This article examines how FERPA has been, and continues to be, improperly invoked as grounds to withhold—often in their entirety—public records that discuss the on-duty official performance of public servants merely because they are employed in the field of education. First, the article will examine what FERPA is and how it was intended to operate. Next, it will examine how courts have applied FERPA to instances of alleged misconduct by public employees and records of investigations into such allegations. Lastly, the article will discuss a few recent positive outcomes, both in the courts and without need for litigation, in gaining access to public records concerning employee misconduct in the field of public education.
FERPA: A Quick Overview
FERPA is a federal law, enacted in 1974, that affords parents the right to access their minor children’s “education records,” the right to seek to have those records amended, and the right to have some control over the disclosure of “personally identifiable information” from the records. When a student turns 18, or enters a post-secondary institution at any age, the rights under FERPA transfer from the parents to the student. FERPA is found at 20 U.S.C. § 1232g, and regulations promulgated by the U.S. Department of Education (DOE), the federal agency authorized to enforce the Act, are found at Title 34, Part 99, of the Code of Federal Regulations.4
FERPA does not actually prohibit any educational institution from disclosing any information.5 It merely declares that DOE may (not shall) suspend federal education funding to any institution receiving such funds upon a finding that the institution (school district, college, or university) has a “practice” of releasing “personally identifying information” contained in “education records” without authorization, i.e., without a parent’s or eligible student’s consent. Each of these key terms in the law will be explained further below.
FERPA does not provide a private right of action by any party aggrieved or injured as a result of an educational institution’s unauthorized disclosure of “personally identifying information” contained in an “education record,” nor can a claim for damages resulting from any such violation be pursued under the federal civil rights law, 42 U.S.C. § 1983.6
- Which records are “covered” by FERPA? The statute defines “education records” as “those records, files, documents, and other materials which—(i) contain information directly related to a student; and (ii) are maintained by an educational agency or institution or by a person acting for such agency or institution.”7 As we’ll see below, the first prong of this definition has been the focus of some litigation over what is and what is not “information directly related to” a student.
- What is “personally identifying information”? That term is not defined within the statute itself. The regulations promulgated by DOE define “personally identifiable information” (PII) to include information such as a student’s name, family names, date of birth, or “other information that, alone or in combination, is linked or linkable to a specific student that would allow a reasonable person . . . to identify the student with reasonable certainty[.]”8 Included in the definition of PII is “[i]nformation requested by a person who the educational agency or institution reasonably believes knows the identity of the student to whom the education record relates.”9 This latter provision casts some doubt on when a school, college, or university may release education records in compliance with DOE’s regulations that permit the institution to excise or redact PII prior to disclosure.10
Some Often-Cited Exemptions
Though not relevant to any of the examples set forth at the outset of this article, FERPA contains an express exemption for public disclosure by colleges and universities of “the final results of any disciplinary proceeding conducted by such institution against a student who is an alleged perpetrator of any crime of violence . . . or a nonforcible sex offense, if the institution determines as a result of that disciplinary proceeding that the student committed a violation of the institution’s rules or policies with respect to such crime or offense.”11
Materials created and maintained by a school’s law enforcement unit for law enforcement purposes make up another notable category of documents excluded from FERPA’s definition of “education records.” Importantly, this category applies only to those records that are (1) “created by a law enforcement unit,” (2) “created for a law enforcement purpose,” and (3) “maintained by” a law enforcement unit. So, video recordings by surveillance cameras, whether on the school campus or inside a bus, might not fall within this exemption if they are recorded or maintained by the school’s or university’s general administration as opposed to by a “law enforcement unit.”12
A third exemption broadly permits release, without parental consent, of PII in education records “in compliance with a judicial order, or pursuant to any lawfully issued subpoena, upon condition that parents and the students are notified of all such orders or subpoenas in advance of the compliance therewith.”13 FERPA thus generally authorizes the release of records in response to an order from any court acting properly within its jurisdiction.
- What is a “practice” of unauthorized disclosure of PII? As discussed above, FERPA does not actually prohibit any educational institution from disclosing PII contained in any single “education record” without parental or an adult student’s consent. Instead, the statute authorizes DOE to impose, as a possible sanction against an educational entity that receives federal funding, the suspension or withdrawal of further federal funding. But such a draconian sanction cannot be premised on a single unauthorized disclosure, or even a handful of them;14 only if DOE finds that the educational institution has adopted a “pattern or practice” of engaging in such unauthorized disclosures, may it face the possibility of that severe financial sanction.
