Christel Swasey wrote this fact-check post on her site. I have included Judy Park’s full email below for reference, as well as comments from 2 of the 15 parent assessment review panel members which seem to contradict Judy Park’s claims.
From Christel Swasey
Once again it seems necessary, unfortunately, to provide a fact-checking rebuttal to statements made by Utah’s Associate Superintendent Judy Park about student data privacy.
In a letter given out to parents of children attending a St. George charter school recently, Judy Park was quoted at length. Park, the Associate Superintendent of Utah, made the following statements that will be scrutinized here with links to opposing evidence.
“The advocates of anti-common core are falsely accusing USOE and schools and districts of collecting and storing data that is “behavioral data and non-academic personal information”. They have no real evidence or examples to support this claim. The only data that is collected and maintained is the specific data required by state and federal law.”
Here’s evidence to the contrary, Ms. Park.
1. First, there is a Utah law about Common Core standardized tests. This law, HB15, created in 2012, requires the collection of behavior indicators. It calls for “ the use of student behavior indicators in assessing student performance” as part of the testing. This is Utah’s S.A.G.E. –aka Common Core or A.I.R.– test.
2. There is a company that Utah has paid at least $39 million to write its Common Core-aligned standardized tests: American Institutes for Research. Its mission: “AIR’s mission is to conduct and apply the best behavioral and social science research and evaluation…“
Are we to believe that although AIR’s purpose is to test behavioral and social indicators, and although Utah law says that the test must test behavioral indicators, the test still won’t?
3. Utah’s SLDS grant application talks about authorizing de-identification of data for research and says that individuals will be authorized to access personal student information in the various Utah agencies that belong to UDA. (Who are these individuals? Why does the UDA trust them with information that parents weren’t even told was being gathered on our children?)
Starting at page 87 on that same SLDS federal application, we read how non-cognitive behaviors that have nothing to do with academics, will be collected and studied by school systems. These include “social comfort and integration, academic conscientiousness, resiliency, etc.” to be evaluated through the psychometric census known as the “Student Strengths Inventory. (SSI)” That SSI inventory –my child’s psychological information– will be integrated into the system (SLDS). Nonacademic demographic and other personal information is also captured while administering the test. SSI data will be given to whomever it is assumed, by the so-called leadership, that needs to see it. (This should be a parental decision but has become a state decision.)
The SLDS grant promises to integrate psychological data into the state database. “Utah’s Comprehensive Counseling and Guidance programs have substantial Student Education Occupation Plan, (SEOP) data, but they are not well integrated with other student data. With the introduction of UtahFutures and the Student Strengths Inventory (SSI) and its focus on noncognitive data, combining such data with other longitudinal student level data to the USOE Data Warehouse the UDA.” It also says:
“… psychosocial or noncognitive factors… include, but are not limited to educational commitment, academic engagement and conscientiousness, social comfort and social integration, academic self-efficacy, resiliency… Until recently, institutions had to rely on standardized cognitive measures to identify student needs. … We propose to census test all current student in grades 11 and 12 and then test students in grade 11 in subsequent years using the Student Strengths Inventory (SSI) – a measure of noncognitive attitudes and behaviors.” So the Student Strengths Inventory (SSI) is a “psychometric census” to be taken by every 11th and 12th grade student in Utah. That’s one way they’re gathering the psychological data.
4. Ms. Park herself is a key player and even a writer for the Council of Chief State School Officers (CCSSO) –the organization that co-created and co-copyrighted Common Core. This makes me fairly confident that you are aware of what the CCSSO stands for and what its goals are. On the CCSSO website, it states that one of its main goals is “Continued Commitment to Disaggregation” of student data. Disaggregation means that academic bundles of students’ information will be separated into groups that are increasingly easy to identify individually.
Lastly, there is this issue: Ms. Park wrote, “The only data that is collected and maintained is the specific data required by state and federal law.” This is a big problem since the state and the federal requirements do not match anymore. The state is much more protective of students’ rights. Federal FERPA regulations have been altered –not by Congress but by the sneaky Department of Education (DOE). The DOE changed the definitions of terms. They reduced from a requirement to only a “best practice” the previously protective rule that parental consent had to be obtained (prior to sharing private student data). They redefined personally identifiable information. So, no more parental consent needed and whatever they can con states into sharing, will be shared. Is this the kind of federal rule that Ms. Park is content to have us obey?
Because Utah agreed in that same SLDS federal grant application to use PESC standards and SIF interoperability frameworks, Utah’s children’s private data can be accessed by other states and federal agencies very easily as long as current Utah policy permits it.
Unless bills like Jake Anderegg’s current HB169 student data privacy bill and others like it will pass, we have very few protections and a wide open policy of quite promiscuous data sharing here in Utah.
Sad but true.
Another article on this site which is related to this topic contains this information:
“Perception data: Perception data answer the question, “What do people think they know, believe or can do?” These data measure what students and others observe or perceive, knowledge gained, attitudes and beliefs held and competencies achieved. These data are often collected through pre- and post-surveys, tests or skill demonstration opportunities such as presentations or role play, data, competency achievement, surveys or evaluation forms.” (pgs. 58-59″)
This list of CCGP Student Outcomes (which will be tracked by computers according to the document) is full of non-academic outcomes.
MG:A1 Demonstrate a deep regard for self and others MG:A2 Demonstrate a Personal Commitment to basic democratic principles MG:A3 Demonstrate a civil and considerate spirit while participating in society
Judy Park’s Original Email
The advocates of “anti-common core” are falsely accusing USOE and schools and districts of collecting and storing data that is “behavioral data and non-academic personal information”. They have no real evidence or examples to support this claim. The only data that is collected and maintained is the specific data required by state and federal law. The url below, is a document that provides specific information about data collection and use in Utah. This document also provides links to other documents that lists each data field that is collected. It is unfortunate that due to the misinformation that is being freely shared through emails, etc., parents who choose to not have their students participate in the academic testing this year, will not receive the assessment results that can provide good information for students and parents and be used to inform instruction for their classroom next fall. http://schools.utah.gov/assessment/Testing-Director-Resources/StateLong-DataSys-5.aspx
There are also claims that the company, AIR that will be scoring the assessment, will use student data in an inappropriate way. The original contract with AIR as well as federal law prohibits AIR or any other assessment company from using data for purposes not approved by the entity (state) that holds the contract. Due to the many concerns, an amendment was made to the contract to strengthen the language. The url for this amendment is below.
