-TPK Doe, et al v. State of Ohio, et al

Filing 233

OPINION AND ORDER denying 225 Motion for Protective Order. Signed by Magistrate Judge Terence P Kemp on 5/15/2013. (kk2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
John Doe, et al.,

:

Plaintiffs,

:

v.

:
:

State of Ohio, et al.,
Defendants.

Case No. 2:91-cv-0464
JUDGE MICHAEL H. WATSON
Magistrate Judge Kemp

:
OPINION AND ORDER

This case is before the Court on Defendants’ motion for a
protective order regarding certain discovery requests.
No. 225.)

(Docket

This motion has been fully briefed.
I.

BACKGROUND

This case is a class action lawsuit brought by a class
certified as “all children, ages three through 21, currently
enrolled or seeking enrollment, now or in the future, in Ohio’s
public school system, who have a disability under the Individuals
with Disabilities Education Act [(IDEA)], 20 U.S.C. §§1400 et
seq., the Rehabilitation Act of 1973, 29 U.S.C. §§790 et seq., or
the Americans with Disabilities Act, 42 U.S.C. §§12010, et seq.,
and who require, as a result of their disability, special
education and related services or accommodations that are
designed to meet individual educational needs of students with
disabilities as adequately as the needs of nondisabled children
are met, and the parents or guardians of such children.”
No. 168.)

(Docket

The class definition goes on to define the types of

disabilities at issue.

(Id.)

In or around May of 2009, the parties reached a partial
settlement.

On July 2, 2009, the Court preliminarily approved

the partial settlement, scheduled a fairness hearing, and ordered
that notice be distributed to the class members.

In setting out

their proposed plan for notice to the class, the parties wrote
that the Plaintiff Class is large and widely dispersed and that
there are over 260,000 students with disabilities who are
receiving special education services across more than 700
educational entities.

(Docket No. 149 at 13-14.)

The method of notice approved by the Court for the partial
settlement consisted of (a) notice provided by the Ohio
Department of Education, which included posting a copy of the
notice and the Consent Order prominently on its website,
providing a copy of the notice and Consent Order to all local
educational agencies and asking them to post the notice
prominently in a central location accessible to the public in
each of its buildings and link to it on their websites, providing
a copy of the notice and Consent Order to various other
organizations and having them post a copy in their offices and on
their websites, and posting a copy of the notice in several
newspaper publications for three Sundays; and (b) notice provided
by the Ohio Legal Rights Service, class counsel, which included
mailing the notice to the named plaintiffs and amici, posting or
publishing the notice and Consent Order in the OLRS newsletter
and on its website, and disseminating the notice and Consent
Order electronically to statewide organizations representing
people with disabilities.

(Docket No. 149 at 14-15.)

On October 21, 2009, following a fairness hearing held the
day before, a consent order was filed reflecting the parties’
partial settlement.

(Docket No. 168.)

The Consent Order did not

resolve any of Plaintiffs’ claims related to the funding of
special education in the State of Ohio.

(Docket No. 203 at 6.)

The claims remaining before the Court after the Court granted in
part and denied in part Defendants’ most recent motion to
dismiss, are claims pursuant to IDEA, and Section 504 of the
Rehabilitation Act of 1973.

(Docket No. 203.)
2

On January 4, 2013, Plaintiffs served the document requests
at issue in Defendants’ motion: Plaintiffs’ Fifth Request for
Production of Documents - Data (“Fifth Request”) which includes
23 requests seeking data within the statewide data collection
system for Ohio’s primary and secondary education, the Electronic
Management Information System (“EMIS”).

These requests generally

seek data from the 2011-2012 school year to the present.

In

several of these requests, Plaintiffs are seeking access to data
for all students, not just students who are part of the Plaintiff
Class.

