How Private Are Your Records
Lisa Jennings is an assistant editor of Education Week.
When reading consultant Doug- las Oster submitted a personal essay as part of his job application to Staples Elementary School in Easton, Conn., in 1988, he understood that what he wrote would be kept strictly confidential.
"I put a lot of thought into the essay, and put down some very personal reasons of why I went into education-- reasons that reflected my childhood,'' he says.
Now Oster is facing the possibility that parts of his essay--as well as his school transcripts and grades, letters of reference, and salaries at previous jobs--may be considered public information.
He is one of five teachers recently hired by the district who are trying to block the release of their personnel records to a local citizens' advocacy group. The group, Citizens for Responsible Government, requested the information to make sure that the district had hired the best teachers possible. Earlier this year, the Connecticut Freedom of Information Commission ruled that most of the records requested by the citizens' group should be considered public information under the state's open-records laws.
But the Connecticut Education Association, on behalf of the five teachers, has appealed the commission's ruling in Superior Court, and the teachers are preparing themselves for what could be several years of legal wrangling over what they argue is a blatant violation of their right to privacy.
"I really feel shortchanged,'' says Oster. "I don't have anything to hide, but I wrote that essay in good faith that it would be kept confidential, and that agreement should not be breached. Now, if this ruling stands, someday I could read what I wrote published in a newspaper.''
"This is really scary,'' says Barbara Bayers, a choral teacher at Helen Keller Middle School in Easton, and one of the five teachers involved in the suit. "The ramifications of this are something we should all be afraid of.''
This bitter dispute is just one of many across the country that have erupted when parents, the press, or politicians feel that the public's right to hold its system of education accountable and to protect the safety of its children outweighs teachers' rights to privacy. Last year alone, lawsuits over access to school records were filed in Alaska, Colorado, North Dakota, Texas, and Washington State.
All states have open-records laws-- often called sunshine laws--that guarantee public access to meetings, official business, and certain records. The federal Freedom of Information Act exempts personnel and medical files from public access, and so do many state laws. But the question of what is part of a "personnel'' file is often undefined. In schools, highly personal information included in a personnel file could range from an employee's religious affiliation to "rap sheets'' of prior criminal convictions.
Many states also have privacy statutes that restrict the release of personal information. Several states specifically exempt school employee records from open-records statutes to protect educators' privacy. In Connecticut, for example, teacher performance evaluations are expressly exempt from openrecords laws.
Performance reviews are one of the main reasons nationwide for the fight to keep teachers' records closed. The theory is that if confidentiality is not guaranteed, evaluators will be less likely to be honest and thorough in their assessment of a teacher's abilities. But in cases where the law may be violated or the welfare of children is at stake, the confidentiality argument may not prevail. The U.S. Supreme Court ruled in January in a sexdiscrimination case that the University of Pennsylvania cannot withhold the records of a female faculty member who was denied tenure on the basis of peer evaluations. The Court argued that the costs of disclosing records "constitute only one side of the balance,'' and noted that "the costs associated with racial and sexual discrimination are very substantial.''
Teachers' unions often argue that teachers' files contain more personal data than those of other public employees because educators must submit transcripts, test scores, and other personal information to meet minimum requirements for certification. That, say the unions, should give teachers different status under openrecords laws.
The North Dakota legislature agrees with that position: It adopted a bill last year that would have exempted school employee files from open-records laws in the state. But Gov. George Sinner vetoed the bill, arguing that "the records are, after all, not 'personal' files, but 'personnel' files.''
"Teachers, administrators, school boards, and students need to be held accountable to parents for their performance--or lack of performance,'' he said. "Open records help assure such accountability.''
The North Dakota debate over open records was sparked in part by Madonna Tibor, a parent from Hebron, who was concerned about the qualifications of her son's teacher. She had requested the teacher's records after learning that other parents with similar concerns had complained about the teacher's performance.
When the district refused to release the file, Tibor sued. The case ended up before the state supreme court, which ruled that the records should be considered public information simply because the legislature had not expressly exempted them from open-records laws. Because of the Governor's veto, the records are now considered public information.
