By Mike Hiestand
Sometimes the law works in mysterious ways. So it is with the Supreme Court’s recent decision in Owasso School District v. Falvo, which may turn out to be one of the more significant high school student press legal victories in years.
Here are the facts in a nutshell: After giving a quiz, teachers in an Oklahoma public school district would sometimes have their students trade and score each other’s papers. Afterwards, the students would call out the grades aloud so that the teacher could record them in his or her grade book. The effect, obviously, was that every student was aware of how well – or how poorly – each of his peers did on the quiz.
This grading system, not surprisingly, upset some of the students and their parents. One mother – Kristja Falvo, whose learning-disabled son was ridiculed as a “dummy” by his sixth grade classmates – approached her childrens’ teachers and asked them to stop the practice. When she was rebuffed, she went to other school officials who similarly denied her request. So she sued on behalf of her children claiming that the district’s grading practice violated her childrens’ rights under the federal Family Educational Rights and Privacy Act of 1974 (FERPA), commonly known as the Buckley Amendment.
Among other things, FERPA threatens to penalize schools that improperly disclose student “education records” that are “maintained” by the school. In this case, Ms. Falvo argued that her childrens’ grades were being illegally disclosed to other students as they were read aloud in class.
The first court to hear the case denied the Falvo’s claim. A federal court of appeals, however, reversed that decision and said that the school’s policy did, in fact, violate FERPA. The U.S. Supreme Court subsequently agreed to hear the case. All very interesting (and sad, really, that a parent had to go to the Supreme Court of the United States to fix a problem that, it seems, should have been taken care of with a single telephone call) – but what on earth does all of this have to do with high school student media? That’s where the “mystery” of the law comes in.
The big question for the Court was to determine at what point information about a student became an education record maintained by the school that officials were obligated to protect. Everyone seemed to agree, for example, that an official file (akin to the infamous “Permanent Record”) kept in a school’s administrative office that contained a student’s transcript, test scores, medical/psychological history, etc., was an education record protected by the law. Likewise, most would probably agree that a note passed between students in class would not be considered an education record. This was a case – as most court battles are – about something in between.
One of the questions that the Court had to answer to reach its decision was whether or not the actions of the Oklahoma students – specifically, the act of one student calling out another student’s grade in a packed classroom – could be attributed to the school district. If not, there could be no FERPA violation because the law, the Court correctly noted, only regulated the acts of “a person acting for” an educational institution.
This is where the student media interest kicks in.
For years, we have heard from students and advisers who tell us that school officials have claimed that their school-sponsored, student-edited media (newspaper, yearbooks, websites, etc.) are “education records” covered by FERPA and that student journalists working on such media are acting on behalf of the school. As a result, officials have used the law to prohibit students from covering certain topics or including information in student media that would identify specific students. In other words, no student names and photos. Their reasoning goes that if FERPA prohibits school officials from disclosing that student John Smith was expelled for pulling a knife on a teacher then neither can that information be reported in the student newspaper (despite the fact that the editor of the paper and 25 of his classmates might have witnessed the incident). In the mind of these school officials, students were the legal equivalent of teachers and other school officials.
The Supreme Court’s ruling in Owasso should put an end to such nonsense.
In ruling that Owasso School District’s peer grading policy did not violate FERPA, the Court made clear that students and teachers stand on separate legal footing.
“The phrase ‘acting for’ connotes agents of the school, such as teachers, administrators and other school employees,” Justice Kennedy wrote on behalf of a unanimous Court.
Significantly, the Court refused to hold the school liable despite the fact that the students were instructed by their teacher to call out their classmates’ scores. A case involving a student-edited publication or website should prove even easier for a court to decide. There, students would more likely be in control of their own actions, choosing the topics they cover and what material to publish. Moreover, student publications are not “maintained” in a school official’s filing cabinet, but rather purposefully disseminated to as wide an audience as possible.
In addition to settling the question of FERPA’s application to student media once and for all, the case has other potential benefits for student media.
We occasionally receive telephone calls from student journalists who have been told by school officials that they may not distribute surveys or questionnaires to their classmates. Very often, officials point to a federal law known as the Pupil Privacy Protection Act (sometimes also called the Hatch Amendment) to justify their decision. The PPA, which is closely related to FERPA (FERPA is found at 20 USC Section 1232g; the PPA is found at 20 USC Section 1232h), gives parents the right to review and approve their child’s participation in any mandatory instructional program or survey when it involves certain topics (for example, sex or politics). While we have argued for years that the PPA (and similar state laws) were meant only to apply to official surveys created by the school or some other government agency – and not to questions that one student asks another – our arguments have often fallen on deaf ears. Maybe now, school officials will listen. The Court’s decision in Owasso makes clear that students and school officials should not be lumped into one category. Laws that may restrict the action of schools or school officials do not necessarily limit what students may do. Further, public school officials that unreasonably restrict legitimate newsgathering activities by students, including surveys, risk violating the First Amendment.
Two other potential effects are also worth brief mention:
First, I believe public high school student media now have added legal ammunition in arguing that they have the right to reject material submitted by third parties, such as advertisements or letters to the editor. By noting the legal distinction between students and school officials, the decision supports the reasoning of lower courts that have ruled that students – unlike public school officials (including advisers) – are not “state actors.” Because the First Amendment only restricts censorship by state actors, this decision strongly suggests (as some lower courts have said outright) that there are no legal problem when students – acting alone – decide, for whatever reason, not to publish certain material in their student publication.
Finally, a Supreme Court ruling that high schools cannot automatically be held responsible for what their students do might finally persuade some school officials to loosen the reins on their student media. School officials routinely argue that they must “control” their student media to protect the school from liability. This ruling suggests – as we have long argued – that exercising such control, rather than protecting a school from liability, may actually expose it to financial risks it might otherwise avoid. Indeed, lower courts have long held that public colleges and universities will not be held responsible for libel or other content-related lawsuits brought against their student media provided no school official approved or played some other significant role in publishing the unlawful content. Merely providing funding or resource support to student media, those courts have said, is insufficient to create content liability. While the issue has never been directly addressed in a high school case (primarily because there are so few lawsuits filed against high school student media in the first place and no published court decision ever holding a high school liable), the Court’s ruling in Owasso certainly gives an indication of what the justices might think about the matter should it ever arise.
As a parent, I feel for Ms. Falvo. The Owasso grading practice stinks. If it’s any consolation, however, her case may have – in the “mysterious” ways of the law – given high school student media one of their most important victories in years.