Comments on the SHSAT and the Chancellors Privacy regulations

Dec. 13, 2024

On Wednesday, night, the new Public Engagement Committee of the Panel for Education Policy, NYC’s school board, met to hear from the public on two controversial issues, a contract for Pearson to produce a new computerized version of the SHSAT, the entrance exam for the Specialized high schools, and also  DOE’s  proposed revisions to the Chancellors regulations A- 820, that govern student privacy.

The proposed Pearson five year contract for the SHSAT at cost of $17 million took up most of the time, with many parents concerned that any further delay in a vote to approve the contract that had already been postponed twice would threaten the ability of their children to attend one of the eight elite schools that decide admissions solely by means of that one exam.  

My comments follow, suggesting that the PEP only renew the contract for one year, and base any further renewal on specific conditions.  I also include my comments on the Chancellors regulations.  Shannon Edwards of AI for Families also offered excellent comments on this critical issue; you can read them here.

A video of the proceedings is here. Whatever happens, it’s real progress that the Panel for Education Policy seems interested in hearing from the public on these critical issues, rather than merely rubberstamping whatever the Mayor wants them to do.

 Statements on SHSAT

Thank you for holding this public session this evening.  As the American Psychological Society, the American Education Research Association, the National Academy of Sciences, and the testing companies themselves proclaim, no high stakes decision such as admissions to any school should be based upon test scores alone.

In fact, NYC is the only district in the nation that uses this unacceptable method for admissions to any single school, and yet we do it for eight schools, with a test that is non-transparent, scored in a highly unusual way, and is designed by Pearson, a company that has been shown repeatedly over more than a decade to engage in improper behavior and to  administer faulty tests and score them erroneously, year after year, starting with the infamous Pineapple questions on the 2012 state exam that not only  made news nationwide but  became a symbol of everything wrong about standardized testing.

 We have offered a timeline of these issues on our NYC Parent blog – none of which, by the way, did DOE report on in their Request for Authorization, as they should have been. .

We understand that the state requires a standardized exam, but we urge you to amend the terms of the contract so that it is renewed for only for one year, and condition any further renewals in the years to come on the following  three demands:

• DOE should use this test for admissions only for the three schools that are required to use a standardized exam by state law. 

• Consider whether another standardized test could be used instead for these three schools at lower cost or even for free, such as the state exam, as the law only says that a standardized exam should be used, and doesn’t specify which one, and also given how Pearson has a long history of errors and misdeeds;

• Finally, require full test transparency, including an independent analysis of the SHSAT for racial and gender bias, a formal validity study that shows whether the scores predict HS performance, and an analysis of how the results of the new computer-based adaptive exam compared to the earlier paper-based, non-adaptive exams.  

This sort of transparency has been requested for at least 16 years by researchers, but has not been provided.

 The importance of independently analyzing the exam for gender bias is paramount, as girls are accepted to the specialized HS at far lower rates than boys, and there is peer-reviewed, published research showing that those who are accepted do far better than boys who received the same scores.

 On the Chancellors A-829 proposed privacy regulations

Hi again, my name is Leonie Haimson and I am the co-chair of the Parent Coalition for Student Privacy.   We helped get a new  state student privacy law passed in 2014, Ed Law 2D, when we realized how ineffective the federal privacy protections for student data were in an era of ed tech expansion. 

I was appointed to serve on the state education department Data Advisory Committee, and  have  been advocating for years for the DOE to update their  Chancellors regulations A820, but was horrified to see that when this was finally done, they weakened rather than strengthened the existing privacy regulations, despite  widespread breaches and misuse of data that has occurred over the last few years. This includes the Illuminate breach that exposed the personal data of over one million current and former NYC students.

According to these regs, DOE and individual schools could disclose a huge range of student and parent info with anyone they please, and without any enforceable privacy or security protections, including but not limited to: their names; addresses; telephone numbers; e-mails; photographs; dates of birth; grade levels; enrollment status; dates of enrollment; participation in officially recognized activities and sports; weight and height and more.

They propose doing this by designating this info as “Directory Information”  -- an outmoded provision of FERPA from the 1970’s that allowed the disclosure of any information that would not be considered too risky  to divulge.

Yet this ignores the fact that there is NO mention in Ed Law 2D of Directory Information nor any language that would exempt any personally identifiable info from its mandated privacy protections.

Moreover, in this day and age, a child’s name, birth date and home address is sufficient for identity theft, as the NY Dept of State warns, which is especially valuable to fraudsters given that minors do not already have credit ratings.

