Christel Swasey Responds to Brenda Hales

On July 10th, 2012, a public forum was held where 4 visiting experts shared concerns with Common Core. A press release was sent out earlier in the day causing Brenda Hales, a USOE administrator, to post a statement on the Utah Public Education website trying to offer the official line on Common Core. Christel Swasey, a Utah public education teacher, challenged her statement with this fact filled rebuttal. I encourage you to read Brenda’s post as well so you can see what’s being said by the USOE.

 

To Whom It May Concern:

The following information directly conflicts with this week’s statement about Common Core and national educational reforms as published by the USOE at http://utahpubliceducation.org/2012/07/10/utahs-core-standards-assessments-and-privacy-regulations/.

The following information has links to references so that you can verify what is claimed, unlike the unreferenced information given by the USOE.

1. Personally identifiable student data will be shared with governmental and non-governmental entities, both in-state and out of state, as never before.

The Federal Register outlines, on page 51, that it is not a necessity for a school to get student or parental consent any longer before sharing personally identifiable information; that has been reduced to the level of optional.

“It is a best practice to keep the public informed when you disclose personally identifiable information from education records.”  http://www.gpo.gov/fdsys/pkg/FR-2011-12-02/pdf/2011-30683.pdf

Dec. 2011 regulations, which the Dept. of Education made without Congressional approval and for which they are now being sued by EPIC, literally loosen, rather than strengthen, parental consent rules and other rules.  http://www.jdsupra.com/post/documentViewer.aspx?fid=5aa4af34-8e67-4f42-8e6b-fe801c512c7a

A lawyer at EPIC disclosed that these privacy intrusions affect not only children, but anyone who ever attended any college or university (that archives records, unless it is a privately funded university).

Because the 2011 changes stretch and redefine terms like “authorized representative” and “educational program” to include non-governmental agencies and many additional governmental agencies, effectively, there is no privacy regulation governing schools anymore, on the federal level. (Thanks to Utah legislators who are on the case, we might soon have stronger privacy laws to protect Utahns from the new federal intrusion).

The types of information that the Department will collect includes so much more than academic information: it includes biometric information (DNA, fingerprints, iris patterns) and parental income, nicknames, medical information, extracurricular information, and much more. See page 4 at  http://www2.ed.gov/policy/gen/guid/fpco/pdf/ferparegs.pdf and see http://nces.sifinfo.org/datamodel/eiebrowser/techview.aspx?instance=studentPostsecondary

Utah’s federally-funded State Longitudinal Database System (SLDS) exists for the purpose of sharing data not only among state agencies but from the state to the US Dept. of Ed.  The SLDS also exists to “manage” and “disaggregate” educational information within the state.   –A briefing was given in Utah, August 2010 by John Brandt, who is the USOE Technology Director and a member of the federal Dept. of Education, a member of the federal NCES, and a chair member of CCSSO (an organization that helped develop and promote the Common Core national standards.) On page 5 of Brandt’s online powerpoint, he explains that student records and transcripts can be used from school districts to the USOE or USHE “and beyond,” and can also be shared between the USOE and the US Department of Education.

Utah’s P-20 workforce council exists to track citizens starting in preschool, and to “forge organizational and technical bonds and to build the data system needed to make informed decisions” for stakeholders both in and outside Utah. — http://www.prweb.com/releases/2012/2/prweb9201404.htm

The linking of data from preschool to post-secondary and on to workforce, both locally and to D.C., allows agencies easy access, technologically and in terms of legal policy.

The SLDS and P-20 systems were paid for by the federal government and they transform the way data is shared– and the federally stated purpose for all the data gathering is educational research– yet this also allows the state and federal governments to track, steer and even punish teachers, students and citizens more easily. http://cte.ed.gov/docs/NSWG/Workforce_Data_Brief.pdf

Data linking changes are not just technological in nature; there are also changes being made in regulations and policies that make former privacy protection policies all but meaningless.  The changes are so outrageous, harming parental consent law and privacy concerns so much that the Department of Education has been sued over it. The Electronic Privacy Information Center (EPIC) sued the Dept. of Education, under the Administrative Procedure Act, arguing that the Dept. of Ed’s regulations that changed the Family Educational Rights and Privacy Act in Dec. 2011 exceeded the Department of Education’s authority and are contrary to law. http://epic.org/apa/ferpa/default.html

The Federal Register of December 2011 outlines the Dept. of Education’s new, Congressionally un-approved regulations, that decrease parental involvement and increase the number of agencies that have access to private student data: http://www.gpo.gov/fdsys/pkg/FR-2011-12-02/pdf/2011-30683.pdf  (See page 52-57)

Although the Federal Register describes countless agencies, programs and “authorities” that may access personally identifiable student information, it uses permissive rather than mandatory language.  The obligatory language comes up in the case of the Cooperative Agreement between the Department of Education and the states’ testing consortium –of which Utah is still a member: http://www2.ed.gov/programs/racetothetop-assessment/sbac-cooperative-agreement.pdf

In that document, states are obligated to share data with the federal government “on an ongoing basis,” to give status reports, phone conferences and other information, and must synchronize tests “across consortia”. This triangulation nationalizes the testing system and puts the federal government in the middle of the data collecting program.

