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    BYU Professor Ed Carter is an expert on copyright.  I called him to learn more about what it means to have our Utah educational standards under copyright by the NGA (National Governor’s Association) and the CCSSO (Council of Chief State School Officers).

So, how bound are we?

Professor Carter made it clear that his was not professional legal advice, nor was it any official statement from BYU.

He said it appeared to him that the NGA/CCSSO copyright on the Common Core State Standards (CCSS) is a smokescreen.

    Smokescreen – an action intended to obscure, conceal or confuse.

Smokescreen – a mass of dense artificial smoke used to conceal military areas or operations.

Because governments cannot copyright things (this was news to me) the Dept. of Education not only couldn’t legally write national standards under GEPA law* and the Constitution (I knew that part) but the Dept. of Education could not copyright standards, either.

So it’s getting clearer and clearer.  The only way the Dept of ED could do this nationalization of education and yank local autonomy out of our hands –and appear sort of legal about it– was to promote Common Core via other groups.  –And they have:  Achieve, NGA, CCSSO, Bill Gates– all nongovernmental groups– have written, promoted and paid for the Common Core.

    

The really odd part is that on the official Common Core website there’s a copyright page that says nobody better claim to have written these standards.  Yet, we’ve all been told that Common Core is a “state-led” initiative, with no federal strings attached, and the states themselves got together and wrote the standards.  Hmmmm.  Compare: “NGA Center/CCSSO shall be acknowledged as the sole owners and developers of the Common Core State Standards, and no claims to the contrary shall be made.”  http://www.corestandards.org/public-license

No, the NGA/CCSSO cannot force us to obey the national standards.  They just developed them and copyrighted them, but of course, since we didn’t elect them, we have no way to change the standards nor the administrators over them.

Simultaneously, the Dept. of Education promoted the standards and even went so far as to say states can’t delete anything from the CCSS national standards, and are limited in adding anything to them beyond 15%.  The Dept. of Education can enforce this obedience to the copyright through coercion.  They fund grants and offer waivers that can only be received on conditions of accepting the Common Core standards.

But there is a loophole!

I’ve been writing letters, begging our Governor and other state leaders to use that loophole.  It’s not complicated; Virginia did it.  They chose option 2 rather than option 1.  See:

On page 8 of the ESEA Flexibility document (updated June 7, 2012)  found at  http://www.ed.gov/esea/flexibility, it says:   “A State’s college- and career-ready standards must be either (1) standards that are common to a significant number of States; or (2) standards that are approved by a State network of institutions of higher education”.

Same thing appears on the official ED website: http://www.ed.gov/race-top/district-competition/definitions.

They define “college- and career-ready standards:  Content standards for kindergarten through 12th grade that build towards college- and career-ready graduation requirements (as defined in this document) by the time of high school graduation.  A State’s college- and career-ready standards must be either (1) standards that are common to a significant number of States; or (2) standards that are approved by a State network of institutions of higher education, which must certify that students who meet the standards will not need remedial course work at the postsecondary level.”

Here’s my question.  The ESEA flexibility request window shuts down Sept. 6, 2012.  Does this mean we have to resubmit our waiver request before then, or lose the option of doing loophole option 2 forever?  I do not know the answer to this question.  It seems incredibly important and I sure hope our state leaders are on it.

* GEPA 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…

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  Professor David Wiley is to be applauded for engaging in actual debate on the Common Core/FERPA issue with people like me.  I appreciate it.  He is rare for being willing to discuss these things without resorting to dismissive name calling as others have done.  Here is what he posted today, along with what Kristen Chevrier and I had to say back, below:

July 20, 2012 at 12:00 am

Christel,

Thanks for this ongoing conversation. I apologize for the choppy nature of my response, but I’m trying to reply point by point to your last post without copying your entire post into the body of mine.

