DOE and Success Academy respond to Johanna Garcia's student privacy complaint

Johanna Garcia

Last night, Chalkbeat reported on Johanna Garcia’s complaint to the US Department of Education about DOE’s ongoing violation of student privacy rights by releasing her child’s personal information to charter schools, including Success Academy, for the purpose of sending multiple mailings of marketing and recruiting materials. Johanna's FERPA complaint makes the legal arguments clear.

Though the DOE claims they can disclose this information without parental consent under the “school official” exception to FERPA, because it has an “educational benefit” in their eyes, they fail to explain how charter schools can be defined as school officials.  Federal law and guidance reserves this term for school or district staff, volunteers, or contractors who are under the control of the district and perform an institutional service or function for the district. How charter schools can be seen as under the district's control or to be performing a service for DOE is impossible to maintain.

And while DOE and Success Academy claim they only receive student names and addresses for this purpose, they don't explain how charter schools are apparently able to differentially recruit students according to their academic records, as Johanna reported from her own experience, with charters sending her masses of pamphlets and flyers, urging her to enroll one of her three children, but none sent in the names of her other two children, who have IEPs.

The Chalkbeat article cites similar controversies over the non-consensual release of personal student information to charter schools for recruiting purposes in Chicago, Nashville and Memphis, but omits these facts:

• In Nashville and Memphis, elected school boards are refusing to provide student information to charters, despite a state law passed this summer which ordered them to do so.  Even after the state launched a lawsuit against them, they are standing fast, and their attorneys argue that the privacy protections and district authority outlined in FERPA supercede the state law. In any case, here in New York, there is no such state law and our state privacy law bars the release of personal student information for commercial purposes.

• In Chicago, after public school student information was disclosed to Noble charter schools without parent consent, resulting in parents receiving postcards urging them to enroll their children in their schools, this sparked a huge controversy and led to an investigation by the Inspector General.  As a result, the Chicago staffer who released the information to Noble was fired and the the district apologized to parents in mailings paid for by Noble.  And this occurred in a city where the Mayor controls the schools and is openly pro-charter.

Here in NYC,  we also have mayoral control, but with a newly re-elected progressive Mayor, who claims to be focused on improving the opportunities of public school students over the interests of charter operators.  Yet for some reason, DOE officials are intent on continuing this practice voluntarily, even if it violates federal student privacy law. 

That the DOE seems intent on continuing this practice though it began under the previous  Mayor is also hard to explain, given how it is aimed at helping the charter schools to expand their “market share” as Eva Moskowitz put it in emails to former Chancellor Joel Klein, which will inevitably lead to further diminishing the funding, space and stability of our public school system.

The release of this information without parental consent also violates specific promises Bill de Blasio made to parents when he first ran for Mayor.  See his responses to the NYC Kids PAC 2013 survey here, as recorded by his campaign manager Emma Wolfe, in the midst of the controversy over inBloom:

 

If the DOE and the de Blasio administration were wise and respected children's right to privacy, they would immediately cease this practice and apologize to parents, as Chicago officials did.   At the very least, DOE should be obligated to ask parents for their consent before releasing their children's information to  charter schools.  Unfortunately, their response to Johanna's FERPA complaint as reported by Chalkbeat signals otherwise,  that they intend to dig in their heels and continue to violate the law.

Chicago parents give thanks as their schools pull out of inBloom Inc., but NY Commissioner KIng remains fully committed; why?

Illinois State Superintendent Chris Koch

As reported in today’s Sun-Times, Chicago is dropping inBloom like a hot potato.  This $100 million project, created by the Gates and Carnegie Foundations, continues to lose adherents.  Already, seven other states originally listed as inBloom “partners” have dropped out or put their data-sharing plans on hold.  (See the timeline and list in my testimony here.)  Up to yesterday, Illinois and New York were the only two states still committed to sharing data with inBloom Inc. 

