Policy Progress vs. Protecting Privacy

Fordham Law in Inside: Higher Ed, May 25, 2011

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WASHINGTON -- The U.S. Education Department has been unabashed in its desire to interpret the main federal law governing student privacy to allow much greater sharing of educational records, to let states build databases that will track students as they move through the educational pipeline and into the work force. With the changes it has proposed making in the regulations to carry out that law, it appears to be nearing its goal -- to the delight of policy gurus and the consternation of privacy advocates.

In April, the department proposed changes to the Family Educational Rights and Privacy Act -- changes that, taken together, would give colleges and universities more latitude to share student-level information with state agencies and others, without student consent. The period for public comment on the rules closed Monday, and several hundred responses poured in. They fell into three major categories.

Dozens came from individuals -- including more than a few who identified themselves as parents of college students -- who see the rules as an invasion of their (and their children's) privacy. Some of them spew the sort of anti-government vitriol that has become familiar from town hall meetings and Tea Party rallies, but others take a more moderate approach.

"As a parent I do not wish the government, either state or federal to have more access to my children's educational records," wrote one commenter typical of this genre. "Sharing this information with 'researchers,' etc. goes against FERPA, and puts everyone at risk. At a time when hackers and outside entities are all too interested in information about us, we don't need another database, because errors happen, and that information should be used solely by the particular school the child is enrolled in and the parents/guardians. We don't want more gover[n]ment.... [W]e want LESS."

More formal -- but in some instances no less passionate -- were comments from a collection of college associations, academic institutions (the University of California and University of Texas systems) and information privacy groups, the most vociferous of which characterized the department's rules both as a major threat to the privacy of student records and as part of a larger campaign by the Education Department to pursue its policy goals by any means necessary.

(A bit of background here may be helpful. Since President Obama took office, the Education Department -- building on a priority of the Bush administration -- has aggressively sought to encourage states to build or expand longitudinal databases designed to help track students' educational progress as they move from one college to another and help policy makers better gauge the success -- or lack thereof -- of individual colleges and the U.S. higher ed system as a whole. The theory, linked closely to the administration's college completion agenda, is that the only way to know if one elementary school is doing a miserable job at teaching math, or one community college is successfully preparing students for transfer or the work force, is to know exactly who went to each institution -- and what happened later. This agenda, like many policy priorities in higher education, has been embraced -- if not driven -- by the Bill & Melinda Gates Foundation and the Lumina Foundation for Education.)

The Obama administration has pursued this goal in part by pouring hundreds of millions of dollars, in the economic stimulus legislation and through other programs, into state database projects, with the ultimate aim of stitching those projects together to work around a Congressionally imposed prohibition on the creation of a federal student record database. Those efforts have troubled advocates for student privacy, who've argued that FERPA restricts the ability of institutions to share student-level information with some state agencies and with outside groups that might eventually use the educational data for research or other purposes.

Recognizing the potential impediments the privacy law poses, the Education Department has sought to clear them. Early last year, it dismissed the then-head of the office that oversees FERPA because he had argued consistently that some of what the administration wanted states to do -- sharing their students' educational records with state labor agencies, for instance -- would violate the privacy law. The official, Paul Gammill, had argued that the administration should work to change the federal privacy law, openly, rather than do end-runs around it.

That is, in many ways, what the Education Department did in April by proposing to revise the regulations governing FERPA, revisions that it described at the time as crucial to ensuring that "states have the flexibility to share school data that are necessary to judge the effectiveness of government investments in education." In the eyes of some commenters, the agency has done so not in the appropriate way -- by working through Congress to change the law -- but by "manufacturing statutory authority out of thin air to justify these changes, several of which clearly conflict with Congressional intent," as the American Association of Collegiate Registrars and Admissions Officers wrote in its formal response.

Specifically, the registrars' group and other critics argue, the changes the department proposes would erode student privacy in several ways. The guidelines change the definition of which federal and state officials are authorized to receive personally identifiable information about a student, instead giving that narrow cadre of officials the power to designate other people or groups. "In essence, the few individuals currently identified as being authorized to obtain student records for a narrow set of purposes would now become the gateways to that information, with the ability to designate whomever they choose as their representatives," wrote David L. Warren, president of the National Association of Independent Colleges and Universities, which has long criticized the push for greater federal access to student-level data. "This interpretation has no foundation in either statute or past agency practice."

The department also proposes instituting a definition of "education program" that would significantly expand the sorts of activities about which researchers or policy makers could request data about students -- including such things as early childhood education and job training. The changes, several critical commenters assert, essentially mean that many more agencies and entities -- from state work force agencies to nonprofit kindergarten providers -- would have authority to request access to college students' educational records.

"The proposed definition would provide virtually unlimited access to education records in the name of evaluating program outcomes to any program evaluators that can convince an authorized representative that they are reviewing an education program, as loosely defined by the proposed definition," the registrars' association wrote, describing the definition as "astonishing" and "recklessly imprecise."

Those and other "profoundly troubling" definitional changes are so fundamental, and such a departure from what the crafters of FERPA intended, that they should be left to Congress to review, Fordham University's Center on Law and Information Policy wrote in its response to the proposed rules.

Praise From Supporters

The numerous state agencies, regional higher education consortiums (like the Western Interstate Commission for Higher Education), and research groups (the American Educational Research Association, among others) that commented on the department's proposed privacy rules drew a very different picture of their desirability and potential impact. Most of them went out of their way to say that the new rules would adequately protect the privacy rights of students, by tightening security over data and toughening enforcement against organizations that illegally disclose students’ personal information. But the policy makers more strongly emphasized how the rules would facilitate education reform efforts.

The arguments in favor of the department's approach were summarized most cogently by the Education Trust, which promotes reforms in K-12 and higher education aimed at improving the lot of low-income students. The greater sharing of student-level data for research purposes, wrote Kati Haycock, the group's director, will allow more states to take "the critical step of connecting their K-12 and postsecondary data systems," which "can drive important improvement efforts in K-12 schools and systems."

The changes, Haycock added, "will allow for the sharing of actionable data that can tell states, school districts, and schools whether their graduates are succeeding in college, helping them to understand whether their policies and practices have prepared those students adequately. The more they know, the more effectively they can target improvements: If high schools know that their qualified graduates are not enrolling in postsecondary, they can take more aggressive steps to support students through the college application process. If they discover that many graduates need post-secondary remediation in math, schools can provide more rigorous high school math instruction.

"Other improvements can be made if schools and school systems know whether their graduates are persisting beyond the first year of postsecondary study and whether they are successful in earning credits. These questions and others like them can be answered if postsecondary institutions are allowed to share their data with K-12 systems for evaluation purposes."

— Doug Lederman