It is certainly worth noting that, in the 47 years FERPA has been on the books, DOE has never suspended federal funding, even temporarily, to any school, school district, college, or university for failing to comply with FERPA.15
How Courts Have Applied FERPA in Cases Concerning “Public Records” Regarding the Conduct of Public Education Employees
We turn now to the arguments various records requesters have presented in seeking access, under states’ public records laws, to records maintained by a school district, college, or university that concern allegations of professional misconduct by school personnel. In the past year, two state supreme courts—in Pennsylvania16 and Kentucky17—have addressed these issues, and, in two detailed and thorough opinions, both courts ordered disclosure of the records at issue with students’ images and identities redacted, to “de-identify” the “education records” as authorized by FERPA regulations. Much of the discussion of the case law that follows comes from those two fairly comprehensive surveys of the FERPA statute, regulations, and case law. The legal issues are set forth below in the logical sequence that a court should address them.
Are Such Records “Education Records” of the Victimized Students?
Courts have disagreed whether records whose contents concern allegations of improper conduct by public employees (albeit while interacting with one or more students) qualify as “education records” because it is unclear whether such records contain “information directly related to a particular student.” In Ellis v. Cleveland Municipal School District,18 the plaintiff sought discovery of “incident reports related to altercations between substitute teachers and students, student and employee witness statements related to these incidents, and information related to subsequent discipline, if any, imposed on the substitute teachers[.]”19 The District Court for the Northern District of Ohio held that FERPA did not prohibit disclosure of the information sought by the plaintiff: “FERPA applies to the disclosure of student records, not teacher records. While it is clear that Congress made no content-based judgments with regard to its ‘education records’ definition . . . it is equally clear that Congress did not intend FERPA to cover records directly related to teachers and only tangentially related to students.”20
Similarly, in Rome City School District Disciplinary Hearing v. Grifasi,21 a school district video camera captured images of students involved in an altercation, along with those of bystanders to the skirmish. A student who was suspended for the incident subpoenaed the school district for copies of the video recordings. The court rejected the school district’s argument that the videotape was an education record, stating:
FERPA is intended to protect records relating to an individual student’s performance. [It] is not meant to apply to records, such as the videotape in question which was recorded to maintain the physical security and safety of the school building and which does not pertain to the educational performance of the students captured on this tape. . . .22
In direct contradiction of the above ruling, Utah’s Court of Appeals found that a surveillance video that captured a fight between students was properly withheld by the school district as an “education record” of both sets of students involved in the fight, and thus was protected by FERPA from disclosure under the state’s open records act.23
In 2017, DOE posted guidance on how covered educational institutions should treat photos and video recordings that include images of students.24 It gives credence to the view that even if the “primary” focus of the records is the conduct of a school employee, that does not foreclose the conclusion that the record nevertheless contains “information directly related to a particular student (or students).” The guidance states that “[i]n the context of photos and videos, determining if a visual representation of a student is directly related to a student (rather than just incidentally related to him or her) is often context-specific” and that certain types of photos and videos should be examined “on a case by case basis to determine if they directly relate to any of the students depicted therein.”25 In addition, DOE’s guidance cites an earlier opinion it issued that construed a video showing student victims of assaults, by other students, as “education records” of the victims:
An educational entity may consider a video maintained by the school as directly related to a student, and thus an education record, if the video is used in disciplinary action or other purposes involving the student (including the victim of a disciplinary incident), or if the video shows a student involved in an altercation … see also Letter to Wachter (USDOE Office of the Chief Privacy Officer, Dec. 7, 2017) (surveillance video depicting hazing incident was an education record of both the students who were disciplined and those who were the victims of the hazing).26
According to DOE’s guidance, a photo or video may be considered an “education record” if it contains a depiction of an activity
that shows a student getting injured, attacked, victimized, ill, or having a health emergency; . . . or
The audio or visual content of the photo or video otherwise contains personally identifiable information contained in a student’s education record.27
The guidance further explains that “[a] photo or video should not be considered directly related to a student [and, therefore, not an education record] in the absence of these factors and if the student’s image is incidental or captured only as part of the background, or if a student is shown participating in school activities that are open to the public and without a specific focus on any individual.”28 This last clause clearly exempts from the ambit of “education record” any school-maintained recordings of school athletic events, like varsity baseball, basketball, or football games that are open to the public.
Under DOE’s guidance, whether a video (or, by extension, an investigative report) concerning allegedly improper conduct by a school staff member constitutes an “education record” of the student victim(s) of such misconduct is more nuanced; the greater the extent that any particular students’ faces or identifies are “featured” or are the “specific focus” of such employee’s misconduct—as opposed to merely being “incidental” or “part of the background”—the greater the likelihood a court will find the photo, video, or investigative report is an “education record” of the victimized student(s).
Does FERPA Actually “Prohibit” the Disclosure of a Single Education Record?
Aside from the question whether a particular document constitutes an “education record” under FERPA, there is an unresolved question whether disclosure of such a record by an educational agency receiving federal funding is actually “prohibited,” which is the condition required to invoke state public records laws exemptions for documents whose disclosure would be in “violation of” or “contrary to” federal law. As set forth above, FERPA subjects such federally funded institutions to potential sanctions for having a “policy or practice” of unauthorized disclosure of PII in education records; FERPA does not, therefore, “prohibit” such disclosure in all cases, nor in any particular case.
