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Will New Education Regulations Endanger Your Child's Privacy?

These regulatory changes “… represent a substantial and unwarranted erosion of student privacy.”

Sec. of Education Arne Duncan revealed on Tuesday that he wants to use federal funding to make students "good environmental citizens." (File Photo: AP)

Last month, the U.S. Department of Education issued a controversial proposal to amend the Family Educational Rights and Privacy Act (FERPA).  FERPA was signed into law in 1974 with the sole purpose of protecting students’ educational records.  Now, the law is being dramatically altered in an effort that critics claim will endanger student privacy, while increasing the federal government’s access to and control over private information.

The Department of Education’s web site, describes FERPA as a Federal law that “…protects the privacy of student education records.”  According to some advocates, proposed changes dramatically alter its intended purpose.

Under the law as it currently stands, parents have complete control over their children’s educational records.  Once the child reaches 18 or continues an education beyond the high school level, these rights transfer to the student.

Currently, schools need written permission from the parent or student if they plan to release information from students’ educational records.  There are a few parties, though, that are able to access the information without written permission.  Critics are most worried that the impending changes would expose private information to even more parties, while chipping away at parental and student rights.

Recently, when speaking about the proposed regulations, U.S. Secretary of Education Arne Duncan said:

"Data should only be shared with the right people for the right reasons.  We need common-sense rules that strengthen privacy protections and allow for meaningful uses of data. The initiatives announced today will help us do just that."

No one is opposed to strengthening student privacy protections, but opponents claim that the new regulations are more focused upon streamlining data collection than they are providing students with control of their own educational records.  These critics also see the proposed changes as yet another federal power grab that will inevitably result in fewer privacy protections for Americans.

In April, the National Association of Independent Colleges and Universities (NAICU) issued a press release that called the government’s new regulations an “…intent to facilitate statewide longitudinal data systems capable of tracking individuals from pre-kindergarten through employment.”

The NAICU claims that the government is utilizing FERPA, a federal law that was created to protect individual rights, to implement a national data system as well as launching potentially contradictory policies that serve entirely new interests.  NAICU says these regulatory changes “… represent a substantial and unwarranted erosion of student privacy.”

American Principles in Action (APIA) is another organization that stands firmly planted against the Department’s proposals.  In an interview with The Blaze, Emmett McGroarty, the director of Preserve Innocence, a project of APIA, explained his belief that the FERPA amendments are only a piece of the overall puzzle in the federal government’s attempt to co-opt education.  According to McGroarty:

“Race to the top is the next step after No Child Left Behind.  Race to the Top was intended to foist national curriculum on the states and a national means of evaluating.  This data system is in the larger stimulus package.  Every state that took [stimulus] money needs to have databases and then connect them to the states and the federal government in an effort to track students from kindergarten throughout their careers.”

While NAICU and APIA stand against the government’s proposed changes, there are many who believe that moving in this direction will better serve the American educational system.

Kathy Gosa, informational technology director for the Kansas education department, claims that schools have been requesting greater access to student records for some time now.  To date, student progress has been tracked in aggregate.  Gosa explains, “…this version of FERPA allows us to share back information with teachers about individual students.”  In the end, she believes that having this access will enable schools to evaluate programs to see what’s working and what needs an overhaul.

By providing educators and researchers with essential information about student achievement, there will surely be more viable ways of tracking the progress and impact of educational programs.  That being said, who decides which parties should have access to student information and how will this information be protected?

McGroarty explains that these changes “… would greatly expand the definition of research studies…and who can conduct them.”  Perhaps more problematic is the idea that the new changes would expand the definition of an educational program.  The NAICU writes that, “The changes are intended to remove barriers to linking education records with records maintained for pre-school, health and human services, labor, and the like.”  McGroarty expanded upon this further:

“These proposed rule changes expand the universe of entities that can receive the data, which is one of the really dangerous things here.  Under the current proposals, the attorney general and controller general can look at [the data] for auditing purposes.  The secretary of education can look at it in terms of evaluating their programs.  This would also include the Department of Labor and the Department of Human Services.”

The point of these regulatory tweaks is to make data more available, but the “to whom” question is an important one.  When examining the government’s explanation of who qualifies as an “authorized representative,” the definition is fairly vague:

Under the proposed definition, an authorized representative would mean any entity or individual designated by a State or local educational authority or agency headed by an official listed in § 99.31(a)(3) to conduct—with respect to Federal or State supported education programs—any audit, evaluation, or compliance or enforcement activity in connection with Federal legal requirements that relate to those programs.

APIA has issued a strong reaction to this broad designation, claiming in written commentary that this essentially allows the government to release student data to anyone it would like.  In APIA’s view, this is directly opposed to the allowances as they currently stand under FERPA.

With more student data falling into the hands of a greater number of researchers, one also wonders how individual student data will be kept safe.  States will need to take on the task of training any and all teachers and support staff with access to the system.  Simple mistakes happen, but in this case a small error could mean the exposure of very private information.

Proponents claim that FERPA changes on the table would address these concerns, as any researcher who accidentally leaks student information risks losing federal grants or being forbidden from viewing student data for five years.  But, no one can deny that by expanding access and key players, risk of data exposure will also increase.

The Department of Education has placed these regulatory changes up for public review and comment. The deadline to comment is today, Monday, May 23.  McGroarty believes that changes of this magnitude should be presented to Congress – a move the Department has avoided.

In a perfect world, even if the government adequately implements safeguards, there are still a number of concerns on the table.  Critics believe that the executive branch is overreaching in its powers and contradicting democratic values by making such sweeping changes to a law that was originally created to protect privacy.  What do you think?  You can read the Department’s rationale here.

One last thing…
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