How would a stronger school district FERPA policy keep my children safer?   Leave a comment

The 2012 Wasatch School Board, Wasatch County, Utah

The Wasatch School Board seem well intentioned, but they also seem to lack an understanding of the importance of having a strong local FERPA policy.  They dismissed the many parental comments they received last month;  Ms. Gappmayer wrote a new policy that deleted all mention of parental consent, and that turned a blind eye to the newly re-defined terms and regulations that have gotten the Obama-Duncan administration in trouble.  The executive branch, with its FERPA regulations (not FERPA laws) has brought upon itself:

1) being out of favor with Congress, and

2) being sued –by EPIC (The Electronic Privacy Information Center), who sued them for good reasons outlined below. – link to the lawsuit – link to reasons for the lawsuit

I have little faith that our board will listen this month.  “My mind is made up; don’t confuse me with the truth,” seems to be their mode of operation.

I heard one of them on the Impact show on the local radio, saying, “We take childrens’ privacy very, very seriously,” and I think that school board member believed his own good intentions would protect our kids, even without putting that good intention into writing in the policy, and even knowing that one day, this school board will be long gone and whatever’s not in writing won’t be a guaranteed policy.

(Incidentally, have you seen even one parent lobbying to try to get the board to loosen parental control in favor of federal and other agencies getting access to kids’ data? Not a one!  So why the board still favors the side of Obama-Duncan over the combined wills of the U.S. Congress, local parents, and Utah State’s FERPA, is a real mystery.)

I was told that I am the only person who they’ve heard from this month.

So, if you happen to care about your kids being tracked and judged for life by agencies that include the federal government, if you want to have a voice in your children’s privacy, please write to them.  This month, we are asked to write to the much more transparent and willing-to-talk-face-to-face (thank you !) James Judd, who has replaced Vicci Gappmayer this month.

His email address is:

Here’s what’s going on.  There are two teams that are fighting over FERPA nationally:

1 – On the “Looser Privacy Law –in Favor of Agencies’ Access to Kids’ Data” is one group: the executive branch of the federal government, led by Obama and Arne Duncan.



2 – On the side called “Stronger Privacy Law –in Favor of Parental Consent Requirements for Access to Kids’ Data” is: a)  the U.S. Congress, which is also a federal government branch; b) Utah State’s FERPA law and c) most concerned parents in Wasatch County, according to the many who wrote to the board last month.



So it is impossible for Wasatch County to be in compliance with both Congressional FERPA law/State FERPA/local parental wishes AND the executive federal FERPA regulatory wishes of Obama/Duncan,  but our district doesn’t seem to even comprehend that.  They also don’t seem to understand that executive regulations are less legally binding than Congressional laws.  Proof:

The current, out-for- 30-day-review and public comment policy goes like this:

I. It is the policy of Wasatch County School District to comply with the laws of Utah and the United States in storing, maintaining and releasing student records.

II. Each year district administrators will provide training to employees regarding protecting student personal information and records to insure compliance with the law.

This policy doesn’t include the so-important protections that the district has verbally assured us they do practice; things like not giving out students’ personally identifiable information to companies, agencies, or businesses without parental consent; things like giving out student academic data in aggregate (group) form, rather than by name, gender, ethnicity, etc., even when it’s going to the state.

This policy makes the false assumption in part I that the laws of the United States are in harmony with the laws of the State of Utah.  It also makes the false assumption that the laws and the regulations of the United States concerning FERPA (Family Educational Rights Privacy Act) are in harmony.

How do you comply with laws that do not agree with each other?  You can’t do it. That’s why this policy is weak and meaningless.

The creator(s) of this too-short policy seem not to understand that we live in  a Constitutional America, where a system of checks and balances means that power is shared; power is not seated solely at the top, as it is in a dictatorship or a kingdom.  We share power because it’s wiser that way and our inspired founders knew it.

While the federal government may try to assume more power than it legally has (oh yes!), it’s still illegal and unconstitutional for them to do so, and states fight them, like sibling rivals, all the time.  That fight is healthy.  It is necessary.

The relationship between states and feds is a sibling rivalry, a healthy struggle to share and balance power, not a parent-child or king-serf relationship.  Similarly, the relationship between the executive branch (Obama-Duncan) and the Congress is a sibling relationship, not a parent-child or king-serf relationship.  So when there are disagreements– whether they be between state v. federal or between executive versus legislative, you absolutely cannot say things like “we have to obey the federal government” and make any sense to anyone.  You would be wise to wait until they’ve settled the disagreement, and in the meantime, have a policy that YOU feel good about.

The Wasatch School Board has, in effect, chosen to side with the bully sibling rather than choosing to side with the sibling that stands for greater privacy, greater protectiveness of children, and greater freedom:  the Congressional side, and the Utah State side.  But why?  They did not have to do this.  It makes no sense.  And 5/6 of the school board will not, under any circumstance, respond to an email from the public.  Nor will they allow even 2 minutes of public commentaries at each board meeting (as the Utah State School Board allows).  They might be siding with the Obama-Duncan team because they, too, enjoy the idea of dictatorship and superiority and separation from the general public who elected them (but who most likely will be booting them out, when elections roll around again).

