Why parents and privacy experts are NOT reassured by the Chancellor's letter on undocumented students

Last week, Chancellor Farina sent a letter home to parents, saying they should not worry that their children are at risk of having their immigration status disclosed to government officials looking to deport them.  The letter said this:

DOE staff will not grant unlimited access to Immigration and Customs Enforcement (ICE). Like all other law enforcement agencies, ICE is not permitted access to schools without proper legal authority. If ICE officers go to a school for immigration enforcement purposes, they will be referred to the principal who will take appropriate action.  

So it seems the DOE is leaving it up to the principal to “take appropriate action” but does not explain what that might be.  Unsurprisingly, the letter did little to assuage many people’s fears – including experts on the subject.   Why?   

Contrast the Chancellor’s ambiguous statement with the position the Los Angeles school board took recently on the same subject:  “In February, the L.A. Unified board directed district officials not to allow Immigration and Customs Enforcement onto its campuses without a review by the superintendent.”  

The LAUSD board also proclaimed that the they would “continue to protect the data and identities of any student, family member, or school employee who may be adversely affected by any future policies or executive action results in the collection of any personally identifiable information.”  

More specifically, the LA resolution called for the following protections:

• Forbids agents from coming on campus without review and not before a decision is made by the superintendent and the LAUSD lawyer’s office.
• Forbids school staff to ask about a student’s immigration status or that of family members.
• Provides teachers, administrators and other staff training on how to deal with immigration issues and how to notify families in multiple languages of issues.
• Asks all schools to treat students equitably, including those receiving free and reduced lunches, transportation and other services.
• Requires the superintendent to come up with a plan in 90 days to provide assistance, information and safety for students and families “if faced with fear and anxiety related to immigration enforcement efforts.”

Similar resolutions to protect immigrant students have been approved by other school districts, including San Francisco Unified and Montgomery County, Md.

The Chancellor’s letter featured other troubling and ambiguous statements.   She wrote the following: 

As in the past, DOE staff will not ask about or keep a record of the immigration status of a student or family member. If you do share confidential information, including immigration status, about yourself or your family, it will be protected under the City’s confidentiality policy and the Chancellor’s Regulations.

Yet the Chancellor’s regulations are not particularly reassuring as regards student privacy and the DOE has shown little respect for protecting student privacy in the past – as we saw during the inBloom controversy.  The DOE still hasn’t posted the NY Parent Bill of Rights for Data Privacy and Security, as it has been legally obligated to do since 2014 – but instead posts a shorter, amended version with far less information.   The DOE also fails to inform parents that they have the right  to withhold directory information for their children each year,  which is their most basic legal obligation under the federal law known as FERPA.

Moreover, the Chancellor’s regulations contain several instances when personal student information can be provided without parental consent. Here is A-820 of the Chancellors regs:

     In keeping with the individual's right to privacy, no part of a student's education record, however created, may be divulged with personally identifiable information to any person, organization, or agency in any manner unless there is….

     a)       informed written consent by the parent or eligible student;...

     b)      a valid court order or lawfully issued subpoena requesting such information (in such cases, prior to complying with such order or subpoena, the parent or

eligible student shall be notified immediately in writing of the information which has been subpoenaed or which is the subject of the court order)

  c)   a request for disclosure by authorized representatives of the officials or agencies headed by State or local educational authorities, the Secretary of Education of  the United States, the  Attorney General of the United States, or the Comptroller General of the United States and the request is in connection with an audit or evaluation of Federal or State supported education  programs, or for the enforcement of or compliance with Federal legal requirements that relate to those programs. Such information that is collected must be protected in a manner that does not permit personal identification of individuals (unless specifically authorized by Federal law) by anyone except the officials or agencies headed by officials mentioned above and must be destroyed when no longer needed for the purposes listed…

This part of the Chancellor’s letter is not reassuring either: “DOE staff will not release student information unless required to by law."

