Originally appeared in the CAS Weekly Newsletter.
Written by attorney Thomas B. Mooney.
Dear Legal Mailbag:
A student at my school was recently suspended for his behavior. Some parents in the community have taken to social media to express their concerns with the incident and to speculate over the “rumored” consequences. However, one parent wrote on social media that the student is protected under IDEA and will not receive consequences. This comment has sparked Internet controversy and agitation.
My question is, does the school district or do the parents of the student in question have any recourse against other parents disclosing on a public forum that the child receives special education services?
You have raised a legitimate and significant concern. Unfortunately, parents are not subject to the same restrictions on the disclosure of confidential student information as are school officials.
As you know, FERPA provides that school officials may disclose personally-identifiable student information only under specific limited circumstances (e.g., pursuant to a subpoena or a health and safety emergency), and feeding the social media beast is not such a circumstance. You have appropriately maintained the confidentiality of information concerning the student’s behavior and the consequences imposed.
FERPA is a funding statute, i.e., it imposes obligations on educational institutions that receive federal funds. Accordingly, school districts must comply with FERPA requirements or they risk losing federal funds. Since parents neither receive federal funds nor are an educational institution, however, they are not similarly constrained. For example, if two students get in a fight, school officials must not share related information. By contrast, an irate parent can talk about the incident as he or she sees fit, and indeed the parent can post his or her version of events on social media.
In reference to this specific situation, you asked whether school officials or the parents of the student have any recourse. As to school officials, Legal Mailbag does not believe that school officials have any recourse against the parent discussing such matters on social media. Parents or others have no confidentiality obligations under FERPA, and they have free speech rights as well. School officials have no general authority to control the speech of parents over social media or otherwise (though school officials do have jurisdiction over student speech on social media if such speech constitutes “bullying” as defined by state law).
By contrast, the parents of the student identified on social media by other parents as receiving special education services may have recourse. A “tort” is a civil wrong subject to redress through the courts, and common torts include negligence or trespass. Here, a parent or parents spreading news about the special education status of the student in question may have committed the tort of invasion of privacy. The Restatement (Second) of Torts § 652D (1977) (which has been cited with favor by the Connecticut courts) addresses “Publicity Given to Private Life,” and it provides:
One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that:
- (a) would be highly offensive to a reasonable person, and
- (b) is not of legitimate concern to the public.
Legal Mailbag does not mean to suggest that it would be a simple matter for a parent of a child with disabilities to sue other parents for their posts on social media about their child. However, in an extreme case such a parent may wish to do just that, and the legal principle of “invasion of privacy” may provide that recourse against the parents posting on social media. Moreover, given that parents posting information about the children of other parents are thus potentially liable, school officials can certainly warn such parents and encourage them to refrain from posting such information.
Finally, Legal Mailbag can tell that you are intellectually curious, and we note in passing that the Connecticut Supreme Court adopted this standard for invasion of privacy in announcing the rule for maintaining personnel records confidential under the Freedom of Information Act. Unless otherwise exempt from disclosure by statute, records in a personnel file are exempt from disclosure as an “invasion of privacy” as provided in the FOIA only if both standards announced are met – (1) disclosure of the information must be highly offensive to a reasonable person, and (2) the information in question must not be of legitimate public interest. Perkins v. Freedom of Information Commission, 228 Conn. 158 (1993).