You need PII to conduct the district / university study because you can’t learn anything meaningful by asking, “60% of the people in our district passed algebra – what percentage of our students tested into remedial math at the university?” and getting the answer “49%.” Are all 40% of people who didn’t pass algebra included in that 49%? Clearly some people who passed algebra still tested into remedial math. But what percentage? How well *are* we preparing our kids for college math? To get a meaningful answer you have to ask this question for each individual – did this person pass algebra in the district? Did they then test into developmental math at the university? And you need PII to connect the grade in the high school to the placement exam at the university level. I would guess somewhere between 1 and 3 researchers would see PII as this question was answered.

The exceptions to FERPA are important, but not because they make researchers’ jobs easier. The exceptions are important because some critical forms of large scale research are literally impossible without them. Everyone parent says that they want the teachers and staff in their schools to use research-based practices proven to be effective, but no one seems to want their child’s data to be collected or analyzed so that we can understand what is effective. I will nickname this issue the “freerider problem.” While it is possible to ask some meaningful questions without disclosing PII – and many of these questions have been asked and are well studied – the freerider problem prevents us from answering the important questions that require PII.

The idea that a random person on the street could acquire PII for their neighbor’s child with a persuasive verbal argument – and all due to the exceptions in FERPA – is hyperbole. Please reread the mandatory elements of the written agreements required to govern the un-consented disclosure of PII (in the documents you linked to previously) if you really thought this was possible. But I don’t suspect you did. Hyperbole of this kind does not productively advance the conversation.

For every quote from a prophet or general authority that purportedly proves one non-religious point, you can easily identify another quote that supports the opposing non-religious point. I don’t know that this type of dialogue is particularly productive. You offer Ezra Taft Benson’s quote, “An important test I use in passing judgment upon an act of government is this: If it were up to me as an individual to punish my neighbor for violating a given law, would it offend my conscience to do so?” (I find ellipses often hide important detail, so I’ve listed the complete quote.)

I will offer you Thomas S. Monson’s statement “When performance is measured, performance improves. When performance is measured and reported, the rate of performance accelerates” as a counter to your Ezra Taft Benson quote. I don’t believe Thomas S. Monson was talking about measuring and reporting the aggregate performance of nameless thousands of people. But I’m sure you’ve already thought of another religious leader’s quote that supposedly counters this quote of Thomas S Monson’s, but this game can be played ad infinitum and is, consequently, uninteresting in the grand argument.

Your brief history lesson re: Orwell and Communism comes tantalizingly close to fulfilling Godwin’s Law.

You say, “Public schools sit as a golden grape of opportunity for the data-hungry feds.” A large collection of educational data will be interesting to anyone who cares about using rigorous scientific techniques to improve American schools – but it doesn’t mean they can access it without conforming to the law.

How large a role would you hypothesize parents play in the academic success of their children? If you believe they play a large role, then you already know why researchers would be interested in understanding more about students’ parents.

If the new interpretation of FERPA is so clearly unconstitutional, as you or EPIC (it was unclear) suggest it is, I’m sure the Supreme Court will let us know. Based on my current understanding, I don’t believe it is unconstitutional. However, I am always open to being persuaded by data. As my favorite saying goes, “The facts are always friendly.”

While I won’t go so far as to use your “flabbergasted” language, I guess I just don’t understand the paranoia. The idea that someone would proactively fight to *not* know how to improve their local school’s math instruction – in order to insure that their child’s PII aren’t seen by a couple of researchers – confuses me. That is the scale of un-consented disclosure we’re talking about, and that is the scale of benefit we’re talking about.

 Kristen Chevrier says:

• July 20, 2012 at 3:00 pm

  Mr. Wiley: Could you please explain why it is necessary to connect student names with data? If you are measuring school, district or state performance, you don’t need to identify individual students. Monitoring the progress of individual students should be the job of the local teachers and parents. I don’t think anyone has a problem with data collection that is not connected with names.