There are also concerns that the test questions contain inappropriate content of a social or political nature. Every question on the SAGE assessment has been reviewed by the 15 member parent committee last fall. Every parent on the panel (including the parents that do not support the common core) agreed that there was nothing in the questions that was inappropriate. The media did some stories as a follow up to the parent panel. This information can be found at the url below.
As an additional support to parents, USOE/AIR has produced a SAGE brochure for families. There are three brochures; Policy makers, Educators, Families. These are brand new and will be placed on the website today. I have attached them for your use.
I hope these documents and information is helpful to you. Please let me know if there are other questions, or if I can provide additional information.
Judy W. Park, Ed.D. Utah State Office of Education Associate Superintendent Student Services and Federal Programs 801-538-7550
Comments from 2 members of the 15 parent panel
Quoted from Judy Park: “Every question on the SAGE assessment has been reviewed by the 15 member parent committee last fall. Every parent on the panel (including the parents that do not support the common core) agreed that there was nothing in the questions that was inappropriate.”
I served on that 15 parent committee, and I will tell you that is not true. And if Dr. Park says that, she must have been sleeping during the meeting we had altogether at the end of our week at the USOE office last November (a private meeting, without the media, where everyone there had to sign Non-Disclosure Agreements, which is why I can’t give specific examples). Yes, there were questions flagged for ridiculous reasons like grammatical errors, incorrect answers (seriously? I didn’t realize it was our job to check if the answers were correct!), or malfunctioning technology. But I know I wasn’t the only one to flag items because of subjective, inappropriate, or misleading content. Sometimes it was for individual questions, sometimes it was every question related to a certain passage, because the passage was inappropriate/biased. We were told that everything flagged would be reviewed again, and a decision regarding revision/complete removal/no change would be made between USOE and AIR. As part of the committee, we will not see the end result of those until we reconvene this fall. Everyone in the committee agreed that the majority of the questions seemed fine, however I don’t like it repeated that this equates to approval of the entire test.
“Every parent on the panel (including the parents that do not support the common core) agreed that there was nothing in the questions that was inappropriate.” –Judy Park (above)
I am a parent on the SAGE assessment review panel and this statement is not accurate. There were questions that parents flagged as inappropriate, subjective or biased. We were promised that these test items would be reviewed and addressed and that we would get to see how they were addressed when we convene again this fall. (Which is long after this Spring’s pilot unfortunately, so I can give you no assurance whether those items have been satisfactorily addressed or not.) I participated in this panel in good faith, wanting to be a contributor to making improvements and not just a critic and I feel it is a manipulation of my cooperation to characterize it as unreserved approval of these assessments.
Dr. Gary Thompson is the Utah child psychologist that has been on Glenn Beck’s show and written about the dangers of the behavioral testing under the new Utah assessment system as part of Common Core. He recently met with State Education Superintendent Menlove, and then sent him this letter (and sent me a copy with permission to post as well). In addition to Dr. Thompson’s letter, is a letter from Attorney Edward Flint, a special education attorney.
Early Life Child Psychology & Education Center, Inc.
Dr. Gary T. Thompson
Director of Clinical Training & Community Advocacy
Edward D. Flint, Esq.
Special Education Attorney at Law
Adaptive Testing & Utah Common Core
The intricacies surrounding the psychometric qualities involved in adaptive testing, specifically the adaptive tests currently being designed by AIR (American Institutes for Research) via grants from the Federal Government and a $32,000,000 contract from Utah, are complex indeed. This is a layman’s memo regarding minor, but important elements of CAT (Computerized Adaptive Testing) that I feel the community should have a basic understanding of, as well as specific populations of school aged children who may be adversely affected by the implementation of Common Core if significant “adjustments” are not made prior to implementation.
Basics of CAT (Computer Adaptive Testing)
Simply put, all CAT is nothing but the following: The measurement of predetermined variables that result in a data set that can be interpreted. That basic definition applies to any academic, cognitive, or psychological test. More simply put, CAT measures “something.” In terms of our involvement as parents, all we wish to know is what exactly are the tests being designed by AIR going to measure. USOE states, in simplicity, that the AIR CAT tests are only going to measure academic related subjects, thus providing educators with data which shows the current progress of a individual student in those subjects.
I love adaptive testing. While in graduate school, the study of the future implementations of adaptive testing in the fields of education and psychology were in its infancy in terms of having a finished “product” ready for dissemination for public and private agencies. Professors estimated that within 5 years, that time would come. It is now 5 years later, and yes indeed, the future of adaptive testing has arrived. For certain populations of school aged children, this is indeed a great time in history, whereas these tests will assist them in their academic quests.
Capabilities of Adaptive Testing:
In a nutshell, as preached by representatives of USOE, adaptive testing is a remarkable tool designed to meet the academic measurement needs of a certain subset of Utah’s public schools students. It is fast, and they are for the most part, highly statistically accurate. With the exceptions of a student population that will be discussed later, I have little issues as local clinical community scientist with the push for implementing the latest and greatest technologies to assist with the accurate measurement of student progress in academics. Mead and Drasgarb (1993) stated, “research on cognitive ability tests shows that adaptive tests, and paper-and-pencil tests lead to equivalent scores. I believe the pilot testing results from AIR will show similar statistical accuracies regarding academic related tests with certain populations of school aged children.
However, along with the advancements of CAT in education, the psychology side of CAT has advanced even quicker along the lines of measuring psychological traits of people. Hol (2008), stated, “In conclusion, this study indicates that there is potential for the development of adaptive test for personality assessment.” Having a doctorate in clinical psychology with an emphasis in Forensics, this area of adaptive testing has always intrigued me, yet at the same time has brought a certain level of professional trepidation. Test results of properly administered valid tests of any kind can assist people greatly. Psychological test results in the hands of lay education officials will most likely result in errors, confusion, and possibly tragedy.