President Trump recently signed the following Executive Order focused on removing “aliens” and includes stripping privacy rights to anyone who is not a citizen or a lawful permanent resident:

Sec. 2.  Policy.  It is the policy of the executive branch to:

(a)  Ensure the faithful execution of the immigration laws of the United States, including the INA, against all removable aliens, consistent with Article II, Section 3 of the United States Constitution and section 3331 of title 5, United States Code;

(b)  Make use of all available systems and resources to ensure the efficient and faithful execution of the immigration laws of the United States;

(c)  Ensure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law; 

(d)  Ensure that aliens ordered removed from the United States are promptly removed…

Sec. 14.  Privacy Act.  Agencies shall, to the extent consistent with applicable law, ensure that their privacy policies exclude persons who are not United States citizens or lawful permanent residents from the protections of the Privacy Act regarding personally identifiable information.

How this relates to federal student privacy rights under FERPA is unclear.  In any case, there are many exceptions in FERPA, including that student privacy can be violated “to comply with a judicial order or lawfully issued subpoena…”  

Moreover, contrary to the assertions in an article in Chalkbeat, which implies  that the DOE collects relevant information only pertaining to “a child’s country of origin and ethnicity” all NY school districts are required to collect more information that could be used as a method to help identify a student’s immigrant status.

According to NYSED's 2016-7 SIRS State Education Manual, districts including NYC are required to collect the following information for each  public school student and send it to the state:

1. Country of birth
2. Whether the student is an immigrant; defined as individuals aged 3 through 21; 

            a)  Who were not born in any State; and

b)    have not been attending one or more schools in any one or more States for more than 3 full academic years. 

         3. Migrant status: -- A student is a migrant child if the student is, or whose parent, guardian, or spouse is, a migratory agricultural worker, including a migratory dairy worker or a migratory fisher, and who, in the preceding 36 months, in order to obtain, or accompany such parent, guardian, or spouse, in order to obtain, temporary or seasonal employment in agricultural or fishing work has moved from one school district to another.

To allay parental concerns, NYC Board of Education, known as the Panel for Educational Policy, should pass a similar resolution as LAUSD – and the Chancellor should send out a stronger message to parents that they will protect the confidentiality of student records from immigration officials, and if necessary go to court to do so, rather than leave it up to principals how they should respond to inquiries or interpret the law.

In addition, the NY State Education Department should explain why it needs to collect so much sensitive student data in the first place.  In return for an $8 million federal grant to develop its student longitudinal data system (LDS), the Department promised to establish a Stakeholder Advisory board by 2009 that would provide oversight and input as to the collection, storage and use of this information: 

Yet to this day, there are no such boards -- either statewide or regionally and neither students nor their parents have any input into how their extremely sensitive data is collected, stored or protected from breach or abuse.

NYSED just hired a Chief Privacy Officer this fall – two years past the legal deadline, and remain years behind in updating and expanding the Parent Bill of Rights.  The NYSED student privacy website recently posted is incomplete in many ways, as we have pointed out to state officials.   They should immediately fulfill their promise to create a Stakeholder Advisory board to include parents and privacy advocates, who would deal with situations like the immigration issue; to  figure out whether all the personal student data they collect is truly necessary, and if so, how it can be best protected from disclosures that would hurt students.

There is also now a big push by several organizations, including Education Trust, Data Quality Campaign and other Gates-funded DC groups, as reflected by their testimony to the Commission on Evidence-based Policy, to overturn the law in Congress that prohibits the federal government from creating a comprehensive database of personal student information.   The move to develop just such a database that would allow the federal government to track all public school students from preK through college and beyond is one of the top priorities of the Gates Foundation this year.  More on this here.    

Our deep concerns about the huge risk to privacy such a database would pose were only reinforced when it was recently revealed that the Home Office in Great Britain has made repeated attempts to access information in their national student database for the purpose of immigration control, including students' country of birth,  despite repeated government promises that this data would only be used only for research purposes.  One can only imagine how the Trump administration might use such information.  The Parent Coalition for Student Privacy, the national organization we formed after inBloom’s collapse, is leading the fight against overturning this ban.  Join us here.