  Kristen Chevrier says:
• July 20, 2012 at 3:16 pm

  Please note, again, that the FERPA laws have been changed to allow the sharing of PII with the federal government. Please do not deflect this question, again, by saying that “the random person on the street” does not have access to the information. The random hacker does have access and neither the state nor the federal government needs or should have access. All the stats you need can be gathered without PII. So, please explain why anyone wants names.

  Also, the fact that a researcher has an interest in someone does not mean that they should have access to that person’s personal information at will. Researchers should be subject to Constitutional restraints.

• Christel Swasey

  

  July 20, 2012 at 4:35 pm

  Dear Professor Wiley,

  Correct me if I’m wrong.

  I see your line of reasoning similar to Arne Duncan’s, boiling down to this: research is supremely helpful in making improvements to education; therefore, anything that stands in the way of gathering research– such as researchers having to get parental consent before accessing student’s PII, or such as the executive branch technically not being Constitutionally permitted to make regulatory changes to FERPA without Congressional approval– is reduced to optional/unimportant.

  So I ask: Could instructional research possibly be improved  in other, more excellent ways, without resorting to going behind parents’ or Congress’ backs to get access to kids’ data?

  I have no argument with your “needing PII to connect the grade in the high school to the placement exam at the university level” –but researchers should shoulder the inconvenience of getting parental/individual  consent first.  Access by researchers to data, while wonderfully enriching, will never trump families’ and individuals’ authority over personal student data. Not even President Monson  (in the context of his quote that you shared, about measuring performance) would  approve of a policy of going around parents’ backs to measure student performance.

  You identified researchers’  “freerider problem” as not being able to do “critical forms of large scale research” because parents  don’t  “seem to want their child’s data to be collected or analyzed so that we can understand what is effective.”  That is tough; too bad.  If parents are unwilling to have their child’s data collected, we are out of researching luck.  We can not ethically “redistribute the data” any more than we can ethically “redistribute the wealth” against the will of parents and citizens. It amounts to a push for secretiveness that overrides  individual and parental agency and authority.  It may have begun with good intentions as a push for educational improvements via research– but that good is not more good than individual agency, parental authority, transparency and adult student consent.

  We can conduct any large or small scale research in the world, as long as we do so ethically, and that has to include taking the time to do a consent form– inconvenient or not.

  The idea that a random person on the street could acquire PII for their neighbor’s child due to the exceptions in FERPA  is not hyperbole.  While neither you nor I nor any human being has read the entire verbiage of all FERPA documents, I have read the recent exceptions page thoroughly.  It says that anyone who is determined to have “legitimate educational interests,” including a “contractor,” “consultant,” even a school “volunteer” can access this information, being “considered a school official”.  Full text: http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=1a7070ed933117bedbac3ab9e0c7458f&rgn=div8&view=text&node=34:1.1.1.1.33.4.132.2&idno=34 “99.31 Under what conditions is prior consent not required to disclose information? (a) An educational agency or institution may disclose personally identifiable information from an education record of a student without the consent required by §99.30 if the disclosure meets one or more of the following conditions:  (1)(i)(A) The disclosure is to other school officials, including teachers, within the agency or institution whom the agency or institution has determined to have legitimate educational interests.(B) A contractor, consultant, volunteer, or other party to whom an agency or institution has outsourced institutional services or functions may be considered a school official under this paragraph provided that the outside party— ( 1 ) Performs an institutional service or function for which the agency or institution would otherwise use employees…”

  There it is, in black and white.

  So, I am glad that your favorite saying is, “facts are always friendly.”  I agree.  I would welcome a formal hearing on Common Core and FERPA, so that all facts can be vetted by the good people of Utah and not just by you and I.  Would you agree to help make that happen?

  I hope you are able and willing because of your partnership with the USOE to influence that office to have a hearing. http://www.schools.utah.gov/data/Educational-Data/Accountability-School-Performance/Utah-ESEA-Flexibility-Request.aspx  See page 25 for your name.

