Many school districts, after finally snaking enough wiring through their walls to connect their computers to the Internet, are confronting a new challenge that puts them on the frontier of cyber law: student publications on the Internet. 

The number of sites containing student publications is difficult to estimate because of the lack of a central repository and the failure of some Web sites to publicize changes in their Internet location. Accurately gauging how many schools publish student media on the Web is another challenge because listings typically lump together school-sponsored and independent sites. 

A Yahoo search two months ago indicated 163 entries under "News and Media: Newspapers: K-12," but these ranged from the Garfield High School Student Messenger, which was described as a Seattle biweekly news magazine "providing both a catalyst and a forum for student expression," to overseas and underground school publications. Only by seeing a publication's Universal Resource Indicator, or URL, is it possible to determine if the student publication is linked to its school or district. 

What is clear anecdotally from recent conversations with publication advisers and student editors is that interest in on-line publishing is escalating. 

While much of the attention of school leaders and policymakers to date has focused on issues of student access to the Internet, publishing on the World Wide Web hasn't drawn much interest from the higher authorities. Educators now are starting to realize the legal, ethical and pedagogical issues involved when students post their work on line for the world to see. 

School publications first went on line about four years ago, but these early explorers often simply converted the stories from their high school newspaper to HTML (hypertext markup language) and posted them on the school district's Web site. They looked and read just like their hard-copy counterparts. Many of these student journalists and their advisers were encouraged and applauded by their administrators for being innovative and ahead of the crowd. 

A more recent second wave of publishing isn't meeting such enthusiasm. In fact, some of the same administrators at schools that were pioneers in on-line media now are questioning its value and raising concerns about possible dangers. Typically, the restrictions they proposed involve the posting of student names and photographs. 

The experience at District 214's Wheeling High School in Wheeling, Ill., is typical. 

Even before the school or district had a Web site, a student approached newspaper adviser Susan Hathaway Tantillo about producing an Internet version of the school’s monthly newspaper. The result is Spokesman On-Line, which began three years ago. 

Now with the district’s Web site carrying The Spokesman and pages for student activities ranging from debate to student council, administrators have been worried about the use of names and photos and have begun discussing appropriate policies so the content is consistent for all information providers. 

Under one recent proposal, full names of students could be used in reports about organized activities, such as athletic events or student competitions, because parents already know about their children's involvement in these. However, quotations from students on anything from current affairs to hit movies would require parent permission prior to their inclusion on the Web. In addition, no students would be identified in photo cutlines under this proposal. 

"I would be devastated if a student at Wheeling was harmed by something on our site, but I do think we're being overly cautious," Tantillo says. 

The staff and adviser of the Lakewood Times Online at Lakewood High School in suburban Cleveland are facing a similar predicament. Although first launched last spring from Kent State University, the student-produced Web publication is moving to a district site this year. A Web site committee, made up of teachers, has debated the use of names and photos, though the Times staff, which produces the publication as part of an on-line journalism class, is convinced this presents no problem. 

"There's no difference between print and electronic media," Times editor Jana Zabkova says. "The Times newspaper is available at the public library and anyone can get it there. The Internet doesn't have any more dangers than print." 

At other schools, students and their advisers who want to become publishers on the Web are finding restrictions they believe are unrealistic, unnecessary and maybe even illegal. Several publication advisers admitted defeat when they discussed this subject at last fall's national convention for secondary school media advisers and students. 

In one session at the Journalism Education Association/National Scholastic Press Association conference, which drew about 4,000 student journalists and their faculty sponsors, an adviser described how she has put her students' Web publishing aspirations on hold for now, contending, "It just seems like too many hoops to jump through." 

In some ways, the Internet poses the same problems all communications media have faced during their infancies--from the printing press on, according to computer law expert Jonathan Wallace, author of Sex, Laws and Cyberspace. History, he says, shows that new media often face strict laws and regulations at first, which over time become more relaxed as the public begins to understand the latest means of communication. In other instances, case law becomes a costly but definitive way to resolve the challenges. 

People fear what they don't understand, and such technophobia is even more apparent with something as far-reaching as the Internet. Factor in the potential impact on young people, and it's not surprising that student publishing on the Web is creating confusion in many school communities and raising new controversies in the ongoing struggle over the rights of student journalists. 

So how is it possible for a school or district to walk the fine line between plunging in blindly to publish everything or jumping to the other extreme by severely, maybe even illegally, restricting content? 

School leaders working in well-equipped buildings linked to the Internet would do well to discuss policies and responsible practices related to on-line publishing by students before major questions arise. Here are some considerations.

