For Immediate Release:
1/7/09

Contact:
Dave Aeikens, SPJ President, (320) 255-8744, daeikens@stcloud.gannett.com
Scott Leadingham, SPJ Communications Coordinator, (317) 927-8000,
sleadingham@spj.org

INDIANAPOLIS – The Society of Professional Journalists, spurred by its Freedom of Information Committee, has sent a letter to congressional committee leaders asking them to hold hearings on a rule change by the Department of Education that could stymie access to school records.

At issue is the Federal Education Rights Privacy Act – FERPA – and the DOE’s new rule change in line with the law. The change will restrict journalists, parents and other interested parties from receiving information about acts of violence in public schools, including high schools and colleges.

The primary recipients of the letter were Sens. Edward Kennedy and Michael Enzi – respectively the chairman and ranking member of the Senate Health, Education, Labor and Pension Committee – and Reps. George Miller and Howard McKeon, respectively the chairman and ranking member of the House Education and Labor Committee.

A copy of the letter, sent Tuesday, Jan. 6, follows:

The Honorable Edward M. Kennedy, Chairman
Committee on Health, Education, Labor and Pensions
United States Senate
428 Senate Dirksen Office Building
Washington, DC 20510

The Honorable Michael B. Enzi, Ranking Member
Committee on Health, Education, Labor and Pensions
United States Senate
835 Senate Hart Office Building
Washington, DC 20510

Copies to various members

Dear Sens. Kennedy and Enzi,

I am writing on behalf of the Society of Professional Journalists to alert you to a serious problem involving new regulations issued by the Department of Education. These regulations, which became final on January 8, greatly expanded the secrecy provisions of the Federal Education Rights and Privacy Act in a way that goes well beyond the scope of the statute itself. These overreaching regulations hinder accountability in the schools – both high schools and colleges – and diminish public safety. We hope you will consider calling a hearing on this important issue.

The regulations would deny the public any information about school responses to crime incidents such as potential shooters on campus; would require record holders to read the mind of requesters to decide if they are seeking information about a particular person when asking for anonymous records, and would deny the disclosure of statistical information if it might be used by someone to determine the outcome in a particular disciplinary case.

FERPA protects the privacy of educational records that name individual students. The DOE has expanded FERPA by rulemaking to cover records that don’t name or otherwise identify individual students, if the records pertain to an event that is sufficiently well-known within the campus or if the school otherwise decides that the person asking for the documents already knows or can figure out to whom the documents pertain.

The DOE expressly states in one example that its intent is to make sure that if a student brings a gun into a high school and is punished, that student’s privacy is protected and the public can never find out that a potential Columbine-style shooter was caught at the school. The DOE specifically states that the school could not even confirm that it had disciplined an unidentified student for possession of a gun, because the event likely was well-known enough within the school that members of the school community would know to whom the record referred. Therefore, according to the DOE, school officials would violate FERPA if they in any way confirmed to the public that they had prevented a potential school shooter from going on a rampage in the local high school – because that would violate the privacy rights of the would-be shooter. Is this kind of irrational secrecy truly within the scope of FERPA?

The new regulations deal with so-called “targeted” requests, in which the requester asks for a record with any personally identifiable information redacted, but the custodian of the record believes the requester knows the identity of the student anyway. The concern, apparently, is that the requester, if it’s a reporter, would identify the student named in the record despite the custodian’s attempt to maintain the student’s privacy by redacting personally identifiable information. Our concern is that the regulation requires the custodian to read the mind of the requester and make assumptions about the requester’s intent. Many requests for records related to an ongoing story will be legitimate requests for information for sidebars or generic stories. For example, a story about a student on drugs might give rise naturally to a request for records on all the students disciplined for drugs during that school year. That certainly wouldn’t be a “targeted” request, but the custodian might perceive it as such – in his attempt to read the mind of the requester – and thus deny what is really a legitimate request for information. In fact, we worry that school officials might use this provision to begin to deny ALL requests for redacted information from reporters because of fears that the release of the information might lead to stories beyond their control. We hope this concerns you as much as it concerns us.

Finally, reporters as well as parents often will ask for statistical data on criminal behavior and disciplinary matters – for reasons of school accountability. These new regulations tell schools that they can’t even release statistics if they think people in the school would know charges had been brought against particular individuals and, using the statistics, could then determine the outcome. In this scenario, it doesn’t even matter if the requester has no idea who the particular individuals are – it only matters that someone in the school might have an idea who they are.

The new regulations were circulated in draft form on March 24, 2008. SPJ, along with other open-government advocates such as the Student Press Law Center, urged the Department not to expand the scope of FERPA. DOE refused to make any changes in the draft rules and reissued them in final form in the December 9, 2008 edition of the Federal Register. They became effective January 8, 2009.

In its comments in the final regulations, the DOE stated specifically that it made no attempt to strike a balance between legitimate privacy interests and the public’s right to hold schools accountable, saying that accountability doesn’t matter and its only concern was secrecy. This interpretation of FERPA goes well beyond what we believe is the scope of FERPA and contradicts every court ruling interpreting FERPA.

Journalists aren’t the only people concerned with school accountability. Parents use open records laws to keep tabs on the performance of schools, and parents as well as journalists will be stymied in doing their due diligence as citizens researching the performance of K-12 schools and colleges if the Department’s FERPA rule has its intended effect. As we move toward a more market-based, competitive model for improving school performance, families should be entitled to more, not less, information before choosing the school in which their children enroll.

We hope you will consider calling for hearings on this issue in order to prevent FERPA from being expanded, via the new regulations, to require the secrecy of records that in no way infringe on the privacy of individual students. It may be necessary for Congress to pass additional legislation to clarify this issue. We stand ready to assist you in any way we can.

Sincerely,

David Aeikens, president
Society of Professional Journalists

CC:
Rep. George Miller, Chairman, Committee on Education and Labor
Rep. Howard “Buck” McKeon, Ranking Member, Committee on Education and Labor

Rep. Carolyn McCarthy of New York
Rep. John Sarbanes of Maryland
Rep. Carol Shea-Porter of New Hampshire
Rep. Dennis Kucinich of Ohio

Sen. Christopher Dodd of Connecticut
Sen. Lamar Alexander of Tennessee
Sen. Patty Murray of Washington
Sen. Jack Reed of Rhode Island
Sen. Orrin Hatch of Utah
Sen. Bernie Sanders of Vermont
Sen. Johnny Isakson of Georgia

David Cuillier, SPJ Freedom of Information Committee chairman
Carolyn Carlson, SPJ Freedom of Information Committee member
Bruce Sanford, SPJ First Amendment counsel
Daniel Carter, Director of Public Policy, Security on Campus, Inc.


Founded in 1909 as Sigma Delta Chi, SPJ promotes the free flow of information vital to a well- informed citizenry; works to inspire and educate the next generation of journalists; and protects First Amendment guarantees of freedom of speech and press. For more information about SPJ, please visit www.spj.org.

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