Meta-blog Post About the Privacy of School Blogs

Before actually posting about some real newsworthy item, I first wanted to briefly explore the privacy implications of a required student blog. My initial concern with the blog was that it would be publicly available and would turn up when anyone (read employer) googled my name. This could, perhaps, give the searcher the false impression that my main hobby was blogging about privacy issues. . . but I suppose there could be worse things.

The blog shines a very public light to educational work which is so often expected to be private, perhaps invoking embarrassment at sub-standard work (or, reversely, scoffing at gunning). Even if legal, we might still question the efficacy of required public work. On the one hand, required public posting and peer review serves a legitimate educational purpose, providing increased feedback and perhaps requires students to take their work more seriously. However, on the other, it may chill academic freedom and prevent students from posting true beliefs about a privacy topic in fear that the views be given publicity. See McIntyre.

SCOTUS took up the issue of peer-review in Owasso Independent School Dist. v. Falvo, 534 U.S. 426 (2002). The plaintiff was a concerned parent whose children were subjected to peer-review without parental consent. In fear of embarrassment to her children, Falvo lobbied the school to adopt a policy banning peer-review. Upon the District’s failure to do so, she brought a § 1983 suit alleging a violation of Family Educational Rights and Privacy Act (FERPA).

Under FERPA, educational records are protected from public release without parental consent. The case then turns on whether “an assignment becomes an education record the moment a peer grades it.” Id. at 431. Justice Kennedy, writing for eight justice majority, argues that there are two statutory indicators that FERPA should not hold a peer reviewed assignment as an educational record. FERPA defines “educational records “as ‘records, files, documents, and other materials’ containing information directly related to a student, which ‘are maintained by an educational agency or institution or by a person acting for such agency or institution’” Id. at 429 (citing 20 U.S.C. § 1232g(a)(4)(A)). First, Kennedy argues that peer reviewed assignments do not constitute the school “maintaining” records. Maintain, for Kennedy, suggests “Filing cabinets in a records room at the school or on a permanent secure database.” While perhaps not being satisfied in Owasso, this condition seems to be satisfied in the case of our blog (Although, blogspot may be maintaining the database rather than the U of M).

Second, and perhaps more pertinent to our blog, he argues that students grading papers are not a person acting for the school. Rather, he opines that “Correcting a classmate’s work can be as much a part of the assignment as taking the test itself. . . it helps show students how to assist and respect fellow pupils.” Id. at 433.I am, however, led to wonder whether the teacher could provide “fake” assignments to review in order to get the educational benefits while avoiding the privacy concerns.

Two final notes: I am not sure the role of parental consent in the case of students of majority age. That is, whether as an adult I can refuse to give consent for peer-review under FERPA or the court’s analysis. Second, the facts of our blog go further than Owasso in the sense that this is truly public and not restricted to just my classmates.

Alas, I can’t get out of doing my work with FERPA.