Lex-praxis of Education Informational Privacy for Public Schoolchildren

• Publication year: 2021

84 Nebraska L. Rev. 1158. Lex-Praxis of Education Informational Privacy for Public Schoolchildren

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Susan P. Stuart(fn*)

Lex-Praxis of Education Informational Privacy for Public Schoolchildren

TABLE OF CONTENTS

I. Introduction ..................................................... 1159
II. The Peeping Tom Installs Window Blinds .......................... 1162
A. Family Educational Rights and Privacy Act .................... 1162
1. FERPA-The Regime .......................................... 1164
2. FERPA's Mission Failures .................................. 1168
3. FERPA's Textual Problems-Of Athletic Rosters,
Class Rings, and Terrorists ............................... 1169
B. Protection of Pupils Rights Amendments ....................... 1173
C. Individuals with Disabilities Education Act .................. 1176
D. Student Medical Information .................................. 1180
1. Medical Records, Generally ................................ 1181
2. HIPAA ..................................................... 1182
3. School Nurses ............................................. 1185
4. Drug and Alcohol Abuse Records ............................ 1186
E. Children's Online Privacy Protection Act ..................... 1187
F. Government Accountability and Education
Statistics ................................................... 1189
G. Military Recruitment ......................................... 1191
H. Social Security Numbers ...................................... 1193
I. School Lunch Programs ........................................ 1194
III. The Nuts and Bolts: The Protected Information and Its
Uses ........................................................... 1195
A. Collection and Maintenance of Government
Information ................................................. 1195
B. Collection and Maintenance of Educational
Information ................................................. 1196
1. Protection of Student-"Owned" Information ................ 1196

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2. The Scope of Protected Education Information ............. 1198
3. Defining Student Permanent Records ....................... 1201
C. Acceptable Use of, Access to, and Disclosure of
Student Education Information ............................... 1203
D. Reformulating Directory Information ......................... 1207
IV. "Peaceable Living One Amongst Another": Drafting
a Local Policy ................................................... 1208
A. The Drafters and the Draft .................................. 1208
B. The Substance ............................................... 1210
C. Fair Information Practices .................................. 1212
1. Notice/Awareness Principle ............................... 1214
2. Choice/Consent Principle ................................. 1215
3. Access/Participation Principle ........................... 1218
4. Integrity/Security Principle ............................. 1219
5. Enforcement/Redress Principle ............................ 1223
V. Conclusion ....................................................... 1225

I. INTRODUCTION

Public schools are information-collection machines. Public schools are also the government. Consequently, there is a confluence of concerns about what the government can and should do about protecting the privacy of schoolchildren in that information. Local educational agencies must concern themselves with the legalities of the collection, maintenance, and disclosure of student information, generated both by the agency itself and by the student. Unfortunately, the federal statutes and regulations designed to protect the privacy of that information have run amok.

Regardless of whether the Constitution protects privacy per se,(fn1) most authorities acknowledge the existence of a constitutionally protected privacy interest in personal information following Whalen v. Roe .(fn2) Indeed, children's informational privacy was at the heart of this decision as several minor plaintiffs challenged the constitutionality of a New York statute that governed the public disclosure of pharmacy records. The statute required the government to collect from pharmacies personal information-names, ages, and addresses-of all indi

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viduals who had obtained certain scheduled, controlled substances by prescription.(fn3) The minor plaintiffs feared public disclosure that would reveal they ingested ritalin to control hyperactivity.(fn4) In upholding the statute's constitutionality, the Supreme Court of the United States recognized a "zone of privacy" in information that incorporates two distinct privacy interests, one of which is "the individual interest in avoiding disclosure of personal matters."(fn5) The Court determined that the statute did not threaten such privacy interests, in part because the statute properly delineated to government officials a duty not to disclose the information upon pain of prison time, financial penalty, or both. The New York statute therefore properly protected the privacy of information otherwise within the zone of privacy.(fn6) In contrast, the crux of the problem with federal statutes that purport to protect student privacy is that these statutes provide for disclosure of and access to student records but provide little affirmative privacy protection.

In the matter of educational information, the government is clearly collecting information from individuals. The vast majority is personal information that is, to a certain extent, given to the government involuntarily because of states' compulsory attendance policies. Following

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Whalen v. Roe, then, the government should have a duty not to disclose this information. However, it does not seem to acknowledge such a duty-or at least the federal statutes regulating education informational privacy do not consistently adhere to one. Although the federal statutes and regulations give lip-service to the notion that the information should not be disclosed after collection, the statutes themselves observe that duty more in the breach by the number of "exceptions" it grants to the government to disclose schoolchildren's personal information. Thus, most handbooks and authorities outlining procedures for local school districts' privacy policies adhere to the letter of the statutes rather than the rule of constitutionally protected informational privacy.

With Whalen v. Roe as its springboard, this Article will focus on schoolchildren's(fn7) rights to informational privacy and will examine the federal statutes that purport to protect that privacy. One root of the problem with education informational privacy is the systemic failure of the numerous-and rather uncoordinated-federal statutes to recognize a per se privacy right or liberty in schoolchildren. Another problem is that the current legislation projects several privacy goals, yet sets out no clearly articulated privacy interest at all, at least no clearly articulated interest in the schoolchildren themselves. Instead, the statutes are a hodgepodge of piecemeal legislation that protects very little informational privacy for children. As a result, local educational agencies, who must implement the protections, are left to their own devices to untangle the incoherency of the statutory privacy "protections" for their constituent children and determine exactly what they can and cannot do with their information.(fn8)

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Starting with the premise that students' informational privacy is constitutionally protected, this Article will examine the federal statutes that purport to protect that privacy.(fn9) Part II will sort through the current versions of federal statutes that regulate the collection, maintenance, and disclosure of student information and examine whether they actually protect student privacy interests. Part III will outline what information a local policy must constitutionally protect that the statutes really do not. Finally, Part IV will set out a plan for incorporating fair information practices into the framework of any local privacy policy and thereby set out a more coherent praxis for school administrators to follow, one that will comply, at the very least, with the same informational privacy standards that are afforded adults.

II. THE PEEPING TOM INSTALLS WINDOW BLINDS(fn10)

As one sorts through the federal legislation that touches on schoolchildren's informational privacy, one must keep reminding oneself that there is a per se constitutionally protected privacy right in personal information because the statutes themselves are not entirely clear that privacy is the goal or that they are actually offering any protections at all. Almost every statutory scheme intended to protect schoolchildren's privacy is replete with incongruities and problems that, if followed, put local schools in violation of the clearly articulated constitutional right to informational privacy.

A. Family Educational Rights and Privacy Act

The worst offender in the constitutional-violation derby is the Family Educational Rights and Privacy Act ("FERPA")(fn11)-also known as the "Buckley Amendment"-which has long been considered the gold standard for protecting education privacy.(fn12) FERPA was enacted

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in 1974, ostensibly to protect children's informational privacy. Aside from the fact that its privacy protection has been oversold because it is just too confusing, the Supreme Court recently held, in Gonzaga University v. Doe,(fn13) that FERPA confers no explicit enforceable right for a violation.(fn14) In so doing, the Court essentially eviscerated FERPA's protection for children's informational privacy in. Today, the only real penalty for violating a student's informational privacy right is that the United States Department of Education ("DOE") can penalize an educational agency if it has a "policy or practice"(fn15) of disclosing education records or of denying...