This distinction has led some courts to conclude that a state university or local school district cannot cite FERPA as the basis for arguing that disclosure of an education record would violate federal law. Vermont’s Supreme Court summarized these decisions in 2003:
Some have questioned whether the federal law, merely by withholding funds from educational institutions that release education records to anyone other than certain enumerated persons, affirmatively prohibits disclosure of student records. See, e.g., Red & Black Publ’g Co. v. Bd. of Regents, 262 Ga. 848, 427 S.E.2d 257, 261 (Ga. 1993) (“We have serious questions whether [FERPA] even applies to the [open meeting] exemptions argued by the defendants since [FERPA] does not prohibit disclosure of records. Rather, . . . [FERPA] provides for the withholding of federal funds for institutions that have a policy or practice of permitting the release of educational records.”); Bauer v. Kincaid, 759 F. Supp. 575, 589 (W.D. Mo. 1991) (“FERPA is not a law which prohibits disclosure of educational records. It is a provision which imposes a penalty for the disclosure of educational records.”). But cf. DTH Publ’g Corp. v. Univ. of N.C. at Chapel Hill, 128 N.C. App. 534, 496 S.E.2d 8, 12 (N.C. Ct. App. 1998) (because FERPA “operates by withholding funds, we hold FERPA does make student education records ‘privileged or confidential’ for [open meeting law] purposes”).29
The two recent rulings from the Kentucky and Pennsylvania supreme courts, discussed below, reached the opposite conclusion, finding that FERPA’s regime of sanctions for an educational institution’s “policy or practice” of unauthorized disclosures serves, effectively, as a “prohibition” on such disclosures.30
Can a State Court Judge Order the Disclosure of an Education Record Without Causing a FERPA Violation?
Even if a court were to conclude that a particular document is an “education record” subject to FERPA, and that FERPA generally serves as a prohibition on unconsented-to disclosure of PII in such records, there is a statutorily grounded argument that disclosure of such information in compliance with a state court’s order commanding such disclosure automatically does not violate FERPA. Remember that FERPA expressly declares it is not a violation of the statute to release PII in an education record “in compliance with judicial order . . . upon condition that parents and the students are notified . . . in advance of the compliance therewith.”
So, the argument goes, if a state court judge finds that a certain document is a “public record” that must be disclosed, absent some independent state statutory provision that precludes disclosure, release of records in compliance with a judicial order requiring disclosure would not violate FERPA (and could not “count” as part of a “policy or practice” of unauthorized disclosures subjecting that institution to sanctions by DOE). This view was recently embraced by Pennsylvania’s Supreme Court when it found that a single court order requiring disclosure would not cause a loss of federal funding: “the lower courts’ orders [requiring disclosure] would operate to excuse any confidentiality obligation of the [School] District without consequence to its funding, consistent with Subsection 1232g(b)(2)(B)’s exception for information that is furnished pursuant to judicial order.”31
However, Iowa’s Supreme Court has rejected this argument:
It would make no sense to interpret the “judicial order” exception as authorizing disclosure whenever a party chose to bring a separate court action seeking access to education records. This would lead to a highly incongruous situation where FERPA would only have effect until the party requesting records chose to go to court, at which point FERPA would cease to have any effect at all. . . .
In short, the “judicial order” exception informs an educational institution when it may release educational records; it does not inform a court when it may enter an order.32
Can a School, College, or University Release Education Records Without Student or Parental Consent in Redacted Form, Even If the Records Requester Knows the Student’s or Students’ Name(s)?
Recall that FERPA does not subject schools to potential sanctions for having a “pattern or practice” of unauthorized release of “education records,” but only the “personally identifiable information” (PII) contained in those records. And, indeed, DOE regulations implementing FERPA authorize schools to release education records without parental consent when they have been “de-identified,” i.e., when all PII has been redacted.33 DOE’s guidance on photographs and/or videos depicting students strongly supports this approach. It instructs when a parent of one student depicted in a video recording asserts his or her statutory right to inspect it: “[i]f the educational agency or institution can reasonably redact or segregate out the portions of the video directly related to other students, without destroying the meaning of the record, then the educational agency or institution would be required to do so prior to providing the parent or eligible student with access.”34 Of course, if the school or other educational institution must (under FERPA) provide a directly affected student (or her parent) with such access, it can (and is “required,” not by FERPA, but by state public records laws to) do so in response to a request by a member of the public. And, indeed, that is precisely the result recently reached by the Pennsylvania and Kentucky supreme courts.
But what if the name(s) of the student(s) who is(are) featured or discussed in the records has already been publicly disclosed in court proceedings or has become discovered by the member of the press seeking access to the records? The regulation does not authorize the release of “de-identified” education records unless “the educational agency or institution or other party has made a reasonable determination that a student’s identity is not personally identifiable,” and in doing so, the educational institution must “tak[e] into account other reasonably available information.”35 It was on this basis that Colorado State University refused to disclose its investigation file of men’s basketball coach Larry Eustachy, discussed in the second scenario at the start of this article.36 The Denver Post (and other news organizations) already knew the names of the players who had been verbally abused by Eustachy at a game played before thousands of people.