For example, Request No. 5 of the Fifth Request seeks

“access to the database(s) containing Data specific to Student
demographics including: a) Gender, b) Age, c) Race/Ethnicity, d)
Native Language, e) Home Language, f) Eligibility for Free or
Reduced Lunch Programs, g) Resident of a Household in which a
Member is Eligible for Free or Reduced-Price Lunch, h) Public
Assistance Eligibility and/or Receipt, I) Title I Eligibility
and/or Receipt.”

(Docket No. 225-4 at 5.)

The requests also

seek several other types of data including but not limited to
students’ participation in and performance on certain achievement
tests and assessments, attendance records, records of promotion
or retention from grade level to grade level, and disciplinary
records.

(Docket No. 225-4 at 10-12.)

On March 4, 2013, this Court held a status conference in
which the parties discussed the type of notice that FERPA
required before Defendants could produce the data sought in the
Fifth Request.

On March 6, 2013, this Court ordered Defendants

to file an appropriate motion and memorandum on the subject of
how and whether to give parties notice required by FERPA
regarding information that Defendants have been requested to
produce during discovery.

(Docket No. 221.)

In response,

Defendants filed the motion for protective order that is before
the Court.

(Docket No. 225.)

Defendants’ motion argues that the
3

Court should issue an order holding Plaintiffs’ Fifth Request for
Production of Documents “in abeyance until the finalization of
the State of Ohio’s biennial budget and the resolution of an
anticipated motion to determine that budget’s impact on this
Court’s jurisdiction.”

(Docket No. 225 at 4.)
II.

ANALYSIS

Although Defendants’ motion treats its request for a
protective order as one to hold the Fifth Request for Production
of Documents in abeyance, there are some distinct considerations
in determining whether a protective order is appropriate and
whether holding discovery in abeyance is appropriate.
Before turning to those two topics, it is worth noting some
of the issues that were not raised in Defendants’ motion.

First,

Defendants have not argued that any of the statutes at issue
create a privilege that would place Plaintiffs’ requests outside
the scope of discovery.

Fed. R. Civ. P. 26(b)(1).

Second,

Defendants have not moved to limit the extent of discovery
pursuant to Rule 26(b)(2)(C)(iii).

This second omission is

noteworthy because Defendants’ reply brief appears to argue that
the discovery at issue is not relevant to the case.

To the

extent that Defendants are seeking to inject that argument into
their original motion, that effort fails because the relevance
argument was not fairly raised in their original motion.
Further, Defendants’ representation of their attempts to confer
with the Class Plaintiffs in an effort to resolve the dispute
without court action does not include any representation that the
parties discussed limiting the scope of the discovery sought in
order to ensure that the burden would not outweigh the likely
benefit of the discovery.

Rather, Defendants represented that

the efforts to resolve the dispute centered on satisfying FERPA’s
notice requirements: “Counsel have therefore spent considerable
effort in trying to determine how to satisfy FERPA and who should
4

bear the costs.

Those efforts included multiple written and

electronic communications, at least two in person meetings, and a
conference with the Court.”
Defendants’ description of their efforts to resolve the
dispute also omit any reference to the question of whether state
statutes prevent disclosure of the discovery at issue.
Plaintiffs state that Defendants only raised that issue “shortly
before Defendants’ deadline for submitting a motion.”
No. 228 at 2.)

(Docket

While it may be that Defendants have not truly

satisfied their Rule 26(c)(1) obligation to confer in good faith
in an effort to resolve the dispute as to that issue, the impact
of the state statutes has been heavily briefed by both parties,
and the Court will resolve that issue.
A.

Request for a Protective Order – State Statutes

Defendants contend that Ohio law bars release of the records
at issue and that Ohio law is stricter than FERPA.

If Ohio law

truly barred release of the records, it would continue to do so
after the finalization of the biennial budget.

Accordingly, the

Court will consider whether this argument has merit as opposed to
whether it warrants a stay.
Defendants point to two sections of the Ohio Revised Code
that limit the disclosure of “personally identifiable
information.”

Section 3301.0714(D)(1) prohibits “the reporting

under this section of any personally identifiable information
about any student” with certain exceptions.