  I doubt the USOE will agree, however, because that office seems to despise transparency.  It published an unreferenced, half-true “fact v. fiction” flier, it won’t answer questions or return emails, it won’t rebut rebuttals of their facts, and it continues to publish statements without verifiability, wherein it just redelivers claims of the Dept. of Education, the SBAC, NGA, NCES, and CCSSO.

  So I thank you again for taking the time to communicate with me.  I have never had such great feedback from anyone on the pro-Common Core side as I’ve had with you.

  Lastly, thanks for bringing up Godwin’s Law (that, given enough time, any online discussion—regardless of topic or scope— inevitably makes a comparison to Hitler and the Nazis.)  There is more than a small spark of truth in Godwin’s Law.  Why? If a discussion is important enough to continue at length, it will inevitably come to the issue that the Nazis vividly illustrated: power to control others at will, versus free agency.

  Though that issue’s been illustrated by WW2, fresh in our collective conscious, it’s been illustrated through time by many power-hungry regimes. In reality, “Freedom as we know it has been experienced by perhaps less than one percent of the human family”  (President Benson).  The freedoms we enjoy were set up via the Constitution by wise people extremely concerned –maybe you would prefer the word  “paranoid” — about losing freedom and rights in the future, or having their descendants lose hold of that rare bird, freedom.

  Freedoms are not un-alterable.  The choices we make, and that you are making, affect others’ freedoms, especially as a top-level educator who affects political decisions concerning education in this state.

  The USOE continues to aid and abet what Bill Evers of Stanford’s Hoover Institute aptly called the “Department of Education’s Immaculate Deception” –meaning Common Core, and its sister, the congressionally unauthorized FERPA regulatory changes.  These decisions were made without meaningful public vetting and 99% of schoolchildrens’ parents in this state still don’t even know what Common Core is nor what FERPA is about. It is up to people like you to right this wrong.

  I hope you will reconsider with gravity the aligning of Utah’s children and BYU’s Education Department with the philosophies and programs of Arne Duncan, David Coleman, Bill Gates, and the whole elitist group of Anti-American education reform activists.

  Christel Swasey

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A friend just sent me this link.  It’s sad. 

http://www.schools.utah.gov/data/Educational-Data/Accountability-School-Performance/Utah-ESEA-Flexibility-Request.aspx

    But it explains a lot.  It explains why Professor David Wiley is so passionately pro-common core, so defensive of the USOE and of the Dept. of Education’s terrible FERPA alterations that empowered the Common Core Initiative, and why he does not want to read past the first link on my rebuttal to the USOE’s statement written last week by Brenda Hales.

So, on page 25 of Utah’s ESEA Flexibility Request (the No Child Left Behind waiver) it talks about Professor D. Wiley.  It says:

“Utah is a leader in developing and utilizing digital resources. For example, the USOE has entered into a partnership with Dr. David Wiley, an associate professor at Brigham Young University and a Senior Fellow for Open Education with Digital Promise, to research, develop and implement technologies that transform reaching and learning. The USOE staff, LEA and Higher Ed experts, and Dr. Wiley are working to develop online digital e-books that will be based on open-source materials. They will be available in a hybrid format for all Utah students. Teachers can use the digital or inexpensive print format (five dollars per book or less) to deliver instructional material to learners. Dr. Wiley is leading a successful pilot of open-sources science textbooks in Utah classrooms. By next fall, e-books based on Utah Core Standards [Common Core National Standards] will be available for secondary language arts and mathematics. The mathematics e-books will facilitate our transition to an integrated high school math model while the language arts e-books will contain heavier emphasis on content literacy and oral argumentative writing. [Notice, no classic literature or narrative writing because it's slashed under Common Core rules.] Digital resources are a key to designing and using highly relevant and responsive curriculum to Utah’s students. We also have a working relationship with Apple, use ITunes U and work with the Utah Education Network to provide resources aligned with the Standards. All of this can be found on the various content websites and linked to our CCSS website http://www.schools.utah.gov/core/. “

…I still do not think badly of Professor Wiley.

Nor of Brenda Hales.  Nor of my own local school board.  Why?