However, Pennsylvania’s Court of Appeals rejected the argument that redaction would be ineffective because the identity of a student recorded on such a video was already a matter of public record:
[T]he School District argues that, even if the video was redacted to blur the identity of the student who was involved in the fracas—everyone would know exactly who the student is because the news coverage and public legal filings identify the involved student and the adult by name. The School District argues that . . . the video’s disclosure in redacted form would be tantamount to releasing an unredacted and fully identified education record in violation of FERPA. . . .
We find the argument to be somewhat circular. [T]he purpose of the protective provisions of FERPA is to allow access by parents to the student records and to provide a measure of privacy in those records. . . . If, as the School District alleges, the student involved has already been publicly identified . . . then withholding the video would not serve the purposes of protecting the privacy of the student under FERPA.37
University of Kentucky Ordered to Disclose Redacted Version of “Education Records” Discussing Sexual Assaults by a Tenured Professor
In March 2021, the Kentucky Supreme Court issued a detailed and thoughtful analysis of how that state’s public records law interacts with FERPA when the records at issue focus primarily on the conduct of a school employee (as described in the third scenario at the outset of this article):
In 2015, two University of Kentucky graduate students complained of sexual assaults by Dr. James Harwood, a professor in the University’s College of Agriculture. The University investigated the allegations, assembled an investigative file and prepared a final investigative report . . . [which] concluded that sufficient evidence existed to support a finding that Harwood assaulted and harassed both graduate students. After the EEO relayed its findings to Harwood, he resigned prior to final adjudication. The University and Harwood reached a separation agreement. . . . [It] provided that the University would not . . . revoke Harwood’s tenure; Harwood would continue to receive his salary with benefits . . . and [he] and his family would continue to receive health benefits from the University. . . .38
The two young women who had been sexually assaulted by Dr. Harwood did not wish to let him get away unscathed, so they notified the student-run newspaper, The Kernel, which requested to inspect the Harwood Investigation Report under Kentucky’s Open Records Act. After the university denied the newspaper’s request in its entirety, the Kentucky attorney general ruled in favor of the newspaper. But then the trial court ruled that the entire investigation file constituted an “education record” under FERPA and because the two sexual assault victims had been publicly identified, the court found that redaction would be ineffective in de-identifying the records.39
Kentucky’s Court of Appeals rejected the trial court’s findings. It held that the university had (belatedly) filed a deficient index of the withheld records and did not comply with the Open Records Act in any meaningful way. The appellate court also concluded that the trial court made an erroneous factual finding that all the records in the investigative file were “education records” covered by FERPA.
In its review of the case, Kentucky’s Supreme Court ruled that the university had failed to abide by Kentucky’s Open Records Act when it announced, in a single paragraph (citing five separate statutory exemptions), it was withholding the entire Harwood Investigation Report:
The 470-page investigative file contains student-specific information, including explicit details of the alleged misconduct, witnesses’ names and initials, phone numbers, email addresses, home addresses, travel plans, research projects, photographs, text messages, medical information about a party’s family member, information about the parties’ personal lives, and details about relationships and interactions among people in the relevant department at the College of Agriculture.40
While recognizing that documents deemed “education records” under FERPA were expressly exempt from disclosure under the state’s Open Records Act, Kentucky’s Supreme Court stated:
Most courts have concluded that records relating to employee misconduct do not constitute student educational records because they directly relate to the activities and behaviors of employees, although at least one court has determined that education records can directly relate to a student and teacher simultaneously. . . .
. . . [A] considerable number of the documents in the investigative file cannot conceivably relate “directly” to a student, and therefore would not qualify as an education record under FERPA. . . . As for other documents that do specifically mention students, many of those also are not likely education records under the narrow reading of FERPA adopted by most courts.
. . . Of course, even education records are generally subject to production in redacted form. On remand, the University must fulfill its statutory obligations under the ORA so that The Kernel has sufficient information to challenge any FERPA claims, and the trial court can then rule as to any documents that remain in dispute.41
In late May 2021, The Kernel finally received the Harwood investigation records from the University of Kentucky. But after reviewing them, and believing they were overly redacted, The Kernel objected and asked the university to disclose the details of Harwood’s described misconduct, the locations where it took place, and the “angry emails” he allegedly sent to students involved with the investigation.42 The university refused, saying the information could potentially identify the victims. The Kernel decided against further litigation.43
Pennsylvania School District Ordered to Release Redacted Version of School Bus Surveillance Video of a Teacher Assaulting a Student
In June 2020, Pennsylvania’s Supreme Court issued a ruling in a case involving a school bus surveillance video that captured apparent misconduct by a teacher in the Easton School District interacting with a student. The case was first filed in a state trial court (Court of Common Pleas), invoking Pennsylvania’s Right to Know Law (RTKL), in early April 2017, just weeks after the events depicted in the recording. The trial court ordered the school district to release the video upon finding it was not an “education record” subject to FERPA because its contents were not “directly related to” any student’s academic or educational performance.
