Browsing articles in "Assessments + Testing"
Jan 28, 2014
ELW

Formal Response to the Chief State School Officers’ Letter on Student Data Privacy

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.

 §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.

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  • 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.

Apr 2, 2013
ELW

Education Liberty Watch Response to Senate Author of Florida Data Tracking Bill

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

 

Ms. <Redacted>

 

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.

 

Bill Galvano

State Senator, District 26

 

Oct 2, 2012
ELW

Education Liberty Watch Introduces New Freedom Grading Scale for Private School Choice Laws

The concept of trying to rescue poor and minority students from failing public schools is a noble one.  However, if the private schools are forced to teach the public school standards, which are at grave risk of becoming nationalized via the Common Core and its accompanying tests in 45-1/2 states and the District of Columbia (Minnesota accepted the English standards but not the math), in order for their students to pass the state tests, private schools will no longer be a meaningful alternative to the public schools.

This danger was detailed in our 2011 alert Imposing a Federal Curriculum on Private Schools – Why Voucher Programs that Require State Tests Are So Dangerous. At that time, we mentioned Minnesota’s proposed law that has not yet passed (that would have received a D grade on our scale) and Indiana’s enacted law (that did receive an F grade) that both require state tests to be given to private school students receiving vouchers or to the entire private school.  Since then, I have reviewed the testing accountability requirements for all of the 30 school choice laws that have passed in 18 states and the District of Columbia through 2012 based on the Alliance for School Choice’s annual report  and looking at the  newest 2012 laws passed since that report was written.

And, since grading scales are becoming de rigeur, I though that Education Liberty Watch should join in on the trend and provide a freedom grading scale based on how well each statute protects private school autonomy.  My hope is that you will see where your state falls and contact your policymakers to either improve your own state law if needed, make sure that any school choice bill offered in your state is as strongly pro-freedom as possible, and if nothing else, warn the private schools in your area what may be coming and urge them to speak up as this type of legislation is considered.

Before the table with the grades is presented however, it is important to also mention the education plan of presidential candidate Mitt Romney on this issue.  Thankfully his plan is a just a plan right now that was likely mostly written  or at least heavily influenced by former Governor Jeb Bush.  Mr. Bush, whose organization is funded by the Bill Gates Foundation, is a huge fan of the Common Core to the point of trying to prevent model legislation against the standards from being supported by ALEC. He also seems to be completely tied in with the corporate interests such as the US Chamber of Commerce, the Business Roundtable, and the Business Partnership and the Gates Foundation, which has funded his own organization, that seem not at all concerned or even determined to bring about the usurpation of private school curriculum with the national standards. The Romney plan, A Chance for Every Child, speaks of the federal government promoting and paying for both public and private school choice.  It says on pages 23-24:

Romney Administration will work with Congress to overhaul Title I and IDEA so that low-income and special-needs students can choose which school to attend and bring their funding with them. The choices offered to students under this policy will include any district or public charter school in the state, as well as private schools if permitted by state law… To ensure accountability, students using federal funds to attend private schools will be required to participate in the state’s testing system. (Emphasis added.)

Aside from the fact that the federal government has no constitutional authority to be involved in education, a fact both parties have completely forgotten, this would be an utter disaster for education freedom.  It would bring the full force of the federal government to impose the federal curriculum of the Common Core on private and religious schools.  It would also negate the laboratories of democracy in the states that have passed good state laws that do not require this public school testing accountability.  On Education Liberty Watch’s Freedom Grading Scale, the Romney education plan, as currently written, would receive a D grade for requiring students to participate in the state tests.  If the plan is meant to require that all of the students in a private school attended by voucher recipients take the state (Common Core) tests, we would give it a failing grade.

However, the good news is that Governor Romney has recently made some important and very good statements opposing the Common Core and government expansion of preschool, which we will outline in our next alert. It is therefore hoped that the more pro-freedom members of his education team are beginning to hold sway and that Governor Romney can be educated about the perils to private schools in his plan.

