State Power over Citizen Privacy
I’ve asked my local, state, and Congressional representatives to fortify and strengthen consent requirements over personally identifiable student data being shared beyond the school district. It’s important for Utah to identify what Utah will officially recognize –and will not recognize– as being binding on Utah, coming from D.C.
The Dept. of Education’s recent FERPA regulatory changes should have no binding authority on Utahns, while original, Congressionally created FERPA laws should be what Utah recognizes. Why?
Utah prioritizes: 1) parental authority over children’s data; 2) adult individuals’ authority over the sharing of personal data acquired and archived by schools; and 3) constitutionally and legally* dictated guidance for which branch of government gets to amend laws/national regulations affecting students. (And Arne Duncan doesn’t make that cut.)
Federal FERPA does have many portions that need no addressing. The part to address has loosened parental consent requirements and loosened the directory information sharing rules and loosened definitions of terms. In Utah, we need those portions to be fortified and clearly understood by school boards and districts.
Utah law should quote the original, privacy-protective federal FERPA which preceded the regulatory changes and which were an actual Congressional law, enacted by We the People.
Utah law should define several terms. The original intent and definition of terms have been wrongfully changed by the Dept. of Ed, including “authorized representative” and “educational agency” and others. Those terms must be narrowly defined; for example, they should include parents and current teachers and principals, but should exclude federal agents and state agents claiming to be “stakeholders” in students’ lives, and they should exclude all non-governmental organizations; and they must be in harmony with the original intent of early FERPA law enacted by Congress.
Khalia Barnes and other lead lawyers (in the lawsuit filed by E.P.I.C. against the Dept. of Education over illegal FERPA regulatory changes made by the Dept. of Education) are experts on the ways in which the Dept. of Ed. exceeded statutory authority and broke law. If you care to study their work, see http://epic.org/apa/ferpa/default.html or ask Khalia Barnes at firstname.lastname@example.org .
The urgency of these matters must be communicated to Congress. Congress should have policed the Dept. of Education on having exceeded authority by making regulatory changes to FERPA that completely turned the intent of the original federal FERPA on its head. Until they do, we depend on local law and policy that maintains the spirit of the original FERPA.
State Power over Education
We need a “State Power over Education” law that reasserts and/or increases the Utah legislature’s authority over, and accountability from, the Utah School Board.
Recent USSB decisions have affected our state’s autonomy over our standards, tests, and privacy. The board’s role and authority was never meant to give away their authority to external forces, both consortia and federal, that now allows others: 1) to peruse Utahns’ personal data without parental consent or student knowledge; (via the Cooperative Agreement with the Dept. of Ed) and 2) to determine Utah’s educational standards/tests without even providing an amendment process. The board overstepped bounds in giving away that authority by adopting nationalized standards and testing for all Utahns to be overseen by consortia and by the federal government –this becomes a privacy, as well as an educational authority, issue. (See http://www2.ed.gov/programs/racetothetop-assessment/sbac-cooperative-agreement.pdf)
The state’s and Congress’ authority to write FERPA laws, and the Dept. of Ed’s non-authority to make regulatory changes, must be made crystal clear to Utah school districts, the state board and legislators. (To illustrate: Wasatch School District treats regulations altered in FERPA by the Dept. of Education as supreme law, while ignoring original family-protective, congressionally approved FERPA laws –due to a lack of clear direction from the state school board or state law and due to a lack of appreciation for balanced, shared powers.)
Utah needs to assert Utah’s authority over the federal intrusions and over the Utah State School Board for ceding state educational authority. Under GEPA law* and under the 9th and 10th Amendments to the Constitution, we have the right as a state to determine educational programs. Under the FERPA laws as they stood, up until a few months ago, Utahns had the right to privacy in schools.
Let’s articulate and maintain those rights.
* General Education Provisions Act (G.E.P.A. law):
“No provision of any applicable program shall be construed to authorize any department, agency, officer, or employee of the United States to exercise any direction, supervision, or control over the curriculum, program of instruction, administration, or personnel of any educational institution, school, or school system, or over the selection of library resources, textbooks, or other printed or published instructional materials by any educational institution or school system.”