For more information about the history of similar actions taken by the federal Dept. of Education that infringe upon state law and freedom, see the white paper by ROPE (Restore Oklahoma Public Education) entitled “Analysis of Recent Education Reforms and the Resulting Impact on Student Privacy”  —  http://www.scribd.com/doc/94149078/An-Analysis-of-Recent-Education-Reforms-and-the-Resulting-Impact-on-Student-Privacy

For understanding of the motivation of the federal government, read some of the US Dept. of Education Arne Duncan’s or Obama’s speeches that show the passion with which the federal agency seeks access to data to control teachers and educational decisions. http://www2.ed.gov/news/speeches/2009/06/06082009.pdf

2. The State Board of Education has virtually no control over the national standards it has adopted for Utah. 

Governing documents of Common Core state that the Utah School Board may not delete anything from the national standards and can only add 15% to them.  If Utah needs to add about a whole year’s worth of improvement to a given standard, as is the case with the 6th and 9th grade Common Core “math bubble” of repetition experienced this year in districts that implemented Common Core math, we can’t add more –and remain the same as Common Core nationally.  Our 6th and 9th graders learn no math for an entire year because of the lack of local control.  (Prior to Common Core, 8th graders learned Algebra I.  Under Common Core, 9th graders learn Algebra I.)  Because the NGA placed the standards under copyright, Utah can not amend them in any way. http://www.corestandards.org/terms-of-use   To illustrate, even a member of the state school board couldn’t do anything more than pull her grandkids out of public school to deal with the situation.  The school board member home schooled her 8th grade grandson and 9th grade granddaughter this year, “since our school district had decided to adopt the Common Core for every grade rather than what was proposed by the state. It was proposed that we only adopt for the 6th and 9th grade and provide alternative programs for those students who already had the skills being taught to all through the Common Core.” http://whatiscommoncore.wordpress.com/2012/07/07/state-and-local-school-board-perceptions-of-common-core-differ-13-2/

Additionally, any changes (up to 15%) that Utah makes to the national standards will never be taken into account on the common standardized tests.  The test developer, WestEd, affirmed that “in order for this system to have a real impact within a state, the state will need to adopt the CCSS, i.e., not have two sets of standards.”

http://whatiscommoncore.wordpress.com/2012/04/06/what-is-wested-and-why-should-you-care/

Anecdotally: those Utah teachers who love Common Core confuse the academic standards themselves with the methodologies being used to implement them.  New methodologies in many cases are excellent, but have nothing to do with national standards.  They are used in non-Common Core states.  Innovative methodologies that work well are not tied to the common national standards, which are only academic levels that could just as easily be higher or lower, and can still be taught free of Common Core’s rules, using the good methodologies.

Utah has lost its autonomy over standards and assessments. The next time Utah reviews standards and wishes to raise the bar, what will happen? There is no CCSS amendment process.  Also, since most states joined Common Core, and we’re virtually all the same; where is the collaboration, competition or better example to aspire to?

The common national standards were adopted due to federal recommendations during the initial Race to the Top application for funding for federal money.  Fortunately, since Utah didn’t receive the money, we can escape Common Core without serious financial problems. And we should.  Despite the letter of March 7, 2012 from Arne Duncan, stating “states have the sole right to set learning standards,” legally binding documents conflict with that Constitutional right, as well as with Duncan’s promises and with the Cooperative Agreement Duncan made with the SBAC.

When the Dept. of Education forced states to choose between No Child Left Behind and Common Core, they proved that Common Core is just the next federal program.

The ESEA Flexibility releases “waiver winning” states from No Child Left Behind law, only on conditions of implementing Common Core.  On page 8 of the ESEA Flexibility document (updated June 7, 2012)  found at  http://www.ed.gov/esea/flexibility, please read:   “A State’s college- and career-ready standards must be either (1) standards that are common to a significant number of States; or (2) standards that are approved by a State network of institutions of higher education”.

Thus, since Utah chose option one, we are stuck in Common Core by choosing to accept the NCLB waiver. On page 9 of the same document, we read:

“ ‘Standards that are common to a significant number of States’ means standards that are substantially identical across all States in a consortium that includes a significant number of States.  A State may supplement such standards with additional standards, provided that the additional standards do not exceed 15 percent of the State’s total standards for a content area. ”

Utah not only has to stick with the Common Core State Standards by having accepted NCLB; we also are restricted from adding to “our” standards.

3. Utah applied for, but fortunately did not receive a Race to the Top (RTTT) grant.   This means Utah can leave Common Core without having to pay back a grant, something that some other states wishing to flee Common Core’s entanglements cannot do.

