Saturday, October 24, 2015

Eva & Charter Priorities

Yes, we're getting a little tired of the story of how Eva Moskowitz's Success Academy got some bad press and Eva went berserk, throwing a ten year old child under the bus in response.

But there's one more point I want to make.

After many critics cried FERPA rights violation and the mom in the case slapped Moskowitz with a cease and desist letter, here comes the First Amendment argument. Roughly summarized, it goes something like this: if a person bad mouths you to the press, you have the right to violate their privacy.

It's an interesting argument, and one that I'm a little familiar with. A few years back, a film-maker "featured" our school in a film about two young men who claimed to be victimized in their school settings. It had a moment, and our school took a lot of heat for it, and it was a challenging time for us because a quick stroll through the student's disciplinary file or life after the filming would have created a much different picture. In short, we could have defended ourselves by simply opening the student's confidential files to public scrutiny. But we didn't do that-- and I'm not being more specific with you right now-- because that would be the grossest kind of violation of that student's rights as well as a violation of our most fundamental ethics as a school.

As teachers and school systems, we know things about students and their families that nobody knows, and we have a front row seat to an unending cavalcade of Youthful Indiscretions. Yes, at times it can be hugely frustrating when our hands are tied and people are playing fast and loose with the truth, but the power differential between schools, with our access to a massive amounts of personal and private information, and students, who are just children-- that power differential is so huge that our hands need to be tied, both by the law and by our own professional restraint. It can be hugely frustrating to be under attack in the public sphere from which we can't defend ourselves, but the alternative is to become an institution collecting ammo to use against our most vulnerable citizens, a practice that would both poison the atmosphere inside a school, and which would be deeply, deeply wrong, on the order of a hospital that took pictures of patients when they were naked and sedated, just in case those photos were ever needed to shut a former patient up.

Moskowitz probably violated FERPA, and as a Frank LaMonte of the Student Press Law Center points out, that no school has ever suffered an actual penalty for violating FERPA in forty-one years.

Are there public schools that cross this line, public school administrators who violate student confidentiality in ways that are just plain wrong? Sure. We hear about them because everybody understands that such behavior is a serious breach of professional ethics and a violation of the public trust. Moskowitz's letter does not show the slightest inkling that she is over the line.

Moskowitz (and she did it personally, in a letter signed with her own name) violated a basic trust of any school. And in doing so, she underlined one of the problems with modern charters.

Moskowitz made a clear statement about the school's priorities, and the well-being and rights of the child come far down the list.

Moskowitz publicized the private disciplinary records of a child because the child's mother was making the school look bad. If I were a parent looking at Success Academy, I would have to ask myself-- what information would the school collect about me and my child, and under what circumstances would Moskowitz violate my confidentiality to use the information (and would she go so far as to claim it was her constitutional right to do so)? If I enroll my child in Success Academy, do I then have to hold my breath and hope it is never in her best interest to breach my confidentiality? Does the application give me a place to sign where I agree that if I ever cross her, I can expect her to come down on me with whatever information she has collected about my child during that child's time in the school?

Moskowitz didn't just fight bad PR by throwing a child under the bus. She showed just how little she understands about what it means to be a public school, just how hollow are her claims of running Success Academy "for the children."



7 comments:

  1. Yeah, she threw a ten-year-old under the bus, but it's worse than that. She's revealing private information things that he allegedly did when he was five- and six-years-old.

    ReplyDelete
  2. one more thing...

    I would re-write the last sentence of the seventh paragraph thusly:

    "Moskowitz's letter does not show THAT MOSKOWITZ HAS the slightest inkling that she is over the line."

    ... or perhaps ...

    "Moskowitz's letter does not show the slightest inkling that MOSKOWITZ BELIEVES THAT she is over the line."

    without the CAPITALS, of course.

    ReplyDelete
  3. I'm going to get a little more nit-picky here.

    I would add a question mark to the second sentence of tenth paragraph:

    "If I were a parent looking at Success Academy, I would have to ask myself-- what information would the school collect about me and my child, and under what circumstances would Moskowitz violate my confidentiality to use the information (and would she go so far as to claim it was her constitutional right to do so)?"

    hope this helps... or doesn't come off as condescending ;-)

    ReplyDelete
  4. LaMonte actually (and albeit reluctantly) supports the complaining parent's argument that Eva's behavior constitutes a technical violation of the federal FERPA law:

    I added parentheticals to show its application to the Moskowitz case...

    (the complaining parent) = the parent upset at Moskowitz for revealing her child's personal info.
    -----------------------------------
    LaMonte:

    "As a general principle the Department of Education has taken the position that (the complaining parent doesn't) waive FERPA implicitly by (the complaining parent's) behavior.

    "(On the contrary, the complaining parent) waive(s) it only by an express written waiver (signed by the parent). I disagree that FERPA should work that way, but the DOE’s opinion is the one that matters, and there’s nothing in the statute that says it’s subject to waiver by (the complaining parent's) conduct, as sensible as that might be.

    "I love the creativity of the First Amendment argument and I’d gladly try it in court myself someday, but I know of nothing in the current court interpretations or DOE interpretations that would suggest (that a school official), in defending (his conduct / her conduct / the school's conduct) on a matter that’s been publicized in the media gives (the school official) a heightened First Amendment right that overrides the statute (protecting a child's or student's right to privacy, and preventing a school official from revealing a child's or student's personal information)."
    ----------------------------------

    But yeah, you're right that LeMonte says that, even though Eva is technically in the wrong, it's unlikely she'll face any negative sanction for her behavior, and LeMonte supports that outcome.

    ---------------------
    LEMONTE:

    "All that being said, absolutely nothing is going to happen to Success Academies, just as nothing has ever happened to any other school in the 41-year history of FERPA. Despite all of the overblown nonsense from schools, any time that a reporter asks for a public record, the facts are that

    " (1) no one has ever been fined a penny for being a FERPA violator

    "and

    "(2) DOE rules provide that, if you are found to be in violation, all that happens is that you receive a warning letter telling you not to do it again. You can suffer financial sanctions only for a pattern or policy of failing to secure student records, and. of course, no school has such a policy."

    "A one-off disclosure will never result in punishment. (I should add that this addresses only federal privacy law, and it’s always possible that there’s an overlay of state privacy law as well....) ( that's LeMonte's parenthetical, not mine.. JACK)"
    ------------------------------

    Of course, that's unless some official, or more likely, some judge uses this case to set a precedent, so as to establish the principle, and establish it firmly, that school a school official's duty to protect a child's privacy is absolute. Fining Eva would make that point, and deter others from repeating her fury-filled folly in the future (... a lot of alliteration from a careful commenter placing a particular post ... that's from Albert Brooks in BROADCAST NEWS)

    ReplyDelete
  5. The interesting thing is why did she react as she did? I thought she was sitting on Fat Avenue at the intersection of Bought-and-Paid Politician street? What does she fear from this story and student/parent? Perhaps the facade is beginning to crumble like the sets of a Hollywood Western. Only a facade for the camera.

    ReplyDelete
  6. This is why educators need to run schools, not business mavens.

    ReplyDelete
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