• Seek consistency in your treatment. 
  One approach to deal with student on-line publications is to draw analogies between a publication on the Web and what currently exists in printed form. If a school publishes a traditional student newspaper with names and photos, why should it eliminate this information on its Web site? If the school allows the student newspaper editors to make content decisions, why run the on-line publication past a screening committee? 
  Part of the U.S. Supreme Court’s 1997 ruling on the Communication Decency Act indicated that content on the Internet is legally equivalent to the printed word and ought to be protected in a similar way. If the student newspaper serves as an open forum for exploring problems and issues in a responsible manner, students should be entitled to reach the wider audience that’s available through the Internet. 
   
• Consider the wider ramifications. 
  School leaders also need to carefully consider the implications of any decision that would limit the opportunities for a student staff to post its work on the Internet. What would this mean for other school-related publishers? 
  If student media are prohibited from using names or photos, would other Web sites tied to the school--say a PTA home page--have the same restrictions? If applied uniformly across the district, barring the publication of names presumably would prohibit other school-related Web sites from sharing good news about students, teachers or administrators. 
   
• Link Web site policies to mission statements. 
  Connecting the on-line policies of a school district to the school's mission or curricular goals can be useful. If a journalism class is expected to practice the professionalism of the real world, student editors need to make decisions about using names and photos--the same judgments the local newspaper makes when it moves its content from the printed page to the Internet. 
  If a school’s mission includes preparing students for their roles in a democratic society, where else but school can they learn how the Internet ties into their part as citizens? What better opportunity for authentic assessment than to see how many responses are generated from their on-line publication? 
  Requiring Web sites to have clear goals and educational purposes eliminates personal student home pages--those more likely to contain questionable material. 
   
• Develop a comprehensive acceptable use policy. 
  A school district’s acceptable use policy that spells out student rights and responsibilities in the area of publishing can prevent another type of problem. If administrators are worried about unprotected speech or hyperlinks to objectionable sites showing up on the school publication, an acceptable use policy can indicate the consequences for irresponsible actions. When the first student ignores the policy, quick punishment under the guidelines will prevent future violations. 
   
• Don’t overestimate your liability. 
  Finally, school leaders have no basis for concern that the publishing of names and faces is a legal risk. Of course, students will learn in their journalism training that no one publishes home addresses, social security numbers and personal information. Mark Goodman, executive director of the Student Press Law Center, says, "Absolutely no legal precedent exists to suggest a school would be held liable from anything resulting from publishing student photos or names."

Publishing on the World Wide Web offers many opportunities for students to expand their reporting, writing, editing, design and technological skills. It's even exciting career exploration. 

Then, too, publishing on the Internet can be frightening because it's so far-reaching and works in ways most people don't fully understand. Nobody says being on the cutting edge is easy, but lots of educators think it's worthwhile to take time and learn its possibilities. 

Candace Perkins Bowen, a former high school journalism and English teacher, is coordinator of the Scholastic Media Program at Kent State University, P.O. Box 5190, Kent, Ohio 44242-0001. E-mail: cperkins@saed.kent.edu. She is immediate past president of the Journalism Education Association and a former Dow Jones Newspaper Fund High School Journalism Teacher of the Year.


Spring 2001 - Legal Analysis
Vol. XXII, No. 2 - Page 35

FERPA Fundamentalism
How a federal law designed to protect student privacy is being misinterpreted to injure press freedom

© 2001 Student Press Law Center

For more than 25 years, the Family Educational Rights and Privacy Act (FERPA), or "Buckley Amendment," has protected the privacy of student education records.1 Recently, however, some school districts have given the Act a curious interpretation. Increasingly, secondary school administrators have begun to claim that FERPA prohibits student media, especially online student media, from publishing the name or photo of a student without written consent from the student's parent. After a close examination of the Act's language and its interpretation, however, it is clear that school administrators stand on shaky legal ground in extending FERPA's reach to the student media.