But, because the SBAC did receive a large RTTT grant for assessment development and because Utah is a member of SBAC, we are bound to the federal government’s data collection rules and the national standards/assessments, with Washington State our fiscal agent as long as we remain an SBAC member.

The Department of Education first incentivized the adoption of the Common Core, and then incentivized adoption of national testing.  Utah is under obligations associated with the SBAC grant as long as we remain a member of that consortium.

Exiting the Smarter Balanced Assessment Consortium system requires getting federal approval.  But if Utah withdraws from the consortium via the formal exit process, we will then no longer be obligated to share data with the federal government and share nationally synchronized tests, but we will still be allowed to share data with the federal government under the new FERPA regulatory changes, unless EPIC wins their lawsuit against the Dept. of Education this year.

To sum up: Common Core is very similar to Obamacare.  Governor Herbert said very eloquently that Obama’s  “Affordable Care Act imposes a one-size-fits-all plan on all states, effectively driving us to the lowest common denominator. It results in burdensome regulation, higher costs, and a massive, budget-busting… expansion.”   If you substitute the word “Common Core” for “Affordable Care Act,” you’ll understand what the federal education push is all about.  The Federal Government did not initiate both the educational and the medical programs, but does control both.

-Christel Swasey

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fact vs. myth

19 Responses to Christel Swasey Responds to Brenda Hales

  • David Wiley says:

    The analysis in point 1, regarding personally-identifiable data, wanders back and forth between data that would allow a person to be identified, and “student-level” data. Student-level data can use randomized, nonsense identifiers like 12s47s8fd9231 instead of personally-identifiable information like a person’s name or social security number. In other words, student level data can be – and typically is – deidentified.

    The above analysis rails against the potential dangers of sharing personally-identifiable data, and then slides smoothly into a discussion of SBAC, saying that ‘states are obligated to share data with the federal government “on an ongoing basis”‘ – leaving the reader to understand that states are obligated to share personally-identifiable data.

    But what does the document you link to actually say? That the grant recipient will “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.”

    Wow! So the recipient is obliged to share student-level data only, not personally-identifiable data, and the data sharing is only for the purpose of research studies, and the data sharing is subject to applicable privacy laws. This is not quite the “sky-is–falling-we’re-required-to share-personally-identifiable-data” problem it was so smoothly made out to be.

    I stopped reading after I noticed this slight-of-hand trick in the analysis. I was frankly disappointed after all the chatter at the top of the document about facts and being able to “verify what is claimed.” This was literally the first link I followed, and you’ve completely mischaracterized what it says. Too bad.

    • Dear Professor Wiley,

      I appreciate your response and would like to continue an open, respectful conversation on this important topic. I am trying to expose those who really are misrepresenting facts so it is important to me that I come across very clearly and I apologize if I did not do so.

      I may have wandered in my style of writing, but the federal government has not wandered from its goal to take parental rights and to permit –not require, but permit– schools to widely share students’ personally identifiable information (PII).

      I do understand the difference between aggregated and personally identifiable data. BOTH forms of student info are now permitted to be shared without parental consent or knowledge, under the federal regulation changes, made without Congressional approval by the Dept. of Education this year. This fact is huge.

      Did you read the quote above, from the Federal Register on page 51, that it is no longer a necessity for a school to get student’s or parent’s consent before sharing PERSONALLY IDENTIFIABLE INFORMATION? That direct quote did not even mention aggregated, student-level information; it mentioned personally identifiable information.

      While former FERPA rules did require schools to notify parents –except for in emergency situations– anytime they shared personally identifiable information with anyone, now, the notifying of parents has been reduced to an optional “best practice.” So the fact is that while some agencies will honorably, due to state or local FERPA policy that is stronger than the federal policy, only share aggregated data, others will certainly be sharing personally identifiable data and pointing to their federal permission to do so!

      No school or agency is restrained by federal regulation from sharing student PII, by anything stronger than a “best practice” suggestion. Correct me if I’m wrong.

      You are quite correct in quoting the Cooperative Agreement with SBAC as saying the sharing of data is “subject to applicable privacy law.” Now, ask what the applicable privacy laws actually are.

      Federal FERPA privacy regulations have been radically altered. New FERPA regulations have been loosened in favor of easy access by the feds and other groups, but out of reach of parental consent –conveniently altered by the very same Department of Ed that wrote the Cooperative Agreement with the SBAC. So Secretary Duncan might more transparently have written, “subject to applicable privacy law –which I happen to be changing right now so this requirement for ‘ongoing sharing of data with the Department’ won’t actually be subject to anything at all.”

      It is interesting to study the reasons for the current Electronic Privacy Information Center (EPIC) lawsuit against the Dept. of Education (a suit filed for the Department of Education’s having exceeded statutory authority in making regulatory alterations to FERPA). The lead lawyer is Khalia Barnes. She said that the loosening of federal FERPA is an intrusion that applies not only to children’s data, but to anyone of ANY AGE whose college records are archived in any university or school that ever accepted federal funds or scholarships. So it’s not just kids or college students who will be tracked, federally.

