1.9.23: Article first published. 12.3.23: Article updated.

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Fairfax County Public Schools (FCPS) has a history of training staff to take actions that prevent information being obtained via Freedom of Information Act (FOIA) and Family Educational Rights and Privacy Act  (FERPA) requests. Under FERPA, parents have the right to inspect their children's education records. Under FOIA, parents have the right to access other records unrelated to their children as well as records related to their children, which aren't considered educational records. However, if there's nothing in writing, if students names are intentionally changed to initials and/or nicknames, or if staff include lawyers on emails just so they can claim that the records are privileged, neither parents nor students can access them.

This training isn't a surprise in light of the U.S. Department of Education (USDOE) Office for Civil Rights' (OCR) recent investigation findings, released November 30, 2022. During its investigation, OCR found that FCPS directed staff to take actions that are in violation of Section 504 of the Rehabilitation Act of 1973 (Section 504), 29 U.S.C. § 794, and its implementing regulation, 34 C.F.R. Part 104, which prohibit discrimination on the basis of disability under any program or activity receiving Federal financial assistance.

This practice of training staff to take actions that aren't in the best interest of students extends to FERPA and FOIA, and an effort to prevent parents and students from accessing information related to them and/or other items of importance has been happening for years. FCPS has been engaging in bad faith actions in relation to student and related records in particular by training staff not to put information in writing; to change the names of students to nicknames and/or initials, so that the records don't come up in FERPA and/or FOIA requests; and to include lawyers on emails so that they'll be considered privileged and won't have to be included in FERPA and/or FOIA requests.

February 24, 2016

Silverbrook Elementary School (SES) principal Melaney Mackin advised school psychologist Michael Borsa the following regarding an email sent by a parent:

"I suggest that you do not email your reply to her questions (no paper/email trail) – either call her to discuss or email to say these can be answered when she comes in for the next meeting with the
committee."

October 30, 2017

South County Middle School teacher Jenny James changed a student's name to "my selected student" and emailed colleagues the following:

"Please let me know if 1) you don't know who my selected student is and I will have to call you with the information (or you can ask Ryan in person) 2) he does not appear on your dashboard in SEASTARS."

May 3, 2018

South County Middle School special education department chair Ryan Bartruff changed a student's name to "our good buddy" in emails with staff.

October 18, 2018

South County High School Administrator Kaaren Lowder changed a student's name to "our 9th grade student" in an email to a teacher.

July 1, 2019

Due Process and Eligibility Coordinator Dawn Schaefer sent an email stating that "communications without direct identifiers, including communications that when read cannot be reasonably linked to a specific student, would not be considered part of the student scholastic record, and would not be provided under FERPA."

October 6, 2019

In an email to a colleague, head of Due Process and Eligibility Jane Strong states she's "keeping John on the email thread to keep it attorney client privileged. John is John Cafferky, FCPS' long-time attorney.

*Side note: In this email, Jane asked for guidance on whether a parent is right that only an audiologist can diagnose auditory processing disorder. Her colleague Dede Bailer replies in the affirmative, that FCPS school psychologists don't make diagnoses and that school psychologists "have foundational knowledge and understanding of . . . auditory processing". They do not have expertise. Yet, as of fall 2023, four years later, FCPS advised a parent that a school psychologist could fully evaluate a student for auditory processing.

October 28, 2019

South County High School teacher Maureen Saale changed a students name to the first and last initial of the student in an email to a colleague. When later asked about why she used the initials, she said that she had been trained to use initials so that the students couldn't be identified in FERPA requests.

Region 4 Superintendent Jay Pearson advised the parent that documents with the student's initials would be pulled in a FERPA request and that he was "directing the school staff to use [STUDENT's] name and not his initials, in future emails."

However, in October 30 to November 6, 2019 emails between FCPS' FOIA officer and due process and eligibility staff, they determined that it wouldn't be productive to do a search for initials. Hence, even though FCPS trained staffed to use initials, and even though an administrator advised parent that FCPS would pull records with initials instead of a full name, FCPS determined it wouldn't be productive—and no records were provided to parent.

February 7 & 8, 2020

I exchanged emails with South County High School teacher Michelle Abrahamson after seeing an email in which she referred to a student as "our student" instead of by the student's specific name. She stated that SCHS staff received FERPA training at the beginning of the school year and that "the training advised teachers to avoid using student names in emails in general" and that "this FERPA guideline helps to protect both the students and the faculty."

Her comments supported what her colleague Maureen Saale stated just over three months earlier, about SCHS staff being provided training to use initials and other identifiers instead of student names.

Since FERPA regulations apply to student records, one wonders why FCPS staff were provided guidance to protect faculty.

April 1, 2020

FCPS held a training session focused on COVID-19 procedural guidance. At about the 00:31:30 mark of part 2 of the video for the meeting, director of FCPS's office of special education procedural support Dawn Schaefer and Hayfield HS assistant principal Andrew Guillen advised participants:

Andrew Guillen:

"Yes, Dawn. I just wanted to be clear, too. If that chat function is, um, enabled, parents could ask for a copy of it through a FERPA correct?"

Dawn Schaefer:

"Yes, that is correct. So we really, um, strongly suggest that you turn it off."

Andrew Guillen:

"Correct."

Dawn Schaefer:

"And remember, anything that gets typed over there gets kept."

October 21, 2020

South County High School teacher Telia Johnson and special education administrator Samantha Tolan changed student's name to "the student" in emails with colleagues.

January 25, 2021, FCPS held a training session with special education lead teachers. At about the 00:35:20 mark, FCPS procedural support liaison Dawn Azennar advised participants:

". . . when your PSL comes to you, and kind of talks about a student, and you want to think about that continuum of services, you probably wanted to have that conversation a little earlier, rather than waiting to the last minute of the school year. So, I just think that early planning, that frequent communication with the receiving school is going to be important——and minimizing how much you put in e-mail, too. That's another good thing to remember. Have the conversations on the phone or verbally."

February 2, 2021

FCPS held a training session with special education department chairs. At about the 00:38:24 mark, Alice Lima-Whitney and FCPS PSL Michelle Waller advised participants:

Alice Lima-Whitney:

So we went through this really, really quickly and, um, I want to remind you that all of the resources for you to look at this information, how to access it, suggestions for what and what to enter are all, um, linked here. And then lastly, I want to mention that anything that is added to the, um, worksheets is, um, accessible via FOIA or FERPA, so make sure that everything that you're, um, putting into the sheets is specific to literacy progress, um, or needs. . . .

Michelle Waller:

Okay, it looks like we don't have any questions at this time. So Alice, we'd like to thank for presenting information on the Plist. Um, you already mentioned that anything that's typed in here can be, uh, requested by the parent through FERPA or FOIA, so remind your school teams, please, that, um, of that information.

A bit of irony: For all its trainings on how to avoid disclosing personally identifiable information, FCPS has a history of exceling at FERPA violations and has been found in noncompliance on numerous occasions for its failure to secure the privacy of students.