Continue reading »

Oct 1, 2012
ELW

Education Liberty Watch Private School Choice Freedom Grading Scale Table

STATE

TYPE OF SCHOOL CHOICE

TYPE OF ACCOUNTABILITY TESTING IF ANY

ACCEPTED COMMON CORE?

FREEDOM GRADE

Arizona (2006) CSTC –  Means tested Nationally norm referenced test

Yes

B

Arizona (1997) ISTC None listed

Yes

A

Arizona (2009) CSTC-low income & foster children None listed

Yes

 

A

Arizona (2011) ESA – Children w/disabilities None listed

Yes

A

Colorado (2011) UV-  Douglas Co. State tests for  recipients

Yes

D

 

Florida (1999- expanded 2011) SNV (McKay) None Listed

Yes

A

Florida (2001 & expanded  2011 & 2012) CSTC Recipients must take either national norm-referenced  or state tests

Yes

C

Georgia (2001) SNV Schools must report recipients’ academic progress to parents and state

Yes

A+

Georgia (2008) CSTC & ISTC None listed

Yes

A

Indiana (2009) CSTC & ISTC State or NNRT

Yes

C

Indiana (2011) MTV Private schools must administer state tests

Yes

F

Iowa  (2006 & expanded in 2011) ISTC & CSTC None listed

Yes

A

Louisiana (2008) MTV/FSV in New Orleans Private schools must administer state tests to voucher recipients

Yes

D

Louisiana (2010) SNV None listed

Yes

A

Louisiana (2012) MTV/FSV – statewide State tests to recipients  & report to parents

Yes

D+

North Carolina (2011) ISTC – disabilities None listed

Yes

A

New Hampshire (2012) ISTC & CSTC None listed

Yes

A+

Ohio (1995) MTV –  Cleveland School District Private schools must administer state tests

Yes

F

Ohio (2003) SNV – autism None listed

Yes

A

Ohio (2005) FSV Private schools must administer state tests

Yes

F

Ohio (2011) SNV School must administer state tests unless student exempted due to IEP

Yes

D

Oklahoma (2010) SNV None listed

Yes

A

Oklahoma (2011) CSTC & ISTC NONE – Ensures academic accountability through regular progress reports to parents

Yes

A+

Pennsylvania (2001) CSTC None listed

Yes

A

Rhode Island (2006) CSTC None listed

Yes

A

Utah (2005) SNV Administer annual assessment of student’s academic progress and report results to the student’s parents

Yes

B

Virginia (2012) CSTC Private schools must administer NNRT annually, report results to parents, & aggregate results to state DOE

No

B+

Washington, DC (2004) MTV Administer NNRT & conduct  comparative evaluation  utilizing D.C. PublicSchools, Charter Schools, and OSP school testing data

Yes

B+

Wisconsin (1990) MTV –  Milwaukee district Administer state tests to scholarship recipients in grade 4, 8, & 10 & provide scores to School Choice DemonstrationProject

Yes

D+

Wisconsin (2011) MTV – Racine district Administer state tests to scholarship recipients in grades 4, 8, and 10

Yes

D+

FREEDOM GRADING SCALE:

A+ = No testing requirements and accountability only to parents

A = No testing requirements

B+ = Requires only a nationally norm-referenced test and reports results to parents

B = Requires only a nationally norm-referenced test  (Not currently tied to Common Core)

C = Requires the state tests or a nationally norm-referenced test

D+ = Requires private schools to give voucher recipients the state tests but reports results to an outside entity instead of the state

D = Requires private schools to give voucher/tax credit recipients the state tests

F = Requires private schools to give state tests to all students in a private school

ABBREVIATIONS:

CSTC = Corporate Scholarship Tax Credit

ESA = Education Savings Account

FSV = Failing School Voucher

ISTC = Individual Scholarship Tax Credit

MTV = Means Tested Voucher

NNRT = Nationally Norm-Referenced Test

SNV = Special Needs Voucher

UV = Universal Voucher

*Information, except for 2012 laws, adapted from Alliance for School Choice: School Choice Year Book 2011-12

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