      Barnes also said that the FERPA changes have redefined terms, stretching to the breaking point terms such as “authorized representative” and “educational program” to mean even non-governmental groups, such as medical programs and corporate, educational or governmental agencies; in effect, then, there is virtually no federal privacy regulation governing who can access school-acquired citizen data anymore (from the federal level; there could be protective state or local laws and policies.)

      Also, F.Y.I., the types of information that the Department is permitting (not requiring) schools to share, includes so much more than academic information: it includes biometric information (DNA,
      fingerprints, iris patterns) parental income, nicknames, medical information, etc. The federal
      government’s own websites make this clear. Please read the official NCES data collection model’s attributes to be collected: http://nces.sifinfo.org/datamodel/eiebrowser/techview.aspx?instance=studentPostsecondary

      The obligatory language of the Cooperative Agreement between the Department of Education and the SBAC may not alarm you. And there is a possibility Utah will opt out of SBAC membership soon. However, I still urge you to carefully read that document as it reveals Arne Duncan’s test data collecting scheme in a pretty straightforward way. It triangulates the two consortia and requires them to synchronize tests across consortia, to give status updates to the feds, and it places and puts the federal government in the middle of the data collecting program of the two consortia and their data. http://www2.ed.gov/programs/racetothetop-assessment/sbac-cooperative-agree
      ment.pdf

      I don’t know any other way to interpret the evidence, and since Brenda Hales and the USOE are in the habit of never referencing anything, I urge you to go back and read the rest of the links in my rebuttal to Hales’ claims.

      Christel Swasey

  • David Wiley says:

    Christel,

    Thank you for your thoughtful response. I’d like to continue a respectful dialog on this topic as well.

    You state: The Federal Register outlines, on page 51, that it is not a necessity for a school to get student or parental consent any longer before sharing personally identifiable information; that has been reduced to the level of optional. “It is a best practice to keep the public informed when you disclose personally identifiable information from education records.” http://www.gpo.gov/fdsys/pkg/FR-2011-12-02/pdf/2011-30683.pdf

    This quote is on the 51st page of the PDF document, page 75653 of the FR for those following along.

    FERPA dictates that PII (personally identifying information) from education records cannot be disclosed without consent of the family. The section of the document the above quote is taken from details two important exceptions to the consent requirement: the “studies” exception (when a school wants another entity to conduct some research on its behalf) and the “audit or evaluation” exception, when a state or federal program is being audited or evaluated. In both of these cases, when PII is disclosed without consent, the disclosure MUST be governed by a written agreement between the discloser and disclosee. The requirements and mandatory elements of these written agreements are on the 44th and 45th pages of the PDF, pages 75646-7 as paginated by the FR.

    For example, a school district and a local university might exchange PII without consent in order to do research on whether or not the district is preparing students for success at the local U. This exchange must be governed by a written agreement insuring protections on the privacy of the data as described beginning on 75646. These restrictions and requirements are compulsory. However, it is only a “best practice” – and not a requirement – for the schools to inform the public that they’re performing the research.

    I have absolutely no problem with this whatsoever. If the world worked the other way, and each and every family had to consent for their data to be included in the study, the costs and other logistics involved in carrying out this kind of research would become prohibitive, and we could never understand in any detail how the local schools need to improve to better prepare students for college. So the exception is appropriate and works for the public benefit. I believe this is the primary reason for the recent changes ad clarifications in FERPA. FERPA as spelled out in the FR document you link to provides significant and sufficient privacy protections for individuals and families, while finally making possible the kind of research necessary to move our students’ academic performance forward.

    As for notification, I would think that the local district would want to brag up the fact that they were engaged in research to make their programs better. But I don’t see any reason to require them to do so – I think encouraging it as a best practice is fine.

    The one quote you cite, taken out of context, sounds quite alarming. However, when understood in its proper context the quote is quite reasonable. Without the PII disclosure exceptions FERPA would literally eliminate the possibility of large scale research educational studies, due to both (1) the logistical and coordination costs of acquiring the consent of 100s of 1000s of people, and (2) the possibility that a significant portion of the individuals you did manage to contact would opt out. And without this level of research – the scale of research we’re able to conduct in every other field of human endeavor – educators, school boards, parents, and legislators are literally left in the dark, each with their own “hunch” about what works and no rigorous empirical data to demonstrate their their hunch is anything more than indigestion. This is the current state of dialog about “what works” in public schools – everyone has their pet theory which they believe to be “best” because “it worked for my child” or because it somehow harmonizes with their religious beliefs. Any educational approach which is truly effective can be shown to be effective through rigorous research, and policy decisions should be made on this basis. “In God we trust; all others bring data.”