I don’t think they get it.  I do not believe they are deliberately, knowingly selling out our kids and our privacy rights.  They lack motivation to study it out and think about all the possible repercussions because their jobs and their egos hinge on their work for Common Core implementation in Utah.

Also, I am pretty sure these people don’t know what the Constitution’s about.  They take for granted that it will be there to protect us, even while they act against its principles, by each step they take for Utah/America, toward more and more socialist/communist styled programs. 

In case you forgot:  The Constitution says that the people are the sovereign; not a consortium, and not a federal Department of anything.  It says that separation of powers, that checks & balances idea, is the safeguard of rights; allowing the feds so much power over us is abusing the Constitution. It says the powers granted to the 3 branches are LIMITED, on purpose to never concentrate or centralize power but to keep it spread out in each locality; it outlines the principle of representation, which Common Core laughs at. There is no representation where there is no amendability of standards or of tests.)

And because these people, our Utah education system leaders, have not been valiant in detecting the problems brought by Common Core, such as detecting the subtle, powerful seeping away of control over education, and parental consent, and lost privacy rights; because they have not recognized it, and therefore have not stood up to it, the encroachments of Arne Duncan and his gang at the Department of Education increase. 

Yes, we are in a terrible place, teetering on the verge of not being able to get out.  We have lost many and are losing more and more liberties and rights of education and of privacy.

And David Wiley and the Utah State Office of Education are fine with it.

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  Rod Arquette hosts national education experts: James Gass of Pioneer Institute, Emmett McGroarty of American Principals Project, Bill Evers of Hoover Institute at Stanford, and Kent Talbert, D.C. lawyer and former counsel to Department of Education. Photo taken the day before the public forum in Salt Lake City.

On July 10th, 2012, a public forum was held where  Jamie Gass, Bill Evers, Kent Talbert and Emmett McGroarty, four national education experts, taught evidenced facts to the public concering Common Core.  A press release about the forum upset Brenda Hales, a USOE administrator, who then posted a statement on the Utah Public Education website giving the official line of the USOE on Common Core.

  Brenda Hales, Utah State Office of Education

I  decided to provide a referenced rebuttal to challenge her statement.  You can read at http://www.utahnsagainstcommoncore.com/christel-swasey-responds-to-brenda-hales/ .   (You can read Brenda’s post as well so you can see what’s being said by the USOE.)  The Utahns Against Common Core website posted both the USOE’s statement and my rebuttal.

  Dr. David Wiley, pro-Common Core professor

Next, comments were sent in on one aspect of the Common Core debate, privacy issues, by BYU Professor David Wiley.  The purpose of this blog post is to record his comments and my responses to his responses so readers may determine for themselves what they feel is right.

• 

  David Wiley says:

  July 17, 2012 at 8:38 pm

  The analysis in point 1, regarding personally-identifiable data, wanders back and forth between data that would allow a person to be identified, and “student-level” data. Student-level data can use randomized, nonsense identifiers like 12s47s8fd9231 instead of personally-identifiable information like a person’s name or social security number. In other words, student level data can be – and typically is – deidentified.

  The above analysis rails against the potential dangers of sharing personally-identifiable data, and then slides smoothly into a discussion of SBAC, saying that ‘states are obligated to share data with the federal government “on an ongoing basis”‘ – leaving the reader to understand that states are obligated to share personally-identifiable data.

  But what does the document you link to actually say? That the grant recipient will “make student-level data that results from the assessment system available on an ongoing basis for research, including for prospective linking, validity, and program improvement studies; subject to applicable privacy laws.”

  Wow! So the recipient is obliged to share student-level data only, not personally-identifiable data, and the data sharing is only for the purpose of research studies, and the data sharing is subject to applicable privacy laws. This is not quite the “sky-is–falling-we’re-required-to share-personally-identifiable-data” problem it was so smoothly made out to be.

