By Mike Hiestand
And now, from the category: “Administrators With Way Too Much Time On Their Hands,” come reports that some schools have prohibited their student media staffs from publishing the name or photo of a student in the student newspaper or yearbook unless they have first obtained written consent from the student’s parent. A slightly improved – though still wacky – variant of this policy allows for the publication of a student’s name or photo unless the student’s parents have filed a written objection.
At first, these policies were being directed only at online student media, but that’s no longer the case. (At least they score points for consistency.)
Most of the new policies are based on misguided interpretations of the federal Family Educational Rights and Privacy Act of 1974 (FERPA), 20 USC – 1232g, also known as the Buckley Amendment.
FERPA was enacted after Congress found that some school officials were mishandling student records. The law has two parts. First, the law requires that students and parents be given access to their own school records. Second – and this is the provision at issue here – FERPA penalizes schools that indiscriminately release certain student education records to third parties.
Where the new policies directed at student media miss the mark is that FERPA only restricts the release of information by school officials. Outside parties – including student reporters, who are neither employees nor agents of the school – are not covered by the law.
As the U.S. Department of Education, the agency charged with enforcing FERPA, has said: “FERPA was not intended to apply to campus newspapers or records maintained by campus newspapers. Rather, FERPA applies to ‘education records’ maintained by an educational agency or institution, or by a person acting for such agency or institution.”
It is entirely appropriate, for example, that school districts create a policy regarding a principal’s disclosure of protected student information to a student reporter (or anyone else) during an interview. It is wrong, however, to suggest that a student reporter is under the same limitations in disclosing to her readers information that she lawfully obtained during the newsgathering process. Not only does FERPA not restrict such reporting by third parties, but any policy that did would be unconstitutional.
Moreover, such a policy places an unreasonable – probably unworkable – burden on student media. Having to consult a list of “approved” news subjects (people) prior to reporting a story would not only be cumbersome, but would essentially gut the integrity of the editorial process, where stories are published because they are fair, accurate and newsworthy, not because the subject has or has not consented to the use of his name or photo. (Given the choice, I’m sure that many subjects of less than flattering news would love to have the proposed systems, which essentially gives them veto power over the editorial process.)
Finally, it should be noted that FERPA has been on the books for more than 25 years. In all that time – as student media across the country produced untold hundreds of thousands of newspapers, yearbooks, literary magazines, and, more recently, websites – not once has Congress, the Department of Education or a court ever found or even suggested that student-edited and produced media violated federal law.
With all of the problems that are said to exist in schools today, I’m not sure why some school officials feel the need to fix one that doesn’t.