Conspiracy Theory or Valid Concern?
I’m not a psychometrician by any means. I was taught by several of them in graduate school, some of them who had prior experiences working for researchers along the likes of AIR. While learning the basis of this art in graduate school, we were often treated to stories of developments and research from within this rarified air of psychometric laboratories. We also learned the basics of test design. Suffice to say, I have zero doubt that the group of psychometricians and researchers both at my graduate school, and AIR have the potential and training to devise a test that measures any variables that they wish to measure. Nevertheless, I also have zero doubt that these same skilled researchers are capable of designing “test within tests.”
Anyone who states that AIR does not have the capacity to input selected variables that measure “behavioral characteristics”, along with variables that measure language arts, science or math is sorely misguided. It would be relatively “easy” to design a language adaptive test that has behavioral characteristics embedded into the design of the test. Formulas could be designed to produce two sets of results (language and behavior), and then forward the language test results to its intended target (Utah Schools), and the behavioral results to another intended target (Federal Government, Private Agencies). I will put my reputation within the community on the line by stating that the psychometric capacities of doctoral level psychometricians can devise these “dual” test designs.
When you add into this equation that AIR stated mission is to “to conduct and apply the best behavioral and social science research and evaluation towards improving peoples’ lives, with a special emphasis on the disadvantaged,” any reasonable minded person, as well as a State Superintendent of Public Schools, should at least reasonably conclude that this billion dollar research corporation (AIR) with some of the brightest minds on the planet can design tests any way that they please, unless per contractual agreement and other applied constraints, they are expressly forbidden to do so.
Utah’s parents have been told in multiple town hall meeting by USOE that they will never be able to have access to testing questions devised by AIR in order to ensure “test integrity.” Although I am impressed with USOE and various politicians who stated that 15 parents and a few politicians will be allowed to view the tests being designed by AIR, I question their qualifications to perform anything more than a cursory review of the questions being designed. Speaker of the House Becky Lockhart may be able to balance a complex state budget, but I doubt that she has the necessary background in psychometrics to perform a critical analysis of the issues that need to be examined.
The average person that Ms. Lockhart and other education officials that have the honor of selecting the lucky 15 parents more than likely will not have the expertise to perform a critical analysis of the adaptive test designs being constructed by AIR on behalf of Utah’s students. In fact, I would have to ethically decline such an invitation, since despite my doctorate in clinical psychology, I am not qualified to examine complex psychometrics that will be in place with the adaptive testing. 99.7% of you reading this letter in the State of Utah are not qualified either.
So the question remains of, “who is watching the Hen House?” This very basic question was not answerable during my meeting with the office of the Superintendent.
All of this leads to a very reasonable conclusion in this area of discussion. Someone, independent of AIR, MUST have access to every single item on the tests being designed in order to insure and that absolutely ZERO behavioral indicators are being measured on tests that parents in Utah believe are only measuring “reading, writing and arithmetic”. Undue paranoia? Nope, just plain old American accountability to the parents of Utah’s children who not only deserve this, but have paid $32,000,000.00 of their tax dollars to have AIR design the test. More importantly, the population of children discussed below, based upon current peer reviewed research, may be seriously adversely affected for the remainder of their academic careers if time is not taken to insure the viability of adaptive testing on their respective groups.
Children With Disabilities & Other Culture Related Issues: AIR has provided absolutely zero evidence that the specific adaptive testing measures being utilized will be valid for the following populations whom, statistically and historically, have not performed well on standardized, or adaptive assessments:
Children with ADHD
African American Children
Children with Specific Learning Disorders
Gifted Children who possess any of the above characteristics ( Commonly known as“2 L’s, or “Duel Exceptional Children)
This list is not exclusive. Nevertheless, the numbers of children in our state who can be categorized on the above list is staggeringly high. Just recently, it was reported by researchers at the University of Utah that Utah has one of the highest numbers of children with Autism in the entire country. That is 1 in every 5 children. Do the math.
Suffice to say, this is common knowledge in the fields of psychological testing and assessment, and such core basic understanding of this is taught in every accredited graduate school in the country. Implying, as was done in the USOE Alpine Town Hall Meeting, that any disability group in the country has approved a test (that has not yet to be designed) for the valid use with these populations, is disingenuous at the very least, or a flat out, deliberate misrepresentation to the parents of Utah (and the rest of the country) at worst.
Parents of these children need to see and review validity data PRIOR to subjecting their children to testing environments that may exasperate existing psychological conditions. In the case of Latino and African American students, subjecting them to tests that have been properly validated for that culture may not only subject them to increased frustrations and decreased self esteem, but may ultimately not be the best type of tool to utilize to measure academic achievement. Below is a brief snippet from my doctoral project/dissertation regarding African American School Aged Children:
“Do to time and emphasis spent on controlling alleged behavioral problems amongst African American children, many students of color are simply not taught the knowledge and skills necessary to ensure academic success (Webb-Johnson, 2002). Award winning African American researcher, Patton (2001) refers to such phenomenon as “ABT” (Ain’t Been Taught). This skill deficit is present because teachers not possess the cultural skill sets necessary to implement proper motivational practices, while simultaneously demanding high academic and behavioral standards (Webb-Johnson, 2002).”
“It has been documented that many African American students challenge the white middle class status quo of classroom decorum in a effort to express their unique cultural individuality to avoid tedious academic presentation (Webb-Johnson, 2002). This is often expressed through game playing, and alleged deviant behaviors (Webb-Johnson, 2002). Development of culturally sound contextual or assessment model that does not view these problems as residing in the child is essential because teacher’s perceptions on students have long lasting effects on school achievement (Meisels, Steele, & Quinn-Leering, 1993). “
“It has been shown that generally, Caucasian students are more object oriented and have developed a learning style that centers on performing task oriented work independently with individual achievement and competition as a conceptual framework (Hosp, 2001). “
Other assessment conceptual frameworks can be found in my (and other peer reviewed research across the spectrum) doctoral project that applies to Caucasion, ADHD, gifted, learning disordered, Autistic children, Latino and Duel Exceptional children of all races, that need to be considered when devising high stakes testing instruments.
