Two middle school students were arrested and charged in Fairborn on Thursday, Feb. 22, 2018. A lockdown was in place at Fairborn High School due to a social media post that indicated students and teachers were possibly in danger, Fairborn police said. MARSHALL GORBY/STAFF

Fairborn police: Schools won’t release witness statements after threat

A Fairborn Police Department sergeant said Fairborn City Schools officials are refusing to give investigators the written witness statements from the classmates of a 12-year-old Baker Middle School student.

The boy was arrested Feb. 22 after witnesses told police he stood up in class and named classmates he intended to kill.

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The Dayton Daily News has also requested copies of the witness statements from the district using Ohio’s open records law in order to better understand the nature of the incident and whether students were at risk or whether school policies were followed that are intended to keep students safe.

The district’s attorney told this newspaper that the records could not be released because they are protected by a federal student privacy law enacted in 1974 known as “FERPA.” It appears the district has told the investigating officers the same thing, and as of Friday the records had not been turned over.

Fairborn police’s incident report said the arresting officer had time constraints that prevented him from collecting the statements on Feb. 22, the day of the incident, but that the officer intended to pick up the records the next day from school administrators. But the school district’s attorney this month told the Daily News the records have not been shared with police and remain in the district’s possession.

Neither Fairborn schools Superintendent Mark North nor Fairborn Police Chief Terry Barlow agreed to interview requests for this story.

The importance of good communication between local police and educators has been brought to light in the aftermath of the Florida shooting. It’s not the first time the issue of communication has come under the microscope after tragedy.

In 2009, Congress amended FERPA after a Virginia Tech student with documented behavioral health issues killed 32 people on campus in 2007.

Ohio Attorney General Mike DeWine is among those who believe the law is due for another review by Congress.

“There is a tug-of-war many times with FERPA,” he said. “When you try and go back to look at what happened with some of these shootings, so many times there were numerous warnings people saw but they didn’t know what to do with it.”

“Congress should have hearings and bring in people with all kinds of opinions about this and decide what we can do if the law in fact needs to be changed,” DeWine told the Daily News. “Every law was well intended, this law was very well intended, but are there exceptions that we should be carving into the law to protect that young student?”

Incident began Feb. 22

The Feb. 22 incident began when Fairborn police responded went to Baker Middle School and arrested an 11-year-old girl on suspicion of making threats using social media. During her arrest, another student — the 12-year-old boy — was arrested after “multiple students” told police he stood up in class and “began to name people that he wanted to ‘kill.’”

The 12-year-old boy is scheduled to appear April 10 in Greene County Juvenile Court, court officials said. He was charged with misdemeanor inducing panic and aggravated menacing.

The newspaper is not identifying either of the students, who are not charged as adults.

Officer Zachary Zink, a Fairborn police officer assigned to the middle school, wrote in his report that the boy’s classmates filled out written statements about the outburst. Zink wrote he intended to collect the documents “from school administrators the following business day,” according to his report.

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But police have not received the written witness reports, according to police and school officials, because the school is withholding the records claiming a the student privacy exemption.

“They are refusing to release any written statements reference [sic] the incident,” Watts told this newspaper by email, referring to the schools.

The school’s attorney replied and said FERPA — the Family Educational Rights and Privacy Act — prohibited the release of the records to the newspaper.

“None of these statements were shared with police and remain in the sole possession of the school district,” wrote David Lampe, the schools’ attorney. “Therefore, all of the information contained in these statements are educational records of the disciplined student. Even if you remove the student’s name, all of the information contained in the student statements still contain personally identifiable information of the disciplined student.”

Why it matters

Legal experts interviewed by the Daily News identified at least two issues with the way the Fairborn incident has been handled.

If police created the records, the experts said, it is unclear why they would allow the schools to control the evidence-gathering process. But if the schools created the records, the experts said it’s not clear if the records should, or could, be released to police and the public.

“In 1974 when this law was created, there wasn’t much thought about kids standing up and threatening to shoot their classmates,” said Charlie Russo, a professor in the University of Dayton’s education and law schools. “I think in light of so many God-awful shootings, it doesn’t make sense that there’s not more guidance.”

Legal experts interviewed by the Daily News also questioned why the police investigation and school discipline process intersected.

“The way that police agencies take reports is up to them — there’s no law that says they have to do it a certain way,” said Mark Weaver, a former Ohio deputy attorney general. “The problem becomes, why would the police allow the school to control their evidence gathering process? That’s a policy question, not a legal question. That’s a question for the police chief.”

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Carmen Naso, a former Cuyahoga County Juvenile prosecutor, said that if police created the records, leaving witness statements in the custody of a third party overnight would be “definitely outside” standard police procedure.

“These statements are compromised, if that’s the way they collected them,” said Naso, a senior instructor at Case Western Reserve University School of Law. “In order to admit evidence in a courtroom, a prosecutor has to prove a chain of custody of the evidence to show the documents are in their original condition and intact.”

If the records are indeed student disciplinary records, experts said that even if the school wanted to give records to police, they would not be able to without an emergency or subpoena.

Frank LoMonte, Student Press Law Center senior legal fellow, said if the records “truly are covered by FERPA, then they cannot be shared with police without a court order unless there is an immediate public-safety emergency, such as a fleeing felon or an abduction.”

“Since this student has already been arrested, there is no ongoing public-safety emergency,” LoMonte wrote by email, “so if the district is right that FERPA applies to the records, the records cannot be turned over to police or any other outside agency unless a judge orders it.”

Still, LoMonte also said it’s possible that parts of a student’s disciplinary record could be released to the public.

“Generally speaking, it should be possible to redact identifiable information and turn over the remainder of the narrative describing what happened,” LoMonte said.

Naso — the former juvenile prosecutor — questioned the basic notion of why the schools, not police, would collect the written statements.

“This is not left up to administrators or teachers,” Naso said. “This is a law enforcement matter because, apparently, someone threatened to kill somebody. You don’t let school teachers investigate crimes.”

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