    The balance of the exceptions to the consent requirement, the mandatory contract language whenever PII is disclosed without consent that protects privacy, and the best practices which are recommended but not required seems appropriate to me.

  • Dear Professor Wiley,

    When a school district and a local university exchange information in order to do research on whether or not the district is preparing students for success, why would that information need to be personally identifiable rather than aggregate?

    Your defense of parentally unauthorized collection of personally identifiable information excuses the Department of Education’s misdeed of bypassing Congress and sounds as if you feel groups who use the “authorized” and “educational” language really should get access to citizens’ information without their consent because it’s more convenient for researchers. I disagree.

    Ezra Taft Benson said that one way to judge the goodness of any governmental action is to bring it down to the individual level. “An important test I use in passing judgment upon an act of government is this: If it were up to me as an individual… would it offend my conscience?”

    Using his reasoning, picture this: if I had access via teaching or some other way, to your child, would I give away his/her personal information to my neighbor without your knowledge or consent –including report card, medical and psychological information, address, parental income, mother’s maiden name, child’s fingerprints, etc., if that neighbor smartly persuaded me it didn’t matter if I told you about it?

    Have you ever wondered how communist systems today precisely control their people? It’s via information. The government somehow keeps track of how many babies a woman has, to control population by mandated abortion. And young children, such as gymnasts barely past toddlerhood, are taken away from parents by those governments for those governments’ purposes. The list of abuses made possible easily by privacy rights loss, is endless.

    Would that never happen in America? Is human nature so much nobler here?

    Remember history. Remember the lessons of Orwell’s “1984,” Vonnegut’s “Harrison Bergeron,” or Bradbury’s “Fahrenheit 451″. –When governments can “legally” wrangle personally identifiable information, these scenarios can and do become real.

    There is more than plenty in the FERPA document that is protective and that doesn’t need to be changed back to how it was. You have quoted those good portions at length.

    –But then, there are all those exceptions and the re-interpreted definitions of terms! These, like small cockroaches swimming in a large sweet sundae, are the details that ruin a good thing. The exceptions and re-definitions are what I’m focusing on. These are where the feds get a toe in the door of privacy and win in their plan to take power with impunity.

    This is what our founding fathers warned us not to let happen when they set up our Constitution and our system of checks and balances. This is where we must fight for our rights –and not defend those who are aiming to take them away from us.

    Public schools sit as a golden grape of opportunity for the data-hungry feds to pluck –mountains of information from a truly captive audience. In the 2009 stimulus bill we find the feds encouraging states to develop data systems. Utah got a nearly $10 million chunk of that ARRA money and built, as directed, a State Longitudinal Data System (SLDS) designed to collect academic and nonacademic information about citizens. This was incentivized financially and by the feds’ clever use of the sheep’s clothing of student testing and data-driven educational decision making.

    But why would the NCES’ National Data Collection Model ask states to collect voting status of parents, health care history, parent maiden names, nicknames, income? If this were purely motivated by children’s own educational needs, why the information on parents? All 50 states now have this system. And an increasing number of states have P-20 councils to make them seamless as they interact with inter-state and intra-state agencies, and yes, with the feds themselves. (See John Brandt’s powerpoint online. He’s the USOE Technology Director as well as a CCSSO chair member –and a NCES fed.)

    The Department of Education felt it could overcome legal obstacles to get this data by simply bypassing Congress, which it did. The Electronic Privacy Information Center (EPIC) which sued the Dept. of Education –over what you and the Department are calling “appropriate” actions– say that the Department’s final regulations concerning FERPA “exceed the agency’s legal authority” and “expose students to new privacy risks.” They say that changes permit educational institutions to release student records to non-governmental agencies without first obtaining parents’ written consent and that they “broaden the permissible purposes for which third parties can access students records without first notifying parents.” These acts were illegal Constitutionally due to separation of powers. The Department’s FERPA changes, EPIC says, “fail to appropriately safeguard students from the risk of re-identification.”

    I am flabbergasted that this “seems appropriate” to anyone, much less someone with your credentials.

    Still, thank you for taking the time to respond. It is one of the blessings of America that we have freedom of speech and thoughts, and I’m grateful for the privilege to amiably disagree.

    Christel Swasey

    • LauraLyn Eberting says:

      As I recall, I believe that the Race to the Top application that SBAC submitted on behalf of Utah (or maybe it is in the Cooperative Agreement with the DOE itself–I am sorry that I don’t have the reference with me) requires Utah to identify and address state barriers that would preclude the kind of data sharing that the fed is seeking.

  • David Wiley says:

    Christel,

    Thanks for this ongoing conversation. I apologize for the choppy nature of my response, but I’m trying to reply point by point to your last post without copying your entire post into the body of mine.

