Two attorneys who specialize in the interpretation of the student privacy law — the Federal Education Rights and Privacy Act — said parent names in cases involving challenges to book or other curriculum material aren’t protected. But the NHCS’s current law firm maintains FERPA does apply, claiming that the parental complaint of the book Blended is a part of a student’s educational record, and if the parent's name were revealed, it would lead to identifying the student.
FERPA protects student records. Some of these records are defined as being directly related to a student, such as grades, transcripts, class lists, course schedules, health records, financial information, and discipline files.
Jonathan Gaston-Falk is a staff attorney at the Student Press Law Center. WHQR wrote to the organization about FERPA protecting the parent's name in the challenge to Blended. The request included removing the book from district libraries and classrooms, which would ultimately affect other families in the district.
Gaston-Falk responded, “Based on the information you gave, I do not believe FERPA would apply. Such a complaint should not constitute an educational record under the Act. In fact, I would be alarmed if such a document, which has an effect on all children in the district, could be kept under lock and key because of FERPA.”
Since the parent, school board member Josie Barnhart, filed the complaint, two school committees (Wrightsboro Elementary and NHCS) have reviewed the book and determined it could remain. However, the superintendent overruled their decisions, saying it can be checked out with parental permission for students in fourth or fifth grade and can also remain in libraries for middle and high school students.
That decision will stay because neither Barnhart nor the district's Media and Technology Advisory Committee (MTAC) challenged Barnes’ decision during the 15-day window to appeal.
Barnhart said she believes her and her student's privacy was violated, and the information surrounding her book complaint was “leaked." John Hinnant, the chair of the New Hanover County GOP, also saw it this way when he came to the school board’s public comment period on June 3. However, another audience member, Sandy Eyles, used her time to outline that Barnhart’s privacy rights stopped when she moved beyond her student’s education to limit other parents’ decisions about the book.
Neubia Harris, another attorney who specializes in education law and practices in North Carolina, wrote in an email, “It's my opinion that the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g, safeguards the privacy of students' education records, and that its confidentiality provisions do not typically extend to general parental communications about school policy, unless the communications become part of a student's education records. Therefore, a parent's identity linked to a district-wide book removal request is generally not protected under FERPA.”
She added, "When a parent communicates with the district about curriculum or materials, they usually participate in civic discourse. These types of communications are typically subject to public records laws rather than being protected by student privacy statutes.”
Lawyers for the district also maintain that they didn’t release the parent's name because the student could plausibly be identified if they did. This personally identifiable information (PII) subset of FERPA has been used to protect data if fewer than 10 students of a particular subgroup are making a specific test grade. The district has also done this previously with student suspension data.
Pate McMichael is the executive director of the North Carolina Open Government Coalition at Elon University. He’s since started a project asking all 134 school districts to send documentation of removal requests for curricula or library books going back to 2020. WHQR participated in a similar project with media organizations throughout the state.
So far, he’s found a mixed bag regarding North Carolina school districts redacting parent names from curriculum or book complaints.
“From the list we [ran on June 9], we’ve got disclosures from Mecklenburg, Randolph, and Pitt counties where the requester's name was disclosed. Then there's a gray area. Some schools, Sampson and Burke County Schools, are not disclosing the name of the requester. They're blacking it out, citing FERPA,” he said.
While McMichael admits he’s not an attorney, he said he is 100% certain these cases are not subject to FERPA. He disputes Barnhart's claim that disclosing the parent's name harms the student.
“Are there examples where disclosing the name of a parent attempting to restrict materials from consideration has led to harm to a student? The people making this argument should provide those rather than go around accusing people of violating people's privacy,” he said. “There's nothing in the state law that says school systems need to restrict the names of who's making those requests, so where is their justification for not disclosing? I can't find it anywhere.”
He added that most school districts ask for the parents' name and signature on these request for removal forms, which would constitute a public record. Pate questioned why districts would ask for these names in the first place if that wouldn’t be subject to public disclosure.
While the General Assembly could theoretically change the statute regarding the identity of book and curriculum complaints, they haven’t done so yet. He also points to current law § 115C‑98, which states that the local school board would have the final say over whether challenged material should be “retained or removed.”
“So if that person didn't recuse themselves, let's say it went that far, hypothetically, and the person making the request was also on the board deciding it, I don't think anybody would consider that a legitimate type of hearing," he said. "And you would have to recuse yourself, but how would the public know whether that was happening or not if the name is not disclosed?”
If the NHCS attorneys prevail, books and curriculum can be limited and/or removed without the public knowing which parent ultimately made that choice for other families in the district.
McMichael said another wrench in this process is that it could allow members of the public outside of the local community to have control over materials.
“You're choosing to engage in that conversation with your fellow parents or fellow members of the public, and they have a right to know that you're the one making that request, not someone in D.C. [...] It's our position [NC Open Government Coalition] that sunlight is the best disinfectant, and we believe that the more open our records are, the more likely we are to understand how our government functions, and what's going on with the public's business,” he said.
Other tests of FERPA
The United States Department of Education and the North Carolina Department of Public Instruction declined to weigh in on the facts of the Blended case. They referred the public to what is written in FERPA and the section of the law that outlines what constitutes personally identifiable information (PII).
However, from other instances in the past, the NHCS district has released more identifying information about a parent’s communication about their students with specific educational circumstances. For example, on March 31, the district released a parent’s emails to Barnhart and former superintendent Dr. Charles Foust about her daughter with a 504 plan. In this same records request for emails about the controversial classroom display policies, another parent’s name was released with information about his son, who is autistic. It's possible these unredacted records were a mistake, or just additional confusion over when FERPA applies.
The author of FERPA, U.S. Senator James Buckley, believed that interpretations of the statute were going too far.
In 2011, Buckley told the University of Alabama’s student newspaper, The Crimson White, that he wrote the law to allow parents more access to their students’ records. Before that, Buckley said schools would withhold some of this information from families. He said the problem with the law now was that it was passed in 1974 and “all kinds of interpretations were added over time.” The Crimson White contacted Buckley when the University tried to shield student government records, claiming FERPA.
In 2023, WHQR contacted former Duke University professor Mark Stencel when Cape Fear Community College claimed that an alumnus’ email critiquing the administration about the treatment of employees in the marine technology program was protected by FERPA. WHQR eventually got CFCC to release the name after an attorney from the Student Press Law Center said that the law does not protect communications from alumni, but it was several months after the reporting.
Lawyers at Duke’s First Amendment Clinic also said the name would not be protected because “FERPA has an exception for what's called ‘directory information,’ which includes the names of students. So the fact that a particular student went to a particular school is not confidential.”
Stencel responded about the CFCC case, “FERPA is just about the most abused law in all of officialdom because it is used constantly as a shield against media inquiries that have anything to do with education. Just having a student's name in something becomes an excuse not to provide the information, and the only way we can get past that is often taking institutions to court.”
Prior reporting
- NHCS superintendent addresses his decision to overrule committee on “Blended” challenge
- Sunday Edition: Seed Money; On Book Bans and Parents’ Rights
- Wrightsboro parent pushing for book ban, appeals after school committee rejects their challenge
- Love Our Children continues to push for change in NHCS suspension policy, data sharing (FERPA protecting suspension numbers under 10, same goes for test scores for a subgroup)
- Deep Dive: What caused the disruption at CFCC’s marine tech program? (Redacted alumni email, CFCC incorrectly claimed FERPA)
- PIOs: The good, the bad, the ugly (Former Duke professor on FERPA shields)
- FERPA overused, law’s author says (Crimson White’s reporting)
