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Education Dept. Finds Privacy Violation in Charter Network’s Discussion of Student

By Mark Walsh — June 05, 2019 4 min read
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The U.S. Department of Education has found that Success Academy Charter Schools violated the federal student privacy law by disclosing personally identifiable information from the education records of a student in a controversy over the charter network’s suspension practices.

The department’s Student Privacy Policy Office wrote to Success Academy founder and CEO Eva Moskowitz last week to explain its findings that she had violated the Family Educational Rights and Privacy Act involving two allegations from a New York City parent, Fatima Geidi.

Geidi had pulled her son from a Success Academy campus in Manhattan after he was suspended for losing his temper, she said. After the mother gave an interview to correspondent John Merrow for a report on the “PBS NewsHour” about Success Academy’s discipline and suspension practices, Moskowitz sent a letter to NewsHour anchor Judy Woodruff that complained about not being asked to respond to the parent’s charges.

Moskowitz detailed in the letter what she said was the boy’s conduct, a list that included punching, kicking, scratching, and throwing desks. While Moskowitz used pseudonyms for the mother and son, Merrow’s report had identified them by name. Thus, anyone examining the matter closely could make the connection between the boy and the long list of alleged behavioral problems cited in Moskowitz’s letter.

Geidi filed a FERPA complaint about that letter, as well as a separate complaint about Moskowitz’s discussion of the incident in her 2017 memoir, The Education of Eva Moskowitz, which again used pseudonyms but recounted the story and referred to the student’s disciplinary record.

In his May 31 letter, Frank E. Miller Jr., the deputy director of the Education Department’s student privacy office, concluded that Success Academy violated FERPA with respect to both complaints.

“This office finds that, while Success Academy may not have used the parent or student’s actual name when it shared information via email with representatives of the PBS Newshour and when it posted information on its website, the information disclosed nonetheless would be considered ‘personally identifiable information’” under the statute, Miller wrote.

Miller considered but rejected an argument made by a lawyer for Success Academy that “because the Parent voluntarily put herself and her son on television to make false accusations against Success Academy, the First Amendment gives Success Academy the right to respond to and correct their false statements about the student’s disciplinary records.”

Miller noted that in a 2008 federal regulation under FERPA, the Education Department concluded parents and students generally do not waive their privacy rights under FERPA by sharing information “with the media or other members of the general public.”

Miller said Success Academy could counter a parent’s alleged misinformation with a public statement of its own disputing that misinformation, but not one that contains publicly identifiable information from a student’s records. A school could also remind the media that it provided the parent the opportunity to review the records in question.

The privacy office also found a FERPA violation in Moskowitz’s book, and it rejected Success Academy’s argument that the book was not the work of the school but of Moskowitz as she related her life story.

“In reviewing the information contained on pages 308 and 309 of your memoir, it appears that the information is reflective of the disciplinary actions pertaining to the student,” Miller wrote. Moskowitz likely obtained the information in her role as a school official, Miller said, but “school officials are not permitted to further disclose personally identifiable information from a student’s education records,” including in books and articles.

Miller said that to correct the FERPA violations, the Education Department must receive “receive written assurance within 30 days of your receipt of this letter that all appropriate school officials have or will receive training on the requirements of FERPA as they relate to the issues in this complaint.”

Neither side of the complaint was happy with the outcome.

Success Academy released a statement that said it would appeal the decision.

“We reject the Trump administration’s attempt to curtail our First Amendment right to correct irresponsible reporting of false claims,” the statement said.

Geidi, in a statement released by the Parent Coalition for Student Privacy, said that while she was happy that the Education Department found violations of FERPA, “I am furious that they failed to fine [Moskowitz], or at the very least, demand that she take the offending passages out of her book.”

Leonie Haimson, co-chair of the privacy group, lamented that the U.S. Supreme Court has found that there is no right for parents or students to sue for damages under FERPA, and she said the statute had been weakened by Education Department regulations.

“The remedy is so weak as to be practically nonexistent,” Haimson said in an interview. “This underscores the need to change this law to have a private right of action to sue.”

A version of this news article first appeared in the District Dossier blog.