After California parents were recently notified that their children's records might be released as part of a federal lawsuit over special education, the judge handling the case was so inundated with objections that she said she "cannot realistically review" them individually.
In a new new ruling issued March 1, U.S. District Judge Kimberly J. Mueller in Sacramento also clarified that no records have yet been released. She also tightened up security measures for some of the most sensitive records that may be released.
The judge said the response to the notice that the records might be released shows how outdated the federal law is that requires it.
Many districts around the state had recently informed parents that information about their students might be released and provided information about how to object to the release.
The student records were requested as part of a lawsuit filed in federal court in Sacramento in April 2012 by the Morgan Hill Concerned Parents Association and the California Concerned Parents Association, which represent parents of children with disabilities.
The suit against the California Department of Education claims state schools are not complying with federal laws about educating students with disabilities.
After a Feb. 29 hearing, Judge Mueller issued a new ruling March 1. "Given the number of objections received, and the objections that will continue to be received, the court has not and cannot realistically review the objections individually," she wrote.
Judge Mueller said the objections, which can be sent in until April 1, are to be kept "in sealed boxes stored in a secure room until further order of the court."
The ruling said that while a notice of the records release is legally required, as is offering the opportunity to object to the release, releasing the records does not require consent.
Judge Mueller wrote that FERPA (the Family Educational Rights and Privacy Act) requires "notice prior to disclosure of education records, including those that contain personal identifying information." Because lawyers in the case had asked for confidential records, the judge ordered the notice, said it could be posted online, and approved its wording.
The response shows, Judge Mueller wrote, "on the one hand, the imperfect fit between the FERPA regulation crafted in and largely unchanged since the 1970s, before the internet as we know it was a gleam in any but an academics' eye, and on the other, the social media environment in which information is churned and transformed in a nanosecond or less."
The judge wrote that evidence presented at the hearing showed "at least some of the (objections) the court has received have been completed based on the incomplete or misleading messages" about the issue.
Judge Mueller said that while no information has been released yet, procedures are in place in case any requests for confidential student information are approved.
The safeguards were developed by a computer forensics expert, Winston Krone of San Francisco's Kivu Consulting, and approved by both parties to the lawsuit.
The notice posted on the Department of Education website said information may be released on any child who attended public schools in California after Jan. 1, 2008. An earlier order by Judge Mueller said the information will not be released "to anyone other than the parties (to the lawsuit), their attorneys and consultants, and the Court," and will be returned or destroyed when the lawsuit is concluded.
The notice says that types of information stored on the Department of Education's databases and network drives that could be released include "name, Social Security number, home address, demographics, course information, statewide assessment results, teacher demographics, program information, behavior and discipline information, progress reports, special education assessment plans, special education assessments/evaluations, Individualized Education Programs (IEPs), records pertaining to health, mental health and medical information, student statewide identifiers (SSID), attendance statistics, information on suspensions and expulsions, and results on state tests."
The Department of Education's website, has the form for objecting to the release. It must be mailed to the judge at the address on the form. The website also has a page of Frequently Asked Questions about the student data release.
State Superintendent of Public Instruction Tom Torlakson said in a Feb. 17 press release that the Department of Education has for nearly three years "fought requests by the plaintiffs to produce documents that contain the personally identifiable information of students and has produced documents with that information removed."
But the Concerned Parents Association, on its website, said it has worked for two years to try to get the Department of Education to provide "these materials in an anonymized form" but that the department "persistently declined."
The March 1 ruling includes a further safeguard for the California Longitudinal Pupil Achievement Data System (CALPADS) database, which it calls "the most sensitive" information that is being requested because it has the most personal identifying information. If information from that database is approved for release, the database itself would remain with the Department of Education, where representatives of the groups filing the lawsuit could search it for the information requested.