The National Assessment Governing Board (NAGB) is planning to assess non-academic social and emotional “mindsets” like “grit” as well as school climate in next year’s National Assessment of Educational Progress (NAEP). Here is a summary of the many problems with this approach with details available at Mindsets in NAEP – final:
It is unconstitutional - There is NO constitutional, statutory or moral authority for the federal government to conduct psychological research on innocent American school children via what is supposed to be an academic test.
It violates federal statute prohibiting such activity in one or both of two ways.
It goes against several Supreme Court precedents affirming parent’s inherent rights to direct the education and upbringing of their children.
These types of questions are highly subjective as admitted by leading experts and organizations in the fields of education and mental health.
Because of the weak and gutted federal privacy law, the Family Educational Rights and Privacy Act (FERPA), this very sensitive data can be shared with various agencies of the federal government and third parties and re-disclosed and used for “predictive tests,” which are notoriously subjective and incorrect.
This subjective, allegedly predictive data may then well be used to make life altering decisions for children affecting college entrance, employment, etc.
According to information uncovered at recent US House Oversight and Government Reform Committee hearings, the state of data security at the US Department of Education is appallingly bad, so this sensitive data that the government should not have in the first place is not safe from hackers.
It seems that members of Congress and parents’ rights legal firms are starting to get interested in this situation. Please contact your US Senators and members of the US House of Representatives and ask them to oppose this illegal and unconstitutional plan via the power of the purse, especially if they are on the following committees:
Thank you and stay tuned!
Karen R. Effrem, MD – President
Sadly, despite clear and detailed warnings from parents, teachers, activists, and policy experts, the US Senate passed its rewrite of the No Child Left Behind (NCLB)/Elementary and Secondary Education Act (ESEA) called The Every Child Achieves Act (ECAA – S1170) on July 16th by a vote of 81-17. Three Democrats voted against the bill because of not enough government control, but nonetheless did the right thing. It is extremely clear that big government and big business interests, who are supporting pro-Common Core candidates like Jeb Bush, John Kasich, and Hillary Clinton, are colluding to cement federal control over American education.
We would like to thank the following senators for their opposition votes to the overall bill:
Three of the five presidential candidates in the Senate – Ted Cruz (R-TX), Rand Paul (R-KY), and Marco Rubio (R-FL) – voted no. Bernie Sanders (I-VT, a member of the Socialist Party running for president as a Democrat) voted for the bill. The fifth, Lindsey Graham (R-SC), did not vote. Senator Sanders offered one amendment on youth unemployment that was rejected (see below). Senators Rubio and Graham did not offer any amendments to the bill, nor did they make any statements about it afterwards. Here are the statements of Cruz, Paul, and Sanders:
“While this bill makes some improvements to the status quo, it ultimately falls short of empowering parents and local school districts. To that end, it is a missed opportunity for meaningful change.
“Decisions regarding our children’s future should be placed in the hands of those closest to students, and that is teachers and parents. This is why I introduced an amendment to give states the flexibility to develop their own accountability standards, rather than meeting criteria outlined by federal bureaucrats in the Washington cartel. This type of federal control has led to the failed, top-down policies that produced Common Core. We also had the opportunity today to significantly advance school choice for low-income students, giving them a chance to succeed at a public or private school of their choosing. Unfortunately, my colleagues in the Senate rejected these amendments, perpetuating the same tired approach that continues to fail our children.
“When the federal government is in charge, the most common outcome is accepting the lowest common denominator. When it comes to the future of our country and our children’s future, the lowest common denominator is simply unacceptable. We can do better and our children deserve better.”
“I believe education is the great equalizer, but Washington’s intrusion in the classroom leaves most kids behind. This bill is not the solution, as it retains some of No Child Left Behind’s biggest flaws – a lack of adequate parental choice, a federal testing mandate, and continued support for Common Core,” Sen. Paul said.
