Yesterday, I put up a post about John White’s Department of Education filing two lawsuits in order to keep standardized testing data out of the public eye. Hours later, I received an e-mail from White, who was reaching out to offer his side of the story. Long after normal office hours were over, we were working out a time to talk about the issue, and he was also sending background information for the phone call we’d scheduled for 9 a.m. this morning.
His office, he said in that call, is currently trying to navigate between two laws that give two different directions to the state’s Department of Education. The first law is the state’s public information law, which directs the Department of Education to give out the information James Finney and Michael Deshotels have requested numerous times. Both White, and his general counsel, Joan Hunt (who was also a part of this morning’s phone call), said that they work to quickly get out the information.
“We have an attorney full time to handle public information requests,” Hunt explained.
The state law, they say, comes into conflict with a federal law, the Family Educational Rights and Privacy Act, otherwise known as FERPA. This law requires that student private information is not released in enough detail to allow someone to identify students based on the information. FERPA is an extremely serious law, with penalties to the state that could include the loss of federal funding. The Louisiana Department of Education recently received a guidance from the federal Department of Education detailing what White called the “suppression mechanism” in order to comply with FERPA. That mechanism includes withholding information if a group or subset has ten members or less.
White said he wants to abide by both laws, and that the lawsuits mentioned yesterday are for that purpose. His office is seeking guidance on how to navigate between the public information law and FERPA. “The term ‘lawsuit’ is often interpreted to mean someone is seeking damages,” White explains. “We’re not seeking damages here. The Department of Education has two laws telling it to do two different things.”
However, White goes on to say that his number one priority is student safety and privacy. “We cannot recklessly jeopardize the private information of children,” he said. “We’re not going to put students’ private information into the hands of an evil person.”
That’s not to say that he sees Finney or Deshotels as “evil.” He understands why they are seeking the information. “Our job is not to evaluate intent,” he said of Finney, Deshotels or anyone else who files a public information request. The problem is when the information they seek is used by someone else – a bully or a predator – for malicious purposes.
That’s why the Department of Education is currently seeking guidance from a state court on the matter.
“We went to state court because the public records law is a state law,” Hunt explained when asked why they chose a state court over a federal one. The worry was that a federal court would say the suit is more a matter of the public information law, which is a state law. However, she did say that she would have no problem if the case was in a federal court.
Between the U.S. Department of Education’s guidance, and the guidance of the court, the state’s Department of Education hopes to have answers for future issues.