Originally appeared in the CAS Weekly Newsletter

Dear Legal Mailbag:

As most school administrators would agree, 99% of our time is spent with 1% of the population, which includes a small number of recalcitrant students and staff members. I recently investigated a case of alleged staff misconduct. The accusations were quite egregious and even resulted in a referral to an "outside agency."

After the investigation, the staff member's union requested copies of all witness statements, which I happily complied with. Since I had recently watched an episode of "Law and Order," I used an extra thick Sharpie marker to redact the identity of the victim along with other student names. The union then demanded unredacted versions of witness statements. This resulted in a virtual electronic tug of war between the administration and the union regarding the redacted names. I am certain Detective Stabler said the identity of a victim could be shielded from disclosure.

What do I do?

Do the Right Thing

Dear Right:

Though Legal Mailbag shares your affection for Detective Stabler, to answer your question, we must consider both labor relations and FERPA issues.

From a labor relations perspective, unions are typically granted access to unredacted witness statements (except witness statements written by students as described below). As a matter of fairness ("due process"), an employee has a right to know who is saying what about the employee. With that knowledge, the employee may be better able to defend him- or herself against accusations made by these witnesses because there may be a backstory (such as prior antagonism or conflict) that would undermine the credibility of the witness (or victim).

Employers can make arguments against revealing that information. One may argue (and perhaps you already have) that keeping witness names confidential protects the teacher and the teacher's colleagues from a claim of retaliation that might otherwise be made if a witness subsequently receives a bad grade or suffers some other disadvantage. One may also argue in some cases that who gave a particular witness statement is irrelevant information – if the employee admits to certain acts, why would we need to know who else described the admitted misconduct?

Such arguments can be persuasive, but sometimes they are not. A union may insist on receiving unredacted witness statements, and as to statements made by adults it has at least two options to get the information it seeks. First, the union may simply file an FOIA request for the witness statement, and the right of public access to public records will trump your preference to keep the witness statement confidential. Second, the union may file an unfair labor practice charge, claiming that your refusal to provide the unredacted witness statements is an unfair labor practice because the information is necessary for the union to administer the contract (presumably the "just cause" provision).

Some of the same considerations apply to witness statements written by students. However, statements written by students are also very different because they may be subject to FERPA requirements. As the faithful reader knows, FERPA prohibits the disclosure of personally-identifiable student information contained in "education records" without parent (or eligible student) consent unless an exemption from this prohibition exists.

The threshold question here is whether a witness statement written by a student is an "education record," which FERPA defines as follows:

(a) The term means those records that are:

(1) Directly related to a student; and

(2) Maintained by an educational agency or institution or by a party acting for the agency or institution.

If the victim is a student, it is clear that the student's statement is a FERPA-protected record. In "Letter to Caufield" (November 6, 2015), the United States Department of Education stated that a complaint brought by a student under Title IX is an "education record" directly related to that student that is subject to FERPA's protection. A similar argument can be made about statements written by students who are not the complainant, though the Department of Education did not address that situation in its guidance. While one can question whether the witness statement by the non-victim student is "directly related to that student," the more conservative approach is to consider all such statements "education records" subject to FERPA protections.

Internal use of such statements is permissible under FERPA because the administrators or teachers involved in the investigation can be considered "school officials" with a "legitimate educational interest." Union officials, however, stand on a different footing. In "Letter to Caufield," the United States Department of Education rejected the argument that a union official can be considered a "school official":

Unions are independent, private legal entities that typically represent a specific teacher's interest rather than perform a task for the educational agency or institution. Because a union's interest is usually different from those of an educational agency or institution, we do not believe union personnel could be considered "school officials" with "legitimate educational interests" under FERPA.

Accordingly, you were correct in exercising caution in responding to the union's request for unredacted statements provided by students.

Finally, the Department of Education left an opening for the release of unredacted student statements to a teacher and the teacher's union. The Due Process Clause of the Fourteenth Amendment provides that the government may not deprive a person of liberty or property without due process of law. In "Letter to Caufield," the Department states:

. . . FERPA does not permit the [school] to non-consensually disclose [personally-identifiable information] from students' education records to the Union unless doing so is necessary to comply with any federally guaranteed due process rights of public school employees, or unless the [school] receives a lawfully issued subpoena or judicial order and must disclose the information in order to comply with the subpoena or judicial order and otherwise has complied with the requirements in FERPA for making a non-consensual disclosure pursuant to such a subpoena or judicial order. (Emphasis added).

Whether providing student witness statements is necessary as a matter of due process is a legal question that will depend on the specific facts. Unless and until you receive legal advice that this exception applies to your situation, keep those unredacted student statements confidential!

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.