Archive for the ‘epic lawsuit’ Tag
http://blogs.edweek.org/edweek/on_innovation/2013/08/utah_personalizes_learning_with_portable_records.html
This week, an Edweek article focuses on Utah’s “robust” data collection system and portable “backpack” records that track students. The article doesn’t mention the fact that parents were never asked whether they wanted their children to be tracked (stalked) by the government. Nor does it mention the fact that parents have no recourse to opt out of this state surveillance program. (I know this because I asked and got a response from the State School Board.)
The article also fails to mention word one about the federal shredding of FERPA law (Family Educational Rights Privacy Act) that takes away the parental consent requirement and makes students sitting ducks for snoopy vendors, federal snoops and virtually any snoop who calls himself an “authorized representative”. Check out the lawsuit against the Federal Department of Education for more on that.
The article does expose the fact that “In addition to demographic information, state testing data, and supplementary student supports” new recommendations will be “tracking additional information” which has long being sought from numerous federal education agencies. Here and here and here.
And Utah law has created “data backpacks” so all student data is in one place. Here’s the lead to that article:
———————————————————–
Utah Personalizes Learning With Portable Records
By Tom Vander Ark on August 7, 2013 9:25 AM Coauthored by Robyn Bagley and Tom Vander Ark
In October, Digital Learning Now! published Data Backpacks: Portable Records & Learner Profiles . The paper makes the case for portable academic K-12 transcript that follows students grade to grade and school to school. In addition to demographic information, state testing data, and supplementary student supports, the paper recommended tracking additional information in order to represent a more holistic picture of student achievement–such as a gradebook of standards-based performance data and a portfolio of personal bests–and better capture the student’s progression at any moment in time. Since this data would follow students to each new learning experience, learning could be tailored to meet their individual needs from the first lesson rather than the extra time teachers must spend diagnosing student needs and abilities.
Robyn Bagley, Parents for Choice in Education, saw the paper and knew Utah’s existing data system infrastructure gave them a big head start on a portable record. She talked to a champion of Ed Tech policy and personalized learning, Senator Jerry Stevenson who agreed to sponsor a bill. Together they were able to knock out this groundbreaking legislation in one session, placing Utah schools one step closer to tailoring education to the individual needs of the student by providing those closest to them with access to meaningful data.
The Student Achievement Backpack bill, Utah Senate Bill 82, was signed into law in March. It provides for access by a student’s parent/guardian or school/district to the electronic record. The bill gives schools until June 30, 2017 to fully incorporate the expanded record into their student information system.
When fully implemented, The Student Achievement Backpack will use cloud-based technology to create a common Student Record Store. Senate Bill 82 implementation will occur in three phases:
•Phase one creates a cloud-based repository for all grades.
•Phase two functionality will expand the data collected from student information systems into the Student Record Store.
•Phase three will ensure final mobility integration of all required data collected in the Student Record Store into all LEA student information systems; and made available to all authorized users in an easily accessible viewing format to include administrators, teachers and parents no later than June 30, 2017.
… Utah has one of the most robust longitudinal data collection systems in the nation due to federal grants adding up to nearly $15 million plus an investment of over $6 million appropriated by the Utah Legislature…
——————–
Read the rest here:
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After a recent town hall meeting, I stood in line to mention to my visiting Congressman that the Department of Education had gone behind Congress’ back to alter FERPA (family privacy law) that circumvented parental consent and broadened definitions of who gets access to personal student data, including nonacademic and family data.
This is, of course, dangerous to student privacy and ultimately, to citizen autonomy.
The Congressman said he was interested in more information about what the Department of Education had done. So, here is what I have shared, and I share it here, too, for anyone who’s interested in parental consent laws or student privacy protection.
The interplay of the several Dept. of Ed. actions reveal to me that a main reason the Executive Branch alloted so much money toward incentivizing Common Core to states, is this fact: common, national tests will collect so much data, to be perusable by the federal government –and others.
“Others” will include public-private-partnerships (PPP’s) as modeled by global-education sales giant Pearson. Pearson’s CEA, Michael Barber –who is quoted often and praised by U.S. Secretary of Education Arne Duncan– says that education standards should be the same globally, and that global data must be perused “without borders”. See Pearson’s new global education data bank .
Arne Duncan is aware of the limitations of the federal role in educational decision making and data collection, legally, in America.
