Education Week - October 2, 2019 - 20

OPINION

INSIDE

16

17

18

Don't Stop, Don't Put
Down Your Pencils

The Youth Climate Strikes
Are Why I Quit Teaching
(for Now)

Letters to
the Editor

The Opportunistic Use of
Student Data-Privacy Laws
What the Ed. Dept.
got wrong
By Frank D.
LoMonte
LoMONTE is an
attorney, a professor
of media law at the
University of Florida,
and the director
of the university's
Brechner Center
for Freedom of
Information.

R

ecruitment rivalry between school
districts and the operators of charter schools is exposing a flaw in
federal data-privacy law that calls
for congressional repair.
Recently, a Tennessee appeals
court ordered the Nashville school
district to turn over student enrollment lists requested by
two charter school proprietors, who plan to use the lists
to market their alternative educational options to local
families. The court rejected the Nashville school board's
claim-a position shared by the Memphis school district-
that federal privacy law makes it optional for districts to
produce or withhold student directories as they choose.
The squabble is the result of an ill-considered U.S.
Department of Education regulation that managed to
make an already befuddling privacy law-the Family
Educational Rights and Privacy Act (or FERPA)-even
more incoherent.
FERPA requires educational institutions to enforce
a policy of keeping students' education records
confidential, but identifies categories of harmless
"directory information" that can freely be released.
Schools depend on the directory-information exemption
to conduct routine business; without it, they couldn't
publish the honor roll or hand out programs at graduation.
FERPA regularly collides with state freedom-ofinformation laws, which entitle the public to all sorts
of documents kept by public educational agencies. But
the directory-information exception helps there, too. It
enables journalists to find students to interview, and to
verify newsworthy information, such as whether the guy
picked up by the police on rape charges is president of his
fraternity or has withdrawn from college.
At least, until the Education Department threw a
wrench into it.
In a textbook example of "if it ain't broke, break it," the
department changed its interpretation of FERPA in 2011,
giving school authorities a federal license to grant or deny
access to directory information at their whim, depending
on who's asking. In other words, the same document that
would be a public record readily provided to a requester
who's friendly to the school district could be withheld
from the district's critics.
This goes against a foundational tenet of every state's
freedom-of-information law: that it doesn't matter who's
requesting the information or why. States unanimously
honor this principle because they don't want politicians
opportunistically deciding who "deserves" to get
information and who doesn't.
The Education Department was warned-
strenuously-that the rule was a mistake. Commenters
responded to the proposed regulation by cautioning
that discriminatory disclosure would inevitably be
abused. Schools would punish journalists for unflattering
coverage by cutting off access to information. Worse,
districts could corruptly favor their preferred businesses
by sharing families' addresses with only the incumbent
vendor of class rings or caps-and-gowns, shutting out
competitors.

20 | EDUCATION WEEK | October 2 , 2019 | www.edweek.org/go/opinion

Peter Hoey for Education Week

But, under then-U.S. Secretary of Education Arne
Duncan, the agency disregarded the red flags and plowed
ahead.
As predicted, school districts have tried to use their
newfound "information rationing" authority to strategic
advantage. Just as Tennessee school districts have
withheld student directories from perceived competitors,
so did districts in Ohio-until state courts halted the
practice.
Setting the stage for the recent Tennessee case, the
Ohio Supreme Court ordered the city of Springfield's
school district in July 2016 to make directory information
available to school-choice advocates.
A nonprofit organization, School Choice Ohio, filed
a public-records request seeking names and contact
information for students in the Springfield district,
hoping to send their families information about financial
assistance for options to public school. The district
only partially fulfilled the request, claiming that the
information was not a public record and could not be
released because of FERPA.
Relying on the 2011 rule change, Springfield city
schools maintained a selective directory information
policy enabling the superintendent to pick and choose
who could receive records. But the Ohio court found that
the federal rule couldn't override state laws that make
disclosure mandatory.
The Ohio court decided that, having told parents
that Springfield's directory-information policy allowed
disclosure to "community organizations" and "schoolrelated organizations," the superintendent could not rely
on the federal rule to single out only certain community
organizations to receive information.
Then in February 2019, the Tennessee Court of
Appeals followed suit. In a 3-0 ruling, the judges rejected
the Nashville Board of Public Education's contention
that, because the Department of Education's FERPA
interpretation made disclosure optional, the state could
not compel districts to disclose directory information.
In simple terms, the court explained, when the

federal government says "you may choose to release
information," that means there's no federal prohibition
against release-which means the state disclosure law
applies.
While there's a growing legal consensus that the
department overstepped its authority in adopting the 2011
discriminatory access rule, further conflict is inevitable as
long as the rule remains on the books.
Over the decades of FERPA's history, the department
has insisted that it is uninterested in trying to harmonize
the statute with state open-government laws, because it
does not regard school transparency or accountability as
a priority.
The Ohio and Tennessee rulings follow a pattern
almost as old as the 45-year-old privacy law itself: The
department adopts an unreasonably broad interpretation
to serve the secrecy interests of educational institutions,
and the courts must fix it.
It's what happened, for instance, when the department
tried to stretch FERPA to enable colleges to conceal
crime reports maintained by campus police. It took
years of unnecessary court battles before, grudgingly,
the department agreed to correct the mistake. In recent
years, courts have agreed that the department is wrong to
categorize videos shot by school surveillance cameras as
FERPA records. As schools fortify their police presence,
the public needs access to video footage to keep schools
safe and accountable.
Recently, the Education Department served notice
that it plans to issue a rule in February 2020 updating its
privacy-compliance regimen. FERPA is a disastrously
broken statute that is in need of multiple repairs, but the
easiest fix of all would be repealing the failed selective
disclosure policy, to bring directory information back into
harmony with the way courts (correctly) understand it.
If the U.S. Department of Education will not act,
Congress must. The irrational discriminatory access rule
should be overruled, and the public's entitlement to the
basic who-what-where information that makes schools
function more efficiently should be fully restored. n
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Education Week - October 2, 2019

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