Oct 272015
 October 27, 2015  Breaches, Featured News, U.S., Youth & Schools

Michelle Goldberg reports:

Anyone who has reported on campus sexual assault knows that school administrations rarely respond, even when they feel unfairly maligned, because they fear violating the Family Educational Rights and Privacy Act, or FERPA. Passed in 1974, FERPA is a federal law that bans the release of students’ personal information without their consent. “Schools are not supposed to talk about their students, even when the media is saying, ‘Hey, I can’t believe you did this,’ ” says Derek W. Black, a professor at the University of South Carolina School of Law who specializes in education law. “And sometimes that means the media doesn’t get the story straight, but it does protect the student.”

That’s why it was so surprising when Eva Moskowitz, the high-profile head of Success Academy, a network of New York City charter schools, responded to a negative PBS story by releasing the disciplinary record of an ex-student featured in it. Black says this was probably illegal, and it has left the student’s mother, Fatima Geidi, furious and frantic with worry over her 10-year-old son’s reputation. “For a grown woman, an adult, to attack a child is disgusting,” Geidi told me. “There’s no other way around it.”

Read more on Slate.

There are some thorny issues in journalism involved in the PBS report, but even if they failed to adhere to the highest standards in journalism, that does NOT give Ms. Moskowitz the right to violate the protections of FERPA. Goldberg reports:

Moskowitz is unapologetic. In a letter to Geidi, she wrote, “The First Amendment limits a person’s ability to use privacy rights to prevent others from speaking. When somebody chooses to make statements to the press, they waive their privacy rights on the topics they have discussed, particularly when, as here, those statements are inaccurate.”

As an education lawyer commented, that’s flat-out wrong. And we’ve seen the same faulty analysis in a HIPAA case that resulted in fines for  Prime Healthcare and Shasta Regional for revealing a patient’s details because she talked about her case publicly and they wanted to defend their reputation.

And similar to the HIPAA case, Geidi has no individual cause of action under the federal privacy law, FERPA. But just as HHS/OCR imposed fines on violations of HIPAA, the U.S. Education Department does have one hammer it can bring down: it can cut off all federal funds to Success Academy. Would they do that? I doubt it, but I’d really like to see a strong response from them to this situation.

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