Ballard v. Cheshire Board of Ed. - Amended Order

CHRO No. 9830294

Fed No. n/a

Commission on Human Rights and Opportunities ex rel. : 
Chillon Ballard, Complainant 

v.

Cheshire Board of Education, et al., Respondent

November 15, 2005

Amended¹ Order re: respondent's motion to vacate and the commission's reply thereto

By pleading ("request") dated and filed November 4, 2005, the respondent requests reconsideration of the undersigned's order of October 18, 2005 which, in part, ordered the respondent to "produce for the commission to inspect and copy any and all documents relating to the discipline of Cheshire High School students for verbal abuse, obscene or profane language including but not limited to the use of the word 'nigger' for the academic years 1996-97." In its request, the respondent argues that release of such information would violate the federal Family Educational Rights and Privacy Act ("FERPA"). See 20 U.S.C. § 1323g and 34 C.F.R. § 99.1.

On November 10, 2005, the commission filed a reply ("reply") to the respondent's request. In its reply, the commission argues that 34 C.F.R. § 99.31(a)(9) permits the disclosure of such information. Also in its reply, the commission reduced the scope of its request to the five individuals named in its supplemental request for production dated September 26, 2005: Slade Wilson, Jamel Johnson, Asia Paca, Caitlin McKee and T.J. Dupis. According to its reply, "[t]he five named individuals are people who were alleged to have witnessed the discriminatory incident or have knowledge of it."

FERPA "should not serve as a cloak for alleged discriminatory practices …." Rios v Read, 73 F.R.D. 589, 600 (E.D.N.Y. 1977), 1977 U.S. Distr. LEXIS 17900, 30. See also Mislin v. City of Tonawanda School District, 2004 U.S. Dist. LEXIS 21774 and Ellis v. Cleveland Municipal School District, 309 F. Supp. 2d 1019 (2004). Therefore, the respondent's request is denied. However, because the commission is only seeking potential witnesses the order of October 24, 2005 is modified as follows: pursuant to 34 C.F.R. § 99.31(a)(9)(i), 34 C.F.R. § 99.31(a)(9)(ii)(B), 34 C.F.R. § 99.37 and General Statutes §§ 4-177b and 46a-57, on or before November 28, 2005, the respondent shall produce for the commission to inspect and copy any and all documents showing the last known addresses and telephone numbers of Slade Wilson, Jamel Johnson, Asia Paca, Caitlin McKee and T.J. Dupis. As provided in said sections, the respondent shall make reasonable efforts to notify the parent or eligible student in advance of compliance and the commission shall not disclose the information furnished in response to this order.

__________________________
Hon. Jon P. FitzGerald
Presiding Human Rights Referee

C:
Mr. Chillon Ballard
Gary S. Starr, Esq.
Michael S. Agress, Esq.

¹  The purpose of this amended order is to correct a typographical error in the date of the original order issued on November 15, 2005.