    You need PII to conduct the district / university study because you can’t learn anything meaningful by asking, “60% of the people in our district passed algebra – what percentage of our students tested into remedial math at the university?” and getting the answer “49%.” Are all 40% of people who didn’t pass algebra included in that 49%? Clearly some people who passed algebra still tested into remedial math. But what percentage? How well *are* we preparing our kids for college math? To get a meaningful answer you have to ask this question for each individual – did this person pass algebra in the district? Did they then test into developmental math at the university? And you need PII to connect the grade in the high school to the placement exam at the university level. I would guess somewhere between 1 and 3 researchers would see PII as this question was answered.

    The exceptions to FERPA are important, but not because they make researchers’ jobs easier. The exceptions are important because some critical forms of large scale research are literally impossible without them. Everyone parent says that they want the teachers and staff in their schools to use research-based practices proven to be effective, but no one seems to want their child’s data to be collected or analyzed so that we can understand what is effective. I will nickname this issue the “freerider problem.” While it is possible to ask some meaningful questions without disclosing PII – and many of these questions have been asked and are well studied – the freerider problem prevents us from answering the important questions that require PII.

    The idea that a random person on the street could acquire PII for their neighbor’s child with a persuasive verbal argument – and all due to the exceptions in FERPA – is hyperbole. Please reread the mandatory elements of the written agreements required to govern the un-consented disclosure of PII (in the documents you linked to previously) if you really thought this was possible. But I don’t suspect you did. Hyperbole of this kind does not productively advance the conversation.

    For every quote from a prophet or general authority that purportedly proves one non-religious point, you can easily identify another quote that supports the opposing non-religious point. I don’t know that this type of dialogue is particularly productive. You offer Ezra Taft Benson’s quote, “An important test I use in passing judgment upon an act of government is this: If it were up to me as an individual to punish my neighbor for violating a given law, would it offend my conscience to do so?” (I find ellipses often hide important detail, so I’ve listed the complete quote.)

    I will offer you Thomas S. Monson’s statement “When performance is measured, performance improves. When performance is measured and reported, the rate of performance accelerates” as a counter to your Ezra Taft Benson quote. I don’t believe Thomas S. Monson was talking about measuring and reporting the aggregate performance of nameless thousands of people. But I’m sure you’ve already thought of another religious leader’s quote that supposedly counters this quote of Thomas S Monson’s, but this game can be played ad infinitum and is, consequently, uninteresting in the grand argument.

    Your brief history lesson re: Orwell and Communism comes tantalizingly close to fulfilling Godwin’s Law.

    You say, “Public schools sit as a golden grape of opportunity for the data-hungry feds.” A large collection of educational data will be interesting to anyone who cares about using rigorous scientific techniques to improve American schools – but it doesn’t mean they can access it without conforming to the law.

    How large a role would you hypothesize parents play in the academic success of their children? If you believe they play a large role, then you already know why researchers would be interested in understanding more about students’ parents.

    If the new interpretation of FERPA is so clearly unconstitutional, as you or EPIC (it was unclear) suggest it is, I’m sure the Supreme Court will let us know. Based on my current understanding, I don’t believe it is unconstitutional. However, I am always open to being persuaded by data. As my favorite saying goes, “The facts are always friendly.”

    While I won’t go so far as to use your “flabbergasted” language, I guess I just don’t understand the paranoia. The idea that someone would proactively fight to *not* know how to improve their local school’s math instruction – in order to insure that their child’s PII aren’t seen by a couple of researchers – confuses me. That is the scale of un-consented disclosure we’re talking about, and that is the scale of benefit we’re talking about.

  • Kristen Chevrier says:

    Mr. Wiley: Could you please explain why it is necessary to connect student names with data? If you are measuring school, district or state performance, you don’t need to identify individual students. Monitoring the progress of individual students should be the job of the local teachers and parents. I don’t think anyone has a problem with data collection that is not connected with names.

  • Kristen Chevrier says:

    Please note, again, that the FERPA laws have been changed to allow the sharing of PII with the federal government. Please do not deflect this question, again, by saying that “the random person on the street” does not have access to the information. The random hacker does have access and neither the state nor the federal government needs or should have access. All the stats you need can be gathered without PII. So, please explain why anyone wants names.

    Also, the fact that a researcher has an interest in someone does not mean that they should have access to that person’s personal information at will. Researchers should be subject to Constitutional restraints.

  • Dear Professor Wiley,

    Correct me if I’m wrong.

    I see your line of reasoning similar to Arne Duncan’s, boiling down to this: research is supremely helpful in making improvements to education; therefore, anything that stands in the way of gathering research– such as researchers having to get parental consent before accessing student’s PII, or such as the executive branch technically not being Constitutionally permitted to make regulatory changes to FERPA without Congressional approval– is reduced to optional/unimportant.

    So I ask: Could instructional research possibly be improved in other, more excellent ways, without resorting to going behind parents’ or Congress’ backs to get access to kids’ data?

