Is FERPA a good excuse for withholding information about the Arapahoe High killer?

By Jeffrey A. Roberts
CFOIC Executive Director

Scott Murphy, superintendent of Littleton Public Schools, cited a federal student privacy law last week as a reason that he could not answer reporters’ questions about what school officials knew about threats made by student Karl Pierson before the shooting at Arapahoe High School last December.

“We don’t speak about individual student issues,” Murphy said at a news conference Friday. “It’s our understanding under FERPA,” he added, when asked if any legal statute prevented him from discussing Pierson.

But, as at least one news organization has pointed out, the federal Family Educational Rights and Privacy Act (FERPA) does not apply to deceased students. According to multiple sources, a student’s rights under FERPA lapse upon his or her death.

The primary source confirming this interpretation is a 2009 letter from the U.S. Department of Education’s Family Policy Compliance Office, which administers FERPA. In a policy paper, the Student Press Law Center says that schools can “freely release information about students over 18 after their deaths, since the right of privacy does not survive an individual’s death.”

The SPLC paper goes on to say that FERPA privacy rights might remain intact upon the death of a minor child, but Pierson was 18 when he opened fire at his school on Dec. 13, 2013, killing fellow student Claire Davis before killing himself.

Darryl Farrington, an attorney for Littleton Public Schools, wrote in an email to the CFOIC that he disagrees with the Family Policy Compliance Office’s interpretation of FERPA as it applies to the records of deceased students.

And because that agency’s interpretation is non-binding, he said, even if he agreed with it, “the more prudent course” would be to follow language in FERPA that requires written consent before information can be disclosed. The law includes a detailed list of exceptions, Farrington added, but “the list does not include the circumstance of a deceased eligible (18 or older) student.”

Farrington said the Colorado Open Records Act (CORA) also prohibits the school district from releasing individual records of “medical, mental health, sociological and scholastic achievement data.” And he noted that FERPA does not require the disclosure of records, “even when such disclosure is permitted.”

CFOIC President Steve Zansberg, a media law attorney, disagrees with Farrington. He noted that the U.S. Department of Education has repeatedly stated that FERPA does not apply to the “education records” of a student who is deceased.

“The department’s interpretation of the federal statute is entitled to deference in the courts,” Zansberg said, “particularly because it comports with common law, which recognizes that privacy rights terminate upon the death of an individual.”

Zansberg also noted that many universities, colleges and school systems have adopted the department’s position. The University of Northern Colorado, for example, says on its website that “FERPA does not apply to records of applicants for admission who are denied acceptance or to deceased students.”

As for CORA prohibiting the release of records about Pierson, Zansberg said that reports and communications concerning a student’s threats against school personnel do not fit the statute’s “scholastic achievement data” exception.

“Further proof lies in the fact that the report cards, class schedules, class writing assignments and various other school records of Eric Harris and Dylan Klebold were released to the public following their deaths at Columbine High School,” he said.

The public already had a lot of questions about how Arapahoe High responded to Pierson’s behavior in the months before his rampage. The conclusion of a nine-month sheriff’s investigation last week raised even more questions.

As The Denver Post editorialized on Monday, “It is clear the district doesn’t want to say anything that could be used in a lawsuit.”

“The public must continue to ask school officials how they missed Pierson’s signs and whether they have learned from their mistakes,” The Post said. “And it is time for the district to start providing answers.”

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