Background
The Family Educational Rights and Privacy Act was enacted in 1974 as an amendment to the General Education Provision Act.2 The Act applies to any public or private school, and any state or local education agency, that receives federal education funds.3 Schools that violate FERPA risk losing those funds.4 The Act has two parts. First, FERPA gives students (and the parents of minors) the right to inspect and confirm the accuracy of their own education records.5 Second, FERPA prohibits disclosure of most education records and "personally identifiable information in education records" without the student's (or the student's parent's) written consent.6

FERPA also contains some exceptions. First, disclosure of student education records to most school officials and to authorized law enforcement personnel is permitted.7 The Act also allows disclosure of "directory information." Directory information means information contained in a student's education records "that would not generally be considered harmful or an invasion of privacy if disclosed."8 Such information includes, but is not limited to, students' names, addresses, telephone numbers, photos, participation in officially recognized activities and sports, the weights and heights of members of athletic teams, dates of attendance, and degrees and awards received.9 School districts that have a policy of disclosing this information must give public notice of what they consider "directory information" and inform parents that they may refuse to allow its disclosure.10

FERPA is meant to apply to information "collected and maintained by most public elementary, secondary, and postsecondary education institutions and by some private institutions."11 While there have been some problems along the way, the Act has generally served its role as one of the nation's strongest privacy protection laws.12 However, for reasons unknown, school administrators around the country have recently started to give FERPA an entirely unique interpretation-one that threatens the vitality and relevance of the student press.

FERPA and the Student Press
In October 2000, the McKinney Independent School District in Texas sent a letter to parents informing them that photographs of students would henceforth be considered "directory information."13 Because of this designation, parents were afforded the opportunity to exclude their child's picture and information -- including photos taken or information acquired solely by student yearbook staff members -- from the school's student-edited yearbook.14 Similarly, other schools have begun to prohibit the publication of student names or photos without the prior written consent of the student's parent. In such cases, student media would presumably be forced to keep a list of "approved" (or "non-approved") students. The student media would only be allowed to publish the names or photos of students on the "approved" list; students not on this list apparently would be off-limits. Presumably, students who might be the subject of less than flattering news would be able to exercise an "editorial veto" over the student media simply by withholding their consent.

In addition to destroying the student media's reputation as a credible source of news and information, such policies also present a logistical nightmare. Student journalists, already working under the constraints of deadlines and sometimes unfriendly administrations, would be forced to consult an ever-changing master list of approved subjects before writing or publishing a story. Moreover, under such a complicated scheme it is inevitable that mistakes will occasionally be made by students or school officials resulting in the publication of "unapproved" names or photos. Such mistakes could expose a school district to liability that had previously not existed.

Finally, these policies may have serious legal implications for the student media. Every libel law primer begins with essentially the same advice: publish only complete and accurate information. The new FERPA policies require student media to violate those fundamental rules. By requiring the publication of misleading or incomplete information, a strong argument can be made that the new policies increase, not decrease, the odds that student media-and possibly the school district that created such a faulty system-will be subjected to libel or invasion of privacy lawsuits.

It is unclear why school district lawyers and other administrators have recently tried to enforce such policy changes. FERPA does not require it, the Constitution almost certainly prohibits it-and common sense suggests the system is fraught with danger. There are many problems in today's education system that school officials would be wise to address. As the following makes clear, this is not one of them.

FERPA and the Courts
There are few cases dealing with the application of FERPA to the student media. The extension of the law to the student media has occurred so rapidly and recently that courts have had little opportunity to deal with the many issues it raises. A few courts, however, have attempted to define FERPA's scope. These cases indicate that the application of FERPA to the student media is an illogical and unlawful interpretation of the Act.

In their ill-conceived attempts to use FERPA as their excuse for banning student names and photos in student media, school administrators generally seem to have lost sight of one thing: FERPA only prohibits schools and school employees from disclosing student education records without consent.

In order to subject the student media to FERPA, it is necessary to include them in its definition of "educational agency or institution," which the Act defines as "any public or private agency or institution which is the recipient of federal funds under any applicable program."15 To categorize them as such, a court would first need to rule that student journalists are employees or agents of their school, a classification so far rejected by every court asked to consider the question.16

As one federal court of appeals wrote in rejecting a claim that high school student journalists were the equivalent of school officials:

Of course, the fact that the newspaper editors are public school students does not, in itself, make them state actors. Persons do not become state actors because they are clients of government services, whether they are students, hospital patients, or prison inmates.17

Even the Supreme Court's decision in Hazelwood School District v. Kuhlmeier appears to make a critical distinction between a school and its student media.18 The Court reasoned that schools should be able to censor material that "the public might reasonably perceive to bear the imprimatur of the school," (emphasis added).19 The distinction is subtle but apparent. The Court did not justify its decision on the grounds that the student media acts as an agent of the school, speaking on its behalf. To make such an argument would be to say that the First Amendment is not implicated at all by administrators' attempts to control its content because a school could never unconstitutionally "censor" itself. Hazelwood, however, requires school administrators to show that their actions are "reasonably related to legitimate pedagogical concerns."20 By invoking the First Amendment, the Court in Hazelwood implicitly rejects the argument that student journalists act as agents of their schools.21

