While at least one FERPA expert believes that Success Academies may have violated federal privacy law in releasing disciplinary details that could be linked to a student’s name, Success Academies believes that it is protected by the First Amendment.
Whether that’s so or not is under some dispute, but the head of the Student Press Law Center says that Success won’t likely be penalized given past enforcement of FERPA.
According to Ann Powell Executive Vice President, Public Affairs, the First Amendment protects Success in this situation:
Courts have repeatedly held that statutory privacy laws can be limited by the First Amendment when someone voluntarily speaks to the press. The limitations on privacy laws to which Mr. LoMonte refers do not stem only from common law but from the First Amendment, which trumps statutory law.
Lying to a national media outlet is different than tattooing your grade average on your forehead. You don’t get to lie on a national broadcast and then prevent someone from correcting those lies by hiding behind your privacy rights. Mr. LoMonte himself says that there should be an exception to FERPA in this circumstance and we agree with him. Where we differ is that we have faith that the First Amendment does provide the exception that we both agree should exist.”
Also as a clarification: we do ask for corrections regularly, but we don’t regularly do so publicly.
Also, we couldn’t give the information on the student privately because PBS has throughout this process ignored any information we gave them privately. Only by applying public pressure have we gotten anything.
Not so fast, says Frank LaMonte of the Student Press Law Center — FERPA doesn’t work that way. But penalties are unlikely:
As a general principle the Department of Education has taken the position that you don’t waive FERPA implicitly by your behavior, you waive it only by an express written waiver. I disagree that FERPA should work that way, but the DOE’s opinion is the one that matters, and there’s nothing in the statute that says it’s subject to waiver by conduct, as sensible as that might be.
I love the creativity of the First Amendment argument and I’d gladly try it in court myself someday, but I know of nothing in the current court interpretations or DOE interpretations that would suggest defending yourself on a matter that’s been publicized in the media gives you a heightened First Amendment right that overrides the statute.
All that being said, absolutely nothing is going to happen to Success Academies just as nothing has ever happened to any other school in the 41-year history of FERPA. Despite all of the overblown nonsense from schools anytime a reporter asks for a public record, the facts are that (1) no one has ever been fined a penny for being a FERPA violator and (2) DOE rules provide that, if you are found to be in violation, all that happens is that you receive a warning letter telling you not to do it again. You can suffer financial sanctions only for a pattern or policy of failing to secure student records, and of course no school has such a policy.
A one-off disclosure will never result in punishment. (I should add that this addresses only federal privacy law, and it’s always possible that there’s an overlay of state privacy law as well.)