    I have no argument with your “needing PII to connect the grade in the high school to the placement exam at the university level” –but researchers should shoulder the inconvenience of getting parental/individual consent first. Access by researchers to data, while wonderfully enriching, will never trump families’ and individuals’ authority over personal student data. Not even President Monson (in the context of his quote that you shared, about measuring performance) would approve of a policy of going around parents’ backs to measure student performance.

    You identified researchers’ “freerider problem” as not being able to do “critical forms of large scale research” because parents don’t “seem to want their child’s data to be collected or analyzed so that we can understand what is effective.” That is tough; too bad. If parents are unwilling to have their child’s data collected, we are out of researching luck. We can not ethically “redistribute the data” any more than we can ethically “redistribute the wealth” against the will of parents and citizens.
    It amounts to a push for secretiveness that overrides individual and parental agency and authority. It may have begun with good intentions as a push for educational improvements via research– but that good is not more good than individual agency, parental authority, transparency and adult student consent.

    We can conduct any large or small scale research in the world, as long as we do so ethically, and that has to include taking the time to do a consent form– inconvenient or not.

    The idea that a random person on the street could acquire PII for their neighbor’s child due to the exceptions in FERPA is not hyperbole. While neither you nor I nor any human being has read the entire verbiage of all FERPA documents, I have read the recent exceptions page thoroughly. It says that anyone who is determined to have “legitimate educational interests,” including a “contractor,” “consultant,” even a school “volunteer” can access this information, being “considered a school official”. Full text: http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=1a7070ed933117bedbac3ab9e0c7458f&rgn=div8&view=text&node=34:1.1.1.1.33.4.132.2&idno=34
    “99.31 Under what conditions is prior consent not required to disclose information?
    (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.(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— ( 1 ) Performs an institutional service or function for which the agency or institution would otherwise use employees…”

    There it is, in black and white.

    So, I am glad that your favorite saying is, “facts are always friendly.” I agree. I would welcome a formal hearing on Common Core and FERPA, so that all facts can be vetted by the good people of Utah and not just by you and I. Would you agree to help make that happen?

    I hope you are able and willing because of your partnership with the USOE to influence that office to have a hearing. http://www.schools.utah.gov/data/Educational-Data/Accountability-School-Performance/Utah-ESEA-Flexibility-Request.aspx See page 25 for your name.

    I doubt the USOE will agree, however, because that office seems to despise transparency. It published an unreferenced, half-true “fact v. fiction” flier, it won’t answer questions or return emails, it won’t rebut rebuttals of their facts, and it continues to publish statements without verifiability, wherein it just redelivers claims of the Dept. of Education, the SBAC, NGA, NCES, and CCSSO.

    So I thank you again for taking the time to communicate with me. I have never had such great feedback from anyone on the pro-Common Core side as I’ve had with you.

    Lastly, thanks for bringing up Godwin’s Law (that, given enough time, any online discussion—regardless of topic or scope— inevitably makes a comparison to Hitler and the Nazis.) There is more than a small spark of truth in Godwin’s Law. Why? If a discussion is important enough to continue at length, it will inevitably come to the issue that the Nazis vividly illustrated: power to control others at will, versus free agency.

    Though that issue’s been illustrated by WW2, fresh in our collective conscious, it’s been illustrated through time by many power-hungry regimes. In reality, “Freedom as we know it has been experienced by perhaps less than one percent of the human family” (President Benson). The freedoms we enjoy were set up via the Constitution by wise people extremely concerned –maybe you would prefer the word “paranoid” — about losing freedom and rights in the future, or having their descendants lose hold of that rare bird, freedom.

    Freedoms are not un-alterable. The choices we make, and that you are making, affect others’ freedoms, especially as a top-level educator who affects political decisions concerning education in this state.

    The USOE continues to aid and abet what Bill Evers of Stanford’s Hoover Institute aptly called the “Department of Education’s Immaculate Deception” –meaning Common Core, and its sister, the congressionally unauthorized FERPA regulatory changes. These decisions were made without meaningful public vetting and 99% of schoolchildrens’ parents in this state still don’t even know what Common Core is nor what FERPA is about. It is up to people like you to right this wrong.

    I hope you will reconsider with gravity the aligning of Utah’s children and BYU’s Education Department with the philosophies and programs of Arne Duncan, David Coleman, Bill Gates, and the whole elitist group of Anti-American education reform activists.

    Christel Swasey

  • David Wiley says:

    Christel,

    Let me start by saying thanks to you as well. I think this conversation has been extra-ordinarily civil, despite our obvious differences of opinion. In today’s political realm, I can think of nothing more important than civility in discourse. So much of what could be productive dialog is reduced to worse than time-wasting shouting. I am genuinely grateful for your obvious passionate – yet polite – engagement around this topic.

    I would disagree that my argument has been that ‘because research is supremely helpful in making improvements to education, anything that stands in the way of gathering research is reduced to optional/unimportant.’ I have argued for the importance of research in improving education, and I have argued for the importance of the exceptions to FERPA – which are clearly limited.

