BYU Professor David Wiley Defends USOE’s Common Core/FERPA Statement

  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