— Paul Driscoll (@PDriscollTBT) June 16, 2016
Perhaps you were among those who were curious but somewhat surprised to find the Orlando shooter’s student records and grades published by various outlets last week.
Usually, a federal student privacy law known as FERPA (the Family Education Records Privacy Act) would prevent a state or local agency or a school from releasing information to the press — even if the journalists filed a FOIA request for the information.
However, that wasn’t the case here. TCPalm.com’s Andrew Atterbury was among the first to request and publish the shooter’s records. “The man behind the Orlando nightclub shooting was suspended more than 40 times in high school,” he wrote. The Washington Post’s story included recollections from former classmates and teachers. (“He was just such an angry kid” said one).
FERPA comes up all the time in education journalism, including recent examples such as this Georgia school district going through a transgender bathroom debate.
“We as a school system cannot identify if we have transgender students .That is protected under FERPA,” according to the superintendent.
Even if a parent appears on TV in an interview, the privacy rights of the child remain intact unless specifically waived. (We learned this during the controversy surrounding last year’s PBS NewsHour segment on Success Academy).
And there actually isn’t an exemption for individuals who commit heinous crimes, as far as I can tell. This was a theory put forward by open records guru Frank LoMonte, head of the Student Press Law Center. “This case is the exception. When you have a person commit evil on a monumental scale and die, then all of our traditional arguments for privacy go out the window,” LoMonte said. Their student records are protected, too.
But once you’re dead, FERPA no longer protects your privacy in quite the same way, and so news outlets can and did request information about the shooter’s school grades and disciplinary record.
According to Atterbury, it doesn’t sound like it was a difficult call. “I checked with a few sources who pointed me to court cases saying FERPA goes out the window when the student has died,” he wrote via Twitter.
Indeed, as SPLC’s LoMonte points out, once someone’s deceased “there are no reputational interests to protect.” That’s also presumably why we know so much about the early school experiences of the Newtown and Columbine shooters.
Still, there are some issues raised by the reporting of the Orlando shooter’s school records, according to LoMonte: “I worry about feeding schools’ already punishment-obsessive mentality so that they start seeing every 8-year-old who pulls pranks as a mass-murderer-in-training.”
And of course this also means that the privacy rights of students who are victims are also left unprotected by FERPA. Readers might react differently if a journalist requested the student records of Orlando victims like Akrya Murray, an 18-year-old Philadelphia student who’d just graduated from high school. She was injured in the initial round of shooting, then bled to death in the bathroom with her friends by her side.
The school or family might claim that releasing the records would cause “reputational harm” to the deceased victim, but if death lessens FERPA protections then that would apply to victims as well as perpetrators.
Update: Andrew Attenbury’s publication is best known as TCPalm.com. The original post has been updated.