The school district appealed the ruling to Pennsylvania’s intermediate appellate court, and in July 2018, that court agreed with the trial court’s analysis:
The video captured images of the students who were on the bus, but it is not directly relevant to those students. Rather, it is directly relevant to the teacher’s performance, who roughly disciplined a child. Several federal court decisions have held that a video recording that concerns a teacher, not a student, is not an “education record” under the [FERPA]. . . .44
[T]he video depicts a teacher’s alleged misconduct. [FERPA] does not apply to the disclosure of teacher records. . . . Stated otherwise, a video does not become an educational record simply because it captures images of students who are bystanders at an event recorded on video. . . . It is only an educational record with respect to a student in the video for whom the video may have consequences.45
Almost two years later, Pennsylvania’s Supreme Court affirmed, in part, the court of appeals’ ruling, on different grounds, and it also reversed in part. The justices agreed that the school district had not shown that release of the surveillance video—even assuming it is an “education record”—would cause the district to lose federal funding, so that exemption from the RTKL did not apply.46
However, when it examined the other RTKL exemption the school district cited, which precludes the release of records whose disclosure would violate federal law, the state supreme court reversed the court of appeals by concluding that the video recording was an “education record” because the student who was physically disciplined by the teacher was featured prominently in it. The justices paid particular attention to DOE guidance on photos and videos under FERPA discussed above:
As the student is the subject of some interaction with a teacher that warranted preservation of the video for an official purpose, whether the student is receiving discipline, or is the victim of some misconduct, or is one party in an innocuous interaction that was nevertheless part of an official inquiry, the video is as “directly related” to the student as much as it is related to the teacher. The video recording . . . is therefore an education record of that student within the meaning of FERPA.47
The Pennsylvania Supreme Court concluded that the state’s RTKL and FERPA could be reconciled by requiring the school district to provide the newspaper requester with those portions of the video recordings that FERPA’s regulations expressly authorized to be released:
[I]nsofar as the video itself is a public record subject to disclosure under the RTKL but contains the images of school students which are not subject to disclosure, which, in our view, it is and does, the District is obligated to redact students’ images by, for example, blurring or darkening portions of the video revealing the students’ identities, and to subsequently provide access to the redacted video.48
Following the Pennsylvania Supreme Court’s ruling, the Easton School District released a heavily redacted/pixilated version of the school bus surveillance video.49 Aaron Dufour, the physical education teacher who had “roughly” disciplined the elementary school student on February 8, 2017, was terminated but later reinstated50 and remains employed by the school district.51
Another Recent Success Story Involving a School Bus Surveillance Video
The first of the three scenarios described at the top of this article is based on an incident earlier this year in Colorado. A television reporter in Colorado Springs learned that a public school bus driver, Bertram Arman Jaquez, had been captured on the bus’s surveillance camera confronting a 10-year-old who refused to wear her face mask, before COVID-19 restrictions had been lifted. The frustrated bus driver first tried pulling the mask up over the girl’s nose and then, suddenly, slapped her across the face, causing her to lurch forward, nearly hitting her head against the top of the seat in front of her. After the incident was reported to school authorities, the driver resigned before he was to be terminated.
The school district initially denied the television station’s request for a copy of the surveillance video under Colorado’s Open Records Act, asserting it was an “education record” that FERPA prohibited from being disclosed. After the author of this article sent a letter asking the school district to reconsider that position,52 it did, and, upon advice of its outside counsel, it released a redacted version of the recording with children’s faces blurred.53
Thankfully, this resolution of the records dispute occurred without litigation in the course of just weeks, not years, as was the case with the records battles summarized above.
Conclusion
As the foregoing makes clear, FERPA was intended to provide parents of minor schoolchildren, and students older than 17, certain rights with respect to accessing, amending, and consenting to the release of “personally identifiable information” in “education records.” Notwithstanding the narrow definition that courts have applied to those terms, many records custodians have cited (and continue to cite) FERPA as the grounds for withholding “public records” that do not “relate directly” to a student’s conduct but instead “directly” relate to the conduct of public servants.