Still, he meddled. He altered the Family Education Rights Privacy Act (FERPA) regulations to benefit the Dept. of Education’s testing/data collection goals; the FERPA alterations will continue to benefit corporations, notably Pearson; and will link to various state and federal agencies under the Data Quality Campaign. Any “authorized representative” who claims to be a “stakeholder” –even a school “volunteer” can access the now loosened rules about seeing personally identifiable information (PII) unless a school refuses to collect it in the first place. You will notice that the Federal Register speaks out of both sides of its mouth about loosening and preserving privacy rights. It is impossible to do both, and the Dept. of Education has not done both.
It loosened the requirement that school systems previously were under; previously, schools had to get parental consent (or above 18-yr-old students’) consent, before sharing data. It also altered definitions of terms including “directory information” and “educational agency.” Very dangerous stuff.
The alterations by the Dept. of Education really need a context, to understand the motives, and why the Dept. didn’t wait for Congressional approval.
So, in addition to recommending you read the incredibly boring but vital Federal Register vol 76.232: http://www.gpo.gov/fdsys/pkg/FR-2011-12-02/html/2011-30683.htm which laid out the alterations to FERPA– in addition to that, I’m also recommending reading:
1. A link to the lawsuit filed by EPIC (Electronic Privacy Info Center) against the Dept. of Ed: http://epic.org/apa/ferpa/default.html
2. A “Cooperative Agreement” – another super boring but vital “governmentspeak” document that shows the Sec. Arne Duncan micromanagement and oversight that the Dept. of Ed plans to have over citizen data, via national test consortia: http://www2.ed.gov/programs/racetothetop-assessment/sbac-cooperative-agreement.pdf
3. A link to the National Data Collection Model’s recommended data points, for schools to collect (including health-care history, family income, nicknames, family voting status, gestational age of students at birth, student ID number, and bus stop times among other pieces of information on the student and the families. http://nces.sifinfo.org/datamodel/eiebrowser/techview.aspx?instance=studentPostsecondary
4. The official White House push for “robust data” for tracking of citizens (students): http://www.whitehouse.gov/sites/default/files/microsites/ostp/ed_data_commitments_1-19-12.pdf and by Sec. Duncan: http://www2.ed.gov/news/speeches/2009/06/06082009.html
5. The SLDS (State Longitudinal Database System) information. http://nces.ed.gov/programs/slds/index.asp SLDS was bought with ARRA Stimulus money; every state bought one and they must be interoperable; they track students/citizens using personally identifiable information that includes biometric, psychometric, nonacademic and academic info.
6. A link to the Race to the Top application, since it shows that one of the points necessary was the SLDS people-tracking database. http://www.schools.utah.gov/arra/Uses/Utah-Race-to-the-Top-Application.aspx The No Child Left Behind waiver pushes the same thing. See: http://truthinamericaneducation.com/federalized-education/facts-about-the-no-child-left-behind-waivers/ and http://pdflike.com/read.php?url=http://www.nsba.org/SchoolLaw/Issues/NCLB/NSBAFederalGuidanceDocumentsandPublications/ESEA-Flexibility-Request.pdf
7. Another link to how FERPA alterations of the USDE allow DNA, fingeprints, voiceprints and other biometric records to be used to identify persons. http://www2.ed.gov/policy/gen/guid/fpco/pdf/ferparegs.pdf This link states: “’Biometric record,’ as used in the definition of “personally identifiable information,” means a record of one or more measurable biological or behavioral characteristics that can be used for automated recognition of an individual. Examples include fingerprints; retina and iris patterns; voiceprints; DNA sequence; facial characteristics; and handwriting.”
By stealth, and by financial incentivization to states (increasingly to school districts directly, in states that rejected Common Core data collection tests), it appears that the Department of Education used school systems to create a strong citizen surveillance web, better known as “robust data.”
It turns out that the Constitutional rights-saving fairies are off duty. They’ve left it up to you and me.
We, the People, must call the Dept. of Education on this.
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Our schools (teachers, adminstrators, and even State Office of Education workers) are being used. –Used to collect private data, both academic and nonacademic, about our children and their families. I choose the word “used” because I do not believe they are maliciously going behind parents’ backs. They are simply expected to comply with whatever the U.S. Dept. of Education asks them to do. And the Dept. of Education is all for the “open data” push.
