Education privacy law strengthened

Students lead fight to keep school records confidential

On May 1, Gov. John Engler signed a bill to protect the privacy of student education records, the result of a four-year effort by Midland high school students.

The bill amends Michigan's Freedom of Information Act (FOIA) to specifically prohibit the unauthorized release of student education records under the Act. The federal Family Education Rights and Privacy Act (FERPA), passed in 1974, already prohibits such unauthorized disclosures. Unfortunately, before the amendment was passed, Michigan's Freedom of Information Act did not specifically prohibit the release of such confidential information, creating a loophole officials apparently felt safe to abuse.

The bill was introduced by State Sen. Bill Schuette in response to a series of illegal releases of student records by the Midland Public Schools. The releases were related to incidents involving disciplinary actions and conflicts between students and coaches and teaching staff. Suddenly, Midland students began to hear that their education records were being released to the public by the district in response to Freedom of Information Act requests. Neither the students nor their parents had authorized the release of these records. In most cases, they did not even know such records existed.

Upon further investigation it was determined that hundreds of pages of federally protected documents had been released by the district. Included were student disciplinary records, administrators' notes of private closed-door interviews with students and parents, grades, standardized test results, memos on student performance by teachers and coaches, comments on a student's financial condition, and letters from parents intended for school administrators.

"Many of the records were subjective, highly sensitive, subject to misinterpretation, and reflected negatively on our children," said one parent who asked not to be identified. "These administrators repeatedly violated the trust we placed in them," he added.

Another parent of an affected student said, "When we brought our complaint to the administration officials, their lawyer actually told us, right to our faces, that they had released all these confidential records 'in the best interests' of our daughter. How insulting. We were absolutely furious."

In response to parental inquires and concerns, Midland Public Schools officials claimed they had done nothing wrong in releasing these confidential records. When the district continued to release federally protected documents to the public, several students filed complaints with the U.S. Department of Education.

Although the district insisted it had not violated any federal privacy laws, the Department of Education found in September 1997 that the district had indeed violated federal law in each and every instance. However, FERPA lacked practical enforcement measures that would punish those who violated the privacy law.

When the district continued to release confidential records, the students turned to the American Civil Liberties Union for help. Three former students agreed to be representative plaintiffs in a federal civil rights lawsuit to force the Midland Public Schools to obey the law.

In February 1999, a settlement agreement was reached. Midland Public Schools, its Superintendent Arthur Frock (since retired), board member Richard Ohle and legal counsel Douglass Witters apologized, admitting that each of them violated the privacy rights of students by divulging personal student and family records in violation of federal law.

As part of the settlement, the Midland Public Schools agreed to implement a stronger privacy policy, appoint an officer to monitor the district's compliance with the federal statute, and publish a notice to all current students telling them that the district had violated the law and explaining to students and parents their rights under federal law. The district also agreed to reimburse certain legal costs and not to retaliate against the students or their parents.

The district, however, refused to pledge to obey the law in the future. This prompted the students to engage Sen. Schuette in an effort to strengthen Michigan's privacy laws by amending the state's FOIA law. The result was the recently signed Senate Bill 588, which clarifies the responsibility of school officials to protect the privacy of student education records and eliminates any ambiguity between state and federal statutes.

Midland attorney Philip Van Dam, representing the three former students, commended the young adults for coming forward in defense of the privacy rights of all students.

"Organizations such as the Midland Public Schools hold tremendous power over students and their parents. For these young people to stand up for their rights in the face of tremendous individual, legal, and institutional power is remarkable and needs to be recognized," Van Dam said.