None of this has been considered or articulated to the parents in Utah in writing or via the USOE Town Hall meetings that I have attended in person.
In other words, the voices of approximately 200,000 children in the State of Utah have not been heard. Dr. Menlove, you as well as the elected members of the Utah State Board of Education, are the voice of these children, not the U.S. Department of Education, AIR, Utah politicians, or Bill & Melinda Gates. You have an ethical, moral and professional obligation to examine the possible academic, emotional and psychological affects of a radical change in the way public school knowledge is taught and disseminated to these vulnerable, and oft misunderstood populations of local Utah children.
Dr. Martell Menlove, State Superintendent of Schools, asked me what it would take to get my daughter Zoey enrolled in a Utah Public School Kindergarten. Here is what it will take, in terms of the assessment/testing aspects associated with Common Core:
A truly independent review by three independent, Board Certified, joint Ph.D. level psychometricians and licensed clinical psychologist, of all of the test items developed by AIR to ensure that there are no line item variables that could be reasonable utilized to measure “behavioral characteristics” as such may be defined by the American Psychological Association, or Journals published by this group. (This list is pretty long).
A “opt out option” for children with disabilities until data of validity and efficacy is published and disseminated to the public, which ensures fair and accurate measurement of academic achievement.
An joint endorsement from the clinical AND educational psychology department heads of the University of Utah, Utah State University, Brigham Young University, Westminster College, and the clinical director of a private independent, APA approved school of psychology (Stanford’s School of Medicines Psychology program is an example (http://psychiatry.stanford.edu/education/pgsp.html) to the community of parents of African American, Latino, Autistic Spectrum, Learning Disabled parents signifying that the adaptive testing designed by AIR is “fair and equitable” when it comes to the measurements of academic achievement of these populations, and in the alternative, what other measures could be utilized to measure the cognitive and academic performance of these populations.
Reasonable assurances and documented proof provided to the community that ALL data that will stored in the Utah UREx database will not include “behavioral indicators” that could be distributed to either AIR, or the U.S. Department of Education without INFORMED PARENTAL CONSENT OR WARNING. (in plain speak please).
A repeal recently passed bill H.B. 150, which, on line 59, specifically authorizes the State of Utah to gather “behavioral data” of Utah’s school, aged, public school children.
Request assistance from the Office of the Attorney General to provide your office with plain speak guidance in regards to the complex, and intertwining Federal and State laws, regulations and Codes associated with FERPA, HIPPA laws of privacy. Particularly, an opinion of the U.S. Department of Educations recent “adjustments” to FERPA laws that, for all intents and purposes, allows medical and psychological information being collected by public schools to be classified as “educational records” that can possibly be sold to the highest bidder or research company.
If ALL of these items are performed for not only my daughter Zoey, but on behalf of all children in the State of Utah, I will strongly consider not only enrolling her in a public school under your watch, I will recommend other parents in our community to consider this option also. In the meantime, my child will not be enrolling in a public school in the State of Utah until these issues, at a minimum, are examined in the open, and your finding are disseminated publicly.
“Faith” is not a word commonly utilized by a doctoral local clinical community scientist trained advocate in professional settings. Nevertheless, the buck stops with the Office of the State Superintendent of Schools. I do have “faith” that the office will represent the needs of our children independent of the wishes, desires and intents of the U.S. Department of Education, multiple private political and private special interest groups, and divided law makers both in the local and Federal realms.
Dr. Gary T. Thompson
Director of Clinical Training & Community Advocacy Services
Early Life Child Psychology & Education Center, Inc.
Utah Core/Common Core and Unresolved Privacy Issues
Edward D. Flint, Attorney at Law, Salt Lake City, Utah
April 15, 2013
(References Available Upon Request)
To keep people happy, I start with this personal disclaimer: I am a trial attorney and have primarily practiced criminal defense work since I was sworn in back in 1985. I am also the parent of a special education student and currently have taken on cases of special education advocacy under IDEA. Despite this background, and having my ear close to the ground on what I thought were the pressing issues of society the past few years, I totally missed Common Core and its Utah Core implementation, until very recently.
I am not aligned with any organization for or against it; I have not been paid or retained by anyone regarding Utah or Common Core. My son no longer attends public school and I currently rent, rather than directly pay property taxes that pay for public education, so I may not even have any skin in this game anymore. This statement is my personal opinion as a father and grandfather, a citizen/resident of this community and my view of things from the perspective of an attorney, not a legal opinion. I repeat: this is not a legal opinion.
I am not here to rebuke CCSS or Utah Core as a “liberal socialist Obama agenda” or because it federalizes standards. I consider myself a “liberal,” a registered Democrat and call myself a “Socialist” when it scares away the local Amway salesman from the Ward. Other professionals are better suited to discussion of curriculum, proficiency and standards issues, others still on methodology, testing and data interpretation. My focus is solely on privacy issues.
“The Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g; 34 CFR Part 99) is a Federal law that protects the privacy of student education records. The law applies to all schools that receive funds under an applicable program of the U.S. Department of Education.” (From the Department of Education website) *1
Generally, schools must have written permission from the parent or eligible student in order to release any information from a student’s education record. However, FERPA allows schools to disclose those records, without consent, to the following parties or under the following conditions (34 CFR § 99.31):
School officials with legitimate educational interest;
Other schools to which a student is transferring;
Specified officials for audit or evaluation purposes;
Appropriate parties in connection with financial aid to a student;
Organizations conducting certain studies for or on behalf of the school;
To comply with a judicial order or lawfully issued subpoena;
Appropriate officials in cases of health and safety emergencies; and
State and local authorities, within a juvenile justice system, pursuant to specific State law.
Schools may disclose, without consent, “directory” information such as a student’s name, address, telephone number, date and place of birth, honors and awards, and dates of attendance. However, schools must tell parents and eligible students about directory information and allow parents and eligible students a reasonable amount of time to request that the school not disclose directory information about them. Schools must notify parents and eligible students annually of their rights under FERPA. The actual means of notification (special letter, inclusion in a PTA bulletin, student handbook, or newspaper article) is left to the discretion of each school. *2
The Common Core State Standards Initiative is a U.S. education initiative that seeks to bring diverse state curricula into alignment with each other by following the principles of standards-based education reform. The initiative is sponsored by the National Governors Association (NGA) and the Council of Chief State School Officers (CCSSO). *3 Nearly all states have adopted it, some are now reconsidering.