FERPA does not preclude the release of otherwise “public records” made, maintained, or kept by public educational institutions whose contents examine and/or discuss the conduct of public employees, even if the content of those records also indirectly relates to affected students. U.S. District Court Judge Lesley Wells put it succinctly: “FERPA applies to the disclosure of student records, not teacher records.”54
Moreover, even if such documents can, in some instances, properly be characterized as “education records,” FERPA does not bar the release of such documents, without any student’s or parental consent, so long as the student(s)’ “personally identifying information” has been redacted. In short, as the Kentucky Supreme Court aptly put it, school officials should stop using FERPA “as an ‘invisibility cloak’ . . . to shield any document that involves or is associated in some way with a student.”55
Endnotes
1. Although two such incidents are discussed in some detail below, examples of video surveillance cameras capturing public education employees committing misconduct are legion, and FERPA is often invoked as the grounds for withholding those recordings. See, e.g., Richard J. Peltz-Steele & Kitty L. Cone, FERPA Close-Up: When Video Captures Violence and Injury, 70 Okla. L. Rev. 839 (2018), https://scholarship.law.umassd.edu/cgi/viewcontent.cgi?article=1210&context=fac_pubs.
2. See Matt L. Stephens, Larry Eustachy Resigns as Colorado State Men’s Basketball Coach, Receives $750,000 Settlement, Denver Post (Feb. 26, 2018), https://www.denverpost.com/2018/02/26/larry-eustachy-resigns-colorado-state-basketball/.
3. To get a handle on how prevalent this scenario is, see, for example, Pending Cases Currently Under Investigation at Elementary-Secondary and Post-Secondary Schools, U.S. Dep’t of Educ., Off. for Civil Rights, https://www2.ed.gov/about/offices/list/ocr/docs/investigations/open-investigations/tix.html (sorting by category “Title IX—Sexual Violence” shows 258 active investigations by the Office of Civil Rights); see also Charol Shakeshaft, Educator Sexual Misconduct: A Synthesis of Existing Literature, U.S. Dep’t of Educ. (2004), https://www.2.ed.gov/rschstat/research/pubs/misconductreview/report.pdf.
4. See also Jared P. Cole, Cong. Rsch. Serv., R46799 The Family Educational Rights and Privacy Act (FERPA): Legal Issues (May 24, 2021), https://crsreports.congress.gov/product/pdf/R/R46799.
5. Bauer v. Kincaid, 759 F. Supp. 575, 589 (W.D. Mo. 1991) (“FERPA is not a law which prohibits disclosure of educational records. It is a provision which imposes a penalty for the disclosure of educational records.”).
6. Gonzaga Univ. v. Doe, 536 U.S. 273 (2002).
7. 20 U.S.C. § 1232g(a)(4)(A).
8. 34 C.F.R. § 99.3(a)–(f). All of the FERPA regulations may be found at https://www.ecfr.gov/cgi-bin/text-idx?rgn=div5&node=34:1.1.1.1.33.
9. 34 C.F.R. § 99.3(g).
10. See id. § 99.31(b)(1) (“An educational agency . . . may release the records or information without the consent required by § 99.30 after the removal of all personally identifiable information provided that the educational agency or institution or other party has made a reasonable determination that a student’s identity is not personally identifiable, whether through single or multiple releases, and taking into account other reasonably available information”) (emphasis added).
11. 20 U.S.C. § 1232g(6)(B)–(C); see also Krakauer v. State, 384 Mont. 527, 537 (2016) (“The information permitted to be released under this exception is limited, as ‘final results’ include ‘only the name of the student, the violation committed, and any sanction imposed by the institution on that student’”); DTH Media Corp. v. Folt, 374 N.C. 292, 309 (2020) (holding that “officials of The University of North Carolina at Chapel Hill are required to release as public records [pursuant to North Carolina’s Public Records Act] certain disciplinary records of its students who have been found to have violated UNC-CH’s sexual assault policy”).
12. But see Rome City Sch. Dist. v. Grifasi, 806 N.Y.S.2d 381 (2005) (holding that surveillance video was not an “education record” because it “was recorded to maintain the physical security and safety of the school building,” and therefore was not related to “the educational performance of the students”); Bauer v. Kincaid,759 F. Supp. 575, 591 (W.D. Mo. 1991) (“criminal investigation and incident reports are not educational records . . . such records relate in no way whatsoever to the type of records which FERPA expressly protects; i.e., records relating to individual student academic performance, financial aid or scholastic probation which are kept in individual student files”).
13. 20 U.S.C. § 1232g(b)(2)(B).
14. See, e.g., Easton Area Sch. Dist. v. Miller, 232 A.3d 716, 727 (Pa. 2020) (“such language necessarily denotes repeated or systematic violations of student privacy, as opposed to singular or exceptional instances”); see also Gonzaga Univ. v. Doe, 536 U.S. 273, 288 (2002) (noting that FERPA’s nondisclosure provisions “speak only in terms of institutional policy and practice, not individual instances of disclosure” and “have an aggregate focus” ); Achman v. Chi. Lakes Indep. Sch. Dist. No. 2144, 45 F. Supp. 2d 664, 674 (D. Minn. 1999) (finding that “a solitary violation is insufficient to support a finding that the District has violated FERPA as a matter of policy or practice”).
