Mason County Schools of Secret Keepers

[XLFD]

Our public schools are public bodies in the eyes of public records laws such as the Freedom of Information Act (FOIA).  There are two opposing interests at work in deciding how transparent we as a society want those records to be.  One group believes that student safety/security is compromised when any records pertaining to students are disclosed, the other group believes that the student safety/security is compromised when a school loses any public accountability for its actions against individual students, particularly in matters of disciplinary action.

I firmly subscribe to the latter position.  This Saturday's 2-27-2016 City of Ludington Daily News offered a prime example of how our area schools rally around the position that in disciplinary proceedings, not only is the student's name protected, but also what they did is protected from being known to the public. 

Though the punishments meted out were different, we find that both students, 2015-2016 #1 and 2015-2016 #2, both violated some unknown chapter in the school code.  Superintendent Andrea Large flatly refuses to say how or when the code violations occurred, or which Ludington school the two attended.  Nothing in the article details whether the students were represented at the special LASD Board meeting held at 7:00 AM by their parents or attorneys.  One would have to believe that was forbidden knowledge too. 

But the public has seen some bizarre instances of schools disciplinary action.  The straight-A senior student caught with a kitchen knife in the car she drove to school with forced to face felony charges and not able to graduate with her class, the young boy whose half-eaten Pop-Tart looked like a gun (filled with strawberry goodness), and many more are comical abuses of the law enforcement autonomy school districts often have in enforcing zero-tolerance policies.

What makes these silly enforcement actions more likely to occur is when the school can shield itself from any public ridicule by discussing all aspects of the cases in closed sessions, and report to the public that Student 2015-2016 #3 served a one month suspension for a code violation rather than telling us that little Billy Bartles found a Swiss army knife on the playground and turned it in to the office, where he was promptly set upon by multi-jurisdictional authorities.   

The 'news report' from the LASD School Board is basically meaningless drivel, and if you try to get anything more from the school district with a FOIA request, they will fall back on the Family Educational Rights and Privacy Act (FERPA) to block anything more than what they have already shared.  I know this from experience.  And if you actually know the student's name, they will be even more evasive, even when these records are not what is strictly considered a 'student educational record' as defined by FERPA. 

This last Monday, I argued in front of the Mason County Central (MCC) School Board to release records regarding two sets of disciplinary records.  I upped the stakes by requesting that they need to release the names of anybody that the board expels from school in the minutes of their meetings where that happens, claiming past precedence hinging heavily on one case and the proper interpretation of FERPA. 

In front of the board, I only introduced the issue and offered my conclusion to the full board, telling them, as I do to you now, that the body of my argument was primarily in legalese meant to offer my justification as to why the public was owed this information from a public body they support almost fully with their taxes.  I also include the body (non-italicized) of the argument from those who wish to understand my point better. 

Please address whether you believe more transparency is needed (or not) in the comment section.

"Tom Rotta of Ludington, graduate of MCC in 1982,

I'm here to argue the FOIA Coordinator's decisions regarding two sets of public records they have deemed to be fully exempt from disclosure because they claim they are student educational records and the Family Educational Rights and Privacy Act (FERPA) applies to them.  

I claim that not only are they subject to disclosure, with MCC having the duty to separate any exempt from non-exempt material within them while using proper justification, as per the Michigan Supreme Court ruling in Evening News v. City of Troy, but that also the names of the students involved should be noted in the school board meeting minutes if and when this board expels them. 

 

On this supplementary point, appellant argues and believes that the names of the individuals who were expelled must be disclosed by law.  In the Open Meetings Act, MCL 15.263(2) states: "All decisions of a public body shall be made at a meeting open to the public."

In Palladium Publishing Co v River Valley Sch Dist, 115 Mich App 490; 321 NW2d 705 (1982), the Michigan Court of Appeals issued a published decision holding, under OMA, that the minutes of a board of education expelling a student from school must list the student's name and a copy of the unedited minutes must be furnished to the public upon request.

