How some school ‘data walls’ violate U.S. privacy law

(UNC Charlotte)
(UNC Charlotte)

(Clarification:  Education Department says its upcoming guidance will not be about data walls but about student privacy in general.)

After I wrote last week about “data walls” in public schools that often include lists of students and their test scores, readers asked whether such public displays of academic “achievement” — without parental permission — violate the federal student privacy law known as FERPA (technically the Family Educational Rights and Privacy Act). One privacy expert says that such lists can indeed violate FERPA.

A U.S. Education Department spokeswoman says officials there are planning to issue guidance on the overall issue of student privacy soon.

School data walls are becoming ubiquitous in this school reform era in which “data-driven instruction” is promoted by policy makers who believe that the truth about student achievement and teacher effectiveness lies in data — especially test scores. With this emphasis, which has been promoted by the Obama administration, schools have encouraged teachers to create data walls to share various kinds of data. Many times, these walls include lists of students — by name, number or other identifier — along with test scores and other academic “accomplishments.”

It’s bad enough that such lists often humiliate kids — even as young as kindergartners — who find their accomplishments, or, rather, lack of them, posted on a wall for all to see, but without parental permission, these displays can violate FERPA, a federal law that protects the privacy of student education records and gives parent some rights in regard to their children’s records. After a student turns 18 or attends a school beyond high school, those rights revert to the student.

Under FERPA, according to the Education Department website:

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;
*Accrediting organizations;
*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. 

It doesn’t seem like there is a lot of room for a K-12 test score list that identifies students and is posted without parental permission  in that information.

Khaliah Barnes, director of the  Student Privacy Project and administrative law counsel for the non-profit Electronic Privacy Information Center, said in an e-mail:

If a school posts a student’s name and test score without obtaining student (or parental consent), that violates FERPA. If a school posts a student ID number and test score, without student consent, that may violate FERPA if that student ID number is publicly linked to a specific student (e.g., if the student ID is displayed on a student badge).

When I asked the Education Department, spokeswoman Dorie Nolt replied in an e-mail:

Technology moves quickly, and we are working with schools and districts to address the ever changing landscape of new learning resources. The U.S. Department of Education believes that the benefits of technological advancement for students can’t be a trade-off with the security and privacy of our children. The federal student privacy law known as FERPA has always maintained that student data isn’t for sale and is for education purposes only. We will issue guidance for school and districts addressing this topic soon.

It should be pointed out that the guidance isn’t actually about data walls but about student privacy issues.

My earlier post quoted from a story published in In These Times,  that included an interview with Agustin Morales, an English teacher at Maurice A. Donahue Elementary School in Holyoke, who felt pressure from administrators to create a data wall but felt they were mean. The story said:

One of his top students did poorly on a standardized test in November and found her name at the bottom of the data wall. Afterward, in a writing assignment for class, she “wrote about how sad she was, how depressed she was because she’d scored negatively on it. She felt stupid.”

You’d think that should be enough to get rid of lists that have the powerful potential to hurt kids. But since it isn’t, maybe the Education Department can address this issue along with other student privacy issues.

 

 

 

 

 

Valerie Strauss covers education and runs The Answer Sheet blog.
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Valerie Strauss · February 21