Federal “Race to the Top” and other grants require setting minimum floor standards which states must adopt in their core standards to be eligible for most federal education funding, which is a big chunk of all public district and charter school budgets. *4 The race for a piece of an initial four and a half billion tax dollars with billions more in continued funding already approved by Congress, that is to say “the money, not your children” appears to be the driving force behind CCSS.
Parental and educator concerns regarding privacy center on the efficacy of current legal protections of personal information, potential deviations from the current laws as may be permitted by new regulations and exemptions to FERPA, and what to do about it.
Lawsuits have already been filed alleging that that the rules promulgated to permit Common Core to move forward with extensive data collection are an unconstitutional delegation of authority; that is, the new rules violate the old HIPPA and FERPA without Congress’ say-so, or if it is implied in Common Core that this new exception to long-standing privacy laws by rulemaking fiat is permissible, it exceeds the scope of authority to make such a decision. They can’t just make it up as they go along and skirt past the protections of existing privacy laws. *5
With Common Core, we have not just the potential, but the very real threat of negligent loss of the most private data as well as no clear restrictions on private business use or dissemination, even for profit, of what was once your child’s most private, intimate information. An analogy that struck home to me is this: Our children will have invisible yellow Stars of David on them that we can’t see and can’t restrict, but some private company or foolishly negligent government bureaucrat can see it, can make decisions based upon it, and we will never know until the consequences land squarely on the heads of our vulnerable children. That could be placement, scholarships, employment, any number of “consequences” of our children simply being who they are, but will follow them the rest of their existence.
People inside the education industry have long recognized the privacy concerns of sharing information.
One example of an exception that was brought to my attention is Department of Health & Human Services Regulation Section 160.103 definitions, *6 and specifically this subsection:
(2) Protected health information excludes individually identifiable health information in:
(i) Education records covered by the Family Educational Rights and Privacy Act, as amended, 20 U.S.C. 1232g;
So the question becomes, when does health information that can personally identify the individual to whom it pertains, become educational records. Because the law clearly makes it non-protected from the otherwise strictly controlled list of personal health information protected information. This is where the ambiguity of the law and the lack of in-depth analysis prior to implementation becomes a problem. The problem. There are too many possible scenarios to list the ways the data could be acquired, legally or illegally.
The current standard the Utah State Office of Education and all schools in Utah must follow for maintaining the privacy of student information is found Utah Administrative Code, Education Rules R277-487-1 et. seq. *7 The corresponding FERPA rules are found at 34 CFR 99.31 et seq. *8 These standards are adopted by and authorized in Utah by Utah Code Sec. 53A-13-301.
The frightening short story conclusion is that the CURRENT rules in place under FERPA and the Utah Administrative Code allow all sorts of exceptions to dissemination of personally identifiable student data to many outside sources. Disclosures without even seeking parental permission are already available to non-school employees who are contractors, consultants or even volunteers who have some legitimate reason to be in the chain of custody of your child’s personal information. Re-disclosure without parental consent is specifically forbidden, and then exceptions are carved out. It is not too difficult for an individual or organization to have the qualifications required to be a “researcher” and although every effort is made to “de-identify” individual students, the methods of research available today and every new day, can defeat this alteration of data, if the “researcher” so chooses, even without human error or mistaken releases of information.
Obvious exceptions to sharing of educational information under the law include the Juvenile justice systems for specific minors, or the financial aid or even scholarship departments and outside personnel. The massive amounts of student data already in these other, excepted systems and companies and scanned from the “student directories” and other items already outside the scope of legal protection, is in itself, staggering. The cross-referencing of databases, the selling of databases that are not currently protected, the ease of supercomputers in correlating the identifiable data with the identifiable markers still embedded within the identity-removed data is already here, and only getting more efficient.
The very real potential is there for currently available information to be used in a manner most parents would never consent to, but also will never know about.
If the mixture of public education and data collection of Core expands government and private ability to gather and keep personal information from our children, even where personal identity markers have been scrubbed from the raw data, those who possess that raw data still have a goldmine of personal and valuable information, some of which could be used to identify the anonymous data by individual characteristics, identifying markers or correlation with publicly available data. So, if the current protections are pretty useless in actually protecting the widespread gathering and dissemination of private student data, any weakening of these laws will lead to a dam-break of data.
Superintendent Dr. Martel Menlove of the Utah State Office of Education assured me personally that Utah Core does not seek, and no Utah public schools are now or plan in the future, to collect DNA specimens from students, with or without parental consent or prior notice. Likewise he assured that schools are not seeking, nor obtaining, nor storing nor passing on any personal data of students via behavioral or psychological testing. *9 Data that is passed on to the Federal authorities is “raw data” of test results, with all markers that could identify individual students removed, according to Dr. Menlove.
Dr. Gary Thompson and I authored our concerns recently that the potential exists for turning our children’s personal data, both what is available currently and what might be acquired over their dozen or so years in the public database collection system. Our discussion of DNA was only an example of a potential problem, not one that currently exists in the Utah public education system, and according to state leadership, never will be a problem. But our concerns are genuine.
According to one source, “States and schools are signing over private data from millions of students to companies and researchers who hope to glean secrets of the human mind.
“Nine states have sent dossiers on students —including names, Social Security numbers, hobbies, addresses, test scores, attendance, career goals, and attitudes about school —to a public-private database, according to Reuters. Standardized tests are beginning to incorporate psychological and behavioral assessment. Every state is also building databases to collect and share such information among agencies and companies, and the U.S. Department of Education has recently reinterpreted federal privacy laws so that schools and governments don’t have to tell parents their kids’ information has been shared.” *10
“Any researcher or organization wanting to plumb data – perhaps to help kids learn more, faster – can do so without trampling individual rights. First, the historic and accepted practice with student records has been to keep them anonymous when shared outside of schools. Researchers and government accountability gurus don’t need to know that Sally Smith failed Algebra I, even if her parents and teachers do. Researchers do not need personally identifiable information such as names, Social Security numbers, and addresses. They just need to know, for example, whether lots of students are failing Algebra I. Schools and states should check these privacy firewalls.”