Most pointedly, a federal district court in New York rejected a school principal's claim that FERPA required him to confiscate copies of the school paper because it contained "confidential" information about students. The court in Frasca v. Andrews agreed that the paper contained information that would otherwise fall within the scope of FERPA.22 The Court refused, however, to extend FERPA to the student media, stating "the prohibitions of the amendment cannot be deemed to extend to information which is derived from a source independent of school records."23

FERPA and the Department of Education
The Department of Education is responsible for investigating FERPA claims, enforcing the Act when a violation occurs and issuing regulations regarding its enforcement.24 While the Department's official regulations do not explicitly address the application of FERPA to the student media, the Department has said that it does not consider the student media subject to the Act.

For example, in at least one instance, the Department refused to enforce FERPA against the student media. In response to a filed complaint, the Director of the Family Policy Compliance Office rejected the contention that the editor of a campus newspaper violated FERPA by disclosing information contained in a police report. "FERPA was not intended to apply to campus newspapers or records maintained by campus newspapers. Rather, FERPA applies to 'education records' maintained by an educational agency or institution, or by a person acting for such agency or institution."25

The National Center for Education Statistics, an arm of the Department of Education, also released a summary of FERPA that appears to place the student media beyond the Act's reach. The Center explains that "FERPA applies to public schools and state or local education agencies."26 In defining the "agencies" subject to the Act, the Center explains that these "generally include public elementary and secondary schools, school districts, intermediate education agencies, and state education agencies or their representatives."27 The Center gives no indication that FERPA is applicable to the student media.

Most importantly, it should be noted that the Department of Education has never enforced a FERPA claim against the student media. After more than 25 years of investigating and enforcing FERPA complaints, there is no evidence that the Department has ever so much as considered subjecting the student media to FERPA -- which makes school administrators' recent attempts to subject the student media to the Act all the more puzzling.

FERPA and the First Amendment
Perhaps the simplest explanation for the Department of Education's refusal to enforce FERPA against the student media is that such a policy would be unconstitutional.

In the Frasca case, discussed above, the court stated flatly that "Congress could not have constitutionally prohibited comment on, or discussion of, facts about a student which were learned independently of his school records."28 This is consistent with a number of Supreme Court decisions holding that the government may not restrict the press from reporting independently gathered information where such information is newsworthy and accurate. In Oklahoma Publishing Co v. District Court,29 the Supreme Court struck down a district court rule that prohibited the news media from publishing, broadcasting or disseminating the name or picture of a juvenile defendant. Similarly, in Smith v. Daily Mail Publishing Co.,30 the Court struck down a state statute that made it a crime for a newspaper to publish, without prior approval, the name of any youth charged as a juvenile offender. The Smith Court rejected the state's argument -- an argument now being echoed by school officials -- that its interest in protecting the identity of juveniles was significant enough to override First Amendment concerns.31

In some cases, school officials have claimed that the Supreme Court's decision in Hazelwood gives them the authority to use FERPA against their student media. While Hazelwood does give school officials greater leeway when it comes to regulating some student media, such authority is separate from that conveyed by FERPA -- and certainly not unlimited. First, Hazelwood does not apply to all student media. For example, college media are not covered.32 Nor are high school publications that have -- by policy or practice -- established themselves as public forums.33 Second, even where Hazelwood does apply, it is difficult to imagine a court upholding a blanket policy that prohibits the publication of lawfully obtained student names or photos in its student media without regard to context. Hazelwood lowers the First Amendment protections against administrative censorship; it does not eliminate them.34

The only context in which material published in a student publication might implicate FERPA is where school officials admit that they, not students, are determining the content of the publication. Such an admission would, of course, raise serious First Amendment questions. But as long as the content choices originate with students (which seems the very nature of a "student" publication), FERPA should not come into play.

Although many school administrators have chosen to apply FERPA only to online student media, the foregoing analysis still applies. The Supreme Court has made no distinction between the First Amendment rights of print media and those of online media. In Reno v. American Civil Liberties Union, the Court explicitly rejected the argument that online media were entitled to a lesser level of First Amendment protection.35

 

Conclusion
In its lifetime, FERPA has served some noble purposes. By requiring that students and parents have access to their own education records, the Act encourages a healthy sort of disclosure. By penalizing schools and government agencies that randomly release academic information to third parties, the Act legitimately protects the privacy of students.

Unfortunately, recent attempts by some school officials to use FERPA to prohibit the publication of lawfully obtained, accurate and newsworthy information by student media stretch the bounds of the law, not to mention common sense. For more than a quarter of a century, student media, like