Personal student data can also be used for predatory marketing by ad tech and social media companies, bombarding them with ads, and undermining their mental health, as noted in recent lawsuits launched vs Facebook, Instagram & TikTok by New York City and the State Attorney General

This data including photos could  also be used to threaten student safety, leading to sexual harassment, Deepfake porn or even abduction.

Providing student names, photos & addresses could also aid in the Trump administration’s efforts to deport migrant students, based on their residence in hotels or shelters.

As a result of over 3,000 emails sent by parents and teachers to DOE and  Panel members, as well as letters from several elected officials and UFT President Michael Mulgrew, the vote on the regs was repeatedly delayed, and on Nov. 19, the Chancellor held a meeting during which she promised to form a Working group that would collaborate on the regs. Yet we have not heard back from the DOE about this Working Group, [Note: The next day, on Thursday at a CPAC meeting, the Chancellor and her team confirmed that a Data Privacy Working Group would begin meeting next month to strengthen these regulations].

We hope that in the meantime, the PEP will refuse to approve any regulations such as these which so seriously threatens the health, safety, and privacy of NYC students.  Thank you for your time.

Backsliding in terms of transparency: DOE fails to post list of contracts 30 days in advance of vote & refuses to allow PEP members to see them

December 1, 2024

Under every NYC Mayor, highly problematic and even corrupt DOE contracts have been awarded since mayoral control was instituted in 2002.  Just a few of the most egregious examples:

• During the Bloomberg years, a consultant named Ross Lanham stole more than $3 million from DOE in 2002 to 2008, and allowed Verizon and IBM to overcharge for school internet wiring as well. The FCC excluded the DOE from more than $100 million of federal E-rate reimbursement funds for many years as a result.
• Also under  Bloomberg, between 2007 and 2011, Judith Hederman, a high level DOE official, fixed contracts with a firm called Future Technology Associates,  colluding in a successful plot to steal $6.5 million dollars.
  
•  Under Mayor De Blasio in 2015, DOE proposed a $1.1 billion contract for a firm called Custom Computer Specialists, again for internet wiring, renewable to $2 billion over nine years, despite the firm's involvement in the Lanham scandal just a few years before. After the news broke, the contract was hurriedly renegotiated overnight, with the cost cut in half to $627 million, with no other change in terms, suggesting how inflated it was in the first place. The Panel for Educational Policy rubber stamped the contract anyway, 10-1. But because investigative reporter Juan Gonzalez continued to write about it, City Hall eventually cancelled the contract and forced DOE to rebid it, at a savings of between $163 and $727 million. 
  
•  In 2021, Eric Goldstein, head of DOE School Support Services, renewed a million dollar contract for chicken nuggets in return for a bribe, even though the product had been found to contain bone and metal fragments and posed a serious choking hazard to students. 
• In 2023,  Chancellor Banks agreed to a contract with a company called 21stCentEd after it had hired his brother as a lobbyist, triggering payments of more than $1.4 million.

Clearly, the process needs far more transparency and oversight by the Panel for Educational Policy which has the responsibility to approve contracts. And yet this administration has slid backwards in terms of transparency.  

 

As a result of the scandal generated by the inflated Custom Computer Specialists contract, which was posted only a few days before the PEP vote, the DOE agreed from then on to post all proposed contracts at least 30 days prior to allow for more public scrutiny.  See the articles about this promise in the Daily News and Gotham Gazette at the time.  However, this administration does not adhere to this promise.  For example, the list of contracts to be voted on during the December 18, 2024 PEP meeting is still not posted-- only 17 days away.

 

The ability of PEP to perform oversight has also been severely hampered by the fact that its members are denied the right to see the actual contracts before their vote. The excuse given by DOE to members is that the actual contracts are not written until after they are approved --a highly problematic way to do business.  And yet it has not always been done this way..

During the Bloomberg years, Patrick Sullivan, the Manhattan Borough Appointee to the PEP was allowed to examine proposed contracts before the Panel vote,  as he recounts in a recent memo to PEP Chair Greg Faulkner and other current PEP members.  Patrick was granted this  opportunity after then-chair of the Assembly Education Committee Cathy Nolan and Assemblymember Daniel O'Donnell wrote a letter to Chancellor Klein, stating, "We are concerned that providing only a summary of contract materials to the PEP does not allow the body to fulfill its responsibility and urge you to reexamine this policy."  Patrick's memo to the PEP is below.

