It has been a very very busy week for FERPA and it reminds me of Eric Carle’s The Very Busy Spider – the spider wouldn’t stop building her web. So as we busily build our privacy web, introducing more and more bills, I believe it is worth discussing the implications of proposing bills that severely restrict the effective use of data. Sen. David Vitter (R-LA) introduced an amendment to FERPA entitled the Student Privacy Protection Act. However, unlike other bills, this one seems to restrict the use of data to understand how we can support learners more effectively.
The bill would only allow aggregated, anonymized and de-identified data to be used for State Longitudinal Data Systems (SLDS) and prohibits predictive analytics. At first glance, using only aggregated data seems like a good idea, but here is the issue: the bill prohibits the use of data that helps measure student outcomes. It prohibits the use of federal funds to support “affective computing” that includes the analysis of physical or biological characteristics such as facial expressions or brain waves. And while I understand the concern of a neurotypical child to have this granular information captured, to the parent of a special needs child this information could prove to be the difference between the struggle of an academic journey to a successful one. If predictive analytics are allowed, the information obtained can prove invaluable to students with special needs.
What if we cannot use the data on an SLDS to determine how we are helping English Language Learners? How can we answer the question – Do you have information on English Language Learners? If we cannot track the performance and graduation rates of ELL’s, how can we be sure we are providing those children with the most appropriate resources and whether the application of those resources is successful? Or take the high school dropout rates. If we cannot access SLDS data, how can we measure success for all students? For example, we know that the dropout rates between Whites and Hispanics narrowed from 23 percentage points in 1990 to 8 percentage points in 2012? We can’t’ answer these questions without data. And if our goal is to provide a truly equitable education system, a system that serves all students, we cannot deny the use and analysis of this valuable data. Further, how can we determine how many students with disabilities are receiving support services in schools? And are these support services effective?
It is clear that most bills relating to student privacy are looking to protect student data and to respond to parent concerns. But we must be careful that in our effort to protect students we do not impose restrictions that would rob us of valuable insights on how to better serve their educational needs. We cannot make smart decisions without complete data sets.
It is clear that with so many student data privacy bills we are responding to parent’s concerns, however, we cannot make the bills so restrictive that we cannot use the data. Instead of restricting the use of data, I propose we train staff and make them aware of the implication of misuse of data but let’s not shut the system down and make decisions in a vacuum. We need the data, it’s important we be able to make informed decisions. Let’s focus on having comprehensive data sets and host them in secured environments with staff trained in the proper handling of data protocols. Knowledgeable staff educated in the ethical and effective use of data can better protect student privacy than removing data from an SLDS. Only by responsibly using relevant data can we ensure we deliver an equitable school system for all students.
If you are the parent of a 5th grader in public school and live in NYC you most likely went through the dreaded “middle school application process” and while there are many issues to discuss around the concept of “choice” in schools in NYC one particular aspect caught my attention. A few weeks ago, this group of anxious and eager 11 year olds received their middle school acceptance letters. Teachers and Principals sent the message home to be mindful of their classmates who may not have gotten into the school of their choice and to respect their privacy. But what does that really mean to an 11yr old? So I asked my 11yr old friends (full disclosure they are my 11yr old kid and group of friends) what they thought privacy means to them. Some said Privacy is “when grown ups leave me alone” or “when I don’t want to tell someone something about myself.” Pretty interesting coming from 5th graders. To them, the notion of privacy isn’t a particular rigid set of rules and regulations. Privacy is having agency over what information they choose to disclose or not depending on the situation.
It is remarkable that to these truly connected kids, most of them having a smartphone, tablet, laptop, etc., their concept of privacy did not initially go to the electronic medium they were using and the data points they were providing. Their conception of ownership of their information and deciding how they disclose was central to their idea for defining privacy. They did not define privacy by what people should not see, they see privacy as their ability to control their own information and decide what story their information would tell. And I see similar responses when I talk to college students. Their idea of privacy is related to the concept of ownership. For most of them it’s about being able to decide when and what they want to disclose whether it is in conversations with their friends or in their social media accounts.
So as I watched these anxious soon to be middle schoolers receiving their acceptance letters, I could see the anxiety of their parents looking over their shoulder and friends wanting to know what school they got accepted into. But most kids wanted to be able to decide how and when they disclosed this truly personal piece of their story.
So as we continue our conversations around student privacy, as we debate whether laws should be updated to reflect technological advances, lets take a step back and think about how kids feel about these conversations about them that for the most part don’t include them. We talk about student privacy, we discuss what children’s data should or should not be collected but we continually leave students on the sidelines watching the debate about them but not asking for their input.
So yes, we are the responsible adults and should be making decisions that we believe are in the best interests of our children. But I urge all of us to include students in this debate. How do they feel about their privacy? Are we making decisions about their privacy when they would want something different for themselves? After all, it is their data, it is their information, it is their story. They should have a say on how their story unfolds.
It is May and so far 42 states have introduced 170 student privacy bills which is encouraging to know as a parent of children who will be students for quite some time. Of these, there are two Federal bills advancing in the US House of Representatives. On the one hand, Congressmen Kline (R-MN) and Scott (D-VA) circulated draft legislation to rewrite FERPA. On the other, Congressmen Polis (D-CO) and Messer (R-IN) introduced the Student Digital Privacy and Parental Rights Act. The goal of this act is mostly to regulate online service providers in a way that balances data security without hindering the ability of teachers, schools, and other stakeholders in using the data to effectively support instruction.
Which one is better? Well, I don’t think they are mutually exclusive. I think we can all agree that FERPA needs to be updated. It needs to address the privacy challenges that come with technological advancement. Something the 40 year old law hasn’t been able to keep up with. But what is interesting on the Polis-Messer bill is that it balances the essential need to protect student data and enables (and encourages) the use of technology without implementing unreasonable restrictions that would impede the effective use of data to help students improve their learning outcomes. More importantly, the bill bans online service providers from creating profiles of students that could be used for advertising to them or their parents, thus eliminating that creepy factor of profiling students for marketing purposes. And I am all for data use but certainly not when the data collected on my child will be used to advertise products or services to them.
Unfortunately neither bill addresses the dire need for training teachers, principals, school boards and even parents and students. Training so desperately needed. Without adequate training, they will not be able to identify what is appropriate (and legal) use of data. How can we expect schools to make the right decisions when it comes to safeguarding our children’s data when they do not have adequate training on data privacy and security? Furthermore, I do not see any acknowledgement of learner ownership in either bill. We must recognize students as the ultimate owners of their data, for without this recognition we will once again fail to make privacy something that is inextricably linked to their education and continue to make privacy something that just happens to students – if they are lucky. Finally, I find the option of opting out of data collection a weak portion of the bills. And it is simple – if we have the option of allowing students to opt out of LEA or SEA data sets we are limiting the ability of research organizations to determine whether education policies are working for every student or not. How can we build an equitable education system when we are analyzing incomplete data sets? They will then undoubtedly provide skewed results? We cannot adequately protect our most vulnerable students if policymakers are basing decisions on incomplete data. I urge all of us to think about the inequities we might be inadvertently creating when opting out of educational data sets. We cannot achieve a true equitable educational system with broken data.
Both bills have a way to go before they can become law, but this is why it’s important to join the conversation now when many states and the Federal government are first looking seriously at protecting student privacy – and that matters.
We have the responsibility and opportunity to help shape the debate that will result in policy at the State and Federal level and we cannot let this pass by. In the meantime, President Obama continues to encourage progress in safeguarding student data. Earlier this week the White House commended Representatives Polis and Messer on their efforts to protect student privacy. And well, that has to count for something – right???