Education reporters respond to proposed FERPA changes
EWA and Oregonian reporter Betsy Hammond have drafted a letter to the U.S. Department of Education about the proposed changes to the Family Educational Rights and Privacy Act (known as FERPA). Last month, the department announced because of advances to technology and provisions set forth by the Patriot Act changes in policy were needed. At the time, most of the media coverage focused on education insiders and parents being able to share information to prevent another Virginia Tech tragedy from happening. But after studying some of the proposed changes, Hammond and EWA found reporters could have a harder time gaining access to data regarding school performance. The department is accepting public comment until May 8. Read the letter below.
Media Coverage about Proposed FERPA Changes:
The Student Press Law Center also filed a protest about the proposed changes. Read its press releaseand comments on file.
To: The Office of Planning, Evaluation and Policy Development
The U.S. Department of Education
From: Betsy Hammond, reporter, The Oregonian, on behalf of
Education Writers Association, a national association of education journalists
Re: Proposed changes in the Family Education Rights and Privacy Act (FERPA)
Docket ID ED-2008-OPEPD-0002
Speaking personally as an education journalist with two decades of experience, and speaking as well on behalf of the 900-member national association that represents education reporters, the Education Writers Association, I wish to ask the agency to make two small but crucial changes to the proposed new Family Educational Rights and Privacy Act rules.
The vast majority of the proposed changes in this important student privacy law will be helpful to moving schools, families and education record-keeping into the 21st century.
But, based on my years of real-world experience seeking access to educational records, I am certain that two of the proposed changes are likely to result in the public being denied the right to see important information that shows whether or not schools and school officials are serving students fairly and well -- information that I believe that the U.S. Department of Education and Secretary Margaret Spellings wish to remain public in the interest of students and their families.
For instance, there is a very real risk that much of the disaggregated performance data that has been a hallmark of No Child Left Behind could be closed off to the public in many schools and communities on the grounds that disclosing test scores or dropout rates by students’ grade and ethnicity would reveal information that “is linked or linkable” to a specific student “with reasonable certainty.” In addition, a law that prohibits releasing educational records to a person reasonably believed to have “direct, personal knowledge of (a) student to whom the education record directly relates” would render nearly any education reporter at a small-town newspaper, or even many big city papers, ineligible to receive records such as the dropout statistics for the city’s eighth-grade class, since the reporter personally knows one or more eighth-graders. Similarly, a parent would have a hard time getting records from his or her child’s school, because the parent is likely to have direct personal knowledge of many of the child’s schoolmates. These unintended consequences of proposed changes in language regarding “personally identifiable information” mean the definition must be further refined to protect the public interest’s in being able to scrutinize the performance of public schools.
The agency proposes to change the definition of personally identifiable information. (20 U.S.C. 1232g(b)(1) and (b)(2) provide that an
educational agency or institution may not have a policy or practice of
permitting the release of or providing access to education records that contain
personally identifiable information.) Currently, personally identifiable information
is defined to include the student's name and other personal identifiers, such as the student's social security number or student number; indirect identifiers, such as the name of the student's parent or other family members, the address of the student or the student's family; and personal characteristics or other information that would make the student's identity easily traceable. The agency proposes to expand that definition to include biometric records (e.g., fingerprints) and new indirect identifiers, such as date and place of birth and mother's maiden name. These changes are appropriate ways to update the rules. The Education Writers Association fully supports bolstering the definition in that way.
The agency should not, however, add the vague and overly broad new provision that “information that, alone or in combination, is linked or linkable to a specific student” also constitutes personally identifiable information. Nor should it add a problematic ban prohibiting educational institutions from releasing records to a person reasonably believed to have “direct, personal knowledge of the identity of the student to whom the education record directly relates.”
We at the Education Writers Association suggest the following changes in language, with rationale laid out below:
1. Refine the definition of “Personally Identifiable Information” to ensure that no student’s education record is made public by an educational institution disclosing personal details -- while also ensuring that broad swaths of information of great public interest are not shut away from the public eye. Add biometrics, date of birth, mother’s maiden name and other specific, sensible information which would need to be redacted to avoid disclosing a student’s identity. But do not add vague, overly broad language about facts which may be “linked or linkable” to an individual, as that could be logically stretched to cover virtually any piece of information about a student.
2. Ensure that educational institutions may release appropriately “de-identified” education records without having to try to be mind-readers of the person or entity that requested the records. Do not add a prohibition on releasing educational records to a person reasonably believed to have “direct, personal knowledge of the student to whom the education record directly relates.” It is unfair to educational institutions to require them to plumb the minds of those to whom they release records in an effort to determine what direct personal knowledge those persons may have. In addition, releasing educational records about a student that in no way identify that student even to someone who happens to already knows something about that student is perfectly reasonable and does not violate the student’s privacy.
The focus of the FERPA protections should be on preventing the release of records that, in and of themselves, contain unique personal descriptors that would allow a person in the school or community to figure out which student the record refers to. The law cannot, and should not attempt to, regulate what journalists or researchers or members of the public know about students, teachers or schools independently of the education records that are subject to FERPA protections. If a record does not in and of itself contain unique personally identifiable information such as a name, date of birth, address, family identifier or the like, or can be redacted to exclude that information, the record should be available to the public upon request.
Take the instance cited as a possible rationale for such a rule. A candidate for office is rumored to have plagiarized others’ work while in college. A snoopy reporter then requests a copy of all disciplinary records for students who graduated that year and were disciplined for plagiarism. The university produces that record, without the student’s name, date of birth, fingerprints or other identifying information. What does the snoopy reporter know now? The reporter still has only a rumor, because the fact that one student in the class of ’78 plagiarized does not mean it is the candidate in question, and nothing in the report ties the then-student to the now-candidate.
