Protecting students’ privacy and maintaining transparency can be a tough balance for a public school district to strike.
An Education Week analysis has found that a small number of districts use legally binding nondisclosure and non-disparagement agreements to keep children’s data safe. These documents prohibit employees from speaking out about certain topics, like individual students’ test scores and personally identifying information. They can also be used to prevent employees from talking negatively about the district after their employment ends.
Such agreements can be common in the corporate world to protect trade secrets. However, some legal experts say the measures go a step too far for school districts and could, in fact, backfire.
In April, a former Denver school district employee spoke out during a school board meeting about the district’s use of nondisclosure agreements, sparking questions about why the school system would need to bind its employees through NDAs. The former employee—who had been offered, but declined, $40,000 in exchange for signing an NDA and agreeing not to sue the district later or talk about his time working for Denver schools—alleged the district was trying to “limit the flow of information to the school board.”
A tense back-and-forth ensued, with members of the public calling for transparency and the district defending the NDAs, saying they’re a tool to “remind [employees] of their obligations under privacy laws.”
“These NDAs do not prevent employees from speaking out, as all who sign are still protected under the Federal Whistleblower Protection Program, ensuring they can report wrongdoing to the appropriate authorities without fear of retaliation,” the district in April.
The use of nondisclosure agreements—while relatively uncommon in K-12 schools—can raise a number of legal considerations for districts, and some experts caution that simply proposing an agreement, even if done with the best of intentions, can create a culture of fear in which employees are afraid to speak up when they suspect wrongdoing. Moreover, nondisclosure agreements and confidentiality agreements often simply reiterate requirements of federal student privacy laws and don’t add any additional protections for students.
Still, districts that employ NDAs say they can be good tools for reminding employees of their responsibilities to protect their students’ private information. In cases when the non-disclosure clauses are part of an employee’s termination agreement, they may include a provision preventing the dismissed employee from suing later, protecting the district from additional financial loss.
How common are NDAs in school districts?
Nondisclosure agreements typically bar an employee from talking publicly about the terms of the signed agreement publicly, but districts are bound by them, too. A violation by either party allows the other to pursue legal action. Confidentiality agreements are distinct from NDAs legally, and they’re usually one-sided—signed by an employee who agrees to a specific district policy, like maintaining the privacy of students and staff, for example. Employees could be asked to sign confidentiality agreements at the time they’re hired.
Confidentiality agreements may not specifically state what information is deemed “confidential” by the district, which can expose employees to potential threats, like termination. Meanwhile, NDAs have from education advocates because they could be used to shield employees from disclosing misconduct within the district.
Confidentiality agreements are more commonly used than NDAs, experts say. The large majority of school and district administrators say NDAs aren’t used in their districts at all.
Eighty-six percent of administrators say nobody in their district is required to sign an NDA at any point during their employment, according to a recent, nationally representative EdWeek Research Center survey.
Of those who said their districts do use NDAs, 9 percent said principals are required to sign them, 8 percent said teachers are, and 8 percent said superintendents are.
Principals in schools with higher rates of poverty were more likely than those in more affluent districts to have to sign NDAs, according to the survey. In districts where more than 75 percent of students qualify for free meals, 21 percent of respondents said principals must sign nondisclosure agreements.
That’s 10 times higher than the rate for affluent districts, where only 2 percent reported such requirements. The survey was administered from May 29 to June 19, and includes responses from 186 district leaders and 158 school leaders.
Ronn Nozoe, CEO of the National Association of Secondary School Principals, said the organization—which represents more than 16,000 school leaders—understands the need to protect confidential information but “advocates for a balanced approach that prioritizes transparency while respecting legal obligations to protect student privacy and confidential personnel matters.”
“We hope that school districts carefully consider the implications of using NDAs and explore alternative methods of protecting sensitive information that do not compromise the open exchange of ideas and information essential to educational environments,” Nozoe said in an email. “Ultimately, a culture of openness, trust, and collaboration is crucial for the success of our schools and the students they serve.”
