Morgan Hill Concerned Parents Association v. California Department of Education

Filing 103

ORDER signed by Judge Kimberly J. Mueller on 5/14/15. A further Status Conference is set for 6/25/2015 at 02:30 PM in Courtroom 3 (KJM) before Judge Kimberly J. Mueller. Joint Status Report with Joint Proposal(s) defining the Special Master's role due 7 days prior to conference. (Manzer, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MORGAN HILL CONCERNED
PARENTS ASSOCIATION, an
unincorporated association, and
CONCERNED PARENTS
ASSOCIATION, an unincorporated
association,

ORDER

Plaintiffs,

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v.

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No. 2:11-cv-03471-KJM-AC

CALIFORNIA DEPARTMENT OF
EDUCATION, and DOES 1 through 5,

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Defendants.

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On April 30, 2015, this court held a status conference, at which Rony Sagy and

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Barbara Gately appeared for plaintiffs and Brenda Ray and R. Matthew Wise appeared for

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defendants. At the status conference, the court and counsel discussed production of electronically

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stored information and limited appointment of a special discovery master, among other things.

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I.

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Candidates for Special Master
The parties agree Mr. Winston Krone of Kivu Consulting is the most qualified

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candidate to serve as a special master. The parties represent they have contacted Mr. Krone, and

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he has expressed willingness and availability to serve as a special master in this case. Since the

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status conference, plaintiffs’ counsel has reiterated the parties believe Mr. Krone “is a strong
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candidate to undertake the responsibilities contemplated by the Court . . . .” (ECF No. 102.) The

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parties do not object to the court contacting Mr. Krone on its own to confirm as much.

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II.

Special Master’s Compensation

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The parties and the court also discussed the question of who will be responsible for

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the special master’s compensation. The court directed the parties to file simultaneous briefs on

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that question by June 5, 2015, and hereby confirms that deadline.

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III.

Notice under the Family Educational Rights and Privacy Act of 1974 (FERPA)

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Defendants reaffirmed their position that personally identifiable information about
students with special needs cannot be released without providing individual notice to those

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students and obtaining their written consent, the cost of which plaintiffs must bear. Plaintiffs

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confirmed their disagreement with that position, arguing for an exception when a court orders

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disclosure subject to conditions. The court hereby confirms that the parties may file focused

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simultaneous briefs, each no longer than ten pages, on the question of notice and consent by

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May 22, 2015.

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To facilitate the parties’ focused briefing, the court provides its tentative reading of
the relevant law below.

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Congress enacted FERPA to protect the privacy of students and their parents. See

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20 U.S.C. § 1232g; United States v. Miami Univ., 294 F.3d 797, 806 (6th Cir. 2002); Cherry v.

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Clark Cnty. Sch. Dist., No. 11-01783, 2012 WL 4361101, at *5 (D. Nev. Sept. 21, 2012); Rios v.

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Read, 73 F.R.D. 589, 597–99 (E.D.N.Y. 1977); Mattie T. v. Johnston, 74 F.R.D. 498, 501 (N.D.

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Miss. 1976). FERPA conditions the receipt of federal funding by educational institutions or

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agencies on their compliance with certain procedures concerning the keeping of educational

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records. See 20 U.S.C. § 1232g; Miami Univ., 294 F.3d at 806. These procedures are designed,

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among other things, to restrict access to students’ educational records by third parties without

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parents’ consent. 20 U.S.C. § 1232g(b)(2). If, however, the students in question are eighteen

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years of age or older, the consent required under FERPA is required of the students, rather than

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the parents. Id. § 1232g(d).

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The consent requirement is subject to several exceptions. The most relevant

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exception to this action allows for disclosure without consent if disclosure is to comply with a

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judicial order or subpoena and the educational institution has made a reasonable effort at

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notification. 34 C.F.R. § 99.31(a)(9). Reasonable efforts to notify must be made in advance of

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compliance, “so that the parent or eligible student may seek protective action . . . .” Id.

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§ 99.31(a)(9)(ii). Confidential information may be disclosed if the notification requirements are

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met and there is a protective order in place restricting disclosure. See, e.g., Morton v. Bossier

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Parish Sch. Bd., No. 12-1218, 2014 WL 1814213, at *4 (W.D. La. May 6, 2014); C.T. v. Liberal

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Sch. Dist, No. 06-2093, 2008 WL 394217, at *4 (D. Kan. Feb. 11, 2008); see also Rios, 73 F.R.D.

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at 602 (noting “the need for a protective procedure when disclosure to a private party is directed

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by court order, it would seem sensible to require in the disclosure order that the recipients of the

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student records avoid revealing the data to individuals unconnected with the litigation and destroy

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the data when it is no longer needed. But it is neither required nor necessary that the defendants

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redact the names of the students from the records and substitute neutral identifying information”).

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The appropriate type of notice depends on the circumstances of each case. Rios,

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73 F.R.D. at 600. For instance, “where exceptionally large numbers of students are involved, it

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may be enough for a school or school district to publish notice in a newspaper.” Id. In Rios,

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where the case “involve[ed] several hundred students,” the court found “appropriate notice could

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be effected either by publication or by mail.” Id. Here, the court understands that a very large

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number of student records are affected by plaintiffs’ discovery requests. (See ECF No. 67.)

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Notice by publication appears to be the only practical method of complying with the statute and

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regulations, while allowing the case to move forward on a reasonable timetable.

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The court tentatively finds that the educational records at issue here may be

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disclosed without running afoul of FERPA as long as parents or students are notified of the

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disclosure by publication and a protective order restricts the use of the information to this

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litigation only. See Liberal Sch. Dist, 2008 WL 394217, at *4; see also Moeck v. Pleasant Valley

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Sch. Dist., No. 13-1305, 2014 WL 4988274, at *2 (M.D. Pa. Oct. 7, 2014); Doe v. Ohio, No. 91-

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0464, 2013 WL 2145594, at *9 (S.D. Ohio May 15, 2013); Blunt v. Lower Merion Sch. Dist., No.
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07-3100, 2009 WL 1259100, at *2 (E.D. Pa. May 7, 2009). Here, there is a protective order in

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place governing the disclosure of confidential information. (ECF No. 60.) That order appears

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adequate to ensure the information disclosed is not disseminated to others. (Id. at 4 (ordering

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confidential information to be used solely for the purposes of this lawsuit).).

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IV.

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Future Status Conference
The court sets a further status conference on June 25, 2015 at 2:30 p.m. At that

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time, the court will consider the role and duties of the special master, and confirm whether Mr.

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Krone will be appointed. The parties are directed to file a joint status report seven days before the

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status conference providing their joint proposal(s) defining the special master’s role.

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IT IS SO ORDERED.
DATED: May 14, 2015.

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UNITED STATES DISTRICT JUDGE

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