The Palladium Publishing Court followed the Michigan Attorney General Opinion reaching the same conclusion, Op Atty Gen, No. 5632. Given these pronouncements, the law of Michigan since 1982 requires the listing and publication of expelled individuals’ names, it should be noted that this postdated FERPA, created in 1974.

It is also undisputed that the Michigan Legislature amended OMA and FOIA to preserve all possible federal funding which the federal government claimed it ‘could’ (but did not) withhold for Michigan’s alleged failure to fulfill the requirements of FERPA in light of Palladium Publishing. 

However, the Legislature did a very curious thing: it did not supersede by statute the entire holding/conclusions of Palladium Publishing, supra and Op Atty Gen, No. 5632. Instead, the Legislature created subsection (2) to FOIA’s Section 13 exceptions, MCL 15.243, which reads—

A public body shall exempt from disclosure information that, if released, would prevent the public body from complying with FERPA

Under the Open Meetings Act, the Legislature created subsection 4 to Section 9, MCL 15.269, which reads—A public body shall not include in or with its minutes any personally identifiable information that, if released, would prevent the public body from complying with FERPA.

It is critical to appreciate what the Legislature did, or more correctly what it did not. It did not fully ban the disclosure of any and all student information or student records. Instead, it only prohibited the release and recording of student information which would run counter to the requirements of FERPA. As such, this appellant body must then look to the federal FERPA statute to determine whether the information sought by Plaintiff is implicated and protected. 

Thus, of utmost importance in this matter is whether the names of expelled individuals, who are no longer students for activities unrelated to any academic purpose, and the records pertaining to that expulsion, are protected by FERPA.

FERPA is a controversial piece of federal legislation, long abused by schools and education institutions as a method to hide potentially controversial decisions involving those in its charge. The origins of the law are also misunderstood.

The Family Educational Rights and Privacy Act initially became law in November 1974. Sen. James Buckley of New York presented the provision as a floor amendment in response to "growing evidence of the abuse of student records across the nation."

Buckley had two main concerns. First, schools traditionally had provided parents with very limited access to student files. This left parents with little opportunity to correct inaccurate and stigmatizing information in their child’s records, even when schools relied on those records to classify or punish students. Second, many schools lacked consistent policies governing access to

student records and granted third parties – such as police and health departments – access to sensitive student records even while denying parents the same access.

Significantly, Congress amended FERPA in 1992 expressly to remove privacy protection for records created by police or any on-campus authority "for the purpose of law enforcement." As a result of this change, it is illegitimate for police or school security personnel to cite FERPA in refusing to release an arrest record, an incident report, or the identities of students named in those documents.

Under FERPA, a record is protected if such are "education records… of students." "Education records" is statutorily defined to mean— 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.

The statute and administrative rules also specifically defines those records which do not constitute education records.  Virtually every court that has been asked to define "education records" has applied a limited and common- sense understanding of the term. The common legal question is then usually what constitutes "directly related".  Various courts have held that records are not FERPA ‘education records’ when such "are nonacademic in nature" and "do not contain educationally related information, such as grades or other academic data, and are unrelated to academic performance, financial aid, or scholastic performance." The Miami Student v Miami Univ, 79 Ohio St 3d 168, 171-172; 680 NE2d 956 (1997). 

Looking to these cases, the records are related to discipline and expulsion, not educationally related information. Each student activity complained of and which served as a basis for the discipline of the individual student was not ‘directly related’ to grades or other academic data, or academic performance.  Most involve criminal and/or illegal actions; no class or academic pursuit at Mason County Central Schools that I know of requires criminal activity as a part of the students’ academic studies, such as possessing a knife or a controlled substance, the two activities that precipitated my requests.

As such, the activities the individuals were engaged in were not directly related to academic pursuits and thus the resulting records are not ‘education records’ as defined by FERPA by not being directly related-- as the courts have defined this statutory language. Moreover, expulsion is more than just discipline; it is a complete and full removal from the school system or premises. In considering expulsion, the Mason County Central Board of Education made each of its respective decisions on certain dates by affirmative vote in an open public meeting.