Neither of the national teachers’ unions—the National Education Association and the American Federation of Teachers—has an official stance on the use of NDAs, according to spokespeople.
Some labor experts say NDAs and confidentiality agreements are unnecessary because federal student privacy laws such as the Family Educational Rights and Privacy Act (FERPA) already exist, and it’s unclear what a school- or district-level agreement may cover that the law doesn’t. They also caution that signing blanket waivers or agreements can have unintended consequences for employees later on.
“My general rule would be: Don’t sign away your rights as an employee,” said William Burke, executive director of the Council of Administrative and Supervisory Employees, which represents many administrators who work in the Baltimore County school district in Maryland.
CASE has only handled a handful of cases in which members were asked to sign agreements that would restrict them from taking legal action against the district in the future. These cases include district employees who were transferred to different roles or physically injured on the job, and were awarded a monetary sum. If this award comes with an NDA or a clause that takes away the employee’s right to sue the district later, Burke said he’s strongly advised CASE members not to sign.
A Baltimore County school district spokesperson said in a statement that the district might ask employees who serve on interview panels to sign confidentiality agreements prohibiting them from speaking about job candidates outside of the panel. The spokesperson did not say whether the district uses NDAs or confidentiality agreements in other circumstances.
State laws can prevent districts from extending NDAs
Some states prohibit public institutions from asking employees to sign NDAs.
In Florida, for example, specific statutes bar school boards and any of their employees from entering into confidentiality agreements surrounding employee terminations.
“If the termination is based, in some part, on misconduct that affects the health and welfare of a student, there’s no confidentiality agreement. They’ve put that in the state law,” said Jyllian Bradshaw, a Florida-based labor lawyer.
This implies that neither party—the district or employee—can withhold information about the termination, Bradshaw said.
In states that allow public institutions to extend NDAs, individual agreements might prevent specific information—like the size of an award or compensation paid out—from being made public.
“These NDAs may be very narrowly tailored. You can’t disclose the amount paid out in the agreement, but an employee may not be barred from disclosing that an agreement exists in the first place,” Bradshaw said.
To complicate the picture, all contracts that a public school board enters into are part of public record.
Districts are walking a “tightrope” if they decide to enter into an NDA with an employee, Bradshaw said. Any member of the public can request and view such agreements and any district documents that reference one. The board or a member of the public can question the district about an unusually large legal bill, for example.
NDAs or confidentiality agreements could have a chilling effect
Asking employees to sign a blanket NDA or confidentiality agreement can have a “chilling effect” on employees, said Mark Paige, a professor of education law and policy at the University of Massachusetts Dartmouth.
“As a general rule, the power balance tips toward the employer. [An NDA] just seems to go beyond and seems entirely unnecessary. Conditioning employment by waiving constitutional rights is problematic,” Paige said.
In cases in which a district believes an employee’s speech or actions are damaging to the school or interfere with the school’s ability to do its job, the Supreme Court has established a framework for employers: They can discipline the employee without impinging on the latter’s First Amendment rights, Paige said.
Unlike NDAs, which may be used in specific cases like an employee’s termination, confidentiality agreements are more commonly used by school districts to reiterate federal laws, like FERPA, that apply to all employees.
But these agreements could be seen as heavy-handed instruments that limit employees from speaking out about something they see as detrimental to students or the school, Paige said. These agreements might not spell out what “confidential” means beyond boilerplate language that restricts employees from sharing students’ or other employees’ personal information, he said.
The use of such agreements becomes especially problematic if a district cites it in an attempt to shut down debate over a controversial topic, and the agreement doesn’t define what is “confidential” information.
If a district employee suspects something nefarious, it’s in the public interest for them to bring this wrongdoing to light, Paige said. But if this person signed a confidentiality agreement, they might choose not to disclose this information for fear of being reprimanded or fired.
“They may think, ‘It’s not worth it to me, because I still have to make rent,’” Paige said.