The Education Writers Association also wishes to weigh in on the question of how an educational institution should properly protect student privacy when releasing redacted education records that concern students or incidents that are well-known in the school and its community. The rule should be the same as in any circumstance: The record should not contain unique personally identifiable information such as a name, date of birth, address, unusual place of birth, mother’s maiden name or sibling information. But once that information has been redacted, the record should be made public, so that the public can be assured that the school is acting fairly and reasonably in carrying out student discipline or other policies and practices. Take the example that is cited in the agency’s explanation: Parents have gone to the media complaining that the school went overboard when it gave their daughter a failing grade and expelled her after she cheated on a test. The school then is asked for a redacted copy of the discipline record of all students who cheated on tests and it turns out there is only one such case. The release of that redacted record, although it does not contain the name of the girl, can clearly be linked to her case. However, the school, in releasing the record, has not compromised her privacy because she and her parents have already gone public with the information that she cheated and was expelled. Nothing the school does in withholding any records can retroactively restore privacy to a family that has opted to go public. Instead, the records show how the school acted when an unidentified student cheated - the student and her parents have chosen to wave their hands and identify themselves. If such a rule were instituted, schools could find themselves in a real bind a family could claim unfair discipline based on an erroneous or distorted version of the student’s actions and the school’s response, and a school would be powerless to correct the facts by releasing a factual report because, under the new rules, once the family went public, an otherwise properly redacted record became identifiable and therefore private.
Finally, the Education Writers Association would like to weigh in on the question of how much information must be redacted from large data sets of educational records. We urge the department to err on the side of disclosure of disaggregated data, so that the public in every community can get accurate information about how students in every subgroup are faring and so that researchers and journalists can accurately probe school results and performance. In many instances, once the “cell size” reaches 2, that introduces enough uncertainty that the record cannot be attached to an individual student, compromising that student’s privacy. (For example, say that the two Latino fourth-graders at Smith Elementary average a score of 50 on their state reading test. Even if I know that Manuel Hernandez is in fourth-grade, release of the average test score only tells me that, depending on how the second Latino child performed, Manuel scored somewhere from 0 to 100 - which we all knew before.)
In crafting regulations that would protect schools’ ability to release education records that include markers about gender, ethnicity, free-lunch status and other demographic characteristics and also protect the public’s right to see that data, versus rules that would force or allow schools to strip out that rich information, I would urge the agency to consider the real track record of researchers and journalists in using this information. Has there ever been an instance where this information is used to track down a student and publicly identify him as a school dropout, as a special education student, as a person who scored low on a test or as a student who was subject to serious discipline as a result chiefly or solely of information released on an education record? The agency, in helping us understand what new rules may be promulgated, tells us about schools that have decided not to disclose that two Hispanic females failed to graduate, even though the school has several Hispanic females. Who is served by the school covering up its problem getting Hispanic females to graduate? Disclosing a high dropout rate among Hispanic females at the school does not disclose that any particular individual dropped out. But failing to disclose it covers up a serious public policy issue.
When I and my colleagues around the nation wish to find a student to photograph, to quote or to cite as an example of an issue in the news a Latina who has dropped out, a male who has failed his state’s graduation exam, a special education student who is educated apart from non-disabled peers we do not go to partially redacted records from the local school district. We go to the school, we find students at games or in the school parking lot, we talk to parents and advocates and we find students who willingly go public with their own status and stories.
As you consider the real-world track record of how education records that contain basic demographic information have been used, and how often the release of those records has led to inadvertent disclosure of private student information, I will offer examples from my own career. I have been given individual-level data about student discipline, student achievement and school completion. I have loaded on my computer multiple data releases from my state education agency that tell me what happened in every school, with cell sizes that run as small as one student in a category, in some instances. I have depended on education records replete with clues to possible personal identity every year during my 15-plus years covering education. Yet I have never used that data to identify a student, nor has it ever been published in the newspaper in a way that disclosed the identity of a particular student.
Instead, release of that information has enabled me to write news articles about disparate discipline practices by race (African American boys three times as likely to be expelled and suspended, with subjective charges such as “failure to show respect” the most common), about the failures of many local special education programs (“In five Portland-metro districts, more special education students dropped out than earned a regular diploma”), about the success many schools have found in teaching English as a second language (“Oregon schools have dramatically changed the way they teach English to non-native speakers over the past two years, and the new methods are paying off”) and about the high dropout rates at some schools, especially among minority students. Those news stories have served the public interest in disclosure and they have served students by calling attention to very real problems and to best practices.
Many educational institutions are forthright about the challenges they face in serving students well, particularly those who have been subject to “the soft bigotry of low expectations.” But many educational institutions would rather hide from their performance problems than be held accountable for them. I and my journalistic counterparts around the country work hard to bring complete and accurate information about schools to the public eye. We urge you to give educational institutions all the protection and encouragement they need to make public robust education records that have been stripped of direct personal identifiers. We urge you, however, to avoid issuing rules that will enable education institutions to arbitrarily withhold or cloud education records that shed light on their own performance under the guise of protecting student privacy.
Sincerely,
Betsy Hammond, reporter
The Oregonian
Portland, Oregon
betsyhammond@news.oregonian.com
Lisa Walker, executive director
Education Writers Association
Washington, D.C.
lwalker@ewa.org
