Can a student journalist write a story about a fight in school newspaper and include the student’s names?

The Family Educational Rights and Privacy Act (FERPA) places restrictions on how and when a school can reveal information about a student’s educational file to third parties. This is the law that protects you from your school distributing your GPA, contact information, class schedule, or other personal information to other people. For example, if another student walks into the school office and asks your GPA, the school cannot give away your GPA to that student. Your parents do have a right to the information in your educational file as your legal guardians. That’s why it doesn’t violate FERPA when your school sends your progress report to your parents. If you want to know more about FERPA, see our guide to FERPA.

The reason that FERPA would not be a barrier for you in publishing the students’ names if your newspaper is a limited public forum is because FERPA only governs acting agents of the school like teachers, administrators, and other school employees. Student journalists are likely not agents of the school, especially if your newspaper is a limited public forum or a public forum (don’t worry, we’ll explain what this means in the next section). As long as you, a student journalist, obtained the information that you want to publish legally and independently, FERPA would not prohibit publication of the information. In your situation, the publication of students’ names probably would not violate FERPA because you learned about the story simply by being a student of the school, and you don’t have to disclose any confidential, educational information about the students. Also, you’re probably not an agent of the school if your newspaper is a limited public forum. 

How do I know if my school’s newspaper is a limited public forum and why does that matter?

When a school newspaper is a public forum or a limited public forum, it means that a school administration has less control over the newspaper and the newspaper is more of an independent publication. If a school newspaper is considered a limited public forum or public forum, a student journalist likely will not be operating as an agent of the school (remember that FERPA only applies to agents of schools—see how this all comes together?!). Michigan courts have outlined several factors to consider when determining if a school newspaper is a limited public forum. These factors are:

1. Whether the students produced the paper as part of the school curriculum,

2. Whether students receive credits/grades for the course,

3. Whether there was a faculty member overseeing production,

4. Whether the school deviated from its educational policy in publishing the paper,

5. The degree of control asserted by the administration and faculty advisor,

6. Applicable written policies issued by the board of education,

7. The school’s policy about the newspaper,

8. The school’s practice with newspaper, and

9. The nature of the newspaper and how the newspaper is compatible with expressive activity.

If the school administration does not normally exercise heavy control over the content of the school newspaper, that will help support classifying the school newspaper as a limited public forum. Additionally, if the students support the school newspaper by selling advertisements that will also help support a conclusion that the school newspaper is a limited public forum. For more analysis of these factors, see our Q&A on “How do I know if my school’s newspaper is a limited public forum?”

Therefore, if your school newspaper is a limited public forum, you are less likely to be an agent of the school, which means you cannot violate FERPA by publishing a minor student’s name.

So if FERPA can’t stop me from publishing the names, what can?

One of the main issues involved when publishing stories using students’ real names in a school newspaper is the privacy rights of the students. When publishing students’ names, the privacy concern would be about the “publication of private facts.” To get in trouble for the publication of private facts, the complaining person would have to prove that (1) private information was disclosed, (2) the revelation of that information would be highly offensive to a reasonable person, and (3) the information is of no legitimate concern to the public. In your situation, the name of a minor student probably is not a private fact. Although the name is being published in conjunction with a story that could possibly harm the reputation of the student who pushed the other student, that doesn’t matter when talking about publication of private facts. Publishing your story about the student getting arrested using his real name is not going to constitute publication of private facts because that information is not private (it’s actually public record at the police department), and the story is probably a legitimate concern to the public. Other parents may want to know if another student at the school that their child attends got arrested, particularly for being violent to another student.

Finally, although FERPA, the type of newspaper forum, and publication of private facts probably cannot stop you from publishing the students’ names, you should consider journalistic ethics before publishing the story. Ask yourself if it’s really ethical to publish the names and how much the names add to your story, especially if the student is a minor. The Society of Professional Journalists Code of Ethics provides guidelines for journalists to follow when deciding what stories to publish, which you can check out here.

The Code of Ethics includes four subcategories: to seek and report the truth, minimize harm, act independently, and be accountable. Additionally, the Code of Ethics states that journalists should show compassion for those that may be adversely impacted by news coverage, and to use special sensitivity when dealing with children and inexperienced sources or subjects. These decisions need to be made on a case-by-case basis. Some papers develop policies of not publishing the names of minors except in extreme cases. For example, if the student who was arrested specifically asks for his name not to be included in an article it would likely be unethical for you to publish the student’s name. Even if you cannot legally get in trouble for publishing the students’ names, you may want to avoid publishing the name for ethical reasons.

What if the student consents or voluntarily gives their information?

On the other hand, if the student who was arrested gave you his permission to publish his name (although we can’t image why he would), then you should be in the clear. The best way to eliminate the concern of violating a students’ privacy rights or getting in trouble by the school for publishing the name is to obtain consent. If the student is 18 or older, then they are able to give consent for themselves, but if the student is under the age of 18, you need to get consent from that student's parent or guardian. 

But let’s say a student voluntarily comes to you with a story, or your newspaper runs an advice column where students voluntarily submit their information. In that situation, their voluntary submission of information, even if it’s personal, would not open you up to any legal liability or discipline from the school administration. As long as the student who gave you the information is aware that such information is going to be published with no reason to think that they will remain anonymous, you can publish the information.