Unknown to most parents, children’s data is being shared beyond the school district with six agencies inside the Utah Data Alliance and UTREX, according to Utah Technology Director John Brandt. The student data is further being “mashed” with federal databases, according to federal Education Dept. Chief of Staff Joanne Weiss: http://blogs.edweek.org/edweek/inside-school-research/2012/07/ed_urges_states_to_make_data_s.html While John Brandt assures us that only a handful of people in Utah have access to the personally identifiable data of children, recent alterations to federal FERPA (Famly Education Rights Privacy Act) regulations which were made by the U.S. Dept of Education, have radically redefined terms and widened the window of groups who can access private data without parental consent. For more on that, see the lawsuit against the U.S. Dept of Education on the subject: http://epic.org/apa/ferpa/default.html
But first, an interjection: I want to introduce this article: http://seattleducation2010.wordpress.com/2013/01/02/your-students-privacy/
I like this article because it exposes the facts plainly, that parents are unaware that their children’s information is being shared without parental permission, beyond the school, beyond the district, and even beyond the state. It is verifiable and true.
What it means: Courses taken, grades earned, every demographic piece of information, including family names and income, is being watched by the U.S. government via schools.
Verify for yourself: The U.S. Dept. of Education’s own explanation is here, showing why SLDS systems exist: http://www2.ed.gov/programs/slds/factsheet.html
There are 12 elements that states had to share or they would not have received ARRA stimulus money. The twelve elements of the SLDS (State longitudinal data system) include enrollment history, demographic characteristics, student’s scores on tests; info on students who are not tested; transcripts, grades earned; whether they enrolled in remedial courses; and the sharing of data from preschool through postsecondary systems.
While all this data gathering could theoretically, somehow, benefit a child, or community, it can definitely hurt a child. Denial of future opportunities, based on ancient academic or behavioral history, comes to mind…
These databases (State Longitudinal Database Systems, SLDS; also, P-20 and state data combinations such as the Utah Data Alliance) are to share data with anybody they define as “authorized,” according to alterations made to FERPA (Family Education Privacy Act) regulations by the Dept. of Education.
These now-authorized groups who will access student data will most likely include the A-list “philanthropists” like Bill Gates, as well as corporate snoops (Microsoft, Pearson, Wireless Generation, and K-12 Inc., Achieve, Inc., SBAC, PARCC, NGA, CCSSO, for examples) as well as federal departments that are far outside of education, such as the military, the workforce agencies, etc.)
Furthermore, even psychometric and biometric data (behavioral qualities, dna, iris and fingerprints) are also acceptable data collection points, to the Dept. of Education (verify: http://www2.ed.gov/policy/gen/guid/fpco/pdf/ferparegs.pdf )
This is a nightmare of Big Brother in action, except it’s not a fiction. You can verify it all on the government’s own public sites, such as:
http://www2.ed.gov/programs/slds/factsheet.html
http://www.dataqualitycampaign.org/stateanalysis/states/UT/
http://www.utahdataalliance.org/links.shtml
http://nces.ed.gov/forum/datamodel/edview/edview.aspx?class=StudentTracking
http://www2.ed.gov/policy/gen/guid/fpco/pdf/ferparegs.pdf
http://nces.ed.gov/whatsnew/conferences/Statsdc/2012/STATSDC2012keynote.pdf
States would not get stimulus money if they didn’t agree to build the SLDS system.
So they all agreed. All.
I happened to ask the Utah State Office of Education myself whether it is even allowed to have a student attend a school without being tracked by the Utah Data Alliance and the federal SLDS.
They finally gave me a straight answer, after I nagged them many a time, finally, and it was simply “No.”
No!
No child, no citizen may escape tracking. We are and will be tracked.
I ask you, dear readers, to turn your feelings about this intrusion toward positive action.
Call your governor.
If you are from Utah, Governor Herbert is here 801 538-1000 and here: http://demo.utah.gov/governor/contact/index.html
Public feeling and individual actions are the only, only chance we have to alter the course we are currently traveling.
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The federal government uses lots of different agencies– but increasingly, schools– to track us. It’s citizen surveillance. But they call it research.
I wrote to the Utah State Office of Education a few months ago to ask a simple yes or no question: can my child attend public school without being specifically and individually tracked by name, school record, social security number etc.?
No. The answer was, no. Your child will always be tracked using personally identifiable information. But this will never be shared outside the State Office of Education, they assured me.