Section

§3319.321(B)(1) and (C) prohibits the release of “personally
identifiable information other than directory information
concerning any student attending a public school” with certain
exceptions.
Section 3301.0714 is entitled “Statewide education
management information system; rules; reports; sanctions.”

EMIS,

the database at issue in Defendants’ motion for a protective
5

order, was created pursuant to that section of the Code.
No. 225-3.)

(Docket

Section 3301.0714 directs the State Board of

Education to adopt rules for EMIS that “require the state board
to establish guidelines for the establishment and maintenance of
the system . . . . [including]: (1) Standards identifying and
defining the types of data in the system in accordance with
divisions (B) and (C) of this section . . . .”
Defendants have not pointed to a definition of “personally
identifiable information” in the Ohio Revised Code or in any
rules or guidelines.

Instead, they seem to rely upon the FERPA

definition of “personally identifiable information.”

However,

the FERPA definition of that term (which will be discussed in
more detail in the next section) is not consistent with the way
that term is used in section 3301.0714.

Plaintiffs point out

that another subsection of section 3301.0714 provides, “[e]xcept
as provided in [certain sections of the Revised Code that allow
reporting for early childhood programs, administration of
scholarship programs, and calculation of payment to county boards
of developmental disabilities], at no time shall the state board
or the department have access to information that would enable
any data verification code to be matched to personally
identifiable student data.”
§3301.0714(D)(2)(a).

Ohio Rev. Code Ann.

The data verification code is an identifier

assigned to each student, and section 3301.0714 requires all
individual student data to be reported utilizing that code.

Id.

In accordance with that requirement, all of the data in EMIS is
“organized and collected in reference by a student identification
number, called an ‘SSID,’ that is assigned to each student,” and
“[a]ll student information in EMIS is maintained by SSID.”
(Docket No. 225-3.)

Accordingly, all of the information in EMIS

can be and is “matched” to a data verification code – the SSID.
Logically then, none of that information in EMIS can be
6

within the statute and/or State Board of Education’s definition
of “personally identifiable student data.”

This is further

supported by an excerpt from the State Auditor’s Statewide Audit
of Student Attendance Data and Accountability System Report,
which states that the Ohio Department of Education “uses only the
SSID, in lieu of personally identifiable student information, for
EMIS reporting purposes to protect the privacy of student
records.”

(Doc. 228 at Exh. 5.)

Therefore, the information

being sought from Defendants here is not the type of “personally
identifiable information” that is protected by section 3301.0714.
Furthermore, Plaintiffs point out that Defendants have
produced the same types of data to non-profit organizations for
their own benefit and apparently without fear of the penalties
cited in their brief.

Defendants respond by pointing to section

3301.12(A)(3), which provides that the superintendent shall
conduct studies and research projects that “may include analysis
of data contained in the education management information system
established under section 3301.0714 of the Revised Code.”
Section 3301.0714 specifically spells out exceptions to the
general prohibition of reporting of “any personally identifiable
information about any student,” and those exceptions do not
include section 3301.12.1

1

In addition, section 3301.0714 of the

The relevant language follows:

The guidelines shall also prohibit the reporting under
this section of any personally identifiable information
about any student, except for the purpose of assigning
the data verification code required by division (D)(2)
of this section, to any other person unless such person
is employed by the school district or the information
technology center operated under section 3301.075 of
the Revised Code and is authorized by the district or
technology center to have access to such information or
is employed by an entity with which the department
contracts for the scoring or the development of state
7

Revised Code lists the sections pursuant to which the state board
or the department could have access to information that would
enable any data verification code to be matched to “personally
identifiable student data” and section 3301.12 is not one of the
exceptions.2

Accordingly, it appears that the data that the

superintendent is permitted to release pursuant to section
3301.12 and that the superintendent has access to generally does
not fit within the definition of “personally identifiable student
data.”

