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Hashem v. Hunterdon County

United States District Court, D. New Jersey

May 23, 2018

SIREEN HASHEM, Plaintiff,
v.
HUNTERDON COUNTY, et al. Defendants.

          ORDER

          DOUGLAS E. ARPERT UNITED STATES MAGISTRATE JUDGE

         This matter comes before the Court on two motions by Plaintiff Sireen Sawalha Hashem (“Plaintiff”) to compel discovery. This is an employment action in which Plaintiff alleges that her former employer, Hunterdon Central Regional High School Board of Education, and her former supervisors discriminated against her on the basis of her race, religion, and national origin. Plaintiff asks the Court to compel Defendants to produce (1) unredacted versions of discovery responses in which student/parent names have been removed; (2) an index to Defendants' supplemental document production; (3) personnel records/complaints relating individual defendants and a third party; (4) documents relating to “Plaintiff's comparators”; and (5) records relating to certain students.

         A. Redaction of Student/Parent Names

         On January 25, 2017, the Court entered a Discovery Confidentiality Order. See ECF No. 56. Pursuant to Paragraph 8 of that Order, all discovery responses containing “the names of parents of students or students who attended Hunterdon Central Regional High School shall be redacted so that only the first initial of such person's first and last name are evident, as required by The Family -7.1, et seq.” Id. At the time the Court entered the Order, the Court advised the parties that, if necessary, they could jointly or individually move for an Order allowing for the disclosure of the parent/student names. Pursuant to that instruction, Plaintiff now brings the instant motion.

         Plaintiff served three requests for the production of documents on Defendants. Among other things, Plaintiff sought documents relating to (1) the involvement of a student and his parents in a particular Facebook post regarding Plaintiff [Document Requests Nos. 116 - 121]; (2) any complaints or communications made by parents or students about Plaintiff or her teaching [Document Requests Nos. 73 - 76, 130 - 134]; (3) any complaints or communications made by parents or students about Defendants [Document Requests Nos. 22, 24 - 25]; (4) any complaints or communications made by parents or students about other teachers employed by Defendants [Document Requests Nos. 30 - 31, 36 - 37, 41 - 42, 46 - 47, 51 - 52, 56 - 57, 76, 84 - 85]; (5) certain students' behavioral issues [Document Requests Nos. 7, 149]; and (6) any witness statements made about Plaintiff or regarding Plaintiff's role as a teacher employed by Defendants [Document Requests Nos. 9, 151].

         According to Plaintiff, in response to these (and possibly other) document requests, Defendants produced a number of documents in which they redacted the names of parents and students. Plaintiff seeks an Order directing Defendants to “disclose student and parent names in all documents related to this litigation and the claims therein.” ECF No. 68-1 at 5.[1] Plaintiff argues that without such information she cannot adequately pursue her claims in this case. Plaintiff states that she is unable to adequately investigate and defend against Defendants' affirmative defense that Plaintiff was terminated for cause because she cannot, for example, verify the veracity of information or explore the motives of the persons who made the statements contained in the records.

         Defendants oppose Plaintiff's motion. They contend that the disclosure of the names of parents and students would violate the Family Educational Rights and Privacy Act (“FERPA”), 20 U.S.C. § 1232g., and state law, N.J.A.C. 6A:32-7.5(g) (expressly incorporating the requirements of FERPA). Under FERPA and its New Jersey counterpart, educational institutions are obligated to maintain the confidentiality of certain records. As one court in this District recently explained,

[b]oth New Jersey and federal law obligate schools to protect the privacy of their students' records. See 20 U.S.C. § l232g; N.J.S.A. § 18A:36-19. Under New Jersey's law, “student record” is broadly defined as “information related to an individual student gathered within or outside the school district and maintained within the school district.” N.J.A.C § 6A:32-2.1. Access to student records is limited to authorized organizations or individuals; generally, “[p]ersons outside the school” are authorized to view confidential student records if the students' parents consent (and consent to any third-party disclosure) or a court orders it. Id. at 7.5(e)(14), (15). Similarly, under [FERPA], federal law prohibits the disclosure of an “educational record” that contains information “directly related to a student”, including her name, address, or “other 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” to an unauthorized individual. See generally 20 U.S.C. § l232g; 34 C.F.R. 99.3. FERPA likewise allows for the disclosure of such records with parental consent or as a result of a court order. 20 U.S.C. § 1232(g)(b)(2).

M.A. v. Jersey City Bd. of Educ., No. 14-6667, 2016 WL 7477760, at *10 (D.N.J. Dec. 29, 2016).