Oct. 31, 2024

To: Chair Faulkner and members of the Panel for Educational Policy 

From: Patrick Sullivan, Manhattan BP Appointee, 2006-2013

Subject: Review of actual contracts by Members of the Panel for Educational Policy

As the New York state law defining mayoral control was approaching sunset in 2009, I joined advocates to ask the legislature to strengthen oversight provisions. I testified before Assembly and Senate panels asking for the PEP to have a greater role in approving contracts and changes in school utilization. I joined the president of CEC1 and advocates to make this case directly to then Assembly Sheldon Silver.

As a result of these efforts, contract approval by the PEP was greatly expanded in the 2009 law. The requirement that any contract greater than a million dollars be approved put most material contracts under our purview.

The DOE resisted complying with the law. They refused access to the contracts we were to approve and directed us to summaries they prepared. I asked Assembly member Danny O’Donnell to intervene. He was the only Manhattan member on the Assembly Education Committee and my contact for legislative matters for the public schools. 

The next day, he and Assembly Education Chair Cathy Nolan sent a letter to Chancellor Klein
him of the DOE’s obligations under the law, urging him to allow PEP members to be able to read
the actual contracts before the vote.

After that full copies of contracts were made available for my review in person at Tweed. I customarily reviewed those of interest the day before the Contracts Committee met. I also requested and received RFPs (requests for proposals) where I found areas of concern in contracts.

This review was invaluable to my oversight role. In one case, for example, my inquiries based on
my review triggered communications between fraudulent actors within DOE and a large vendor. This inquiry and the subsequent communications were cited in the SCI investigation in support
of their findings of fraud. In another case, a contract was rescinded by full vote of the PEP at my
request.

I strongly believe that only with the opportunity to access to the actual contracts, can PEP members responsibly fulfill their oversight responsibilities.  Feel free to contact me if you have any questions.

Patrick Sullivan

Timeline of Pearson's Errors, Misdeeds and Crimes

Below is a timeline of the various misdeeds and testing errors Pearson has made over the last decade or more.  Pearson is up for a five-year DOE contract to deliver a computerized version of the SHSAT, at a cost of $17 million.

During a recent Talk out of School podcast,  Akil Bello, testing expert and critic, explained how the SHSAT is a very weird and controversial exam that has never been independently validated or assessed for racial or gender bias, and as a result, far fewer Black, Latino and female students are admitted to the specialized high schools. This year, just 4.5% of offers went to Black students, and 7.6% to Latino students, though the two groups make up 65% of NYC students.  Though we don't have the gender breakdown, in past years far fewer girls were admitted, though they tend to have higher test scores on the state exams and get better grades.  More on this in my comments to the PEP here.

 Whatever your viewpoint on testing, Pearson is not to be trusted:

In 2012, the state exam produced by Pearson featured the infamous Pineapple reading passage that made news nationwide, and years later even featured on John Oliver’s HBO Show This Week tonight.  (you can google it; we broke the story first). The Pineapple became a symbol of everything wrong about standardized testing. Worst thing was this reading passage had been included for years on lots of other Pearson state exams, sparking criticisms by students and teachers each time. The exam featured at least 30 other errors, with  faulty questions and problems with translation and scoring.

In 2013,  Pearson state exams were too long, too difficult, full of ambiguous questions that made children cry. They also featured crass, commercial product placements as well as  reading passages lifted off of Pearson textbooks that had been purchased and assigned to students elsewhere in the state but not NYC.  According to Kathleen Porter Magee of the conservative Fordham Institute, Pearson was abusing its monopoly power in way that "threatens the validity of the English Language Arts (ELA) scores for thousands of New York students and raises serious questions about the overlap between Pearson's curriculum and assessment divisions." 

Also in 2013, the Pearson Charitable Foundation paid $7.7 million fine after the State Attorney General found they had broken state laws by generating business for the company.

Also in 2013, Pearson agreed to pay $75 million in damages plus costs to settle a lawsuit over price-fixing e-books.

Also in 2013, they were found to make  mistakes in scoring the NYC Gifted and talented tests, not once but twice,

In 2015, it was discovered that Pearson was monitoring students’ social media who criticized their NJ state exams.

Here is a list of other Pearson problems through 2016.

In 2018, Pearson lax security practices led to one of the largest student data beaches in history of their AIMS web program between 2001 and 2016, and who were enrolled in 13,000 school and universities throughout the country. The breach involved probably millions of students including many  in NY, whose data should have been long deleted because they no longer had contracts for the delivery of the program.  The FBI alerted Pearson to the breach in March 2019, but they didn’t tell anyone, including the schools or the students till months later, July 31, 2019. 

In 2021, Pearson was fined $1M by the FEC for misleading investors about the AIMs breach.  [They should also have had to pay the families of the students' whose data was breached, as well as had all future contracts blocked by NY State for having violated the required timeline of reporting on the breach, but weren't.]

