Why Did Eva Moskowitz Publish a Student’s Disciplinary Record?

Anyone who has reported on campus sexual assault knows that school administrations rarely respond, even when they feel unfairly maligned, because they fear violating the Family Educational Rights and Privacy Act, or FERPA. Passed in 1974, FERPA is a federal law that bans the release of students’ personal information without their consent. “Schools are not supposed to talk about their students, even when the media is saying, ‘Hey, I can’t believe you did this,’ ” says Derek W. Black, a professor at the University of South Carolina School of Law who specializes in education law. “And sometimes that means the media doesn’t get the story straight, but it does protect the student.”

That’s why it was so surprising when Eva Moskowitz, the high-profile head of Success Academy, a network of New York City charter schools, responded to a negative PBS story by releasing the disciplinary record of an ex-student featured in it. Black says this was probably illegal, and it has left the student’s mother, Fatima Geidi, furious and frantic with worry over her 10-year-old son’s reputation. “For a grown woman, an adult, to attack a child is disgusting,” Geidi told me. “There’s no other way around it.”

The skirmish began on Oct. 12, when PBS NewsHour ran a segment titled “Is Kindergarten Too Young to Suspend a Student?” It came as a national backlash has been building against overly strict discipline in public schools, particularly toward very young students. Last year, the Obama administration urged schools to abandon so called zero-tolerance disciplinary policies, warning administrators nationwide that it would investigate racial disparities in student punishment. Shortly before the PBS NewsHour piece ran, a report from the Center for American Progress documented that students are being suspended and expelled as early as preschool. “[I]t is clear that what were intended to be last resort and occasional disciplinary tools have become wildly overused and disproportionately applied to children of color, resulting in dramatically negative long-term effects,” the report said.

The NewsHour segment focused on the suspension of kindergarteners at Success Academy schools, which are known both for their high test scores and their highly structured environments, with a code of conduct running six pages. According to PBS reporter John Merrow, at one Success Academy charter with 203 kindergartners and first-graders, there were 44 out-of-school suspensions in a single year.

Merrow spoke with nearly a dozen families, but only Fatima Geidi and her son, Jamir, agreed to go on camera. Jamir, who left Success Academy last year because he and his mother couldn’t tolerate the frequent suspensions, described some of the infractions that got him in trouble: “I would always have to keep my shirt tucked in. And let’s say I wasn’t wearing black shoes, and I was wearing red shoes. Then that would be an infraction.”

Viewers didn’t get the impression that these were the only reasons the boy, now 10, was disciplined. Fatima Geidi, said that even at his new school, where Jamir hasn’t been suspended, he’s had “meltdowns” and “outbursts.” Still, the segment made it seem as though Success Academy throws kids out for petty misbehavior. Moskowitz herself said that a single incidence of using “sexually explicit language” would get a 5-year-old suspended.

Jamir Geidi wasn’t central to PBS’s piece; he was there to personalize a broader claim. The heart of the story was Merrow’s suggestion that Success Academy owes its impressive test scores in part to suspension policies that lead weaker students to transfer. “In fact, the attrition rate is at least twice that of another major charter network, KIPP,” Merrow reported. For every 100 new students, he said, at least 10 leave before the end of the school year, replaced by students from the waiting list.

When the piece came out, Moskowitz insisted that her schools actually have lower attrition rates than most New York City schools. This is a complicated issue, because schools calculate attrition differently—some do it over the calendar year, some over the school year. PBS stands by its figures, writing in a follow-up note, “Mr. Merrow reconciled those numbers fairly and thoroughly.”

But Moskowitz didn’t just object to the numbers. She wanted to combat the allegation that Success Academy suspends kids without good reason. And so she made Jamir Geidi’s record public, posting a letter to PBS on the Success Academies website that listed 19 specific incidents of misconduct, some of them violent, along with long excerpts of teacher reports on Jamir’s behavior. (Her letter referred to Jamir as “John Doe,” but since he was the only student named in the PBS segment, there was no question about who she was talking about.)

Fatima Geidi disputes some of these examples as either false or exaggerated. Whether or not they happened the way Moskowitz claims, Black says that in revealing them, she likely broke the law. “A student’s records themselves are private, as well as the contents,” he says. “If those are going to be disclosed to outside third parties, they clearly have to have consent.”

With the help of Leonie Haimson, co-founder of the Parent Coalition for Student Privacy, Fatima Geidi sent Moskowitz a cease-and-desist letter, demanding that her son’s information be taken down. “I’ve seen violations of FERPA, but not in such an obvious, egregious way,” Haimson told me. “Not in a press release sent to the media and posted online. I have not seen this level of violation.”

Moskowitz is unapologetic. In a letter to Geidi, she wrote, “The First Amendment limits a person’s ability to use privacy rights to prevent others from speaking. When somebody chooses to make statements to the press, they waive their privacy rights on the topics they have discussed, particularly when, as here, those statements are inaccurate.”

According to Black, this is not legally accurate. Families don’t waive their rights under FERPA when they speak to journalists. Moskowitz, he says, could legally say that Geidi’s claims weren’t true, or that the school had reasons for acting as it did, as long as she didn’t reveal information from Jamir’s records: “That is the key.”

Unfortunately for Fatima and Jamir Geidi, individuals can’t bring claims under FERPA. Only the Department of Education can. The question of whether Moskowitz is held accountable for publishing Jamir’s records may thus be as much political as legal, and Moskowitz—until recently seen as a possible challenger to mayor Bill de Blasio—is politically powerful.

Even if she weren’t, some might sympathize with Moskowitz. PBS itself has said that she should have been given a chance to challenge Fatima and Jamir Geidi’s claims before they aired. Merrow now believes, as he told Education Week in an email, that it was a mistake to include them at all. Moskowitz clearly believes herself the wronged party. In a letter to PBS published on the Success Academies website Sunday, she called on PBS to withdraw Merrow’s report.

Responding to an email requesting comment from Moskowitz, Ann Powell, Success Academy’s executive vice president for public affairs, wrote to me: “I realize that the mean-old-school-picks-on-family angle is appealing, but this is somebody who deliberately appeared on national television to defame our educators and we had to bring the truth out or let this incendiary and defamatory report stand.”

Whatever you think about the dispute among Fatima Geidi, Merrow, and Moskowitz, however, Jamir Geidi is 10 years old. A document describing him as frighteningly violent now appears in the first page of his Google results. If that’s OK, it doesn’t just hurt him and his mother. It sends a message to any current or former Success Academy parent who might take public issue with Moskowitz’s methods. Fatima Geidi, “was the only parent whom PBS contacted who was brave enough to speak out” under her own name, says Haimson of the Parent Coalition for Student Privacy. “One reason why parents are very afraid—and teachers are afraid too—is they knew they risked the kind of tactics that Eva Moskowitz used against Fatima’s child.” FERPA is supposed to protect such children. We’ll see if it does.