Accordingly, the Court finds that section 3301.12

supports the conclusion that the type of information being sought
from Defendants here is not the type of “personally identifiable
information” that is protected by section 3301.0714.
Defendants have pointed to no definition of “personally
identifiable information” applicable to section 3319.321, and the
Court has no reason to believe that the definition would differ
in that section of Title XXXIII.

Therefore, the Court concludes

that the information being sought from Defendants here is not the
type of “personally identifiable information” that is protected
by section 3319.321.
Defendants point to other state statutes, but those are not
assessments. The guidelines may require school
districts to provide the social security numbers of
individual staff members and the county of residence
for a student. Nothing in this section prohibits the
state board of education or department of education
from providing a student's county of residence to the
department of taxation to facilitate the distribution
of tax revenue.
Ohio Rev. Code Ann. §3301.0714 (West)
2

Section 3301.0714(D)(2)(a) provides in relevant part:
“Except as provided in sections 3301.941, 3310.11, 3310.42,
3310.63, 3313.978, and 3317.20 of the Revised Code, at no time
shall the state board or the department have access to
information that would enable any data verification code to be
matched to personally identifiable student data.”
8

applicable to the circumstances here.

Accordingly, Defendants

have not demonstrated that any state statute prohibits the
release of the information Plaintiffs are seeking.

As such,

there is no need to address the question of whether FERPA
preempts the state statutes at issue.
B.

Request for a Protective Order – FERPA

Defendants also argue that FERPA requires them to notify
the parents of the children whose data is sought of the potential
release of that information.

They assert that the cost of such

notification is unduly burdensome, especially if the need for
such discovery becomes moot after the new budget is finalized.
Plaintiffs argue that the information they seek is not
“personally identifiable information” protected by FERPA.
Accordingly, the Court will first consider whether the
information sought here is protected by FERPA and then turn to
the issue of burden.
1.

Whether the Information at Issue is Protected by FERPA
FERPA protects education records and personally identifiable

information in those records from improper disclosure.
U.S.C.A. §1232g.

20

However, disclosure pursuant to a subpoena or

judicial order is proper when done in compliance with the
requirements of FERPA and its regulations.

20 U.S.C.A.

§1232g(b).
Subsection (b) of section 1232g governs disclosure of
records and information.

The applicable subsection here,

subsection (b)(2), requires that the parents and the students be
notified of any orders or subpoenas before “personally
identifiable information” in education records is disclosed
pursuant to judicial order or lawfully issued subpoena, with
certain exceptions not applicable here.
(b)(2) follows:

9

The language of section

(2) No funds shall be made available under any
applicable program to any educational agency or
institution which has a policy or practice of
releasing, or providing access to, any personally
identifiable information in education records other
than directory information, or as is permitted under
paragraph (1) of this subsection, unless-(A) there is written consent from the student's parents
. . . or
(B) except as provided in paragraph (1)(J), such
information is furnished in compliance with judicial
order, or pursuant to any lawfully issued subpoena,
upon condition that parents and the students are
notified of all such orders or subpoenas in advance of
the compliance therewith by the educational institution
or agency . . . .
20 U.S.C.A. §1232g(b)(2).

Accordingly, parents and students need

to be notified before information is disclosed pursuant to a
subpoena or court order when the information to be released
includes “personally identifiable information” as defined by
FERPA.

See 20 U.S.C.A. §1232g(b) and 34 C.F.R. §99.31.

Defendants argue that the information sought by Plaintiffs
includes information that fits within the definition of
“personally identifiable information” set forth in FERPA and its
regulations.

Specifically, Defendants point to 34 C.F.R. §99.3,

which defines “personally identifiable information” as including
“personal identifier[s]” such as “the student’s social security
number, student number, or biometric record,” as well as
“indirect identifiers, such as the student’s date of birth.”
Defendants aver that all of the data requested is organized
around student numbers known as SSIDs and the data cannot be
produced without the SSIDs.