What are the reasons that EPIC (Electronic Privacy Information Center) is suing the federal government over the new FERPA regulatory changes?  And what are the reasons that Congress and the State of Utah created strong FERPA policies in the first place?  These are things to look at when aiming to create a strong local district FERPA policy.

This interesting document  was submitted by EPIC, when the new FERPA regulations were just a proposal last year –before the Obama-Duncan administration made the federal FERPA regulatory changes in January 2012, without Congressional approval or knowledge.  This document is also a succinct explanation of what’s wrong with Obama-Duncan (executive branch) changing FERPA regulations without getting Congress to approve it and make it a real law, rather than just an unapproved regulation.

It says:

On I.D. Numbers:

“Congress has explicitly limited ‘directory information’ to: the student’s name, address, telephone listing, date and place of birth, major field of study, participation in officially recognized activities and sports, weight and height of members of athletic teams, dates of attendance, degrees and awards received, and the most recent previous educational agency or institution attended by the student.

The agency proposes to add student ID numbers.”

On the unlawful release of student data:

Congress “prohibits the nonconsensual release of students’ educational records, including the ‘personally identifiable information contained therein.’ Congress imposed this ‘direct obligation’ under the law ‘to protect the privacy of [student] records by preventing unauthorized access by third parties.’ Congress also provided specific exemptions in FERPA.The ED’s proposals expand a number of FERPA’s exemptions, reinterpreting the statutory terms “authorized representative,” “education program,” and “directory information.”

 These proposals remove affirmative legal duties for state and local educational facilities to protect private student data.

On SLDS tracking (State Longitudinal Data Systems) tracking:

“Congress has yet to alter its stance on FERPA legislative safeguards, a prerequisite for the agency’s tracking of ‘soft data’ and other non-academic characteristics, charting them with SLDS, and sharing the results with non-academic institutions.”

On redefining terms that used to protect us:

The agency aims to stretch the term “authorized representatives” past its breaking point, designating non-governmental actors as “representatives” of state educational institutions… authorized representatives would not be under the direct control of the educational authorities that provide them access to private student data.”

On allowing almost anyone to call themselves an educational program with rights to access data: 

The new FERPA regulations … [now call] …”educational programs” any single “program” that is principally engaged in the provision of education, including, but not limited to early childhood education, elementary and secondary education, postsecondary education, special education, job training, career and technical education, and adult education, regardless of whether the program is administered by an education authority.

Foreshadowing the ED’s lax enforcement of this provision, the agency provides an example that fails even to fall within its own expansive list: “[f]or example, in many States, State-level health and human services departments administer early childhood education programs, including early intervention programs.

On effectively forcing parents of sick children to give up their privacy rights:

For parents struggling to meet the needs of developmentally disadvantaged child during an economic recession, these regulations would present a Hobson’s choice: forego government assistance that can help your child or expose intimate information about the child, and furthermore your entire “living situation,” to any number of newly appointed and barely regulated “authorized representatives.” The agency states that “education may begin before kindergarten and may involve learning outside of postsecondary institutions.”

In conclusion, the EPIC comments say:

Proper interpretations of FERPA would, at a minimum: (1) recognize the clearly stated and legally binding intent Congress expressed in FERPA that prioritizes the protection of student data and restricts uses for non-academic purposes; (2) restrict “authorized representatives” to regulated entities that are under direct agency control via Congress’s FERPA funding sanctions; (3) propose only specific expansions of “educational programs” that are justified by recent educational developments and solely engaged in educational purposes; and (4) precede any expansion of third party access to student information with a comprehensive security assessment that doing so will not alter any baseline risk of identity theft, student re-identification, or unlawful disclosure of sensitive student data. EPIC anticipates the agency’s specific and substantive responses to each of these proposals. The current NPRM is contrary to law, exceeds the scope of the agency’s rulemaking authority, and should be withdrawn.

It’s important to keep in mind that Utah State Superintendent Larry Shumway, an authority over the local school board, gave a letter dated May 11, 2012 to all superintendents at an Association meeting regarding local districts revising FERPA policies.

The letter states, “ the new regulations allow but do not require LEA’s to change some aspects of local board policy related to student records.”  He continued, “we recommend that LEA’s proceed carefully, if at all with such changes.  A lawsuit has already been filed in the state of Washington challenging the regulation changes.”

 It has been confirmed by the state Superintendent that the need to be incompliance with the federal regulation is NOT necessary and he even went so far as to caution districts from proceeding with local changes.

I hope our local board will consider all these things very carefully before they vote on the new FERPA policy of this district.

Christel Swasey

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