Muscogee County student lost his leg after a struggle at school. Should the video be public?

Is the 2016 Muscogee classroom video of a behavior specialist restraining a student who later lost a leg a public record open to disclosure, or an academic record the school district must withhold to protect the student’s privacy?

That’s the central issue in a lawsuit the Ledger-Enquirer filed last year against the Muscogee County School District, seeking the Sept. 12, 2016, video of an altercation between student Montravious Thomas, then 13, and contract behavior specialist Bryant Mosley at what was then the Columbus Edgewood Student Services Center.

Attorneys representing the school district and the newspaper sparred over the issue Wednesday in a hearing before Superior Court Judge Bobby Peters.

The 2016 incident led Thomas’ family to file a $25 million federal lawsuit against the district, alleging Mosley “body-slammed” the boy five times before carrying him to a bus and sending him home.

Thomas’ mother Lawanda Thomas later took Montravious to Columbus’ Midtown Medical Center, now Piedmont Columbus Regional, which had him airlifted to Egleston hospital in Atlanta, where after multiple surgeries, his right leg was amputated below the knee.

School district reports filed after the incident made no mention of body-slamming, and said Mosley restrained Montravious three times, as the boy tried to leave the classroom – twice for six minutes each and the final time for only 10 seconds, when Mosley released him because the boy said his leg hurt.

The newspaper filed a Oct. 24, 2016 open-records request to get the video, and the district refused to release it, saying that would be an invasion of the student’s personal privacy, and that the video is an educational record protected from disclosure under the Federal Educational Rights and Privacy Act, commonly called FERPA.

Intended to guard student privacy, FERPA says schools may lose federal funding if they have “a policy or practice of releasing education records to unauthorized persons.”

The district has said it would release the footage if Montravious’ family agreed to its disclosure, but the family has refused to waive any privacy rights.

After negotiations over the video’s release failed to resolve the issue, the newspaper filed suit on Jan. 4, 2018. The case initially was assigned to Judge Arthur Smith III, but he recused himself on Aug. 15, and it was reassigned to Peters.

The hearing

Representing the newspaper Wednesday was David Hudson of the law firm Hull Barrett of Augusta, Ga. Greg Ellington of Hall Booth Smith represented the school district.

Hudson argued the video is excluded from FERPA protection because it is not an academic record nor a permanent record under the law. Each Muscogee County school may have 100 or more security cameras on site, with the recordings going to a school database where they’re kept only three to 28 days, he said.

“They’re not kept in student files,” he said: The school’s security staff is in charge of the recordings, not the faculty. Surveillance video serves the interests of law enforcement, not the academic staff, and is not covered under FERPA, he said.

Hudson based his arguments primarily on the 1988 Georgia Supreme Court case Red & Black Publishing v. Board of Regents, in which the court ruled that FERPA applies only to records regarding student academic performance, financial aid or scholastic probation.

Federal regulations specify that security video footage maintained by a law enforcement unit within an educational institution or agency is not an educational record, he said, arguing that point is reflected in a Muscogee school district handbook that says video recordings of day-to-day activities “are not considered FERPA education records.”

The state Open Records Act codifies a “strong public policy” and “strong presumption in favor of open records,” and any exceptions to it are to be interpreted narrowly, Hudson said.

What happened to Montravious while in the district’s care is a matter of public interest involving the operation of public schools, and that outweighs any privacy interest, he said: “Public interest always trumps privacy.”

Ellington countered that school security footage is recorded over in three to 28 days only if it is not retrieved and maintained for future use, and the video of Montravious and Mosley was stored and archived.

The footage is not merely security video showing students in a hallway or breezeway, he noted: It depicts an altercation in which a student was injured, and it could have been used in a subsequent disciplinary hearing, had Montravious ever returned to the Edgewood Student Center. He did not, and left the school district afterward.

“That doesn’t change the nature of the footage,” Ellington said.

He acknowledged the district has 100 or more cameras at some schools, but noted it had classroom cameras only at two: One was the Edgewood center and the other at the time was the Woodall center. “Both of those were special education classrooms,” he said.

Those programs later were shifted to other sites.

The video doesn’t have to be archived in the same place as a student’s grades or other academic data to constitute an educational record, he said. Even if a record is stored in a law enforcement database, that doesn’t mean it’s not an “educational record,” a term that has not been narrowly defined.

He said guidance from the federal Family Policy Compliance Office, which advises schools on complying with FERPA, has said disciplinary records are academic records under the law, particularly in instances in which a student is injured in an altercation.

He added that “anyone off the street” can file an open-records request in Georgia, so were the district to release this video of a “most private and personal nature” to the newspaper, no similar record could be protected.

Whether the district afterward could maintain its federal funding just because it had no stated “policy” of regularly releasing such information wouldn’t matter, he said: “You can’t do it one time…. If it’s wrong, it’s wrong.”

The Georgia Supreme Court precedent on which Hudson relied has since been contradicted by other court rulings, so it is outdated, Ellington said, adding that the 1988 case involved disciplinary action against a college fraternity, and differed significantly from the circumstances in the Montravious Thomas case.

Judge Peters asked each side to file a proposed court order outlining what it believes the judge’s ruling should be.

The judge also asked the status of the Thomas family’s federal lawsuit, from which the plaintiffs later dropped the school district as a defendant, and sued those involved in an individual capacity.

“They’re taking depositions,” Ellington replied, so the suit is ongoing.