TRAVERSE CITY — Traverse City Area Public Schools' top administrator called a federal law that aims to protect students' education records "crystal clear," but the law's history, language — and federal officials' refusal to publicly discuss the provision — suggest the law is muddier than school officials contend.
Congress created the Family Educational Rights Privacy Act — commonly known as FERPA — in 1974 to protect the privacy of students' educational records and to codify students' rights to review their own records. Districts that violate FERPA by disclosing protected records to a third-party without written consent of students or their parents stand to lose federal funding.
TCAPS interim Superintendent Paul Soma said he’s confident TCAPS did not violate FERPA when district officials released schoolyard security footage -- which TCAPS officials later determined was a protected education record -- to two parents without written consent from other students shown in the tape.
Soma said the law is "crystal clear" and cited a 2010 opinion from then-Michigan Attorney General Mike Cox that states video records of students participating in school activities qualify as education records.
He also said attorneys from Lansing-based Thrun Law Firm crafted a written legal opinion about FERPA for TCAPS officials. He refused to release that opinion, citing attorney-client privilege, a confidentiality that clients like TCAPS and Soma have a legal right to waive, if they so desire.
"This isn't a matter of hanging our hat on an attorney-client privileged document," he said. "The law is crystal clear."
But Aimee Alaniz, a school safety consultant with the Michigan Department of Education, said that though many parts of FERPA are clear and straightforward, the way the law applies to surveillance footage isn't among them.
"Where it gets sticky is when you talk about things like videos, and if it’s a record, and what can be considered an educational record," she said.
Robin Luce-Herrmann, an attorney with the Michigan Press Association, said school district officials often take a stance that any records or information regarding a student are FERPA-protected.
"That’s an incorrect understanding of FERPA," she said. "FERPA is complex. And there’s been some litigation about it, and I’ll suspect there will be more."
Luce-Hermann said Cox's opinion discussed taking photographs and video of school events, and about whether that form of media can be considered directory information, or information districts designate as not-protected by FERPA.
"Surveillance footage is different than what Attorney General Cox is talking about," Luce-Hermann said
Cox is in private practice and did not return calls for comment.
Federal Department of Education spokesmen did not return a reporter's repeated calls for comment on this story.
One spokesman stated in an email to a reporter that surveillance videos that are created and maintained by a school’s designated "law enforcement unit," such as a campus security unit, are not education records and are not prohibited from disclosure under FERPA.
"Whether videos that are not part of the school’s law enforcement unit, but are maintained by another part of the school are considered 'education records' under FERPA would depend on the particular facts in a case," the federal official's email reads in part. "We do not have any formal guidance on videos at this time, so we cannot provide specific guidance on this matter."