         Plaintiff argues that neither FERPA nor New Jersey law prohibits disclosure of the information she seeks in this case. Indeed, it is well-established that FERPA does not create an evidentiary privilege.[2] Many courts have held that records protected by FERPA are not necessarily exempt from discovery in the context of civil litigation. See, e.g., Lei Ke v. Drexel Univ., No. 11-6708, 2014 WL 1100179, at *5 (E.D. Pa. Mar. 20, 2014) (“FERPA does not create a privilege”); Jackson v. Willoughby Eastlake Sch. Dist., No. 16-3100, 2018 WL 1468666, at *2 (N.D. Ohio Mar. 23, 2018) (“[R]ecords that are considered protected under a statute are not necessarily privileged for discovery purposes, and FERPA does not provide such a privilege.”)(citing cases). See also Pearson v. Miller, 211 F.3d 57, 68 (3d Cir. 2000) (“Statutory provisions providing for duties of confidentiality do not automatically imply the creation of evidentiary privileges binding on courts.”)

         Nevertheless, given the confidentiality protections afforded these records, a party seeking disclosure of education records protected by FERPA bears “a significantly heavier burden ... to justify disclosure than exists with respect to discovery of other kinds of information, such as business records.” Furey v. Wolfe, No. 10-1820, 2011 WL 597038, at *7 (E.D. Pa. Feb. 18, 2011) (alteration in original). As such, “federal courts have allowed the disclosure of protected education records in circumstances where the interests of the party seeking the records outweighs the students' privacy interest.” Id. (citing cases).

         At this juncture, the Court finds it necessary to clarify which documents are the subject of this motion. In her motion, Plaintiff asks the Court to modify the Discovery Confidentiality Order and compel the broad disclosure of “student and parent names in all documents related to this litigation and the claims therein.” ECF No. 68-1 at 5 (emphasis added). However, the only categories of documents discussed substantively in Plaintiff's brief are (1) complaints made by students and/or parents about Plaintiff; and (2) “witness statements” or incident reports in which the names of students and/or parents appear. See, e.g., ECF No. 68-1 at 13 (“The majority of the records Defendants have redacted are in response to Plaintiff's requests for complaints and witness statements or incident reports involving allegations in Plaintiff's pleadings.”) As such, the Court considers Plaintiff's motion as being applicable only to such documents.

         The protections of FERPA extends to “education records.” The statute defines “education records” as “those records, files, documents, and other materials which (i) contain information directly related to a student; and (ii) are maintained by an educational agency or institution or by a person acting for such agency or institution.” 20 U.S.C. §1232g(a)(4)(A). Several other district courts have found that records similar to those sought by Plaintiff here are not education records subject to FERPA. For example, in Briggs v. Bd. of Trustees Columbus State Cmty. Coll., No. 08-644, 2009 WL 2047899, at *5 (S.D. Ohio July 8, 2009), the court held that student complaints of sexual harassment by a professor were not education records. The Briggs court relied on Ellis v. Cleveland Municipal School District, 309 F.Supp.2d 1019 (N.D. Oh. 2004), which involved an action against a school district regarding the use of corporal punishment by a teacher. The plaintiff in Ellis sought discovery related to incident reports, student and employee witness statements, and disciplinary records of certain teachers, but the school district objected to the discovery on the basis that the information was protected by FERPA. The Ellis court concluded that FERPA was not applicable because the requested documents contained information that directly related to teachers and only tangentially related to students. The court stated that “[w]hile these records clearly involve students as alleged victims and witnesses, the records themselves are directly related to the activities and behaviors of the teachers themselves and are therefore not governed by FERPA.” Id.

         In Wallace v. Cranbrook Educ. Cmty., No. 05-73446, 2006 WL 2796135 (E.D. Mich. Sept. 27, 2006), a former school maintenance worker brought an action for unlawful termination after being terminated “in primary part on anonymous statements given by students” alleging improper sexual behavior toward students. Id. at *1. During discovery, the defendant provided the plaintiff with copies of the students' statements with the students' names and addresses redacted. The court granted a motion to compel disclosure of the students' names, rejecting an argument that FERPA prohibited such disclosure. Id. at *4-5. The court held that the investigatory notes and the student statements did not constitute education records because they did not relate directly to the students and the information fell within one of FERPA's exceptions relating to employment records. See also Cherry v. Clark Cty. Sch. Dist., No. 11-1783, 2012 WL 4361101, at *6 (D. Nev. Sept. 21, 2012) (compelling disclosure of the identity of parents who made complaints about the behavior of another student in the classroom). But see Rhea v. Dist. Bd. of Tr. of Santa Fe Coll., 109 So.3d 851, 857 (Fla. Dist. Ct. App. 2013) (holding that a student's email complaining of a teacher's “inappropriate classroom behavior, his humiliating remarks to the students, and his unorthodox teaching methodologies” was a record that “directly related to” the student and was therefore an “education record” under FERPA).

         Arguably, based on the reasoning in the federal cases cited above, many of the records sought here are not education records under FERPA because they do not “directly relate[]” to students, but, rather, relate to Plaintiff in the context of her employment as a teacher with the school district. However, regardless of whether the documents in question are ...


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