    The study exemption FERPA governs schools initiating research and evaluation of their own programs – in other words, a school or district that wants to study itself. If a school district doesn’t have sophisticated research expertise in-house (and given today’s budgets – how could they afford to?), under the study exemption they are permitted to engage outside expertise in the process of conducting that research. Those outside experts may be contractors, consultants, or volunteers. And they can conduct this research without having to ask parents’ permission first. That seems wholly appropriate to me.

    You suggest that “researchers should shoulder the inconvenience of getting parental/individual consent” before any research can be done. If the researcher has come to the school and proposed the work, this is exactly what would have to happen. And the research rarely occurs because too few parents engage in meaningful tasks like helping their child with homework, let alone signing a research consent form. And if these researchers can’t persuade enough parents to consent the research won’t happen, which is perhaps as it should be.

    But when a school asks, “We want to understand how we can serve our students better – Ms. Research Expert, will you please help us?” Then under the exception a strict written contract is executed governing what data Ms. R. E. can and cannot see and what she can and cannot do with that data. Now that she is under contract, she is treated like other employees because she is subject to similar contractual obligations. And those obligations are what make “employees” in the first place.

    I agree that must act ethically. And I ask, which is more ethical – prohibiting students from achieving more of their potential by prohibiting research that would facilitate that fulfillment? Or providing all individuals who are appropriately and contractually obligated to protect PII with access to PII for the reasons specified in their contracts?

    The USOE has been holding public meetings about Common Core literally for years now, asking for community feedback and listening carefully to all opinions expressed. Some of that feedback has been critical, some of it has been supportive. Regardless of which path they choose to follow, they were certain to disappoint a large portion of their constituency. I’m genuinely sorry that you feel they have made the wrong choice. If they had rejected the Common Core, I’m sure I would have felt the same overwhelming sense of frustration and disappointment that I expect you feel because of their adoption of it.

    While I can’t speak on behalf of the USOE, I would guess that if they seem unexcited by the idea of holding yet another hearing on these issues, it is because they have already held so many of them and have heard the arguments for and against repeated so many times in these meetings and other settings (op-eds, blog posts, Facebook comments, etc.) that they can recite – and explain – each of the pro and con arguments from memory. This does not mean that they are anti-transparency or anti-public input. But once you’ve heard all the arguments a dozen or more times, there is simply no “gaining the public’s input” function served by convening yet another meeting. The USOE has a clear obligation to obtain and consider public input, but that obligation does not mean that meetings must continue to be held quarterly as long as a portion of the constituency disagrees with their decision.

    I believe the record of open public meetings (which was reviewed at length in the most recent public meeting on Common Core) provided ample opportunity for these decisions to be made with meaningful public vetting from 100% of schoolchildrens’ parents. The fact is that – even when you and I run around the state talking to everyone we can get our hands on – people don’t engage. I agree with you, that most parents in Utah still don’t even know what Common Core is nor what FERPA is about. But it is only partly up to people like me (and you!) to right this wrong. You can lead a horse to water, but you can’t make him drink. You and I can cry from the rooftops about how important this issue is, but parents have the agency to choose to ignore us. And they have largely exercised that agency to choose apathy. If, as you say 99% of them won’t engage over something this important, what prayer do we have of them ever signing a research consent form? =)

    Finally, please do mistakenly believe that my views represent those of the David O. McKay School of Education or BYU. I am not a spokesman for either, and there are people in both the MSE and broader BYU communities who agree with your point of view (perhaps more than would agree with me). I am simply a person who supports the Common Core, and finds great pleasure in constructive dialog with people with other opinions.

  • Professor Wiley,

    It is simply not true that the state has “provided ample opportunity” for meaningful public vetting. There has never been a single hearing on Common Core. There has never been a public vote. The one forum held by USOE at Granite School District last spring was dominated by the pro-Common Core side with a forty-five minute intro, after which some individuals from both sides, pro and con, were given time to say a few sentences each.

    A pitiful minority of teachers and parents even know what the term fully means. Even teachers do not know that we aren’t free to change these standards; we have given up our authority over educational standards decision making and testing as we’ve agreed to nationalize our local system.

    This was not fair public vetting. Common Core’s implementation and purpose is education without representation– both in the disregard you and other Common Core advocates show for parental involvement and consent, and also in the fact that Common Core standards are copyrighted and can therefore never be challenged by parents or by anyone at all. We can’t even remove the personnel and administrators of Common Core by a vote. How un-American is that?!

    A recent poll done by Achieve, Inc. (ironically) showed that overwhelmingly, a majority of Americans have no idea what Common Core means. I didn’t know what the term meant until this April. The USOE has not been transparent, open, or had meaningful public forums to expose and discuss all the relevant points –on control of local education, on research, on Constitutional legality, on taxpayer cost, nor on the standards’ content.

    You are openly advocating for the removal of consent. No amount of eduspeak makes up for that.

    Christel Swasey

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