Problems with Data Privacy in Relation to Common Core Standards, The Family Education Rights and Privacy Act, and The Education Sciences Reform Act

Karen R. Effrem, MD

President – Education Liberty Watch

The type and amount of personal, family, and non-academic data collected by the schools, reported in state longitudinal databases and used for research by the federal government was stimulated by the passage of the Education Sciences Reform Act of 2002 (ESRA) and has grown rapidly since then.  Loss of student and family data privacy has been accelerated by the proliferation of education programs funded by the federal government, especially in the early childhood realm and including home visiting programs that collect a plethora of medical, psychological, and family data and the effort to integrate standards, programs and data literally from “cradle to career” through P-20W education program integration and state longitudinal databases that were part of the Head Start reauthorization of 2007 and required by the Race to the Top and Race to the Top Early Learning Challenge grant programs starting in 2009.

ESRA is up for reauthorization. That law allows the National Center for Education Statistics to collect data “by other offices within the Academy and by other Federal departments, agencies and instrumentalities.” and “enter into interagency agreements for the collection of statistics.”  That data covers from preschool through the work life of every American citizen and includes “the social and economic status of children, including their academic achievement,” meaning every aspect of their lives and the lives of their families.  This combined with the weakening of the Family Educational Rights and Privacy Act (FERPA) to be described below is a great danger to the privacy of American families and makes the data collection by the IRS and NSA look tame.

In addition, although ESRA makes an effort to prohibit a national database of individually identifiable student data in section 182 by saying, “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;” that language appears to be negated by this language in Section 157:

“The Statistics Center 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.

Both Head Start and Race to the Top heavily promoted national standards and the integration of those standards across the age spectrum.  Both programs also heavily rely on standards and assessment and or screening in the mental health (psychological and socioemotional) realm  

·         According to the United States Department of Education (USED) document entitled Promoting Grit, Tenacity, and Perseverance: Critical Factors for Success in the 21st Century, the Common Core standards system will both teach and assess these “non-cognitive” (psychological) parameters:

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.”

o   [A]s new assessment systems are developed to reflect the new standards…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…A sustained program of research and development will be required to create assessments that are capable of measuring cognitive, intrapersonal, and interpersonal skills.

·         According to the Race to the Top Early Learning Challenge grant applications, several states are aligning their preschool standards and their K-12 standards, these standards teach psychological  issues, which are then used for “screening” young children for mental health issues, even though the screening instruments are notoriously inaccurate.  Here are some examples of the types of the very subjective and non-academic standards used:

o   “Progresses in responding sympathetically to peers who are in need, upset, hurt, or angry, and in expressing empathy or caring for others.”

o   “Develops ability to identify personal characteristics including gender and family composition”

o   “Develops a growing awareness of jobs and what is required to perform them.” 

The testing of psychological parameters in the national assessments is especially disturbing when it is understood that the national testing consortia signed an agreement with USED to submit individually identifiable student data to the federal government from the tests:

 “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 federal student privacy law, The Family Educational Rights and Privacy Act  (FERPA) has been so weakened in an effort to make sensitive student and family data from state longitudinal data systems that collects  data from the Common Core assessments, including the psychological data cited above, available for research without consent to various agencies of the federal government, corporations and outside researchers, that the Electronic Privacy Information Center has  sued USED in federal court, that case being heard on July 24, 2013.

·         That lawsuit occurred in great part due to the major expansion of the longstanding definition of an authorized representative in the regulations that now allows other state and federal agencies to have access to individually identifiable student data. 

·         The list of entities with that access includes, “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”(Emphasis added)

With the understanding that federal involvement in education is unconstitutional, ineffective, harmful, and expensive, we make the following recommendations to deal with the situation as it currently exists:

1)      The federal promotion of the teaching through standards, testing through federally funded and supervised national tests, and data collection of psychological parameters on children from preschool onward must cease and be prohibited immediately

2)      The psychological screening of children in federal programs should also cease, especially for the preschool age group.  At a minimum, there should be written, informed, opt-in parental consent similar to the language of the Parental Consent Act

3)      Before ESRA is reauthorized, FERPA must be re-strengthened to truly protect student privacy which will hopefully be aided with the ruling in the ongoing federal lawsuit.

4)      The amount and extent of data collected on innocent American children and their families in the name of education is a clear and serious violation of the Fourth Amendment  and must also be curtailed if and as ESRA is reauthorized

5)      All funding for Race to the Top in any form or any other grant program that promotes national standards, tests, and data collection should cease.