Defendants also explain that

Plaintiffs seek information about students’ age, which is
recorded in Defendants’ records by students’ dates of birth.
Plaintiffs primarily respond by inaccurately summarizing the

10

regulations defining “personally identifiable information,”
stating that “[i]nformation from student records is not
considered personally identifiable under FERPA unless it links
the information to a specific student.”

(Docket No. 228 at 5.)

In fact, the regulations provide a non-exclusive list of examples
of “personally identifiable information” including the examples
quoted above and “[o]ther information that, alone or in
combination, is linked or linkable to a specific student that
would allow a reasonable person in the school community, who does
not have personal knowledge of the relevant circumstances, to
identify the student with reasonable certainty.”
§99.3.

34 C.F.R.

Plaintiffs also point to Ohio law, arguing that

Defendants are not permitted to have access to personally
identifiable information pursuant to state law and Defendants’
policy and, therefore, the information in EMIS cannot be
“personally identifiable information” for purposes of FERPA.
However, as discussed above, Ohio law defines “personally
identifiable information” more narrowly than FERPA.

The clear

language of FERPA’s regulations provides that at least the SSID
and the students’ date of birth constitute “personally
identifiable information” pursuant to FERPA.
Accordingly, compliance with FERPA will place some burden on
Defendants.

Defendants could either comply with FERPA’s

requirement “that parents and the students are notified of all
such orders or subpoenas in advance of the compliance therewith
by the educational institution or agency,” 20 U.S.C.A.
§1232g(b)(2), or Defendants could redact all personally
identifiable information.

Ragusa v. Malverne Union Free Sch.

Dist., 549 F. Supp. 2d 288, 293 (E.D.N.Y. 2008) (“there is
nothing in FERPA that would prohibit Defendants from releasing
education records that had all ‘personally identifiable
information’ redacted”) (citing, inter alia, U.S. v. Miami Univ.,
11

294 F.3d 797, 824 (6th Cir. 2002) (noting that parties “may still
request student disciplinary records that do not contain
personally identifiable information.

Nothing in the FERPA would

prevent the Universities from releasing properly redacted
records”)).

A decision to redact “personally identifiable

information” would, of course require a determination of what
information other than birth dates and SSIDs fit within that
description.

However, the parties have not provided enough facts

to permit the Court to discuss meaningfully the burden of
redacting “personally identifiable information,” so the Court
will focus on the notice required by FERPA.
2.

Burden of Complying with FERPA

FERPA requires that “parents and the students are notified
of all such orders or subpoenas” before an educational agency
provides “personally identifiable information” in compliance with
a judicial order or pursuant to a lawfully issued subpoena.
U.S.C.A. §1232g(b)(2).
written consent.

20

Such notification does not require

34 C.F.R. §99.31(a) (setting forth exclusions

from the written consent requirements of 34 C.F.R. §99.30).

The

regulations provide that the information may be disclosed only if
the “agency or institution makes a reasonable effort to notify
the parent or eligible student of the order or subpoena in
advance of compliance, so that the parent or eligible student may
seek protective action,” with certain exceptions not applicable
here.

34 C.F.R. 99.31(a)(9)(ii).
Defendants contend that “a reasonable effort to notify”

requires individual notice as opposed to notice by publication
and that, at a minimum, notice by regular mail is probably
required.

In support of that argument, Defendants point to two

United States Department of Education opinion letters in order to
interpret what a “reasonable effort” would be.

As Plaintiffs

point out, the second letter is not really applicable here
12

because it involved notification to only one student, and
primarily focused on the amount of time which was required to
allow a parent or student to move to quash a subpoena.
Furthermore, that letter stated that a “reasonable attempt” to
notify a parent or student “is considered on a case-by-case
basis” with a letter via U.S. mail being one potential reasonable
attempt to notify.

(Docket No. 225-9 at 2.)

The other opinion

letter, the Opton letter, is applicable, but Defendants are
incorrect in their description of the weight ascribed to such an
opinion letter.