In 2020, Pearson was awarded a huge contract with DOE despite 34 investigations for discrimination against its employees on grounds of race, disability, gender, age, etc. and many technical issues with erroneous scoring,  online service disruptions, the above breach, and more.   

In 2021, a Pearson Middle East textbooks was pulled in the UK for bias.

In 2023, the plans of hundreds of international students to enroll in UK universities were derailed after Pearson revoked some of their online English language exam results following allegations of cheating, without giving students a  chance to appeal these decisions.

What makes DOE think that Pearson is capable of developing, scoring and administering and scoring a reliable exam -- even if you believe in the notion of high-stakes testing?

DOE privacy regulations: revised yet again but still put student privacy, health and safety at unacceptable risk!

The DOE has issued revisions to their earlier version of the Chancellor's A-820 regulations on student privacy for the second time.  They have also delayed the PEP vote on them until Nov. 20, in response to our letter, and the more than 3,000 emails sent by students and parents in opposition. Yet the revisions are minor and are not nearly strong enough. 

Despite the fact that Ed Law 2D, passed by the State Legislature in 2014, requires much more rigorous protections for the disclosure of any and all student personal information  outside schools and district walls, these regulations would significantly weaken existing student privacy.  They would do this by allowing a broad and essentially unrestricted array of highly sensitive personal information to  be designated as Directory Information, that DOE could share with any individual, corporation or organization they like, without parent consent, and without the full privacy protections of state law.

Instead, they would allow the following information to be disclosed to any third party they like, as long as they say this disclosure would "benefit" the district and students, and with only parent opt out as safeguards:

We know that many parents will never be alerted to their opt out rights, and,  as in the case of charter school disclosure, many parents may opt out and their children's information will still be shared with third parties anyway.  

Disclosing this extensive, highly personal, and essentially unrestricted array of personal information could be dangerous to a child's safety, risking predatory marketing, identity theft, and even abduction. The addresses of migrant children currently living in hotels or shelters could even be shared. with organizations claiming to have a positive purpose but actually with the intention of harassing or deporting them.

All the regs say about parent notification is that that the "Directory Information notice must be written and distributed in a manner reasonably likely to be seen by the Parent or Eligible Student."

This proposed dangerous policy is not aligned with the existing Chancellors regulations, which do not allow the district to disclose ANY personally identifiable student information without parent consent, nor is it consistent with what is currently written on the DOE's own website:

 

If DOE has properly considered home addresses, telephone numbers and dates of birth too "sensitive in nature" to be categorized as Directory Information, why are they changing their mind now? 

This proposal is also not aligned with how other districts in the state and the nation treat or designate  Directory Information, by excluding much of the personal information included in the Chancellors regulations:

• ·       BOCES Capital region DI policy excludes student birth dates, addresses, phone numbers and email addresses.

• ·       Nassau County BOCES DI policy does not include birth date, email, or phone number as Directory Information.

• ·       Fabius-Pompey school district in upstate NY includes only name, grade level, degrees and honors, sports participation, and team members’ weight and height as Directory Information. Moreover, the district says they will disclose this information only for the purposes of yearbooks, honor rolls, graduation programs and the like.

• ·       Scarsdale designates only a student's name, address, and school as Directory Information, and says they provide this information only to PTAs and the Village of Scarsdale for the purpose of mailings and pool passes.

·       Elsewhere in the nation, Boston Public Schools, even without a strong privacy law, only includes a student’s name, age, grade level, and dates of enrollment as Directory Information, understanding that sharing other sorts of personal data without consent or privacy protections would be too risky and intrusive.

There are other serious problems with these proposed regs, including how the DOE has refused to give the protections of Ed Law 2D to medical and health records maintained by schools, if they were made by Dept of Health employees.  

 

We have already seen in the Teenspace controversy how the Department of Health's contract with Talkspace does not have the protections required by Ed Law 2D.  Instead,  we  discovered that when a NYC student visits the Teenspace website on their phone, their personally identifiable information is shared with 15 ad trackers and 34 cookies, as well as Facebook, Amazon, Meta, Google, and Microsoft among other companies. Our findings were later confirmed by a security company and they are particularly concerning, given how the city is suing many of these companies for undermining children’s mental health and designing their platforms to be addictive, to maximize their profits. 

 

Please send yet another letter to the Chancellor, copied to the Chief Privacy officer and the members of the PEP, letting them know this is unacceptable, and that the regulations reveal a troubling lack of respect for students' privacy and safety.