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.

What is FERPA? Part II--"The Locker Room Attack"

The "Daily Muckraker" Newspaper  and other various groups want their readers and the community of Anywhere USA to believe everything they say and write, not unlike how the monks are expected to behave  in this Gahan Wilson Cartoon.

FERPA is simple, yet complex.  It has rules that must be followed in order to assure student records are kept confidential.  But as I pointed out in part I, not everything that is known about a student is protected under FERPA.*

So let's look at a fictitious, hypothetical scenario.  I'll call it the "Locker Room Attack at Anywhere USA High School."

Remember, the account below is a fictional story.

Imagine if a basketball team from Anywhere USA High School is in the locker room after losing an important Friday Night game.  Imagine if two of the players from the team lure a team assistant named "Jorge Zapata" (who has a physical disability) out of the locker room and assault him, knocking him unconscious viciously while simultaneously calling him disgusting racial slurs,  like this. [NOTE: This linked video from a recent actual attack near Detroit, MI is violent, disturbing, contains reprehensible images and language,  and is difficult to watch--viewer discretion is STRONGLY ADVISED-victim in this video, according to news reports, retrieved his phone, was not seriously injured, and the perpetrators were caught....]

Imagine if the attackers steal the victim's cell phone and film the incident with the victim's own camera phone while "Jorge" is unconscious.  Imagine if these assailants place this violent video on a social media platform that many of the students in Anywhere USA High School could subsequently see?

Imagine if "Jorge" wakes up, is able to find his phone, and is not too badly injured, and decides not to report the attack because he is humiliated, and instead he just internalizes the matter, and he keeps the incident to himself.  After all, he knows his attackers, and he hears that they are already lining up their stories to say that the whole incident was nothing more than slap-boxing, and the incident is actually going to be blamed on Jorge.  Everyone starts to repeat the story that Jorge started the whole thing by "slap boxing" the players and starting trouble.  If anything comes of the incident, the attackers will say Jorge is simpy "Lying on them!"

The following Monday though, the students at the school are buzzing over the incident; many have seen the video. [NOTE: This linked video from a recent actual attack near Detroit, MI is violent, disturbing, contains reprehensible images and language,  and is difficult to watch--viewer discretion is STRONGLY ADVISED-victim in this video, according to news reports, retrieved his phone, was not seriously injured, and the perpetrators were caught...]

An investigation by the school is launched.  Students are questioned, and law enforcement is brought in.

Meanwhile, within the next week to ten day period, a duly elected school board member for the Anywhere USA School District hears from three  (3) separate parents and three  (3) separate students about the violent assault, and he also hears about but does not see the video [NOTE: This linked video from a recent actual attack near Detroit, MI is violent, disturbing, contains reprehensible images and language,  and is difficult to watch--viewer discretion is STRONGLY ADVISED]taken of the incident from these constituents.  This particular school board member's district includes Anywhere USA High School, and this board member is very engaged with this school, as he has many relatives that attend here.  Furthermore, this school board member has been vocal about his concerns about violence, bullying, and harassment occurring in local schools like Anywhere H.S. USA.    Shocked at what he has heard,  this particular school board member immediately calls the superintendent of the Anywhere USA school district with what he has now heard from several sources close to the incident.

He is told by the superintendent that the situation is known to the district, and that an official investigation is already underway.   "We've got this" the superintendent tells the board member.

What is FERPA? Part I

FERPA is a law that has been discussed a lot recently in and around the Escambia County School District. It has been tossed around a lot lately.  Some people do not understand this law, what it means, and what it does and does not do.  Some people throw out opinions that are incorrect, and expect us all to just swallow these flawed opinions as if they are somehow sacrosanct.

But I don't agree, and I won't be like a monk from a Gahan Wilson cartoon.

Because of all of this, I’ve done a bit of research myself recently, read about 50 FERPA related cases, large portions of two books, and lots of scholarly articles on this subject.  I’ve also spoken to a total of five lawyers (four of whom I agree with) on this subject and I’m going to be posting some of what I have learned about this law on this site in a multi-part series over the next few days.  I’m also going to be talking about FERPA at our next school board workshop.

FERPA was a law that did not go through the traditional rulemaking process in congress; it was an amendment offered on the floor from Senator James Buckley in December of 1974.  The rationale for the law was to address the need to curtail the widespread practice at that time of publicly funded schools’ disseminating student records and other information to unaffiliated persons outside of the schools. 

Additionally, the law was needed to compel schools to allow parents to view educational records, and to challenge the accuracy of such records.  The law also allowed for penalties to be assessed against publicly funded entities that failed to comply with the law, and this “Buckley Amendment” also outlined a mechanism for the filing of complaints against entities that violated the law.  The Connecticut Parent Advocacy Center has a well-written one-page primer on FERPA, here.

So how does this law apply to individual school board members?

I guess that depends upon whom one asks.  So I’ve asked a lot of people. 

Here is my opinion based upon my research*

I started by contacting the Family Policy Compliance Office(FPCO)—the office in the Department of Education, Office of Civil Rights, that receives, reviews, and investigates alleged complaints related to FERPA.