15. Email from Ellen Campbell, Student Privacy Off., U.S. Dep’t of Educ., to author (June 29, 2021) (on file with author): “[T]his Office has not, to this point, had to take actions to cease providing federal funds to an educational agency or institution due to a violation of FERPA. That is because the Department is required by the FERPA statute to work with educational agencies and institutions to bring them into compliance with FERPA. Because we have been successful in this endeavor, we have not had to take such actions.”
16. Easton Area Sch. Dist., 232 A.3d at 727.
17. Univ. of Ky. v. Kernel Press, Inc., 620 S.W.3d 43 (Ky. 2021).
18. 309 F. Supp. 2d 1019 (N.D. Ohio 2004).
19. Id. at 1021; see also Briggs v. Bd. of Trustees Columbus State Cmty. Coll., 2009 WL 2047899, at *1 (S.D. Ohio July 8, 2009) (holding that records relating directly to school employees and only indirectly to students are not education records under FERPA); Wallace v. Cranbrook Educ. Comm., 2006 WL 2796135, at *4 (E.D. Mich. Sept. 27, 2006) (holding that documents related to alleged sexual misconduct of a teacher toward students were not education records because they did not directly relate to students); Cummerlander v. Patriot Prep. Acad., 2013 WL 12178140, at *3 (S.D. Ohio Sept. 13, 2013) (student witness statements are not education records because they do not directly relate to those student witnesses but to the teacher who is the subject of the complaint); Young v. Pleasant Valley Sch. Dist., 2008 WL 11336157 (M.D. Pa. June 26, 2008) (emails containing complaints about a teacher are not education records because they are not “directly related to a student,” but rather are directly related to the teacher and only tangentially related to the student); Matter of Hampton Bays Union Free Sch. Dist. v. Pub. Empl. Rel. Bd., 62 A.D.3d 1066, 1069 (N.Y. App. 2009) (“In our view, teacher disciplinary records and/or records pertaining to allegations of teacher misconduct cannot be equated with student disciplinary records . . . and do not contain ‘information directly related to a student.’”) (emphasis in original); BRV, Inc. v. Sup. Ct., 143 Cal. App. 4th 742, 754–55, as modified on denial of reh’g (Oct. 26, 2006); Wojtas v. Sup’t of Stonington Pub. Sch., No. FIC 2019-0493 (Conn. Free. Info. Comm. July 22, 2020) (“a two-page correspondence from the principal to the superintendent, with the subject . . . ‘Investigation of Student Allegation of Inappropriate Contact by a Teacher’ . . . [is] directly related to the teacher and not the student. Consequently . . . such records do not constitute an ‘education record’ as contemplated by FERPA”), https://portal.ct.gov/-/media/FOI/Agendas/2020/Jul22/2019-0493.pdf.
20. Ellis, 309 F. Supp. 2d at 1022 (citation omitted).
21. 806 N.Y.S.2d 381 (2005).
22. Id. at 383 (internal citation omitted).
23. Bryner v. Canyons Sch. Dist., 351 P.3d 852, 858 (Utah Ct. App. 2015).
24. See FAQs on Photos and Videos Under FERPA, U.S. Dept. of Educ., https://studentprivacy.ed.gov/faq/faqs-photos-and-videos-under-ferpa [hereinafter DOE FAQs].
25. Id.
26. See also Letter from Michael B. Hawes, Dir. Student Priv. Pol’y, U.S. Dep’t of Educ., to Timothy S. Wachter (Dec. 7, 2017), https://studentprivacy.ed.gov/sites/default/files/resource_document/file/Letter%20to%20Wachter%20%28Surveillance%20Video%20of%20Multiple%20Students%29_0.pdf.
27. DOE FAQs, supra note 24.
28. Id.
29. Caledonian-Record Pub’g Co. v. Vt. St. Coll., 175 Vt. 438, 441 (2003); see also Bauer v. Kincaid, 759 F. Supp. 575, 589 (W.D. Mo. 1991) (“FERPA is not a law which prohibits disclosure of educational records. It is a provision which imposes a penalty for the disclosure of educational records.”); WFTV, Inc. v. Sch. Bd. of Seminole, 874 So. 2d 48, 57 (Fla. Dist. Ct. App. 2004) (“FERPA does not prohibit the disclosure of any educational records. FERPA only operates to deprive an educational agency or institution of its eligibility for applicable federal funding based on their policies and practices regarding public access to educational records if they have any policies or practices that run afoul of the rights of access and disclosural privacy protected by FERPA.”).
30. See, e.g., Sherry v. Radnor Twp. Sch. Dist., 20 A.3d 515, 525 (Pa. Commw. Ct. 2011) (finding that the release of the requested reports “was precluded by FERPA”); United States v. Miami Univ., 294 F.3d 797, 809–10 (6th Cir. 2002) (holding that once funds are accepted, “the school is indeed prohibited from systematically releasing education records without consent”); Unincorp. Oper. Div. of Ind. Newspapers, Inc. v. Trs. of Ind. Univ., 787 N.E.2d 893, 904 (Ind. Ct. App. 2003) (stating that “FERPA is a federal law which requires education records to be kept confidential”).