“On Thursday, the Senate passed the Every Child Achieves Act, which would fundamentally reform No Child Left Behind. The law would replace the current high-stakes standardized testing model with an approach that would give Vermont significant flexibility to determine how to intervene in struggling schools. As a member of the Senate Education Committee, Sanders had a role in crafting the bill and successfully fought to lower the stakes on standardized testing and to preserve a federal after-school program that serves thousands of low-income students around Vermont. The bill also included a pilot program written by Senator Sanders that would allow states to develop innovative alternatives to standardized testing.”
Senate Health, Education, Labor, and Pensions (HELP) Chairman Lamar Alexander (R-TN), who co-authored the bill with Ranking Member Patty Murray (D-WA), boasted after the bill passed about the “remarkable bipartisan consensus.” He tried to make those that voted against the bill sound extreme by declaring that ECAA fixed about 80% of the problems with NCLB and that even Ronald Reagan said to be happy with getting 80% of what one wants.
Well, aside from the fact that things were not fixed, but made worse with this bill, here is a little history lesson for the senior senator from Tennessee. There was an even more remarkable bipartisan consensus in Congress in 2001 when NCLB passed the Senate floor under Senator Edward Kennedy and President George W. Bush by a whopping 91-8 vote. Only eight senators had the constitutional and educational understanding to know what a disaster NCLB would be at this same point in the process. That number has more than doubled with ECAA, so from that perspective, the forces of educational freedom are actually making some progress. We especially also want to thank Senator Jeff Flake (R-AZ) who voted against NCLB as a congressman and remained consistent to vote against ECAA as a senator. Also important to note is that Senators Mike Crapo (R-!D) and Richard Shelby (R-AL) voted for NCLB in 2001 and had the great sense to change their votes due to the major continued federal overreach, psychological profiling and expansion of invasive, Common Core aligned early childhood programs for ECAA and the strong work of the grassroots in their states. They deserve great thanks for that!
It is very concerning that several senators look to be making the same disastrous mistake again of imposing punitive, ineffective, invasive, annual statewide testing on our students and teachers and all of the other flaws of NCLB that are falsely promised to be fixed in ECAA along with all of its new problems:
Barbara Boxer (D-CA), Maria Cantwell (D-WA), Susan Collins (R-ME), Richard Durbin (D-IL), Michael Enzi (R-WY), Dianne Feinstein (D-CA), Chuck Grassley (R-IA), Orrin Hatch (R-UT), Patrick Leahy (D-VT), John McCain (R-AZ), Majority Leader Mitch McConnell (R-KY), Barbara Mikulski (D-MD), Lisa Murkowski (R-AK), ECAA Co-Author Patty Murray (D-WA), Minority Leader Harry Reid (D-NV), Pat Roberts (R-KS), Chuck Schumer (D-NY), Jeff Sessions (R-AL), Debbie Stabenow (R-MI), and Ron Wyden (D-OR) [James Inhofe (R-OK) voted against NCLB off the Senate floor, but voted for the final NCLB bill and voted in favor of ECAA].
Although the overall bill passed, there were a few small bright spots:
Senator Alexander listened to the grassroots and realized the huge error of removing the prohibition on attitudinal testing in the statewide assessments. In an amendment adopted by voice vote on July 16th, he restored the prohibition in NCLB to make sure the state assessments “do not evaluate or assess personal or family beliefs and attitudes, or publicly disclose personally identifiable information.” Here are statements released by Emmett McGroarty of American Principle in Action and myself in praise of this result:
Emmett McGroarty, Director of Education at American Principles in Action, said, “We are pleased that Senator Alexander has heard the concerns of parents and citizens and reinstated the prohibition on attitudinal testing in the statewide assessments. This is a good start. However, this addresses only one of the severe privacy and data collection problems with ECAA. Much more needs to be done to protect children.”
