Formal Response to the Chief State School Officers’ Letter on Student Data Privacy

 Karen R. Effrem, MD President of Education Liberty Watch and Co-Founder of the Florida Stop Common Core Coalition

On January 23rd, 2014, thirty-four chief state school officers sent a letter to U.S. Secretary of Education Arne Duncan trying to reassure the public that individual student test data will not be given to the federal government and that that data is safe as the Common Core national standards and federally funded and supervised national tests are put into place.
Here are the important quotes from that letter:
 “We are writing today to confirm that the consortia will not share any personally identifiable information about K– 12 students with USED or any federal agency.”  (Emphasis in original)  “Our states have not submitted student-level assessment data in the past; the transition to the new assessments should not cause anyone to worry that federal reporting requirements will change when, in fact, the federal government is prohibited from establishing a student-level database that would contain assessment data for every student.”   “As we have historically done, our states will continue to provide USED with school-level data from our state assessments as required under the Elementary and Secondary Education Act, as amended in 2002. Our states and local education agencies will continue to retain control over student assessment data and will continue to comply with all state and federal laws and regulations with regard to the protection of student privacy.”  “We are confirming that our states will not provide such information to USED and that everything we have said here is consistent with our understanding of the cooperative agreement between the consortia and USED.”
These statements are problematic on a multitude of levels for the following reasons:
 The testing consortia are under obligation to the U.S. Department of Education to provide individual student test data via the cooperative agreements that they signed: “Comply with and where applicable coordinate with the ED staff to fulfill the program requirements established in the RTTA Notice Inviting Applications and the conditions on the grant award, as well as to this agreement, including, but not limited to working with the Department to develop a strategy to 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” (Emphasis added)  The most applicable privacy law, the Family Educational Rights and Privacy Act (FERPA), has been so weakened via regulation that there is no real protection of individual student data.   o There is a whole section of current federal FERPA regulations allowing the disclosure of individual student data without consent (All quotes in this next section are from §99.31 of the FERPA regulations) :  §99.31   Under what conditions is prior consent not required to disclose information? o Individual student data may be released without consent to organizations and entities that have “legitimate educational interests,” which basically means for any reason that a state or the federal governments or researchers or corporations want to use the data in conjunction with any state or federal program.  
 
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(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.   o The regulations give private corporations, foundations, and researchers or even volunteers access to our children’s data without parental consent. (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—  (Emphasis added) (1) Performs an institutional service or function for which the agency or institution would otherwise use employees; (2) Is under the direct control of the agency or institution with respect to the use and maintenance of education records; and (3) Is subject to the requirements of §99.33(a) governing the use and redisclosure of personally identifiable information from education records. o FERPA currently allows data to be given without consent to authorized representatives of the following entities including the US Department of Education, which combined with the cooperative agreement quoted above make the state chiefs letter MEANINGLESS.  The authorized representatives include the “contractor, consultant or volunteer” entities quoted above : (3) The disclosure is, subject to the requirements of §99.35, to authorized representatives of— (i) The Comptroller General of the United States; (ii) The Attorney General of the United States; (iii) The Secretary [of Education]; or (Emphasis added)  (iv) State and local educational authorities. o The regulations  give the states and the consortia carte blanche to “legally” give individual student test and other data to the federal government without consent to continue to develop and evaluate the national tests and “improve instruction” meaning the NCLB waivers that require the Common Core standards.  (6)(i) The disclosure is to organizations conducting studies for, or on behalf of, educational agencies or institutions to: (A) Develop, validate, or administer predictive tests; (Emphasis added). (B) Administer student aid programs; or (C) Improve instruction. o So, even though the letter says the states will comply with current federal law and regulations, nothing is stopping the states entering into an agreement with the consortia and the consortia from “redisclosing” this data to the feds. (ii) Nothing in the Act or this part prevents a State or local educational authority or agency headed by an official listed in paragraph (a)(3) of this section from entering into agreements with organizations conducting studies under paragraph (a)(6)(i) of this section and redisclosing personally identifiable information from education records on behalf of educational agencies and institutions that disclosed the information to the State or local educational authority or agency headed by an official listed in paragraph (a)(3) of this section in accordance with the requirements of §99.33(b).  (Emphasis added.) o The data is supposed to be protected but may be given to any entity with a “legitimate interest” in the information, which as has been explained is defined very broadly.
 
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 Although there is a prohibition against a national student database in one sections of federal  law called the Education Sciences Reform Act (ESRA) that says, “Nothing in this title may be construed to authorize the establishment of a nationwide database of individually identifiable information on individuals involved in studies or other collections of data under this title; (Section 182)” that language appears to be negated by this language in Section 157: “The Statistics Center [meaning the National Center for Education Statistics] may establish 1 or more national cooperative education statistics systems for the purpose of producing and maintaining, with the cooperation of the States, comparable and uniform information and data on early childhood education, elementary and secondary education, postsecondary education, adult education, and libraries, that are useful for policymaking at the Federal, State, and local levels.” (Emphasis added). That language is even more worrisome in light of the grants to fund and promote state longitudinal databases in section 208 of ESRA, in the American Recovery and Reinvestment Act and even more heavily promoted in the Race to the Top K-12 and Early Learning Challenge programs.  Although the federal government will not be developing a national database, the SLDS and other regulatory language allow it to happen in a de facto manner.  (Here is a  full analysis of the federal issues).  This loss of data privacy when the federal government is both funding and supervising the development of the national tests is extremely worrisome, especially, as shown below, because the standards and assessments are meant to teach and test psychological parameters. "The [federal] review will focus on two broad areas of assessment development: the consortium's research confirming the validity of the assessment results and the consortium's approach to developing items and tasks."   (Emphasis added)  Given that the federal government admits that the Common Core standards will be teaching and the aligned national tests will be assessing psychological or “non-cognitive” traits, parents should not be reassured by this letter: o “In national policy, there is increasing attention on 21st-century competencies (which encompass a range of noncognitive factors, including grit), and persistence is now part of the Common Core State Standards for Mathematics.”  (Emphasis added.) o “[A]s new assessment systems are developed to reflect the new standards in English language arts, mathematics, and science, significant attention will need to be given to the design of tasks and situations that call on students to apply a range of 21st century competencies that are relevant to each discipline. A sustained program of research and development will be required to create assessments that are capable of measuring cognitive, intrapersonal, and interpersonal skills.” (Emphasis added). 
The only way to truly protect our children's data is to dismantle the federal department of education. Until that ultimate goal is reached, we will work to remove each of our states from the state longitudinal data systems and demand truly state developed standards and assessments, instead of name changes, cosmetic adjustments to the Common Core standards, and deceptive reassurances about state control of test data.