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Summer 2007 Bulletin
Montana High Court Rules School District Must Disclose Student Discipline Records; FERPA Does Not Apply
The Montana Supreme Court ruled in May 2007 that the Cut Bank Pioneer Press had standing to enforce the state’s open meeting laws, and ordered the Cut Bank School District to turn over discipline records related to a 2005 incident.
In Bd. of Trustees, Cut Bank Public Schools v. Cut Bank Pioneer Press, 160 P.3d 482 (Mont. 2007), a unanimous court held that the Cut Bank Pioneer Press had a “personal interest” in the records that reached beyond the common interest of all citizens, and that neither federal law nor the state constitution prevented disclosure of the records.
“This ruling is a victory for the public’s right to examine what government agencies are doing in its name,” said Jim Clarke, the Associated Press (AP) bureau chief for Montana, in a May 9 AP story. “It helps roll back a dark trend toward secrecy in government.”
According to the state Supreme Court’s opinion, on Sept. 25, 2005 the School District’s Board of Trustees closed a portion of its public meeting to determine the appropriate discipline for two students found shooting other students with plastic BBs on school property. LeAnne Kavanagh, an editor at the Cut Bank Pioneer Press, asked for records describing the board’s disciplinary action. She specifically requested that the disciplined students be identified only by a number and not by name. On the advice of its attorney, the board refused and instead filed a petition in state District Court for the Ninth Judicial District asking for an in camera inspection of the records and a ruling as to whether they should be disclosed.
The newspaper filed a petition in the same court seeking records outlining the disciplinary action taken by the board. In a combined hearing on both petitions, the district court concluded that the federal Family Educational Rights and Privacy Act of 1974 (FERPA), 20 U.S.C. § 1232(g) (2006), applied to the student records and prevented the board from releasing them without the consent of the students and their parents. The FERPA conditions the receipt of federal funding by state educational institutions on the availability of student “education records” to parents, and the withholding of those records from most other people or institutions.
While the newspaper’s appeal was pending, the Montana Supreme Court decided Fleenor v. Darby School District, 2006 MT 31, 128 P.3d 1048 (Mont. Sup. Ct. 2006). In Fleenor, the court held that a resident suing to enforce her right to participate in the hiring of a new school superintendent lacked standing because she failed to allege an actual or threatened injury. “While the allegation of membership within the school district is a good start toward establishing standing, it is not, on its own, enough,” the court held.
News organizations responded with concern that the ruling would leave them unable to enforce article II, sections 8 and 9 of the Montana Constitution, which guarantee citizen access to government meetings and records. “The problem with this is that it appears to let officials who flaunt [sic] open meeting requirements off the hook big time,” argued a March 9, 2006 editorial in the Helena Independent Record.
Relying on Fleenor, the Cut Bank School Board asserted for the first time on appeal that the Cut Bank Pioneer Press lacked standing. The board argued that the paper could not show an injury distinguishable from the injury to the general public. But the Montana Supreme Court disagreed. “The interest was personal to [the Cut Bank Pioneer Press] because the records were necessary for [the newspaper’s] work,” the court held. “[The Cut Bank Pioneer Press] clearly stated an interest in the redacted student disciplinary records which extended beyond the ‘common interest of all citizens.’” The court agreed with amici – the Montana Newspaper Association, Montana Broadcasters Association, and The Associated Press – the board had prevented the Pioneer Press from “doing its job” and that constituted a specific injury for the purposes of standing.
In a separate concurrence, Justice James C. Nelson further clarified the Fleenor holding. “While denominated as standing problem, Fleenor, more accurately, involved a pleading problem. Fleenor’s complaint and amended complaint were so poorly drafted that she failed to allege any personal injury or stake in the litigation – the fundamental requirement to begin any lawsuit,” he wrote. Justice Patricia Cotter, the author of the Fleenor decision, joined in the concurrence.
Moving to the statutory issue, the court ruled that the FERPA does not protect the Cut Bank School District’s disciplinary records because they are not “education records” within the meaning of the statute. Education records are those that (1) directly relate to a student, and (2) are maintained by the educational institution. The Cut Bank Pioneer Press asked for records with the names redacted or replaced by numbers that do not identify the students. Since the records would not personally identify any student, they do not directly relate to any student and are not protected as “education records” by the FERPA, the court held.
Turning finally to the Montana Constitution, the court examined article II, section 9. Section 9 limits the right to inspect public documents “in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure.” The court held that even if the students or their parents had a subjective expectation of privacy, it is not one the public is willing to recognize as reasonable because the records do not disclose the identity of the students. The privacy interest does not outweigh “the merits of public disclosure.”
“This ruling is significant for Montana citizens who care about open government,” Mike Meloy, an attorney for the Cut Bank Pioneer Press said in a May 16 Pioneer Press story. “First, it affirms the proposition that people who disseminate news have standing to challenge government secrecy in court. Second, the court rejected the recent trends of school boards to close meetings and documents for frivolous reasons . . .. The Cut Bank Pioneer Press should be commended for pursuing the case. It vindicated constitutional rights for all Montana citizens.”
Despite losing the case, Cut Bank Superintendent of Schools Wade Johnson expressed satisfaction with the continuing relationship between the schools and the newspaper. “The legal advice we received did not work out as planned, but we are thankful that the relationship between the Cut Bank Schools and the Cut Bank Pioneer Press has remained positive throughout the process,” he said in a May 16 Pioneer Press story.
University of Minnesota | College of Liberal Arts | School of Journalism and Mass Communication