Defendants argue that those opinion letters are

entitled to “considerable deference,” but in making that
assertion, they cite to Thornton v. Graphic Commc'ns Conference
of Int'l Bhd. of Teamsters Supplemental Ret. & Disability Fund,
566 F.3d 597, 609 (6th Cir. 2009), a decision discussing Chevron
deference which does not apply to opinion letters.

Thornton

provides that “Chevron requires courts to defer to an agency's
construction of an ambiguous statute, which the agency is charged
to administer, unless the construction is ‘arbitrary, capricious,
or manifestly contrary to the statute.’”

However, the case that

Thornton quotes, Battle Creek Health Sys. v. Leavitt, 498 F.3d
401 (6th Cir. 2007), elaborates on that statement by noting,
“[i]nterpretations such as those in opinion letters—like
interpretations contained in policy statements, agency manuals,
and enforcement guidelines, all of which lack the force of law—do
not warrant Chevron-style deference.”

Battle Creek Health Sys.

v. Leavitt, 498 F.3d 401, 409 (6th Cir. 2007) (internal citations
and quotations omitted).

Accordingly, while the Opton opinion

letter may be persuasive, it is not entitled to deference.
Plaintiffs contend that individualized notice is not
required.

They first point to Defendants’ release of EMIS data

to the Fordham Institute so that it could conduct a study, and
invite Defendants to discuss how it obtained consent or provided
13

notice for the release of that data.

However, as Defendants

point out in their reply, disclosure to organizations conducting
studies for or on behalf of educational agencies or institutions
for certain specified purposes is permitted without obtaining
consent pursuant to 20 U.S.C. §1232g(b)(1)(F) and 34 C.F.R.
§99.31(a)(6).

Plaintiffs also cite to a case from the Eastern

District of New York which held that “[n]otice in this case can
be effected by publication or other reasonable method chosen by
the school district.”
1977).

Rios v. Read, 73 F.R.D. 589, 602 (E.D.N.Y.

The court in that case reasoned that “[t]he type of

notice required, however, will depend on the circumstances of
each case. . . .

Thus, where exceptionally large numbers of

students are involved, it may be enough for a school or school
district to publish the notice in a newspaper.”

Id. at 600.

The

court noted that its conclusion was “supported by a letter
written on February 19, 1975, by the Assistant General Counsel
for Education, Department of Health, Education and Welfare to the
Department's General Counsel,” that described the response to a
question concerning the notice requirement, and that letter left
open the question of what type of notice would be required:
(1) there is no legislative history as to whether
publication would be adequate in the above-described
circumstances; (2) we could not say as a matter of law
that direct personal notice would be required in every
case, absent regulations on the point; (3) however, at
a minimum, some showing would have to be made that
publication would be likely to reach the parents of the
students, many of whom would presumably be of limited
English-speaking ability; (4) the adequacy of the
notice would depend on how reasonable it was under the
circumstances.
Id. at 600.
In the absence of explicit instructions in FERPA or its
regulations or precedent, this Court cannot conclude that direct,
personal notification by regular mail is required in every
14

instance under FERPA.

While the Opton opinion letter cited by

Defendants does state that individual notice is required and that
notice on campus bulletin boards or in campus newspapers would
not be adequate, the opinion letter does not provide any
rationale for that opinion.

It contrasts the notice requirements

in 34 C.F.R. 99.31(a)(9)(ii) with those in 34 C.F.R. 99.7,
stating that the former require personal notice, while
publication in campus newspapers or on campus bulletin boards may
be sufficient for the latter.

Section 99.31(a)(9)(ii) requires

“a reasonable effort to notify the parent or eligible student,”
and section 99.7 requires notice “by any means that are
reasonably likely to inform the parents or eligible students of
their rights.”

