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RIM OF THE WORLD UNIFIED SCHOOL DISTRICT,
Petitioner,
v.
THE SUPERIOR COURT OF THE COUNTY OF SAN
BERNARDINO, Respondent;
LARRY KOMAR, Real Party in Interest.
No. E032252
In the Court of Appeal of the State of California
Fourth Appellate District
Division Two
(Super.Ct.No. SCVSS 089255)
ORIGINAL PROCEEDINGS; petition for writ of mandate. San Bernardino
Superior Court, James A. Edwards, Judge. Petition granted.
COUNSEL
Gibeaut, Mahan & Briscoe, Gary Robert Gibeaut, and
John W. Allen, for Petitioner.
No appearance for Respondent.
Reid & Hellyer, James J. Manning, Jr., and Samuel
W. Bath, for Real Party in Interest.
Filed December 31, 2002
Petitioner, Rim of the World Unified School District,
seeks a writ of mandate directing the trial court to vacate its
order overruling petitioner's demurrer to real party in interest's
petition for writ of mandate and enter an order sustaining the
demurrer. At issue is a school district's authority and duty
to disclose its records of student expulsions to the public upon
request. We conclude that federal law clearly prohibits such
disclosure and preempts state law to the contrary. Therefore,
we grant the writ.
STATEMENT OF FACTS
Real party in interest made a request to petitioner
under the California Public Records Act (CPRA) (Gov. Code, §
6250 et seq.) "to review all documents pertaining to any
and all suspensions over three days, and all expulsions acted
on by [petitioner] during the period[] January 1, 1998, through
the present." Petitioner denied the request on the basis
that the documents were student records, the disclosure of which
would be an unwarranted invasion of privacy under Government
Code section 6254. Petitioner offered to provide statistical
information. In a second request, real party in interest limited
the inquiry to expulsions only. Real party in interest also cited
Education Code section 48918[FOOTNOTE 1] ("records of expulsions
shall be a non-privileged, disclosable public record" )
and an Attorney General opinion to the effect that student names
and reasons for the expulsions are disclosable. Petitioner again
denied real party in interest's request, this time citing federal
law that unauthorized disclosure of student records may lead
to loss of federal funding.
Real party in interest filed a petition for writ of
mandate in the superior court seeking access to the records.
Petitioner demurred to the petition. The trial court overruled
the demurrer and ordered petitioner to respond. Petitioner then
filed the instant petition in this court, contending that federal
law prohibits the disclosure of the requested records and that
federal law preempts state law in this matter.
DISCUSSION
1. State Law
The Education Code provides that student records are
ordinarily not available to the general public. "A school
district is not authorized to permit access to pupil records
to any person without written parental consent or under judicial
order" except in certain situations not relevant here. (§
49076.)
State law treats expulsion records differently from
other student records. Expulsion proceedings are conducted out
of public view, unless the student requests otherwise. (§
48918, subd. (c).) The final action to expel a student, however,
may be taken only by the school board in public session. (§
48918, subd. (j).) Finally, the school board must maintain a
record of each expulsion, "including the cause therefor,"
and such records are "nonprivileged, disclosable public
record[s]." (§ 48918, subd. (k).)
In other words, while the Education Code does give students
the option to have their expulsion hearings held in private,
the formal action to expel a student must be made in public and
the student's expulsion record is available to any member of
the public for the asking. Further, the state Attorney General
has issued an opinion stating that the school board's public
action to expel the student must include the student's name and
the reason for the expulsion, and this information must be included
in school district responses to requests from the public for
expulsion records. The opinion dispatches with the federal preemption
issue by stating that "the federal law does not purport
to preempt any state laws . . . ." (80 Ops.Cal.Atty.Gen.
85, 91 (1997).)
The above provisions and Attorney General opinion indicate
that expulsion records are public records under state law and
must be disclosed upon request. The only uncertainty comes from
the CPRA itself. Section 6254 of the Government Code provides
that "nothing in this chapter shall be construed to require
disclosure of records that are any of the following . . ."
and includes in the list subdivision (k), which reads, "Records
the disclosure of which is exempted or prohibited pursuant to
federal or state law . . . ." This and other exemptions
contained in Government Code section 6254 are designed to protect
the privacy of persons whose data or documents come into governmental
possession. (Black Panther Party v. Kehoe (1974) 42 Cal.App.3d
645.) As discussed below, the protection of student disciplinary
records under federal law makes this section inconsistent with
section 48918's mandate that expulsion records be disclosable
to the public.
2. Federal Law
As with California law, the federal Family Educational
Rights and Privacy Act (FERPA) provides for the privacy of education
records. "Education records" are defined as documents
which "contain information directly related to a student"
or "are maintained by an educational agency or institution
. . . ." (20 U.S.C. § 1232g(a)(4)(A).)
Moreover, recent federal case law makes it clear that
student disciplinary records are protected from disclosure as
education records. In U.S. v. Miami University (6th Cir.
2002) 294 F.3d 797, the United States, on behalf of the Department
of Education, sued the university to permanently enjoin it from
releasing student disciplinary records to a newspaper. In affirming
the district court's decision to grant the injunction, the Sixth
Circuit reviewed the applicable portions of FERPA. The court
found that FERPA's definition of "education records,"
cited immediately above, includes disciplinary records "because
they directly relate to a student and are kept by that student's
university. Notably, Congress made no content-based judgments
with regard to its ' education records' definition." (Id.
at p. 812.)
