Since 1974, the Family Educational Rights and Privacy Act has guaranteed students that their academic records will be confidential, but students and their families are permitted access to those records. The act, known as FERPA, applies to students attending any private or public school, elementary grades right through college, and to any educational agency that receives federal funds.
What that means is that if Johnny Student doesn’t get promoted to the seventh grade because he failed math and history classes, no one other than the school, Johnny and his family is entitled to that information.
FERPA protects students.
It was not drafted, nor was it ever intended, to shield school policies, practices or personnel.
And, yet, interpretation of the law has become perverted over time and public officials are increasingly denying requests for information about what happens in our schools.
On Wednesday, the Sun Journal published an eye-opening investigation by Forecaster Reporter Emily Parkhurst about the use of therapeutic restraints in public schools in Portland, Scarborough and Lewiston.
Therapeutic restraints are used, according to the Maine Department of Education, to restrain out-of-control students to prevent them from injuring themselves or others. In some cases, a staff member can hold a student prone, face down on the floor, immobilizing the student’s legs and arms. In other cases, a staff member can seat a child in a chair, and restrain them from behind by locking arms around the seated child.
No straps or other devices are used to restrain students, just the physical strength of a staff member.
In gathering information for her report, Parkhurst filed a Freedom of Access Act request with six Portland-area school departments seeking access to documents related to the use of therapeutic restraints, including a list of staff members certified to perform restraints.
The FOAA requests were denied.
According to attorney Peter Felmly of DrummondWoodsum, the requested records are confidential under FERPA, citing a 2008 revision that specifically excludes journalists, researchers and other members of the public from access to “education records for school accountability or other matters of public interest …”
He stops short in his explanation, however.
According to the Federal Register, rulemaking under FERPA allows for removing personally identifiable information from education records, allowing “an appropriate balance that facilitates school accountability and educational research while preserving the statutory privacy protections in FERPA.”
In other words, school records — minus students’ personal identifying information — are accessible. What is specifically shielded are education records that are directly related to a specific student, not procedures of the staff as it relates to the student body.
The worry about identifying students, especially difficult students who need intervention in schools, is real and FERPA is essential in protecting these students.
However, FERPA is not an all-encompassing blanket of secrecy for everything that happens in our schools.
According to attorney Frank LoMonte of the Student Press Law Center, “so far the courts have been clear that, once the identifying information is removed from the record, it is no longer a FERPA record, regardless of whether a person with some independent level of knowledge might be able to match it up with a particular student.”
And, according to David Cuillier, chairman of the Society for Professional Journalists Freedom of Information Committee, FERPA “was intended to protect students from being embarrassed by their grades being made public. It was never intended to hide teachers who hurt students.”
At least one student in the Scarborough system has been hurt by the use of therapeutic restraints, and the Maine Disability Rights Center clocked in 53 complaints of abusive restraints statewide in the past two years.
Abuse is not happening in every school, but it is happening. And the public has every right to know about the situation, even though it does not have the right to know specifically which students are harmed.
Portland-area schools denied naming teachers who are certified to use therapeutic restraints because they don’t have such a list already created, and FOAA doesn’t require schools to create records in response to records requests. That’s true, but if school officials can’t or won’t simply tell the public which teachers are certified to use physical restraints on students, that’s a whole different problem.
Knowing which teachers are using physical restraints, how often and on how many students must not be a secret.
If we quietly allow it to be, Cuillier has a good question: Where is this country headed?