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What is FERPA? And what does it mean for learning more about the East High School shooting?

east high school shooting march 22 2023
Posted at 9:07 PM, Mar 23, 2023
and last updated 2023-03-23 23:25:57-04

DENVER — Denver7 has been receiving many questions over what we have and have not been able to report with the East High School shooting and, in particular, the suspect. Because he was under the age of 18, Colorado and federal laws kept much of his information private.

We worked with Jeff Roberts, executive director of the Colorado Freedom of Information Coalition, to get a basic understanding of three main areas of questions we’ve been receiving: what police were able to tell us, what schools were able to tell us, and what we’ll be able to learn going forward.

“There’s always tension in public record laws between what the public is entitled to know versus privacy rights,” Roberts said.

What police were able to tell us

Wednesday morning, following the shooting at East High School, the Denver Police Department provided the public with a description of the suspect, and some basic details regarding the school safety plan he was put on by the district, but did not provide his name. Just a few hours later, however, the department tweeted out the suspect’s name and age, along with a picture and the style of SUV he may be driving. That was a stark change from just hours before, and even our journalists in the newsroom were left wondering what had lead to the shift.

Roberts said the change likely occurred after the suspect was not found at his residence.

“The police took an unusual step of putting his name out there when they didn’t know where he was, and they needed the public’s help trying to find him,” Robert said. “They were in a situation where they were desperately looking for this person to protect public safety.

Indeed, DPD later confirmed to Denver7 that the decision to share more information was made after concluding it was in the interest of public safety as the search continued.

“DPD very quickly learned the identity of the suspect and extensive efforts were made to quickly locate and apprehend him,” a DPD spokesperson told Denver7. “A description was provided so that people could be on the lookout for him. When those efforts were unsuccessful, the decision was made to identify the juvenile and seek public assistance in locating him due to the risk he posed to the public.”

What schools were able to tell us

School districts are bound by the Family Educational Rights and Privacy Act (FERPA).

“It shields educational records of public school students from being examined by people who aren’t them or their parents,” explained Roberts. “It also entitles the students and the parents to their own records.”

There is an exception, though, that allows schools to release what the U.S. Department of Education refers to as “directory information.” The category includes basic information like names and dates of attendance. Hence, we were able to learn that the suspect was a former student at Overland High School, but was “removed” in the 2021-2022 school year for “violating board policy.” We were not, however, able to learn why, as those details would be contained in FERPA-protected records.

Will FERPA block us from learning more going forward?

Now to our last main question: will FERPA keep us from learning more details going forward? Different legal minds have different thoughts on this question, but Roberts said more records may become public now that the suspect is no longer alive.

“Generally it is believed that once a student is deceased — especially if they’re 18 years or older — then their FERPA rights kind of go away,” Roberts said. “There’s a question about whether a 17-year-old, as in this case, if their parents still retain those FERPA rights. So, there’s a bit of a gray area there. There are different opinions on it. But, we have had situations in the past, like after Columbine, where several educational records for [shooters] Eric Harris and Dylan Klebold were released to the public.”

Roberts said in this case, it will ultimately depend on whether districts now cite FERPA to keep educational documents sealed, and if they do, what lawsuits from media organizations may follow.

“It makes sense to protect the privacy rights of the student, depending on what the situation is,” he said. “When something gets to the point where there’s an immediate threat, like what happened [Wednesday], that changes I think.”

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