Fordham Law


Guidance Offered on Guarding Student Privacy in School Data

Joel Reidenberg in Education Week, November 05, 2010

Media Source

Federal Officials Seek to Clear Up Confusion Over Legal Protections
By Sarah D. Sparks 
 
The U.S. Department of Education has launched a campaign to help school officials channel the flood of student data generated in federal accountability reporting and state longitudinal databases without leaking students’ or teachers’ private information.

“With the emphasis on [the No Child Left Behind Act], we’ve seen a real expansion of the information on students that’s being released to the public,” said Marilyn M. Seastrom, the chief statistician and director of the statistical-standards program at the department’s National Center for Education Statistics. Both NCLB and the more recent fiscal-stimulus law required states to collect steadily more student data to monitor schools’ progress.

“At the same time,” Ms. Seastrom said, “we have laws at the federal level, individual states have their own laws, and we have just good data ethics on protecting the privacy of these children.”

She said the department plans this winter to propose amendments to update the Family Educational Rights and Privacy Act, or FERPA, to address new longitudinal databases and interagency data sharing, among other things. In the meantime, the department has formed a new privacy-technical-assistance center, housed at the NCES, to help district and state officials plan to use and share their longitudinal student data safely.“As a practitioner, I think this is going to be really helpful because we grapple with a lot of FERPA questions every day that we don’t have answers to,” said Margaret R. McLeod, the executive director of student services for Alexandria, Va., city schools and a member of the advisory board for the Education Department’s research arm, the Institute of Education Sciences, which includes the NCES.

Nearly every state has built or is building a longitudinal database capable of tracking individual students’ academic achievement from year to year, in some cases from preschool through college and into the workforce. Yet if the troves of new data—and the technology available for linking all the information—create a huge opportunity for researchers and educators to track student progress, they also create problems for administrators trying to shoehorn their use into federal and state privacy laws enacted before personal computers.

In a 2009 study, Joel R. Reidenberg, a law professor and the founding academic director of the Center on Information Law and Policy at Fordham University’s law school, in New York City, found no state had absolutely secure student data, and many collected more information and held it longer than needed for research purposes. ("Report Finds States on Course to Build Pupil-Data Systems," Dec. 2, 2009.)

“There certainly are important policy reasons that people may need to use these data, particularly in things like education, to make critical policy decisions,” Mr. Reidenberg said, “but there are also policy reasons we may say, even though it may be interesting and useful, we’re not going to do it.”

Sheara Krvaric, a lawyer with the Washington-based Federal Education Group, a law firm specializing in education, said, in spite of new regulations released in the past year designed to clarify FERPA requirements, many school officials remain inclined to hold back data they collect because of privacy concerns. Ms. Krvaric said nearly every state and district she has worked with has voiced concerns about running afoul of federal data-privacy law when using or sharing student data.

Guidance Coming
“Some of the fears of these districts are well placed,” she said, “because there are all these logistical hurdles.”

Researchers voice frustration with school officials’ hesitancy. At the National Board for Education Sciences meeting last week, board member Adam Gamoran, the director of the Wisconsin Center for Education Research, at the University of Wisconsin-Madison, argued that states should be required to share student data with researchers as a condition of receiving federal grants to build databases.

That’s what the new Privacy Technical Assistance Center, started two weeks ago, is designed to correct, said Emily Anthony, an NCES research scientist and the center’s program officer. It is developing training materials for educators and researchers using student data and for information officers setting up the databases. It will conduct four site visits a year to states, districts, and outside research partners and set up a database to track the most common privacy questions.

It also plans to release six guidance briefs—three next month and three in the spring—on basic questions about privacy, ways to manage electronic student records, and a profile of privacy protections in all 50 states.