Their website lists many opinion letters that they have published—I've read a lot of them--although it is not a complete list.  For some specific opinion letters one might need, third party entities must be contacted in order to easily retrieve such opinions.

I’ve requested and received several of these opinions, and they have made for interesting, enlightening reading.

The initial and largest take away I have about FERPA, after thoroughly looking into this law from many different angles,  is that enforcement provisions concentrate on correcting behaviors rather than harshly penalizing institutions for single event infractions.   FERPA a law that is considered by some scholars as “essentially toothless.”  This is because hundreds of complaints have been filed against

Emails Shed Light on What Prompted Memorandum

I have been provided a large stack of emails that I requested regarding the events leading up to a memo that was sent to me by School Board Attorney Donna Waters last week.

The emails shed light on a lot of different aspects of what apparently led to the creation of the memo that was sent to me, the memo that was improper, unprofessional, and badly flawed in my opinion.

Sadly, it appears as if several social justice groups and at least one parent prompted this memo to be written.  I'm posting those emails here.

The Superintendent of Schools has told me flatly that he did not request a memo be written by Mrs. Waters regarding my conduct.

I certainly did not request it--I did nothing wrong.  Mrs. Waters certainly knows how I feel about this matter upon reading this response and this follow up.

So who requested that the Board Attorney write this memo to me, copied to multiple others?

Here is what I believe...

It appears as if the attorney had done a significant amount of research in order to write and submit a "Viewpoint" to the Pensacola News Journal.  Whether or not this was ever submitted, I do not know.

Apparently, possibly, A radio interview by the father of the victim of the WFHS bus incident may have circumvented the need for this "Viewpoint" to be submitted.  Who knows?

The radio interview totally destroyed the PNJ's characterization of this incident and a lot of district employees were happy that this parent spoke out.  This parent heralded the actions of the board and district, while simultaneously chastising the PNJ for their horrible straw man hatchet job editorial of 10-18-2015.

So with all of the research on FERPA compiled, and after the father of the victim spoke out, why would such a memo subsequently be sent by an attorney to her client?  Why not a phone call or a discreet conversation.  Why?

It appears that I was excoriated because some parties outside of the school board, the Board Attorney, and perhaps even the chair of the board did not like the fact that I commented on social media.

Apparently they didn't like me countering the apparent propaganda  and hearsay published on the PNJ with hearsay from constituents that I was receiving about this WFHS bus incident that was totally opposite of the narrative the PNJ was trying to create?

Who knows?

But at the end of the day, I have yet to be officially briefed on this matter.  I have not seen any videos, documents, or hearing transcripts.  I've yet to even receive an official discipline recommendation for any students involved in this incident.  I do not hold any student records I do not have access to any student records, and I have divulged no records to anyone and I certainly have not violated FERPA!  If anyone at the district thought I had violated a law, they should have reported it!  I didn't violate any law, and I don't violate laws.

That is why I feel the written memo was wrong, boderline libelous, and the situation was badly handled by our legal office and others; the memo never should have been written.  This memo is nothing but a dog-whistle being blown loudly  that could embolden enemies of me in particular, and the school board generally, to investigate and dig further and make this situation much more complex for the client.

What attorney in his right mind would write such a public record memo that could potentially bring harm to his/her client or a part thereof of his/her client?

Why so quickly and prematurely write a legal opinion that one part of her client must recuse?

This was outrageous.

This MESS will be discussed at the next board workshop, and hopefully a better, more focused board policy will be forthcoming that will speak to the when, where, and how written memos about the client or parts thereof are created and disseminated publicly by the School Board's General Counsel going forward.

Who Can Accompany a Parent to a Meeting With School Officials?

If a farmer's barn is on fire, yet the farmer does not see it, does not want to see it, cannot see it or is too preoccupied to attend to the fire ----should the fire department not respond if they know the fire is burning?  

If a Good Samaritan tries to tell the farmer that his barn is burning and yet the farmer smiles and does nothing or shrugs his shoulder and says "What do you think I should do?"--should the Good Samaritan call the fire service for the Farmer?  Uh, Yes.

But what if the fire service dispatcher tells the Good Samaritan "We can't respond, you are not the owner of the barn, we must wait until the farmer calls us!"  "You are not the owner of this barn!"

I ask these questions rhetorically and use an analogy to illustrate a problem--this blog entry is not about William Faulkner or Barn Burning or structure fires and emergency responses----It's about people trying to help students and bureaucrats getting annoyed by this. 

Some parents do not know how to best advocate for their own children.  Some parents want to do what is best for their children, but they often let things slip and do not make the right decision for their students--hoping and believing that the system will make sure their students are appropriately looked after.

And well-meaning staff do their best in most instances but even still sometimes mistakes are made.  The wrong class is assigned, the wrong GPA is calculated, the wrong information is given, and the list goes on.

So what happens if a parent that is not necessarily sophisticated with  the world of college eligibility requirements, GPA calculation, or academic scheduling asks another parent for help navigating the