Pamela Parent is a "helicopter mom," hovering over her precious son, Treasure, who is in the first grade at Acorn Elementary School in Nutmeg. The pattern was set in Kindergarten, when Ms. Parent was on the telephone with Mrs. Principal daily, making complaints ranging from the overly-strenuous activities at recess to the rough pile on the rug used for Opening Exercises each day. The calls have started again this year, and it looks like more of the same for first grade.
Fred Flint, Treasure's first grade teacher, is a by-the-book kind of guy that has no tolerance for mollycoddling. Fred sees first grade as a chance for boys and girls to develop character, and he established Bus Superheroes to that end. At the beginning of each year, he tells each student that he or she can be a Superhero by maintaining appropriate standards of behavior on the bus to and from school. Student names are put on a poster, next to a picture of their favorite superhero. However, bus drivers are required to report students who act up on the bus. In a little ceremony the next day, the name and superhero of any such students are removed. After two months without a report, however, the student's name and superhero are again displayed on the poster.
As one might predict, Treasure promptly got into trouble on the bus during the first week of school. When Treasure's name and his hero, Lex Luther, were covered over the next day, he freaked out, and almost immediately, Ms. Parent was in Mrs. Principal's office threatening to sue over this "egregious violation of Treasure's rights." Mrs. Principal, however, was not intimidated. She told Ms. Parent that Treasure's biggest problem was his mother, and that he should just toughen up.
Mrs. Principal's lack of finesse only made the situation worse. Ms. Parent promptly called Mr. Chairperson to ask for a meeting with the Nutmeg Board of Education. Mr. Chairperson told her that the Board already had an executive session on the agenda for the next meeting, and he invited her to come to that meeting.
When it came time for the executive session of the Nutmeg Board of Education that night, Ms. Parent was there, loaded for bear. Tearfully, she explained how upset Treasure was when his name and superhero were removed from the poster. She described his "anguish" when classmates would discuss the Bus Superheroes list, and she asked the Board what it would do about this "abusive situation."
Veteran Board member Bob Bombast jumped right in. "I don't see why we are listening to this problem. This is an administrative issue. Mr. Superintendent, what is your recommendation?"
Mr. Superintendent thanked Bob for this (all-too-rare) insight, and he explained that the Bus Superhero program had been so successful that Mrs. Principal had asked the other teachers in her school to use it with their classes. Mr. Superintendent then addressed Ms. Parent directly, saying that this matter does not involve the Board and it should not involve her.
What is the role of Nutmeg Board of Education here?
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This situation raises an issue under the Family Educational Rights and Privacy Act (FERPA), and the Board does have a role. FERPA prohibits the disclosure of personally-identifiable student information without written parent consent. However, FERPA contains several exceptions to this general rule, including provision for disclosure without consent of "directory information," which FERPA defines as "information contained in an education record of a student that would not generally be considered harmful or an invasion of privacy if disclosed." Boards of education must make the policy decision as to what types of information they will categorize as "directory information," and the Nutmeg Board of Education should make sure it does so here. FERPA gives as examples of directory information the following: "student's name, address, telephone listing, electronic mail address, photograph, date and place of birth, major field of study, dates of attendance, grade level, . . . participation in officially recognized activities and sports, weight and height of members of athletic teams, degrees, honors and awards received."
That designation is important for two reasons. First, "directory information" should be defined so that the Administration knows what information it can release without parent consent. With the proliferation of websites, even for individual schools, it is important to determine, for example, whether student images or email addresses will be considered directory information. Second, the school district must publicize its policy on "directory information." FERPA gives parents the right to object to the disclosure of directory information as to their child, and it is thus necessary to have a procedure by which parents know what is included under "directory information" and how to object.
Even when careful policy judgments are made, it is not always easy to determine what is "personally-identifiable student information" subject to FERPA. In Owasso Independent School District I-110 v. Falvo (2002), the United States Supreme Court ruled that student grading of spelling tests in class did not violate FERPA because the grades had not yet been recorded by the teacher (thus making the grade "records"). The Bus Superheroes poster is questionable, especially because the fact that a student was disciplined for bus misbehavior would be apparent when the student's name is removed from the poster. If such a poster is to be used at all, a better approach would be to periodically post the names (and superheroes) of students who have not been in trouble on the bus, as an "honor received," directory information as described in FERPA.
Finally, the Board needs to reconsider its actions here from both a policy and legal perspective. Boards of education must keep control over their agenda, and boards are not required to meet with any parent who has a problem. The Board should address the policy issues here, but here the Board got directly involved with a specific complaint that would appropriately fall within the jurisdiction of the Superintendent.
The legal issue relates to the Freedom of Information Act. Mr. Chairperson apparently thought that it was sufficient to have an "executive session" on the agenda for the meeting with Ms. Parent. It was not. Given confidentiality concerns, it is appropriate (and often necessary) to hold any discussion of a student in executive session. However, any board discussion should be related to a specific agenda item, and here the Board should have posted its agenda as including an item such as "Discussion of a student matter."
Thomas B. Mooney is a partner in the firm's Labor and Employment Law Practice and heads the firm's School Law Practice.