Karen Effrem, M.D., president of Education Liberty Watch and executive director of the Florida Stop Common Core Coalition, added, “We hope this is an indication that Congress is going to rein in the many other places in ECAA, in the National Assessment of Educational Progress (NAEP), in the Strengthening Education Through Research Act (SETRA), and in early childhood programs where federal regulation authorizes the federal government to collect personal information on the dispositions, emotions, and attitudes of American children.”
The Senate also rejected, by a vote of 45-52, a universal preschool and home visiting program offered by Senators Robert Casey (D-PA), Mazie Hirono (D-HI), and others that would have been implemented on top of the already very concerning Preschool Alignment and Improvement Grants that we have explained. Senator Alexander should be thanked for leading the opposition to this nanny state expansion, even invoking one of our talking points about “Baby Common Core,” instead calling it “Kindergarten Common Core.” All of the Republicans correctly voted against this bad amendment, except for Graham and Rubio, who did not vote. Sanders voted in support.
The Republican majority also rejected another huge expansion of mental health grants offered by North Dakota Democrat Heidi Heitkamp by a vote of 58-39 (60 votes were needed for passage). Given that there are already more than 10 other places that ECAA expands mental health programs and psychological profiling of our children, this amendment was completely duplicative and unnecessary. Of the presidential candidates, Paul and Rubio correctly voted no, Sanders voted yes, Cruz and Graham did not vote. All Democrats voted yes and all Republicans voted no except: Ayotte (NH), Cassiday (LA), Collins (ME), Daines (MT), Ernst (IA), Heller (NV), Kirk (IL), Moran (KS), Murkowski (AK), Portman (OH), Sullivan (AK), and Thune (SD).
Finally, the Republicans led by Alexander wisely rejected the Markey (D-MA) amendment (SA 2176) to establish a federal climate change education program. The amendment failed by a vote of 44-53. All of the Republicans exceot two joined by Democrats Heitkamp (ND) and Tester (MT) opposed this controversial and scientifically unsound language while all of the Democrats/Independents voted for it joined by Republicans Ayotte and Kirk. Graham did not vote.
Here is a recap of some of the other important amendments and votes that were largely disappointing for those wanting educational freedom in this now approximately 1000 page bill based on category (Please see the Congress.gov website for all of the amendments offered with links to language and a list of status, the Senate website for specific roll call votes on the amendments and S 1177 itself, and Education Week for other summaries.)
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.
- 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?
- 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.
(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.
- 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.
- 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.
- 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.
- 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.)
- 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.
- Although there is a prohibition against a national student database in one section 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:
“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.)
“[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 restore local control of education that has been usurped by the unconstitutional presence and actions of the US 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 genuine 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.
Last week, Florida Senator Bill Galvano sent the following email to a constituent who had called and visited his office with very legitimate concerns regarding Florida SB 878 (See detailed analysis ). Dr. Karen Effrem offered a point-by-point response which hopefully will be instructive to other states as they fight the imposition of a very alarming set of Common Core Standard linked assessment and data collection system that will affect students, families, and teachers. (Dr. Effrem’s responses are in italics below each point from the senator). Education Liberty Watch and the statewide coalition of Florida citizens thank Senator Galvano for being willing to consider these concerns as the bill moves forward.
From: GALVANO.BILL <GALVANO.BILL@flsenate.gov>
Date: Mon, 25 Mar 2013 17:46:10
Subject: SB 878 – Education Accountability
I appreciate you taking the time today and sharing your views with my office regarding Senate Bill 878, Education Accountability, which requires performance accountability for public schools by strengthening the definition of co-located schools and establishing protocols for access to existing quality data. SB 878 strengthens, streamlines and establishes protocols for access to existing data maintained by the Florida Department of Education.
With all due respect, there is too much data collected and too much access to this data to entities that do not have the privacy or best interests of our children and families in mind. The last thing we want is to strengthen or stream line that process.
The bill does not expand data that is collected.
