School Threats Won’t Threaten Student Privacy

It’s Monday morning and you log onto Facebook. You expect to see the usual litany of pet pictures, bland status updates and requests for where to find the best Chinese food in your community. Instead, there is a post on the community “Moms” page with over 57 comments. There is a rumor of a threat at the high school and the school is only saying that it’s “not credible.”

In this age of social media, 24 hours news and reality television, it’s frustrating not to know the full details. Between Facebook, Instagram, Snap Chat and text messages, rumors spread faster than they can be addressed. We want answers and we want them immediately. Assumptions are made, debated and critiqued. While it is worrisome being told proper procedures were followed and there is no credible threat to student safety, many are surprised to learn that Federal and Massachusetts law prevent the school from releasing more information.

The disclosure of student information is governed by the Federal Educational Rights and Privacy Act, also known as FERPA, 20 U.S.C. § 1232g, and the Massachusetts student records law, G.L. c. 71, § 34D. Both laws require schools to protect the privacy of its students’ educational records. An “education record” is defined as files, documents and other materials which “(i) contain information directly related to a student; and (ii) are maintained by an educational agency or institution or by a person acting for such agency or institution.” 20 U.S.C. § 1232(g)(a). Also, both laws prohibit the disclosure of “personally identifiable information” about a student. This includes the student’s name, parents’ names, address and social security number. In addition, the school cannot release information that alone or in combination with other information would allow a reasonable person in the school community who does not have personal knowledge of the relevant circumstances to identify the student with reasonable certainty. See 34 C.F.R. § 99.3 (2012).

FERPA has created an exception that allows student information to be disclosed to “appropriate persons if the knowledge of such information is necessary to protect the health or safety of the student or other persons.” 20 U.S.C. 1232(g)(1)(I). The health and safety exception permits the school to share information with law enforcement and social services agencies when the school believes a student may harm himself or others. In other words, student information under the health and safety exception is to be shared on a need-to-know basis.

So what does this mean? The school cannot release any information that would allow someone to deduce who made the alleged threat. This includes telling the school community whether or not the student was in the building because knowing Johnny or Mary was absent that day would permit speculation that Johnny or Mary made the threat. Any actions the school takes as a result of the alleged threat are also part of the student record. Thus, the school cannot tell parents whether there was any discipline or whether the student received medical or psychiatric help.

Under the law, the nature of the threat, the results of the investigation and the consequences are not for public consumption. This results in what is perceived to be a vague, cryptic communication that steps have been taken and protocols followed. Parents are left to place their faith and trust in the school officials and law enforcement to assess and investigate the threat. While this will not satisfy the internet, it complies with the mandates of the law.