The court then pointed to several exemptions from the
confidentiality of student disciplinary records that "clearly
evolve from a base Congressional assumption that student disciplinary
records are ' education records' and thereby protected from disclosure."
(U.S. v. Miami University, supra, 294 F.3d at p.
812.) First, the final results of any disciplinary proceeding
may be disclosed to the alleged victim of a crime of violence
or a nonforcible sex offense. (20 U.S.C. § 1232g(b)(6)(A).)
Second, such information may be disclosed to the general public
when the disciplinary body determines that the student did commit
such a crime. (20 U.S.C. § 1232g(b)(6)(B).) Third, the disciplinary
records of a student who poses a significant risk to himself
or herself, or to other members of the school community, may
be disclosed to persons having a "legitimate educational
interest[] in the behavior of the student." (20 U.S.C. §
1232g(h)(2).) Fourth, if a student under the age of 21 at an
institution of higher learning commits a disciplinary violation
involving alcohol or a controlled substance, then the institution
may disclose such information to a parent or guardian. (20 U.S.C.
§ 1232g(i)(1).) The court then concludes that "[i]f
Congress believed that student disciplinary records were not
education records under the FERPA, then these sections would
be superfluous." (U.S. v. Miami University, supra,
at p. 813.) Thus, student disciplinary records are unquestionably
student education records under federal law and are protected
as such.
One way in which federal law differs from California
law, though, is that FERPA does not actually prohibit the release
of education records. Rather, FERPA conditions the availability
of federal funds on conformance with its provisions. "No
funds shall be made available under any applicable program to
any educational agency or institution which has a policy or practice
of permitting the release of education records . . . of students
without the written consent of their parents to any individual,
agency, or organization" with specific exceptions not relevant
here. (20 U.S.C. § 1232g(b)(1).) As petitioner points out,
though, if we deny the writ and the trial court orders petitioner
to divulge student expulsion records, petitioner could be subjected
to a withdrawal of federal funding and to individual federal
lawsuits from students whose privacy is affected. More significant,
it is quite foreseeable that a federal court acting under authority
of FERPA could issue an order enjoining the release of the same
records which the trial court here, acting under state law, may
order petitioner to divulge.
It is this last prospect which brings into play the
doctrine of federal preemption. State law is "[preempted]
to the extent it actually conflicts with federal law, that is,
when it is impossible to comply with both state and federal law
[citation], or where the state law stands as an obstacle to the
accomplishment of the full purposes and objectives of Congress
[citation]." (California Coastal Com' n v. Granite Rock
Co. (1987) 480 U.S. 572, 581 [107 S.Ct. 1419, 94 L.Ed.2d 577].)
Here, federal law prohibits educational institutions from receiving
federal funds unless they safeguard education records in the
manner prescribed by FERPA. At the same time, California law[FOOTNOTE
2] mandates that student expulsion records be publicly disclosed
on demand. This is a genuine, undeniable conflict between state
and federal law.
Further, California law is an obvious obstacle to accomplishing
Congress's purposes and objectives in enacting FERPA. Congress
enacted FERPA "' to assure parents of students . . . access
to their educational records and to protect such individuals'
rights to privacy by limiting the transferability of their records
without their consent.' 120 Cong. Rec. 39,862 (1974) (joint statement
of Sens. Pell and Buckley explaining major amendments to FERPA)."
(Frazier v. Fairhaven School Committee (1st Cir. 2002)
276 F.3d 52, 67.) Section 48918's mandate that school districts
disclose student expulsion records to the public on demand is
a direct obstacle to protecting parent and student rights to
privacy in those records.
Thus, we conclude that FERPA preempts section 48918,
in that section 48918 requires the public disclosure of student
expulsion records while FERPA conditions the receipt of federal
funds on protecting students and their parents from disclosure
of this very type of record. Under California Coastal
Com' n v. Granite Rock Co., supra, 480 U.S. 572, it would be
impossible for petitioner, or any other California educational
institution, to comply with both state and federal law on this
subject. Further, as explained above, section 48918 is a direct
obstacle to accomplishing Congress's stated purpose to protect
parent and student privacy by limiting access to education records,
including expulsion records.
DISPOSITION
Let a peremptory writ of mandate issue directing the
Superior Court of the County of San Bernardino to set aside its
August 8, 2002, order overruling petitioner's demurrer to real
party in interest's petition for writ of mandate and enter an
order sustaining the demurrer without leave to amend.
Petitioner is DIRECTED to prepare and have the peremptory
writ of mandate issued, copies served, and the original filed
with the clerk of this court, together with proof of service
on all parties.
Richli, J.
We concur: Hollenhorst, Acting P.J., Gaut, J.
::::::::::::::::::::::::::::: FOOTNOTE(S):::::::::::::::::::::::::::::
FN1. All further statutory references are to the Education
Code unless otherwise indicated.
FN2. Unless Government Code section 6254, subdivision
(k), is invoked to relieve public agencies from having to disclose
records where disclosure is prohibited by federal law.
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