31. Easton Area Sch. Dist. v. Miller, 232 A.3d 716, 727 (Pa. 2020).
32. Press–Citizen Co. v. Univ. of Iowa, 817 N.W.2d 480, 493 & n.10 (Iowa 2012).
33. See 34 C.F.R. § 99.31(b)(1) (“An educational agency . . . may release the records or information without the consent required by § 99.30 after the removal of all personally identifiable information provided that the educational agency or institution or other party has made a reasonable determination that a student’s identity is not personally identifiable.”). See Osborn v. Bd. of Regents of Univ. of Wis. Sys., 647 N.W.2d 158, 168 (Wis. 2002) (holding that the university must redact records, where necessary, to comply with an open records request for records of applicants); State ex rel. The Miami Student v. Miami Univ., 680 N.E.2d 956, 959 (Ohio 1997) (holding that in producing disciplinary records, the university may properly redact student names, social security numbers, student identification numbers, and date and time of the incident); Unincorp. Oper. Div. of Newspapers, Inc., 787 N.E.2d at 908–09 (ordering records to be produced in redacted form); Doe v. Rollins Coll., 2019 WL 11703979, at *5 (M.D. Fla. Apr. 10, 2019) (same).
34. 34 C.F.R. § 99.31(b)(1).
35. See supra note 33.
36. See supra note 2. Curiously, that university had released the report of its prior investigation that had concluded Eustachy had been abusive to the players, and the university required him to attend anger management classes. See Courtney Cameron, CSU Investigation Details Coach’s Abusive Behavior, Athletic Bus. (Sept. 2017), https://www.athleticbusiness.com/college/results-of-csu-investigation-into-bb-coach-released.html.
37. Cent. Dauphin Sch. Dist. v. Hawkins, 253 A.3d 820, 833–34 (Pa. Cmmw. Ct. 2021) (citations omitted).
38. Univ. of Ky. v. Kernel Press, Inc., 620 S.W.3d 43, 46 (Ky. 2021).
39. Interestingly, “the Jane Does filed an amici brief before the trial court” urging that the Harwood Report be withheld from disclosure to the newspaper. The victims pointed out “that The Kernel had published 28 articles about Harwood’s misconduct between April and November 2016 despite their requests to stop. They explained that each article forces them to relive the trauma they suffered and that the confidentiality offered to the two graduate students during the EEO’s investigation of Harwood was integral to their decision to come forward and report the incidents.”
40. Kernel Press, Inc., 620 S.W.3d at 47.
41. Id. at 57–59 (emphasis added).
42. See Emily Girard, Details of The James Harwood Investigation and Records Battle, Ky. Kernel (Aug. 26, 2021), http://www.kykernel.com/news/details-of-the-james-harwood-investigation-and-records-battle/article_e68eb8b4-06ce-11ec-90be-ebd5933863f0.html.
43. Id.
44. Easton Area Sch. Dist. v. Miller, 191 A.3d 75, 81 (Pa. Commw. Ct. 2018).
45. Id. at 82.
46. Easton Area Sch. Dist. v. Miller, 232 A.3d 716, 726–28 (Pa. 2020).
47. Id. at 730.
48. Id. at 731.
49. See Rudy Miller, WATCH: Video of Easton Area Teacher Roughly Disciplining Student Released. He Was Fired Then Reinstated, Lehigh Valley Live (Aug. 26, 2020), https://www.lehighvalleylive.com/news/2020/08/was-easton-area-teachers-discipline-too-harsh-watch-the-video-and-decide-for-yourself.html.
50. See Rudy Miller, Easton Area Teacher Who Slammed Child Down on Bus Seat Wins Back His Job, Lehigh Valley Live (Aug. 18, 2018), https://www.lehighvalleylive.com/easton/2018/08/easton_school_district_asks_su.html.
51. Mr. Aaron DuFour, Shawnee Elementary Sch., https://shawnee.eastonsd.org/apps/pages/index.jsp?uREC_ID=1200987&type=u.
52. This letter is posted at https://tinyurl.com/vmk63nt2.
53. See Watch: Colorado Bus Driver Faces Charges for Allegedly Slapping Kid over Mask Dispute, KKTV News (May 18, 2021), https://www.kktv.com/video/2021/05/18/watch-colorado-bus-driver-faces-charges-allegedly-slapping-kid-over-mask-dispute/. The driver was later criminally charged with harassment, child abuse, and assault; he entered into a plea agreement under which he received a deferred sentence of one year, to be dismissed if no plea conditions are violated.
54. Ellis v. Cleveland Muni. Sch. Dist., 309 F. Supp. 2d 1019 (N.D. Ohio 2004).
55. Univ. of Ky. v. Kernel Press, Inc., 620 S.W.3d 43, 47 (Ky. 2021).