After studying the NCES website, the federal FERPA website, the lawsuit between E.P.I.C. and the Dept. of Education, the machinations of CCSSO’s John Brandt with the Utah Data Alliance, Open Education specialist Professor David Wiley’s statements about the necessity of gathering data without parental consent, and Dept. of Ed Chief of Staff Joanne Weiss’s statements on federal data-mashing and “helping” states to partner with data, I do not believe the USOE’s assurances. I wish I could.
Under agencies like “National Center for Education Statistics” and “Institute for Education Sciences” the federal government is asking schools to collect and share hundreds of data points about your school, your teachers, and yes, your child.
There’s a federal “Common Core of Data.” There’s a National Data Collection Model that asks for so much private information about each student, way, way beyond math and reading scores– it asks for family information, languages spoken, health information, extracurricular programs, social security numbers, bus stop descriptions— you name it. Right here: http://nces.ed.gov/forum/datamodel/eiebrowser/techview.aspx?instance=studentElementarySecondary There is even a private school survey– private, not government. On the federal data collection website.
If you start to talk about it with people, they’ll pat you on the head and say, “Oh, but FERPA law is here to protect you; it’s a groundless conspiracy theory.”
When they say that, please pat them right back on their own little heads and say, “Federal FERPA regulations were altered by the Department of Education quite recently. Now definitions have been rewritten and parental consent has been shoved aside: it’s an agenda. Not a theory, an actual, verifiable, factual agenda being pushed under the radar upon Americans who still think they are protected and free.” http://epic.org/apa/ferpa/default.html
If they haven’t walked away from you, talk on. Say, “Definitions that have been reshaped –loosened– by the Dept of Ed. without Congressional approval include such details as the term AUTHORIZED REPRESENTATIVE— now it could be literally anyone, anyone who is authorized to view your child’s personal information under federal FERPA regulation. Even a school volunteer can have access to a child’s personally identifiable data, including biometric, physical data like fingerprints or DNA. If parents have allowed the school to collect it. Unless our state FERPA can stand up to the federal FERPA.”
Your listeners will still find it hard to believe that this could be legal. Then take them to this federal 34 CFR Part 99 FERPA pdf page and type in the search terms “volunteer” or “biometric”:
http://www2.ed.gov/policy/gen/guid/fpco/pdf/ferparegs.pdf
The point: unless many of us look at this and talk about it, and then stand up and say, “No way” to the absolute flood of data-sucking agencies all around us, that are aiming to know everything about everyone, via data mashing and data sharing, we will lose our freedoms, we will lose our way of life as we have known it in the United States and elsewhere.
Bureaucracies of mass data-collection and sharing grow slowly but relentlessly. Will they build a web we can’t break by the time we think it’s time to fight back? Will we be intimidated by the clever sounding “government-speak” and the researchers’ arrogance?
Or will we take back our identities, our privacy, our freedom?
If you have time, just look at the words they use:
“The Common Core of Data (CCD) is a program of the U.S. Department of Education’s National Center for Education Statistics that annually collects fiscal and non-fiscal data about all public schools, public school districts and state education agencies in the United States. The data are supplied by state education agency officials and include information that describes schools and school districts, including name, address, and phone number; descriptive information about students and staff, including demographics; and fiscal data, including revenues and current expenditures.” http://nces.ed.gov/ccd/
“Policy Makers – If you are an LEA or SEA policy maker, focus on Chapters 1, 2, and 4 of the User Guide.
“Data Modelers – If you are coming from a background in other data model domains such as banking, healthcare, etc. and want to familiarize yourself with the education data model domain, read Chapter 3: How to use the Data Model. Review Appendix C: Common Attributes. Then go directly to the Education Data Model…”
Look behind you.
If you were taking a nice walk in the park and someone said, “Look behind you. There’a a fast moving river of hot lava coming your way,” you could call that person a liar or a mad conspiracy theorist and keep enjoying your walk.
–Or you could just take that one look behind you. What would it hurt to just turn your head and take a look? Do you really not want to know?
http://nces.ed.gov/ccd/elsi/
This is what I’m asking you to do.
Just look for yourself.
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Sent today–
TO: Board@schools.utah.gov
Dear Board,
I am writing to second Renee Braddy’s attached email. As you are aware, a lawsuit is in full gear right now between the Department of Education and the Electronic Privacy Information Center, which alleges that the Department of Education overstepped statutory authority by redefining terms and loosening parental consent law in the federal FERPA regulations; remember, federal FERPA laws have not been altered by Congress. Nor has state FERPA law been altered. These oversteps by the Dept. of Education are illegal under GEPA law and under the U.S. Constitution.