While the Opton letter opinion does not explain

why it interprets these two notice requirements differently,
perhaps it permits publication for section 99.7 notice because
that notice must be made to parents of students currently in
attendance or eligible students currently in attendance, which
necessarily means notice to a large number of individuals.
Certainly, when only one student is involved, as often is the
case with subpoenaed records, publication in a campus newspaper
would not be a reasonable means of notifying that one student.
FERPA and its regulatory scheme treat the disclosure of
personally identifiable information differently in different
circumstances.

Some disclosures of personally identifiable

information are prohibited unless the education agency obtains
parents’ written consent, some disclosures are permissible even
if no notice is provided to the students or parents (such as
disclosures for purposes of research), and disclosures pursuant
to a lawfully–issued subpoena, as here, require Defendants to
make a “reasonable effort to notify” the parent or student in
advance of compliance, so that the “parent or eligible student
may seek protective action” with certain exceptions.
15

34 C.F.R.

99.31(a)(9)(ii).

Nothing in FERPA or its regulations specifies

the exact method of notice required here, and the Court cannot
conclude that direct, personal notice by regular mail is always
required prior to disclosure pursuant to a lawfully-issued
subpoena.

Therefore, the Court must consider whether something

short of direct, personal notice by regular mail would constitute
a “reasonable effort to notify” in this case.
First, the Court considers the degree of effort involved in
providing direct, individual notice by US mail.

While Defendants

argue in their motion that direct, personal notification by US
mail is the only way that Defendants can satisfy their
requirement to make “reasonable effort to notify” the
approximately 1.5 million students whose data would be disclosed
in response to the Fifth Request, Defendants previously
represented that it would be “impossible” to notify approximately
260,000 class members when discussing what notice was required
for purposes of Federal Rule of Civil Procedure 23(e)(1).
Specifically, in their second joint motion for preliminary
approval of partial class action settlement, the parties wrote,
“Given that the class is very large [over 260,000 students] and
that its members are widely dispersed, it will be impossible to
provide individual notice to each member.

None the less, the

parties’ [sic] propose a method of notice that will provide ‘the
class as a whole [with] notice adequate to flush out whatever
objections might reasonably be raised to the settlement.’”
(Docket No. 149 at 23-24.)

While the parties’ arguments in that

brief addressed the requirements of Rule 23(e)(1), which provides
that “[t]he court must direct notice in a reasonable manner to
all class members who would be bound by the proposal,” their
factual representations of the difficulty of providing individual
notice are applicable here.

In fact, those factual arguments are

more persuasive here where the number of students (or parents)
16

requiring notice is more than five times as great.

Thus, the

effort required to provide direct notice in this case may well be
“unreasonable.”
Second, the Court considers the importance of the interests
being protected by the notice.

In enacting FERPA, Congress did

not create enforceable rights to nondisclosure.

Gonzaga Univ. v.

Doe, 536 U.S. 273, 287 (2002) (“FERPA's provisions speak only to
the Secretary of Education . . . . This focus is two steps
removed from the interests of individual students and parents and
clearly does not confer the sort of ‘individual entitlement’ that
is enforceable under § 1983.”).

By way of contrast, class

members’ interest in receiving Rule 23(e)(1) notice of settlement
of a class action is a right protected by the Due Process Clause.
Fidel v. Farley, 534 F.3d 508, 513-14 (6th Cir. 2008) (citations
omitted).

In addition, the potential harm to students’ privacy

interests will be lessened here by the fact that the Court will
require that the parties enter into a protective order governing
the release and maintenance of the data at issue.

Accordingly,

although the privacy interests here are important, they do not
rise to the level of constitutional rights, and they are not
likely to be harmed by the disclosure at issue.

Taking into

account the severe burden involved in giving personal notice, the
limited nature of the privacy interests involved, and the lack of
potential harm, the Court finds that it would not be reasonable
to require direct personal notice.
This does not answer the question of to whom notice must be
given, or how it must be provided.