Our concerns used DNA data mining as an example of current trends run amok. “The DNA of virtually every newborn in the United States is collected and tested soon after birth. There are some good reasons for this testing, but it also raises serious privacy concerns that parents should know about.
“States require hospitals to screen newborns for certain genetic and other disorders. Many states view the testing as so important they do not require medical personnel to get parents’ express permission before carrying it out. To collect the DNA sample, medical personnel prick the newborn’s heel and place a few drops of blood on a card. There is one question that new parents rarely ask: What happens to the blood spots after the testing is done? This is where newborn screening becomes problematic.
“It used to be that after the screening was completed the blood spots were destroyed. Not anymore. Today it is increasingly common for states to hold onto these samples for years, even permanently. Some states also use the samples for unrelated purposes, such as in scientific research, and give access to the samples to others.” *12
In Texas, the Department of State Health Services is being sued for not only storing, but allegedly unlawfully distributing, baby blood samples. “At a press conference in Austin today, plaintiff John Higgins and his attorney, Jim Harrington, accused DSHS of deception in selling blood samples to commercial pharmaceutical companies and sending blood samples to the Armed Forces DNA Identification laboratory. “My wife and I both were extremely upset when we found out about the data bank and the potential that [my daughter’s] DNA was going to be used or stored in some police, or military or Interpol, eventually, data bank,” Higgins said.” *13
“KXAN-TV in Austin also discovered that the state profited from trading blood spots for half a million dollars in lab supplies and services from a private company. “During [the 2009] settlement we repeatedly asked them did any of these spots go to commercial entities, did any of these go to police or security organizations? They repeatedly denied that that was going on. They told the Legislature the same thing,” Harrington said.” *14
State and federal DNA databases certainly include “Law enforcement’s use of these tools to search, profile and store the DNA of those who have not been convicted of a crime, without a court order or individualized suspicion, has already exceeded reasonable constitutional protections. In particular, a number of new genetic techniques and practices are providing law enforcement unprecedented access into the private lives of innocent persons by way of their own genetic data. These include: 1) a growing trend towards the permanent retention of DNA from innocent people in forensic DNA databanks; 2) trolling for suspects using DNA dragnets; 3) searching for partial matches between crime scene evidence and DNA banks to obtain a list of possible relatives for DNA analysis (“familial searching”); 4) constructing probabilistic phenotypic profiles of a perpetrator from DNA collected at a crime scene; and 5) surreptitiously collecting and searching DNA left behind on items such as cigarette butts and coffee cups.” *15
Police are not known for following privacy and search restrictions very well, despite repeated court rulings and thorough training. For example, Sacramento cops bypassed parents, and obtained “permission” directly from middle school students to take their DNA as part of a murder investigation, yet have no plans on destroying database when “done” with their investigation. *16
Our British cousins already collect and store at least 1.1 Million DNA samples of children involved “in the most minor offences” of the nation’s juvenile justice system, with no plans to purge the data, ever. *17 At least 40,000 of those children are innocent of any crime. *18
As Dr. Thompson and I have previously expressed, a “Minority Report” mentality already exists, and now we have the technology to act on that misplaced belief. Some are already pushing this in Britain, where widespread support for “safety” concerns to identify these “Potential Offenders” before they offend based on DNA compared traits to known deviants. “Gary Pugh, director of forensic sciences at Scotland Yard and the new DNA spokesman for the Association of Chief Police Officers (Acpo), said a debate was needed on how far Britain should go in identifying potential offenders, given that some experts believe it is possible to identify future offending traits in children as young as five.
“‘If we have a primary means of identifying people before they offend, then in the long-term the benefits of targeting younger people are extremely large,’ said Pugh. ‘You could argue the younger the better. Criminologists say some people will grow out of crime; others won’t. We have to find who are possibly going to be the biggest threat to society.’” *19
We have also expressed our concerns that Common Core methods could easily start including behavioral and psychological testing and data mining. According to Joy Pullmann (firstname.lastname@example.org) who is a research fellow of The Heartland Institute, the U.S. Department of Education (USDOE) has recently changed federal privacy laws to allow information collected on congressionally mandated annual tests to be shared with any companies, agencies, or people federal officials designate.
“Alabama has very strategically chosen not to be in one of the federally funded student testing consortia,” Bice said. Most states promised to replace their tests with ones currently under development by two Common Core “consortia,” or nongovernment nonprofits. Alabama’s board of education is instead considering new, Common Core-aligned tests for grades 3-12 from ACT, called Aspire, said board of education member Charles Elliott.”
At the very least, Utah’s Legislature, Governor and education boards should slow down and devise better, more secure methods of protecting our children’s private information. This is the biggest, most comprehensive overhaul of our national education system in the history of our country. Pausing to look at privacy issues (as well as the testing issues Dr. Thompson noted eloquently earlier) may be the wisest course of action for education leaders and lawmakers to consider. This just simply happened to quickly without much need oversight from local educators, clinical psychologists, lawyers, and various advocacy groups in our diverse and wonderfully independent State.
*5 Electronic Privacy Information Center, et al, v The U.S. Department of Education. United States District Court For The District of Columbia, Case Number 1:12-cv-00327). Paragraph #4 of the law suit says, “Plaintiffs Grayson Barber, et.al., are current or former students of educational institutions in the United States, subject to FERPA, whose records continue to be maintained by these institutions and would be exposed to new privacy risks if the agency rule is not set aside.”
*6 Department of Health & Human Services Regulation Section 160.103
Health information means any information, whether oral or recorded in any form or medium, that:
(1) Is created or received by a health care provider, health plan, public health authority, employer, life insurer, school or university, or health care clearinghouse; and
(2) Relates to the past, present, or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present, or future payment for the provision of health care to an individual.