  I stopped reading after I noticed this slight-of-hand trick in the analysis. I was frankly disappointed after all the chatter at the top of the document about facts and being able to “verify what is claimed.” This was literally the first link I followed, and you’ve completely mischaracterized what it says. Too bad.

  David Wiley
  •     Christel Swasey says:

    July 18, 2012 at 4:14 am

    Dear Professor Wiley,

    I appreciate your response and would like to continue an open, respectful conversation on this important topic. I am trying to expose those who really are misrepresenting facts so it is important to me that I come across very clearly and I apologize if I did not do so.

    I may have wandered in my style of writing, but the federal government has not wandered from its goal to take parental rights and to permit –not require, but permit– schools to widely share students’ personally identifiable information (PII).

    I do understand the difference between aggregated and personally identifiable data. BOTH forms of student info are now permitted to be shared without parental consent or knowledge, under the federal regulation changes, made without Congressional approval by the Dept. of Education this year. This fact is huge.

    Did you read the quote above, from the Federal Register on page 51, that it is no longer a necessity for a school to get student’s or parent’s consent before sharing PERSONALLY IDENTIFIABLE INFORMATION? That direct quote did not even mention aggregated, student-level information; it mentioned personally identifiable information.

    While former FERPA rules did require schools to notify parents –except for in emergency situations– anytime they shared personally identifiable information with anyone, now, the notifying of parents has been reduced to an optional “best practice.” So the fact is that while some agencies will honorably, due to state or local FERPA policy that is stronger than the federal policy, only share aggregated data, others will certainly be sharing personally identifiable data and pointing to their federal permission to do so!

    No school or agency is restrained by federal regulation from sharing student PII, by anything stronger than a “best practice” suggestion. Correct me if I’m wrong.

    You are quite correct in quoting the Cooperative Agreement with SBAC as saying the sharing of data is “subject to applicable privacy law.” Now, ask what the applicable privacy laws actually are.

    Federal FERPA privacy regulations have been radically altered. New FERPA regulations have been loosened in favor of easy access by the feds and other groups, but out of reach of parental consent –conveniently altered by the very same Department of Ed that wrote the Cooperative Agreement with the SBAC. So Secretary Duncan might more transparently have written, “subject to applicable privacy law –which I happen to be changing right now so this requirement for ‘ongoing sharing of data with the Department’ won’t actually be subject to anything at all.”

    It is interesting to study the reasons for the current Electronic Privacy Information Center (EPIC) lawsuit against the Dept. of Education (a suit filed for the Department of Education’s having exceeded statutory authority in making regulatory alterations to FERPA). The lead lawyer is Khalia Barnes. She said that the loosening of federal FERPA is an intrusion that applies not only to children’s data, but to anyone of ANY AGE whose college records are archived in any university or school that ever accepted federal funds or scholarships. So it’s not just kids or college students who will be tracked, federally.

    Barnes also said that the FERPA changes have redefined terms, stretching to the breaking point terms such as “authorized representative” and “educational program” to mean even non-governmental groups, such as medical programs and corporate, educational or governmental agencies; in effect, then, there is virtually no federal privacy regulation governing who can access school-acquired citizen data anymore (from the federal level; there could be protective state or local laws and policies.)

    Also, F.Y.I., the types of information that the Department is permitting (not requiring) schools to share, includes so much more than academic information: it includes biometric information (DNA, fingerprints, iris patterns) parental income, nicknames, medical information, etc. The federal government’s own websites make this clear. Please read the official NCES data collection model’s attributes to be collected: http://nces.sifinfo.org/datamodel/eiebrowser/techview.aspx?instance=studentPostsecondary

    The obligatory language of the Cooperative Agreement between the Department of Education and the SBAC may not alarm you. And there is a possibility Utah will opt out of SBAC membership soon. However, I still urge you to carefully read that document as it reveals Arne Duncan’s test data collecting scheme in a pretty straightforward way. It triangulates the two consortia and requires them to synchronize tests across consortia, to give status updates to the feds, and it places and puts the federal government in the middle of the data collecting program of the two consortia and their data. http://www2.ed.gov/programs/racetothetop-assessment/sbac-cooperative-agree ment.pdf

    I don’t know any other way to interpret the evidence, and since Brenda Hales and the USOE are in the habit of never referencing anything, I urge you to go back and read the rest of the links in my rebuttal to Hales’ claims.