As to the first issue,

Defendants assert that notice is not required to be given to the
Class Plaintiffs pursuant to 34 C.F.R. §99.31(a)(9)(B) because
the class members waived their FERPA rights by filing this case.
Section 99.31(a)(9)(B) provides, “[i]f a parent or eligible
student initiates legal action against an educational agency or
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institution, the educational agency or institution may disclose
to the court, without a court order or subpoena, the student's
education records that are relevant for the educational agency or
institution to defend itself.”

This regulation does not discuss

disclosure of information to the opposing party, however, but to
the court.

It would put Plaintiffs in a difficult position if

Defendants were permitted to disclose large amounts of
information to the court that Plaintiffs could not see, and the
Court is not in a position to evaluate that information.
Additionally, because the membership of the class changes as
individuals are born and leave the school system, and in light of
the fact that the most recent notice to potential class members
was provided in 2009, the Court concludes that disclosure of the
data requested here would affect a large number of potential
class members who have never been given notice of their potential
inclusion in the class and could not be deemed to have waived any
FERPA rights by their potential inclusion in the case.
Accordingly, notice must be given to all (approximately
1,700,000) students or parents and not just the approximately
1,462,000 students who are not included in the Plaintiff Class.
As to the remaining issue – how to notify those students or
parents in a way that is not direct mailing but is still likely
to reach them - the Court prefers not to craft a notice procedure
without further input from the parties.

Because the Defendants’

position has been either that state law absolutely prohibits
disclosure of the information, or that direct notice is required,
it does not appear that the parties have discussed alternative
methods for giving notice in an effort to agree on such methods.
Therefore, the parties are directed to confer regarding a method
that would constitute a “reasonable effort to notify” the parents
or eligible students of the subpoena, and to contact the Court
within fourteen days either to advise the Court that they have
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chosen a notification method or that a further conference is
needed.
C. Privacy
Defendants also argue that the discovery would unnecessarily
undermine third parties’ privacy interests, because the new
budget may moot some or all of the claims.

In support of their

argument, they point to the harm which can result from making
personally identifiable information public.

Here, however,

Plaintiffs do not oppose, and the Court would require, a
protective order that governs the release and maintenance of the
information at issue in order to addresses any confidentiality
concerns relating to this information.

The protective order

should specifically provide that the information is to be used
only for purposes of this litigation and will be returned or
destroyed, as appropriate, at the completion of this case.
Additionally, the order should contain limitations on the
disclosure of the information during discovery and to the Court.
This should suffice to protect any privacy interests here.
D.

Abeyance

In the absence of more definitive evidence that the new
budget is very likely to render this case moot, and in light of
the age of the case, the Court denies Defendants’ motion to hold
the discovery in abeyance.
III.

CONCLUSION

For the foregoing reasons, the motion for a protective order
is denied.

The parties are directed to confer regarding a method

that would constitute a “reasonable effort to notify” the parents
or eligible students of the subpoena under FERPA and its
regulations.

The parties are also directed to draft a protective

order governing the release and maintenance of the information at
issue, specifically providing that the information is to be used
only for purposes of this litigation and will be returned or
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destroyed, as appropriate, at the completion of this case, and
containing limitations on the disclosure of the information
during discovery and to the Court.

The parties shall report back

to the Court with a joint recommendation as to method of notice
and with a draft protective order within fourteen days of the
date of this Order, or contact the Court to request a conference.
IV.
Any party may, within fourteen days after this Order is
filed, file and serve on the opposing party a motion for
reconsideration by a District Judge.

28 U.S.C. §636(b)(1)(A),

Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 91-3,pt.
I., F., 5.

The motion must specifically designate the order or

part in question and the basis for any objection. Responses to
objections are due fourteen days after objections are filed and
replies by the objecting party are due seven days thereafter.
The District Judge, upon consideration of the motion, shall set
aside any part of this Order found to be clearly erroneous or
contrary to law.
This order is in full force and effect, notwithstanding the
filing of any objections, unless stayed by the Magistrate Judge
or District Judge. S.D. Ohio L.R. 72.3.

/s/ Terence P. Kemp
United States Magistrate Judge

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