Individually identifiable health information is information that is a subset of health information, including demographic information collected from an individual, and:
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§ 160.103 45 CFR Subtitle A (10–1–10 Edition)
(1) Is created or received by a health
care provider, health plan, employer,
or health care clearinghouse; and
(2) Relates to the past, present, or future physical or mental health or condition of an individual; the provision of
health care to an individual; or the
past, present, or future payment for
the provision of health care to an individual; and
(i) That identifies the individual; or
(ii) With respect to which there is a
reasonable basis to believe the information can be used to identify the individual.
Protected health information means individually identifiable health information:
(1) Except as provided in paragraph
(2) of this definition, that is:
(i) Transmitted by electronic media;
(ii) Maintained in electronic media;
(iii) Transmitted or maintained in any other form or medium.
(2) Protected health information excludes individually identifiable health information in:
(i) Education records covered by the Family Educational Rights and Privacy Act, as amended, 20 U.S.C. 1232g;
(ii) Records described at 20 U.S.C. 1232g(a)(4)(B)(iv); and
(iii) Employment records held by a covered entity in its role as employer. Secretary means the Secretary of Health and Human Services or any other officer or employee of HHS to whom the authority involved has been delegated.
.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) 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;
(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.
(ii) An educational agency or institution must use reasonable methods to ensure that school officials obtain access to only those education records in which they have legitimate educational interests. An educational agency or institution that does not use physical or technological access controls must ensure that its administrative policy for controlling access to education records is effective and that it remains in compliance with the legitimate educational interest requirement in paragraph (a)(1)(i)(A) of this section.
(2) The disclosure is, subject to the requirements of § 99.34, to officials of another school, school system, or institution of postsecondary education where the student seeks or intends to enroll, or where the student is already enrolled so long as the disclosure is for purposes related to the student’s enrollment or transfer.
Note: Section 4155(b) of the No Child Left Behind Act of 2001, 20 U.S.C. 7165(b) , requires each State to assure the Secretary of Education that it has a procedure in place to facilitate the transfer of disciplinary records with respect to a suspension or expulsion of a student by a local educational agency to any private or public elementary or secondary school in which the student is subsequently enrolled or seeks, intends, or is instructed to enroll.
(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; or
(iv) State and local educational authorities.
(4) (i) The disclosure is in connection with financial aid for which the student has applied or which the student has received, if the information is necessary for such purposes as to:
(A) Determine eligibility for the aid;
(B) Determine the amount of the aid;
(C) Determine the conditions for the aid; or
(D) Enforce the terms and conditions of the aid.
(ii) As used in paragraph (a)(4)(i) of this section, financial aid means a payment of funds provided to an individual (or a payment in kind of tangible or intangible property to the individual) that is conditioned on the individual’s attendance at an educational agency or institution.
(Authority: 20 U.S.C. 1232g(b)(1)(D) )
(5) (i) The disclosure is to State and local officials or authorities to whom this information is specifically—
(A) Allowed to be reported or disclosed pursuant to State statute adopted before November 19, 1974, if the allowed reporting or disclosure concerns the juvenile justice system and the system’s ability to effectively serve the student whose records are released; or
(B) Allowed to be reported or disclosed pursuant to State statute adopted after November 19, 1974, subject to the requirements of § 99.38.
(ii) Paragraph (a)(5)(i) of this section does not prevent a State from further limiting the number or type of State or local officials to whom disclosures may be made under that paragraph.
(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;
(B) Administer student aid programs; or
(C) Improve instruction.
(ii) An educational agency or institution may disclose information under paragraph (a)(6)(i) of this section only if—
(A) The study is conducted in a manner that does not permit personal identification of parents and students by individuals other than representatives of the organization that have legitimate interests in the information;
(B) The information is destroyed when no longer needed for the purposes for which the study was conducted; and
(C) The educational agency or institution enters into a written agreement with the organization that—
(1) Specifies the purpose, scope, and duration of the study or studies and the information to be disclosed;
(2) Requires the organization to use personally identifiable information from education records only to meet the purpose or purposes of the study as stated in the written agreement;
(3) Requires the organization to conduct the study in a manner that does not permit personal identification of parents and students, as defined in this part, by anyone other than representatives of the organization with legitimate interests;
(4) Requires the organization to destroy or return to the educational agency or institution all personally identifiable information when the information is no longer needed for the purposes for which the study was conducted and specifies the time period in which the information must be returned or destroyed.
(iii) An educational agency or institution is not required to initiate a study or agree with or endorse the conclusions or results of the study.
(iv) If this Office determines that a third party outside the educational agency or institution to whom information is disclosed under this paragraph (a)(6) violates paragraph (a)(6)(ii)(B) of this section, the educational agency or institution may not allow that third party access to personally identifiable information from education records for at least five years.
(v) For the purposes of paragraph (a)(6) of this section, the term organization includes, but is not limited to, Federal, State, and local agencies, and independent organizations.
(7) The disclosure is to accrediting organizations to carry out their accrediting functions.
(8) The disclosure is to parents, as defined in § 99.3, of a dependent student, as defined in section 152 of the Internal Revenue Code of 1986.
(9) (i) The disclosure is to comply with a judicial order or lawfully issued subpoena.
(ii) The educational agency or institution may disclose information under paragraph (a)(9)(i) of this section only if the agency or institution makes a reasonable effort to notify the parent or eligible student of the order or subpoena in advance of compliance, so that the parent or eligible student may seek protective action, unless the disclosure is in compliance with—
(A) A Federal grand jury subpoena and the court has ordered that the existence or the contents of the subpoena or the information furnished in response to the subpoena not be disclosed;
(B) Any other subpoena issued for a law enforcement purpose and the court or other issuing agency has ordered that the existence or the contents of the subpoena or the information furnished in response to the subpoena not be disclosed; or
(C) An ex parte court order obtained by the United States Attorney General (or designee not lower than an Assistant Attorney General) concerning investigations or prosecutions of an offense listed in 18 U.S.C. 2332b(g)(5)(B) or an act of domestic or international terrorism as defined in 18 U.S.C. 2331.
(iii) (A) If an educational agency or institution initiates legal action against a parent or student, the educational agency or institution may disclose to the court, without a court order or subpoena, the education records of the student that are relevant for the educational agency or institution to proceed with the legal action as plaintiff.
