Michigan district seeks court order for videotapes to avoid FERPA violation
Videotapes taken of Pontiac Northern High School students on the day a teacher was allegedly beaten by students have become the focus of a lawsuit this week by the Pontiac School District. Three students—one 15-year-old and two 16-year-olds— have been charged as juveniles with assault with intent to commit great bodily harm. David Wilson, a service officer at the school, was fired in a related matter, according to the lawsuit. A grievance for his firing seeks film footage of all school security cameras on the date the alleged assault occurred. The district seeks a protective order from Oakland Circuit Judge Michael Warren to force them to comply with the request so they cannot be sued for turning over an "education record" normally requiring written consent by a parent/guardian. “We aren't disputing their right to this record," said attorney Robert T. Schindler. "This is something we have to do to protect ourselves." The district's lawsuit said the videotapes contain identifiable images of hundreds of students including "numerous students either believed to be involved in the assault ... or had contact with those students either directly prior or subsequent to the assault of the teacher." The lawsuit alleges the district "would risk a loss of millions of dollars in federal funding" if it violates federal regulations requiring written consent from parents/guardians. But under the law, consent is not needed providing a school is complying with a judicial order or subpoena. The district also asked the court to grant the protective order with instructions that the tapes are only viewed by those involved with the grievance and for no other purposes; that no copies are made of the tapes; and that they be returned to the district or destroyed at the end of the grievance process.
Source: Detroit News, 5/15/08, By Mike Martindale
[Editor’s Note: The question on how the Family Educational Rights and Privacy Act (FERPA) applies to video footage has generated considerable uncertainty. State courts also have arrived at different conclusions when construing state privacy laws. See below.]
NSBA School Law pages on Lindemann v. Kelso Sch. Dist. No. 458