Yes the bill does expand data that is collected. Lines 115-117 say, “To promote adoption of a common set of data elements identified by the National Center for Education Statistics to support the effective exchange of data within and across states.” This NCES list contains hundreds of data points including very personal items, such as “religious affiliation”, “voting status”,” parental income”, and “Disease, Illness, or Health Condition” . (See http://nces.sifinfo.org/datamodel/eiebrowser/techview.aspx?instance=studentElementarySecondary) If the FL DOE is already collecting this amount of data, then this bill should be seriously limiting what the state and federal governments collect on innocent children and if it is not, this current bill language will allow expansion to the full NCES model to happen. In addition, according to the US DOE, the plan is to use the Common Core Assessments to measure for“21st century skills” of grit, tenacity, and perseverance, and key psychological resources (mindsets, learning strategies, and effortful control) for a range of purposes that the Common Core standards are supposed to teach. (See US DOE report Promoting Grit, Tenacity, and Perseverance: Critical Factors for Success in the 21st Century)This is rank psychological manipulation.
The bill simply creates a web-based interface to serve as a single location for access to aggregated data from the K-20 warehouse.
There are actually two portals created by this bill: 1) The public portal does a decent job of making the data anonymous in lines 272-274. 2) However, the “Research Portal” contains no such restrictions in the bill or mentions any in current law or regulation.
The bill also formalizes procedures for accessing and reporting data pursuant to the federal Family Educational Rights and Privacy Act.
FERPA student privacy protection has been significantly weakened via regulation by the Obama administration, so much so that the Electronic Privacy Information Center is suing the U.S. Department of Education. One of the biggest concerns is the expansion of who may have access to individually identifiable student data without parental consent to “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…” Therefore, FERPA protections are not very comforting to parents that wish to protect their children’s and family’s sensitive data. Parents, the PTA, and ACLU in nine states are loudly protesting this situation in combination with a new national database called inBloom developed by the Bill and Melinda Gates Foundation and Rupert Murdoch’s Amplify Education Company. (See the Reuter’s story K-12 student database jazzes tech startups, spooks parents ). SB 878 uses the term “authorized agent, ” which means this long list of outside entities that has data access , 12 times in the text of the bill. The bill also mentions the phrase “FERPA exception,” which means all the excuses that the government uses for allowing access to individual data, three times and the term “personally identifiable data” seven times. Again, there is no stipulation for anonymizing data accessible to researchers in this bill.
Before providing student data to researchers, DOE strips personally-identifiable information from student data and assigns a random, annonymized ID to each student record. The bill does not change this.
There is no reference to statute or regulation stipulating that this is the procedure that is carried out. That reference should be put in the bill or language requiring such procedures should be written into the bill at a minimum. Anonymization is a help, but does not answer the basic question of why so much sensitive student and family data is kept by the state and is now or will be linked to the federal NCES databases. The other issue is that the government still has the link to the anonymized ID numbers and there is no real way to assure parents and the public that this data is safe.
Additionally, there is a provision in the bill that prohibits the commercial sale of a child’s information.
This language prohibits the direct sale, but does not necessarily prohibit the use of this data for research for developing commercial products be they software, assessments or even pharmaceuticals based on all of the psychological data that will be measured, collected, and given to entities that have “a legitimate educational interest” in that data. There is also nothing in the bill that limits any of the parameters in the “written agreement,” only that entities with access to our children’s data have to follow the agreement.
As a father of 3 children in the public school system, I am very concerned about protecting their private personal information.
We are glad to hear that you are concerned about your children’s privacy. Hopefully the information in this email will spur you to continue to protect that privacy as well as that of all of your constituent’s children as you no doubt intended to do but may not have had enough information to fully accomplish with this legislation.
Notwithstanding the above, I will review the bill again with your concerns in mind.
Thank you for your willingness to do so. We hope that this information will help you decide to withdraw or delay you bill until it contains language that rolls back the significant government surveillance of and access to the sensitive data of our children.
State Senator, District 26
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