Privacy law broken, but experts say penalty unlikely.
The Broward County School District may have violated federal law when it failed to properly redact a report on the Parkland school shooter, experts say. But it’s unlikely the district will face any significant consequences, as nobody has ever been penalized in the 44 years of the Family Educational Rights and Privacy Act.
The report about Nikolas Cruz, which was released at a judge’s order but with twothirds of the content blacked out, was entirely visible to anyone who copied and pasted the file into a new document. That’s now a legal point of contention for both the Broward County School Board and the South Florida Sun Sentinel, the newspaper that first reported the redaction error and the details on Cruz’s education that were revealed by it.
The publication of Cruz’s history in Broward’s public education system — including details of the district’s mishandling of his request to return to a school for students with disabilities — was made possible through the district’s failure to completely hide elements of the report, which may have violated Cruz’s privacy rights.
“It is a violation of FERPA by the school district. The judge’s order was that they provide a redacted version of the report to the public. There was negligence in the way they did it,” said Mark Kamleiter, a St. Petersburgbased attorney whose firm, Special Education Law and Advocacy, specializes in education law regarding students with disabilities. He added that attorneys are warned “all the time not to use that method of redaction.”
Schools that violate FERPA can face the loss of federal funding through the Department of Education, a devastating loss of money for any institution, but especially crippling for an entire school district. However, it’s highly unlikely the district will be penalized.
“It’s very hard to violate FERPA, and in the 44-year history of the statute, nobody’s yet been penalized for it,” said Frank LoMonte, director of the University of Florida’s Brechner Center for Freedom of Information. “The possibility that after 44 years of inactivity the federal government is going to suddenly wake up and make an example of the Broward school district is zero.” Kamleiter agreed. “Technically, they could lose their federal funding, but it’s never going to happen,” he said, calling FERPA a “toothless” law. “It may not be toothless if you could show a deliberate intent to thumb their nose, but when they show an effort to comply — even a poor effort — it’s not going to be enforced.”
The district has faulted the Sun Sentinel, rather than the district’s own failed attempt at redaction.
Without consulting the Broward County School Board, lawyers for the school board requested late Monday that the newspaper be held in contempt of court for publishing the information.
“The decision was made without my consultation, and I would like to have a say in what’s going on right now,” board member Robin Bartleman said at a meeting of the school board Tuesday.
But other school board members took issue with the Sun Sentinel’s decision to publish the information, and at a news conference Tuesday morning, Broward Superintendent of Schools Robert Runcie laid the blame on the newspaper.
That follows messaging from the district’s communications office to school board members, administrators and district attorneys, advising administrators to blame the media.
“The District did not release redacted information; that was a decision and act taken by [the media/the Sun Sentinel],” reads an email from the district’s communications office that was obtained by the Sun Sentinel. “The District has complied with two court orders ruling that the redacted content is protected by state and federal statute. [I am/We are] troubled by the media’s decision.”
The request for the Sun Sentinel and two of its reporters to be found in contempt of court would stem not from a violation of FERPA — only entities that receive funding from the Department of Education are bound by that law — but from a violation of the court’s order to produce the report on Cruz’s education history.
“I think it would be hard to regard the recipient of the records as being in violation of the order because the duty to redact was on the district,” LoMonte said. “It’s really not much different from the olden days, when people would get documents from government agencies with black magic marker across them and they’d hold them up to the light to try to read them. I suppose you can argue about the ethics, but not the legality.”