    Christel Swasey
• 

  David Wiley says:

  July 18, 2012 at 9:02 pm

  Christel,

  Thank you for your thoughtful response. I’d like to continue a respectful dialog on this topic as well.

  You state: The Federal Register outlines, on page 51, that it is not a necessity for a school to get student or parental consent any longer before sharing personally identifiable information; that has been reduced to the level of optional. “It is a best practice to keep the public informed when you disclose personally identifiable information from education records.”http://www.gpo.gov/fdsys/pkg/FR-2011-12-02/pdf/2011-30683.pdf

  This quote is on the 51st page of the PDF document, page 75653 of the FR for those following along.

  FERPA dictates that PII (personally identifying information) from education records cannot be disclosed without consent of the family. The section of the document the above quote is taken from details two important exceptions to the consent requirement: the “studies” exception (when a school wants another entity to conduct some research on its behalf) and the “audit or evaluation” exception, when a state or federal program is being audited or evaluated. In both of these cases, when PII is disclosed without consent, the disclosure MUST be governed by a written agreement between the discloser and disclosee. The requirements and mandatory elements of these written agreements are on the 44th and 45th pages of the PDF, pages 75646-7 as paginated by the FR.

  For example, a school district and a local university might exchange PII without consent in order to do research on whether or not the district is preparing students for success at the local U. This exchange must be governed by a written agreement insuring protections on the privacy of the data as described beginning on 75646. These restrictions and requirements are compulsory. However, it is only a “best practice” – and not a requirement – for the schools to inform the public that they’re performing the research.

  I have absolutely no problem with this whatsoever. If the world worked the other way, and each and every family had to consent for their data to be included in the study, the costs and other logistics involved in carrying out this kind of research would become prohibitive, and we could never understand in any detail how the local schools need to improve to better prepare students for college. So the exception is appropriate and works for the public benefit. I believe this is the primary reason for the recent changes ad clarifications in FERPA. FERPA as spelled out in the FR document you link to provides significant and sufficient privacy protections for individuals and families, while finally making possible the kind of research necessary to move our students’ academic performance forward.

  As for notification, I would think that the local district would want to brag up the fact that they were engaged in research to make their programs better. But I don’t see any reason to require them to do so – I think encouraging it as a best practice is fine.

  The one quote you cite, taken out of context, sounds quite alarming. However, when understood in its proper context the quote is quite reasonable. Without the PII disclosure exceptions FERPA would literally eliminate the possibility of large scale research educational studies, due to both (1) the logistical and coordination costs of acquiring the consent of 100s of 1000s of people, and (2) the possibility that a significant portion of the individuals you did manage to contact would opt out. And without this level of research – the scale of research we’re able to conduct in every other field of human endeavor – educators, school boards, parents, and legislators are literally left in the dark, each with their own “hunch” about what works and no rigorous empirical data to demonstrate their their hunch is anything more than indigestion. This is the current state of dialog about “what works” in public schools – everyone has their pet theory which they believe to be “best” because “it worked for my child” or because it somehow harmonizes with their religious beliefs. Any educational approach which is truly effective can be shown to be effective through rigorous research, and policy decisions should be made on this basis. “In God we trust; all others bring data.”

  The balance of the exceptions to the consent requirement, the mandatory contract language whenever PII is disclosed without consent that protects privacy, and the best practices which are recommended but not required seems appropriate to me.

         –David Wiley

• Pingback: Fact-checking USOE claims on Common Core | Sutherland Daily
• July 19, 2012 at 2:18 am

  Dear Professor Wiley,

  When a school district and a local university exchange information in order to do research on whether or not the district is preparing students for success, why would that information need to be personally identifiable rather than aggregate?

