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SEE YOU IN COURT! - October 2011

October 2011

Authors: Thomas B. Mooney

Mayor Megillah is running for reelection, and he is taking every opportunity to talk smack about the members of the Board of Education. Veteran Board member Bob Bombast covertly obtained some emails between the Mayor and some of his buddies, and they were truly offensive in their derisive commentary about the “idiots over at the Board of Ed.” For once, however, Bob was circumspect, and he did not immediately go public. Instead, Bob bided his time and shared the emails with his fellow Board members during executive session last month.

The Board members were outraged at the Mayor’s sophomoric emails, which ranged from comments about Bob’s intellect to speculation about Red Cent’s parentage. But they realized that picking a public fight with the Mayor could come back to haunt them at budget time. They struggled with this dilemma until Mal Content, of all people, proposed to combat the Mayor’s slander with a public relations campaign.

“We do so many good things for kids,” Mal lamented. “But people are always complaining about the money we spend. We need to remind them of all the wonderful things we do in our schools.” The discussion went into the evening, and after refining their thoughts through email, the Board members were ready to implement “Say Something Nice,” its campaign to burnish the image of the Nutmeg Public Schools.

At the Board meeting last week, the Board invited the Math Team to present its account of its latest competition. Ned Nerd spoke for the group and described the training of these Mathletes, which ranged from early morning runs through the numbers to late night calculations. The Board members gushed their enthusiastic support for these wonderful students, and they asked the public to join them in a round of applause.

“What do you think?” Mal asked in the executive session at the end of the meeting. The Board members debriefed and decided that, while the Mathletes were impressive, the Board better up the ante if they were to sway public opinion. The Board members decided to create a Facebook page for each of the Nutmeg Public Schools. Principals would be directed to post pictures and a short bio of honor roll students chosen at random, starting with Nutmeg Memorial High School. “Once we get the community tuned in,” Mal enthused, “Nutmeg parents and friends will see us on their ‘wall’ each day when they check their own Facebook pages.”

The parents of the first three students who were highlighted on the Facebook page for Nutmeg Memorial High School were delighted. The fourth - not so much.

“What are you doing?!!!” the mother shouted at Mr. Superintendent over the telephone. “Who on earth told you that you could post my son’s picture on Facebook? My ex is crazy, and if he finds us, there is no telling what he will do.” She described her fear that her abusive ex would see the posting and find her and their son in Nutmeg.

Mr. Superintendent apologized and promised to take the posting off the High School’s Facebook page right away. But he worried that the damage was done and that the district would be liable if the crazy ex did anything bad. Should he be worried?

*        *        *

There are a number of legal concerns here, but the posting itself might be OK. That depends on whether the Board complied with the requirements of FERPA, the Family Educational Rights and Privacy Act. FERPA has two major elements: it restricts access to student information, and it prohibits disclosure of such information unless the parent (or student after age 18) consents in writing to the disclosure.

Board members are entitled to receive confidential student information only when they need such information to do their jobs. For example, board members often receive student records when they sit as judges in an expulsion hearing. But such disclosure is privileged and is limited to that purpose. It would be a FERPA violation for a Board member to obtain student information that is not necessary to discharge a responsibility, such as checking up on a daughter’s boyfriend. It would also be a FERPA violation for a Board member who receives such information for a proper purpose then to disclose that confidential information to others without an educational need to know. Gossip can be a violation of federal law.

That said, there is a common situation in which student information may be disclosed publicly without parent consent. FERPA provides that boards of education may identify as “directory information” certain student information that is not generally considered confidential. Types of such information includes student name, address, email address, school attended, height and weight of members of sports teams, honors and awards received and even student images (unless the context suggests some particular fact, such as a picture of a fight that shows a student’s involvement).

School officials may disclose directory information without obtaining parent consent if they follow FERPA requirements for doing so. Specifically, school officials are obligated to provide notice to parents at least annually of the definition of “directory information” and of their right to object to the disclosure of such information. If the parent objects, even directory information may not be disclosed. However, if the parent does not object within the specified period, school officials may disclose the information. Nutmeg being Nutmeg, however, it is not clear that the appropriate FERPA procedures were followed. If they were not, the posting of information about the student’s achievements, or even his picture, was a FERPA violation.

As usual, the Nutmeg Board of Education had another problem. The Board was in executive session when it discussed the emails from Mayor Megillah and his buddies as well as its public relations campaign. But the topic of the Mayor’s emails and the related public relations campaign was not privileged, and that discussion thus violated the FOIA. Moreover, the Board’s “refinements” to the campaign through email also violated the law, because the Board made decisions outside of a posted meeting.

Finally, while we may hope never to have to deal with an ex-spouse who is dangerous, school officials must be prepared to deal with such situations. One resource to be aware of is the “Safe at Home” program administered by the Secretary of State in accordance with Conn. Gen. Stat. § 54-240. This program permits participants to maintain their home address as confidential, and to use an address issued through the Secretary of State’s office. When people participate in this program, even school officials may not have the real home address without the express permission of the Secretary of State, even for legitimate reasons such as transportation.

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