Peggy Portscheller, former president of the North Dakota Education Asso- ciation--which lobbied hard for passage of the exemption bill--says privacy was the key concern when the union denounced the Tibor case as a "witch-hunt.''
"Our main bone of contention was the access to teacher evaluations,'' she says, noting that state law requires two such evaluations each year. "In order to protect the integrity of that process, we believe those records are best kept between employer and employee.''
Tibor, however, argues that the integrity of teacher evaluations would not be compromised "if you have an honest administrator.''
Mere public interest is not always the reason behind requests to nose through school records. Often efforts to obtain school personnel files have been driven by a concern for children's safety.
In Anchorage, Alaska, for example, the American Civil Liberties Union and the city's school district filed lawsuits seeking damages from the local police after officers "ransacked'' the school district's administration building. The police officers were investigating a teacher accused of sexual misconduct with a 17-year-old student and believed the school had taken deliberate steps to cover up the incident.
According to Douglas Phillips, a curriculum coordinator and a plaintiff in the ACLU suit, the officers--armed with nine warrants--searched the entire administration building, including wastepaper baskets, and spent several days reading files in the school system's vault, where personnel records of the district's entire staff are kept.
"They went through everything,'' Phillips maintains. "There are teachers out there like me who don't even know the teacher in question, and their personnel files have been read by the police.''
To Phillips, Anchorage school district officials, and the local affiliate of the American Federation of Teachers, the search was clearly an illegal invasion of teachers' personal and professional privacy. State law says most public agencies in Alaska must allow access to employee records; but, they point out, school districts are bound by state education department regulations to keep personnel records strictly confidential. A court hearing on the case was scheduled for late February.
In Texas, where school records are considered public information, the state teachers' unions last year won a difficult lobbying battle in the legislature with the passage of a bill that exempts a school employee's academic transcripts from open-records laws. Anyone may request information on the academic degrees earned by a teacher and the area of study, but the teacher's grades may not be released as part of those records.
The legislation followed a drawnout dispute between The Houston Chronicle and the Houston Independent School District. The newspaper had requested information on as many as 25 administrators who had allegedly purchased mail-order doctoral degrees. The school district filed suit to block the request on the grounds that the files contained personal information that did not pertain to the teachers' course of study.
Last year in Washington State, teachers did not fare as well. A bill that would have exempted teacher disciplinary files from open-records laws was killed in the legislature. Robert Fisher, legislative liaison for the Washington Education Association, says the bill died amid a round of amendments to stiffen penalties for child molestation.
A group of newspapers in the state had recently published a series of articles offering evidence that some school officials had allowed teachers charged with sexual misconduct to leave the school system unpunished and unreported. The newspapers, owned by Cowles Publishing Company, are currently involved in a legal battle over the records of 89 educators whose certification, they say, was revoked or voluntarily surrendered in connection with the charges.
A lower state court ruled that the records should be released--with the names of student victims removed from the files--but the school district appealed, and the state supreme court began hearing oral arguments in the case in January.
Theresa Moore, a WEA spokesperson, says that given the current political climate on the issue, the union does not plan to push the exemption legislation again this year.
Both the National Education Association and the American Federation of Teachers have policies opposing the release of employees' records without their consent. But the unions are not always on the side of nondisclosure.
In Colorado last year, the state NEA affiliate and the Denver Classroom Teachers Association went to court to obtain the names and addresses of minority teachers employed by the city's public school system. Union officials said they wanted the list so they could alert minority teachers to special programs, such as training for administrative positions.
But school officials refused to hand it over. Colorado law prohibits public access to most school personnel files.
Although union officials acknowledge the law and agree that such information should be kept private, they contend that unions should have special access to such records. "We're not just anyone off the street asking for information,'' argues Jan Erskine, president of the Denver union.
In Connecticut, the Citizens for Responsible Government argue that even "people off the street'' have a justifiable right to know about who is teaching their children. The courts will decide how far their right to assess a teacher's qualifications will extend.
William Dolan, an attorney for the Connecticut teachers' union, argues that a line must be drawn. "You could argue that everything about someone's life will affect [his or her] job. Should they be able to get a teacher's academic records from elementary school? Find out about [his or her] childhood? There is a balance that has to be found.'