If the Utah board supports this illegality, they will be held accountable under the Utah Constitution as well.
More importantly, the core issue here is that student privacy, a civil right, is being shoved aside to further empower federal and corporate forces in the nonconsensual access to private academic and nonacademic data. Let’s do the right thing.
Christel Swasey
———- Forwarded message ———- From: Renee Braddy
Dear State School Board Members,
I just reviewed your agenda for today’s meeting and I amvery concerned about the action item regarding data. On line 213 where the document is referring to studentinformation, it reads that it will be released in accordance with the FERPA, 34 CFR 99-31. This is the new regulation that went into effect Jan. 3, 2012 and was written by the US DEPT of ED and DID NOT pass through the US congress. This regulation is currently being challenged by EPIC in a lawsuit. Ithink it would be wise to have our children’s data dispersed in accordance withFederal LAW 20 U.S.C. § 1232g, not the regulation.
There are LOTS of concerns with this new regulation and I believe it would be a BIG mistake to pass this rule change without further study. Please DO NOT vote for this, but rather please table the item for further discussion.
I have extensively study the new FERPA regulation due to anincidence in Wasatch County. This new regulation literally turns the FERPA law on its head and DOES NOT protect our children’s personal information. This is a very serious matter.
It further states online 216 that such responses may (not SHALL) include:
1. de-identified data
2. agreements with recipients of student data where recipients agree not to report or publish students identities (the way I read this is that this is personally identifiable student data– otherwise there wouldn’t have to be an agreement to protect it, right?)
3. release of student data, with appropriate binding agreements, for state or federal accountability or for the purpose of improving instruction to specific student (this would mean that personally identifiable student data is being released with parental knowledge).
Much thanks,
Renee’ Braddy
6. Board Committee Meetings
ACTION: R277-487 Public School Data Confidentiality and Disclosure Tab 6-L
R277-502-8 EducatorLicensing and Data Retention –
Comprehensive Administration of Credentials for Teachers in Utah
Schools (CACTUS)
R277-484-9 Data Standards – Disclosure of Data for Research
(Amendment and Continuation for all)
And when I click on the tab for more info. Is this really what I think it is and they are changing the rules to come into compliance with the FERPA Regulation?!?!? Someone, please help me if I’m off on this. If it’s underlined, does that mean it’s being added to the rule?
187 R277-487-6. Public Education Research Data.
188 A. The USOE may provide limited or extensive data sets
189 for research and analysis purposes to qualified researchersor
190 organizations.
191 (1) A reasonable method shall be used to qualify
192 researchers or organizations to receive data, such asevidence
193 that a research proposal has been approved by a federally
194 recognized Institutional Review Board (IRB).
195 (2) Aggregate student assessment data are available
196 through the USOE website. Individual student data are
197 protected.
198 (3) The USOE is not obligated to fill every request for
199 data and has procedures to determine which requests will be
6200 filled or to assign priorities to multiple requests. The
201 USOE/Board understands that it will respond in a timelymanner
202 to all requests submitted under Section 63G-2-101 et seq.,
203 Government Records Access and Management Act. Infilling data
204 requests, higher priority may be given to requests that will
205 help improve instruction in Utah’s public schools.
206 (4) A fee may be charged to prepare data or to deliver
207 data, particularly if the preparation requires originalwork.
208 The USOE shall comply with Section 63G-2-203 in assessing
209 fees.
210 (5) The researcher or organization shall provide a copy
211 of the report or publication produced using USOE data to the
212 USOE at least 10 business days prior to the public release.
213 B. Student information: Requests for data thatdisclose
214 student information shall be provided in accordance with the
215 Family Educational Rights and Privacy Act (FERPA), 34 CFR
216 99-31(a)(6); such responses may include:
217 (1) individual student data that are de-identified,
218 meaning it is not possible to trace the data to individual
219 students;
220 (2) agreements with recipients of student data where
221 recipients agree not to report or publishdata in a manner
222 that discloses students’ identities. For example, reporting
223 test scores for a race subgroup that has a count, also known
224 as n-size, of less than 10 could enable someone to identify
225 the actual students and shall not be published;
226 (3) release of student data, with appropriate binding
227 agreements, for state or federal accountability or for the
228 purpose of improving instruction to specific student
229 subgroups.
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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.
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COMMON CORE 
David Wiley says:
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.
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:
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.
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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