(B) If a parent or eligible student initiates legal action against an educational agency or institution, the educational agency or institution may disclose to the court, without a court order or subpoena, the student’s education records that are relevant for the educational agency or institution to defend itself.
(10) The disclosure is in connection with a health or safety emergency, under the conditions described in § 99.36.
(11) The disclosure is information the educational agency or institution has designated as “directory information”, under the conditions described in § 99.37.
(12) The disclosure is to the parent of a student who is not an eligible student or to the student.
(13) The disclosure, subject to the requirements in § 99.39, is to a victim of an alleged perpetrator of a crime of violence or a non-forcible sex offense. The disclosure may only include the final results of the disciplinary proceeding conducted by the institution of postsecondary education with respect to that alleged crime or offense. The institution may disclose the final results of the disciplinary proceeding, regardless of whether the institution concluded a violation was committed.
(14) (i) The disclosure, subject to the requirements in § 99.39, is in connection with a disciplinary proceeding at an institution of postsecondary education. The institution must not disclose the final results of the disciplinary proceeding unless it determines that—
(A) The student is an alleged perpetrator of a crime of violence or non-forcible sex offense; and
(B) With respect to the allegation made against him or her, the student has committed a violation of the institution’s rules or policies.
(ii) The institution may not disclose the name of any other student, including a victim or witness, without the prior written consent of the other student.
(iii) This section applies only to disciplinary proceedings in which the final results were reached on or after October 7, 1998.
(15) (i) The disclosure is to a parent of a student at an institution of postsecondary education regarding the student’s violation of any Federal, State, or local law, or of any rule or policy of the institution, governing the use or possession of alcohol or a controlled substance if—
(A) The institution determines that the student has committed a disciplinary violation with respect to that use or possession; and
(B) The student is under the age of 21 at the time of the disclosure to the parent.
(ii) Paragraph (a)(15) of this section does not supersede any provision of State law that prohibits an institution of postsecondary education from disclosing information.
(16) The disclosure concerns sex offenders and other individuals required to register under section 170101 of the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. 14071, and the information was provided to the educational agency or institution under 42 U.S.C. 14071 and applicable Federal guidelines.
(b) (1) De-identified records and information. An educational agency or institution, or a party that has received education records or information from education records under this part, may release the records or information without the consent required by § 99.30 after the removal of all personally identifiable information provided that the educational agency or institution or other party has made a reasonable determination that a student’s identity is not personally identifiable, whether through single or multiple releases, and taking into account other reasonably available information.
(2) An educational agency or institution, or a party that has received education records or information from education records under this part, may release de-identified student level data from education records for the purpose of education research by attaching a code to each record that may allow the recipient to match information received from the same source, provided that—
(i) An educational agency or institution or other party that releases de-identified data under paragraph (b)(2) of this section does not disclose any information about how it generates and assigns a record code, or that would allow a recipient to identify a student based on a record code;
(ii) The record code is used for no purpose other than identifying a de-identified record for purposes of education research and cannot be used to ascertain personally identifiable information about a student; and
(iii) The record code is not based on a student’s social security number or other personal information.
(c) An educational agency or institution must use reasonable methods to identify and authenticate the identity of parents, students, school officials, and any other parties to whom the agency or institution discloses personally identifiable information from education records.
(d) Paragraphs (a) and (b) of this section do not require an educational agency or institution or any other party to disclose education records or information from education records to any party except for parties under paragraph (a)(12) of this section.
(Authority: 20 U.S.C. 1232g(a)(5)(A) , (b), (h), (i), and (j)).
What limitations apply to the redisclosure of information?
(a) (1) An educational agency or institution may disclose personally identifiable information from an education record only on the condition that the party to whom the information is disclosed will not disclose the information to any other party without the prior consent of the parent or eligible student.
(2) The officers, employees, and agents of a party that receives information under paragraph (a)(1) of this section may use the information, but only for the purposes for which the disclosure was made.
(b) (1) Paragraph (a) of this section does not prevent an educational agency or institution from disclosing personally identifiable information with the understanding that the party receiving the information may make further disclosures of the information on behalf of the educational agency or institution if—
(i) The disclosures meet the requirements of § 99.31; and
(ii) (A) The educational agency or institution has complied with the requirements of § 99.32(b); or
(B) A State or local educational authority or Federal official or agency listed in § 99.31(a)(3) has complied with the requirements of § 99.32(b)(2).
(2) A party that receives a court order or lawfully issued subpoena and rediscloses personally identifiable information from education records on behalf of an educational agency or institution in response to that order or subpoena under § 99.31(a)(9) must provide the notification required under § 99.31(a)(9)(ii).
(c) Paragraph (a) of this section does not apply to disclosures under §§ 99.31(a)(8), (9), (11), (12), (14), (15), and (16), and to information that postsecondary institutions are required to disclose under the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act, 20 U.S.C. 1092(f) (Clery Act), to the accuser and accused regarding the outcome of any campus disciplinary proceeding brought alleging a sexual offense.
(d) An educational agency or institution must inform a party to whom disclosure is made of the requirements of paragraph (a) of this section except for disclosures made under §§ 99.31(a)(8), (9), (11), (12), (14), (15), and (16), and to information that postsecondary institutions are required to disclose under the Clery Act to the accuser and accused regarding the outcome of any campus disciplinary proceeding brought alleging a sexual offense.
(e) If this Office determines that a third party outside the educational agency or institution improperly rediscloses personally identifiable information from education records in violation of this section, or fails to provide the notification required under paragraph (b)(2) of this section, the educational agency or institution may not allow that third party access to personally identifiable information from education records for at least five years.
(Authority: 20 U.S.C. 1232g(b)(4)(B) )
[53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59297, Nov. 21, 1996; 65 FR 41853, July 6, 2000; 73 FR 74853, Dec. 9, 2008]
*9 From a meeting at the USOE on April 12, 2013 between Dr. Martel Menlove the State Superintendent, other state employees and myself and Dr. Gary Thompson, PsyD.
*10 The Examiner, April 13, 2013, Opinion/Editorial:
Education Dept. helps leak students’ personal data March 21, 2013
*12 Published on American Civil Liberties Union (http://www.aclu.org)