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Federal law puts safety concerns, student privacy in conflict

By Marissa Heffernan, The Daily News
Published: January 27, 2020, 1:30pm

LONGVIEW — In October, an 11-year-old boy at Cascade Middle School brought a “kill list” to school.

Police arrested him, but a Cowlitz Juvenile Court judge soon determined there was no probable cause to hold him in jail or to file charges. District officials announced he was suspended. But after the initial announcement, the district said it could not reveal what discipline the student would face, where and when he would return to school, how he would be counseled and how they would keep tabs on him.

The district cited a 1974 federal law prohibiting it from releasing student information without parental consent. The law dates from a time before school shootings became commonplace, yet it still overrides the state Open Records Act.

That troubles Longview resident Kyle Fisher.

His daughter was on the “kill list,” even though she attended a different Longview middle school. Fisher argues that he has a right to know how the district handled the student because his child was a victim of the threat.

“There’s no reason why the victim’s parents … shouldn’t be 100% involved with what’s going on,” Fisher said. Directly following the incident, many parents made similar demands on Facebook.

In effect, they’re saying that privacy rights conflict with their right to know how the district is keeping their children safe.

‘Well-meaning law creates confusion’

More commonly known as FERPA, the Family Educational Rights and Privacy Act protects the privacy of student education records. It gives parents and students older than 18 years old the right to control distribution of personally identifiable information.

The law prohibits disclosure of names, addresses and anything that is “linkable to a specific student that would allow a reasonable person in the school community … to identify the student with reasonable certainty.” For that reason, the district denied a TDN public records request about the incident. The law has been updated several times.

Kendrick Washington, who is on the American Civil Liberties Union of Washington’s Youth Policy Council, said FERPA is a comprehensive law to protect children’s privacy.

“It’s important for parents to understand that these are still children, and in order to protect them from other children, from other parents and even to protect their future educational career (the information is kept private),” Washington said.

However, parental consent of disclosure is not needed in a handful of circumstances. School districts can release information to other school officials with a “legitimate education interest” or if a student is transferring schools, to the attorney general or to state and local education authorities. The information can also be released for financial aid, testing, studies or under a subpoena.

Longview Superintendent Dan Zorn said districts must to be careful to follow FERPA, because violations can lead to fines, federal sanctions and lawsuits.

“The vast majority of those rules are incredibly well-meaning and are looking out for the well-being of our kids,” Zorn said. “But they can create confusion and misunderstandings, and we understand that.”

FERPA is so strict that it even prohibits disclosure about minor spats, but parents usually only get upset when a serious conflict or threat arises, Zorn said.

“People want to know that we’re dealing with something, but FERPA is pretty clear with us that we cannot share disciplinary action we take with individual students with anyone but that student and their parents,” Zorn said. “And so that’s where we run into the challenge.”

While the district can tell parents what its general policies are and reassure them that the district is investigating, parents understandably want to know more details out of concern for their own child, he acknowledged.

“That’s a very legitimate request and we try to honor that, but we have to be careful to protect the rights of the individual as well, because that is equally a very legitimate concern,” Zorn said.

Washington, (the ACLU source) said parents often ask what the punishment is, but the desire behind that question more often is: What are you doing to protect my child?

“The real question isn’t ‘Is the school punishing the offender?’ … It’s ‘What is the school doing to create a safer environment for my child?’ ” Washington said. “Punishment doesn’t necessarily create a safer environment.”

That’s because punishments tend by law to be short term, he said. Especially for high-level conflicts, Washington said schools should focus on re-entry plans, as even students who are expelled will almost always return to school. Under state law, expulsions aren’t permanent.

“What we don’t want to do is create a situation where that student feels even more alienated,” Washington said.

He said that as a parent, he understands the desire to know more, but parents should ask about long-term solutions.

“We at ACLU certainly understand … the concern of parents who want their student to be safe at school. We often take on cases to make sure students are safe in school,” Washington said. “But again what it comes down to is: Is knowing what a school did to punish another kid actually making your kid safer?”

Safeguarding ‘incredibly private’ information

Longview’s Zorn said often, the details the district finds as it investigates present a different picture than what the public sees, or is allowed to see.

“Oftentimes when you dive into those situations there are a lot of different circumstances that people aren’t aware of,” Zorn said. “And you do often run into situations that are incredibly private and very complex.”

Fisher said that the lack of details available under FERPA contributes to misinformation spreading, especially over social media.

“It keeps everyone in the dark and then people start making their own truth out of it,” Fisher said.

Longview spokesman Rick Parrish said the district could release more detail around discipline if the parents of the child in question sign a FERPA release, but he said so far nobody has agreed to do so.

Part of the reason for that, Zorn said, is that the situations are emotional by nature.

“As a parent there’s nothing as emotional as dealing with your own children, especially when they find themselves in conflict,” Zorn said. “… It’s very difficult to remove that emotion. I would argue it’s impossible. They’re your kids. That’s the most important life in your world.”

There is no notable state or national effort to modify FERPA, according to representatives from the Office of the Superintendent of Public Education, the State Board of Education and multiple other sources.

But Fisher, the father of the girl named in the Cascade student “kill list,” said he thinks loosening FERPA restrictions to allow punishments to be disclosed could act as a deterrent to other students.

“If they know boy ‘A’ got in trouble this way for doing this action, (then they’d think) ‘I don’t want to get in trouble like that,’ ” Fisher said.

He also said disclosing punishments would set a precedent to ensure that students are receiving equal discipline.

“Even when it’s not something as serious as a death threat, even if it’s bullying or something of a sexual nature, we need to know as parents what we can expect to happen to our children if they do something,” Fisher said. “We don’t know what the precedent is. We need to know where that line is set so everyone is on an equal playing field.”

Washington suggested that even thought a school isn’t allowed talk about punishments for specific students, minimum to maximum punishments can be found in student code of conduct documents.

Fisher said that even if it were his own child, he’d want the community to know how the situation was being handled.

“I’m the kind of parent who if my child has done something I want to get ahead of it and I want to be as transparent as I can,” Fisher said.

Zorn said he wouldn’t recommend any changes to FERPA.

“I understand why it’s in place and I think the spirit of it is real solid,” Zorn said. “I think with any law there’s difficultly in interpretation and how you carry that out. But I also know whenever you start making changes there are unintended consequences of those changes as well.”

Kelso Director of Student Services Don Iverson said FERPA provides parents and students with safeguards, and that any changes to make the law more or less restrictive should be done with “extreme diligence.”

“FERPA has been responsive to changes that were needed in regards to school safety and emergency situations and I believe they will continue to be responsive in that area,” Iverson said.

Zorn added that FERPA protections are important because “kids make mistakes, there’s no doubt about it.”

He said while it’s necessary to discipline students, the point is to teach them correct behavior. Making their punishments public might not be the best way to help.

Making such information public and causing shame could further push away students who need to learn better behaviors, said Washington, the ACLU source.

“It’s a delicate balance between providing safety and security for the majority of students who are doing the right things and following school rules … and taking those students who broke a school rule and figuring out a way to bring them back into the fold,” Washington said.

As for Fisher, he’d still like to see a loosening of FERPA’s restrictions.

“It’s a law. I understand it, to a point, from the school,” Fisher said. “I try to be very understanding about the whole situation … (But) it’s ridiculous that we don’t know what happened.”

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