  Your defense of parentally unauthorized collection of personally identifiable information excuses the Department of Education’s misdeed of bypassing Congress and sounds as if you feel groups who use the “authorized” and “educational” language really should get access to citizens’ information without their consent because it’s more convenient for researchers. I disagree.

  Ezra Taft Benson said that one way to judge the goodness of any governmental action is to bring it down to the individual level. “An important test I use in passing judgment upon an act of government is this: If it were up to me as an individual… would it offend my conscience?”

  Using his reasoning, picture this: if I had access via teaching or some other way, to your child, would I give away his/her personal information to my neighbor without your knowledge or consent –including report card, medical and psychological information, address, parental income, mother’s maiden name, child’s fingerprints, etc., if that neighbor smartly persuaded me it didn’t matter if I told you about it?

  Have you ever wondered how communist systems today precisely control their people? It’s via information. The government somehow keeps track of how many babies a woman has, to control population by mandated abortion. And young children, such as gymnasts barely past toddlerhood, are taken away from parents by those governments for those governments’ purposes. The list of abuses made possible easily by privacy rights loss, is endless.

  Would that never happen in America? Is human nature so much nobler here?

  Remember history. Remember the lessons of Orwell’s “1984,” Vonnegut’s “Harrison Bergeron,” or Bradbury’s “Fahrenheit 451″. –When governments can “legally” wrangle personally identifiable information, these scenarios can and do become real.

  There is more than plenty in the FERPA document that is protective and that doesn’t need to be changed back to how it was. You have quoted those good portions at length.

  –But then, there are all those exceptions and the re-interpreted definitions of terms! These, like small cockroaches swimming in a large sweet sundae, are the details that ruin a good thing. The exceptions and re-definitions are what I’m focusing on. These are where the feds get a toe in the door of privacy and win in their plan to take power with impunity.

  This is what our founding fathers warned us not to let happen when they set up our Constitution and our system of checks and balances. This is where we must fight for our rights –and not defend those who are aiming to take them away from us.

  Public schools sit as a golden grape of opportunity for the data-hungry feds to pluck –mountains of information from a truly captive audience. In the 2009 stimulus bill we find the feds encouraging states to develop data systems. Utah got a nearly $10 million chunk of that ARRA money and built, as directed, a State Longitudinal Data System (SLDS) designed to collect academic and nonacademic information about citizens. This was incentivized financially and by the feds’ clever use of the sheep’s clothing of student testing and data-driven educational decision making.

  But why would the NCES’ National Data Collection Model ask states to collect voting status of parents, health care history, parent maiden names, nicknames, income? If this were purely motivated by children’s own educational needs, why the information on parents? All 50 states now have this system. And an increasing number of states have P-20 councils to make them seamless as they interact with inter-state and intra-state agencies, and yes, with the feds themselves. (See John Brandt’s powerpoint online. He’s the USOE Technology Director as well as a CCSSO chair member –and a NCES fed.)

  The Department of Education felt it could overcome legal obstacles to get this data by simply bypassing Congress, which it did. The Electronic Privacy Information Center (EPIC) which sued the Dept. of Education –over what you and the Department are calling “appropriate” actions– say that the Department’s final regulations concerning FERPA “exceed the agency’s legal authority” and “expose students to new privacy risks.” They say that changes permit educational institutions to release student records to non-governmental agencies without first obtaining parents’ written consent and that they “broaden the permissible purposes for which third parties can access students records without first notifying parents.” These acts were illegal Constitutionally due to separation of powers. The Department’s FERPA changes, EPIC says, “fail to appropriately safeguard students from the risk of re-identification.”

  I am flabbergasted that this “seems appropriate” to anyone, much less someone with your credentials.

  Still, thank you for taking the time to respond. It is one of the blessings of America that we have freedom of speech and thoughts, and I’m grateful for the privilege to amiably disagree.

  Christel Swasey