When the meeting minutes dealing with these punishments are later approved at future open meetings consistent with MCL 15.269, they could not be considered "education records" as the expelled individual is no longer associated or part of the school and could not be creating "education records" as that term is defined. Thus, MCC could not, consistent with Palladium Publishing and MCL 15.269(4), refuse to place these non-student names in the meeting minutes. These actions violated the Open Meetings Act, as confirmed in Palladium Publishing.

Moreover, such information is not "personally identifiable information" under FERPA either because the definition of "personally identifiable information" means "the student’s name.". An expelled person on the date of creating approved meeting minutes no longer had "student" status. Under the precedence of Palladium Publishing, the expelled person’s name must therefore be included, the failure of which continues to constitute a violation of the Open Meeting's Act's minutes requirements.

This school board may rest assured that its home-town local school system is not in jeopardy of losing even a single dime of federal funds by ordering the disclosure of expelled individuals’ names by adopting the arguments of FERPA presented here. First, the US Department of Education has never imposed a financial penalty on any entity or person for a FERPA violation.  Second, if this dispute goes to circuit court and they order disclosure then compliance with this Court’s order precludes the imposition of any penalty as the FERPA statute exempts its prohibition if "such information is furnished in compliance with judicial order."

With this proper interpretation of FERPA, failure to provide non-exempt records is a violation of FOIA. MCL 15.233(1) ("Except as expressly provided in section 13,... a person has a right to inspect, copy, or receive copies of the requested public record of the public body."); see also Schroeder v Detroit, 221 Mich App 364, 365; 561 NW2d 497 (1997).

In conclusion, merely because a record created and held by a Michigan public school contains information regarding a student does not automatically make the record and its related information absolutely exempt from government transparency requirements. The "directly related" prong of FERPA is widely misunderstood or ignored, but substantially narrows the scope of what FERPA covers. This appellant board is requested to follow the precedence of our Michigan courts in holding that records are not FERPA ‘education records’ when such are nonacademic in nature and do not contain educationally related information, such as grades or other academic data, and are unrelated to academic performance, financial aid, or scholastic performance, as detailed in the Miami University decision.  

The public has an interest in making sure its duly-elected school board members are acting properly and fairly before throwing away or otherwise condemning a young person to the perils and hardship of the denial of an education in today’s hyper-competitive and employment-strained economy. Conversely, allowing those who have their children and young teens in school to know who is committing such wrongful, non-academic acts that warrant their removal from the largest and most important "job" of a young person’s existence, is also in the public’s interest and right to know.  Please release the records requested and provide the student's names in the approved minutes of the meeting that they were expelled in accordance with FOIA and the Open Meetings Act.

[Willy]

If the child commits a crime then that incident should be reported and released to the public but the child's identity should remain concealed. All other incidences should be handled between the parent and the school and information released only with a parents permission. Knowing what every child has done to break the rules is not necessary, the only thing to know is how outrageous and  stupid some of the rules are. These rules should be questioned, analyzed and changed especially when silly rules consider a pastry to be a weapon. It just takes more parent involvement to keep these progressive fools who run our schools from getting completely out of hand.

[XLFD]

The name of a student engaged in activity that gets him expelled from school, is not what I have been seeking in these records, rather I am looking to see whether the school has acted appropriately and within the civil rights of the students and parents involved.  It was only through legal research that I determined that the names of expelled individuals should be by law in the approved minutes of a meeting-- that they could not be publicly withheld for an expulsion, as the kid is no longer a student once the board declares expulsion, and so the records made after the fact cannot legally exempt their name. 

The two sets of incident reports/disciplinary records that I have been seeking have been rumored to have some instances of inappropriate official activity, I mean only to verify or refute them with these records.  Ludington and MCC schools have set rules in their by-laws for making incident reports over disciplinary actions, these are not made to be student educational records, which would and should be exempt from anybody other than the parents. 

In Scottville it states: 

"The SRO [Student Resource Officer of the school] will keep a file of all incident reports or law enforcement records prepared as required under the local school safety information policy. The records must be retained in a location separate from student educational records as defined under the Family Educational Rights and Privacy Act (FERPA)."

This indicates to me that the by-laws understand that these records are to be treated differently than FERPA protected educational records.