Learned Apart from Student Records?

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Monday, December 7, 2015

What is FERPA Part III: What about Hearsay Information that is Learned Apart from Student Records?

The majority of the school community at Anywhere USA High School knows that Bluto got suspended for drinking whiskey at a Friday Night Football Game. Is FERPA applicable if Bluto's suspension is discussed by persons who have no access to his records but know about his suspension?

Imagine if there was a student named Bluto at "Anywhere USA High School," and it was widely known that "Bluto" loved to party. One night, at a High School football game, many students, faculty, staff, parents, and school board members witness Bluto drinking whisky in the stands. When he is confronted by SROs- what if Bluto makes a big scene, starts running around the field intoxicated, and eventually slam-dunks his whiskey bottle into a Tuba as the marching band is performing on the field? Soon, via social media and even news reports and video of the incident being widely disseminated, lots of people find out that Bluto is in trouble. An investigation is launched by the school, and obviously Bluto will be getting in serious trouble--and EVERYONE is going to know why. So, if someone from the school discusses what they observed or heard about happening at the Friday Night Football game, even if it mirrors exactly what will eventually appear on Bluto's official discipline record, does FERPA apply?

This is the million dollar question, right? Here is my take....*

After reading this case, about a student newspaper prank in 1978, it appears pretty clear to the most casual observer that hearsay and information that is known about a student that is not gleaned from his/her official records is not information that is protected under FERPA.

In Frasca v. Andrews, A New York school district attempted to prevent the distribution of a student newspaper that they deemed offensive. The students who produced the student newspaper, "The Chieftan" and their parents sued to allow the publication and distribution of the paper. While the district did eventually prevail and the newspaper was never widely circulated, one of the school district's arguments that the court tossed aside was a that the distribution of the paper would lead to a violation of FERPA --due to the disclosure of student discipline data in one of the articles. In turning that argument aside in this case, the court explained that "the prohibitions of the [FERPA] cannot be deemed to extend to information which is derived from a source independent of school records. Even though a school suspension is listed in protected records, as in the present case, the suspension would also be known by members of the school community through conversation and personal contact. Congress could not have constitutionally prohibited comment on, or discussion of, facts about a student which were learned independently of his school records."(Frasca v. Andrews, 463 F. Supp. 1043 - Dist. Court, ED New York 1979)

So, bringing this back to our story about "Bluto" and his whiskey drinking escapades at a Friday Night football game---if everyone knows, to include School Board Members, that Bluto was suspended from school because they saw or heard or were told unofficially about his suspension from Anywhere USA High School on social media---disclosure of this would not be a violation of FERPA.

And the organization that monitors compliance with FERPA for the OCR, the Family Privacy Compliance Office, (FPCO) has at least on two occasions issued opinion letters on this very issue of hearsay information, and both times they have affirmed the Frasca v. Andrews opinion: Information learned outside of official records, even if it is sensitive and mirrors what is in a student's disciplinary file, is not covered under FERPA. You can read these letters for yourself here and here.

*The content of this post is my opinion and my opinion only-- based upon a fictional account of an incident that happened nowhere ever combined with what I have read and learned about FERPA over the last two months of intensive research. I am not an attorney, I did not play one on TV, and I did not sleep at a Holiday Inn Express last night either—but I can read and I do have an opinion on this subject. But this is one man’s opinion only.