Some back story: Last Thursday night, November 21, I was an invited to speak at a forum on student privacy in Chicago, hosted by the Chicago Teachers Union and several activist parent groups, including More than a Score and PURE; see the video of my presentation here.  Unknown to me at the time, the Illinois state official who is heading the inBloom project, a man named Brandon Williams, was in the audience. 

Earlier that day, I had been part of a parent and teacher group which had briefed the editors of the Chicago Tribune and the Chicago Sun-Times about inBloom.  At these meetings, both sets of editors appeared seriously concerned about the vast privacy and security implications of the project.  Yet only one article had appeared in the Chicago press about this issue at that point, also in the Sun Times, two days before.

At the forum on Thursday night, Brandon Williams privately told the representative from the CTU that the issue was getting too “hot” and that Illinois Education Commissioner Chris Koch had decided to keep the state’s student data system, called ISLE, completely separate from inBloom, which before they had intended to be conjoined.  Now, district participation would be completely voluntary – even for the 35 school districts that had received Race to the Top funds out of  866 districts in the state.  These districts would NOT have to return their RTTT funds even if they decided not to participate in inBloom, because their data could be uploaded only into ISLE, the internal state data system.

This decision led Chicago officials to immediately drop out inBloom, the first of the 35 Illinois districts to publicly disengage.  Moreover, the Illinois State Education Dept. already had said that even if a district wanted to upload data to inBloom, no student health or disciplinary data could be shared, because this would be too sensitive – only purely “academic” data.

Commissioner John King and Regents Chancellor Merryl Tisch

Contrast these developments to what is happening here, where the NY Education Commissioner John King remains wholly committed to this project, despite scathing criticism from state legislators, superintendents, principals, school boards and parents.  The latest Superintendent to speak out against inBloom, John Bierwirth of the Herricks school district, has said that all Nassau County superintendents were “on the same page” opposing this project, and that “I don’t think there’s a person in Nassau County who thinks InBloom is a good idea."  He added that "the state education department hasn’t provided a good answer" when asked what the real purpose of this project is, and that “the commissioner is digging a hole deeper day after day.”

Indeed, at forums in all parts of the state, King is regularly assailed for his determination to provide children’s most private data to inBloom Inc. against the will of their parents.  This personal student data will be stored on a vulnerable cloud, to be provided with for-profit vendors, including those producing the data dashboards.  Last night, at a forum with more than 700 angry parents, teachers and students at Eastport-South Manor High School on Long Island, King was angrily confronted again and again on this issue. One parent said about his data-sharing plans, "I can't sleep at night thinking about this; Dr. King, how can you?" When he tried to repeat the stale inBloom talking points, he was interrupted by parents yelling from the audience. 

Despite this growing fury, the Commissioner continues to insist that even without the support of school boards, even if districts decide to return their RTTT funds as more than thirty have now done, even without the consent of parents, he will share an entire statewide data set with inBloom, including their student disciplinary and health data, and more specifically their suspension records, disabilities and 504 diagnoses.

At the same time, King and other NYSED officials are encouraging districts to share even more confidential  data with inBloom Inc., and to sign up for additional “personalized learning tools” produced by for-profit vendors, who will data-mine and use this information to help them produce products to be sold back to schools and districts.  Even as every other of the nine original inBloom states has apparently pulled away from the project, New York stands alone.  Why the difference?

We can only speculate. Earlier this week, in a front page story in the Albany Times Union, James Odato reported how the Regents fellows, the key officials who are “helping drive reforms” and implementing King’s agenda, are being paid for with $19 million “from some of the nation's wealthiest philanthropists,” including the Gates and Carnegie Foundations, the two backers of inBloom Inc.  Odato described how the Fellows inhabit a separate silo at State Ed: “The three-year-old operation, which now comprises 27 full-time staffers and a half-time intern, is unique in public education systems nationwide… the arrangement is stirring concern in some quarters that deep-pocketed pedagogues are forcing their reform philosophies on an unwitting populace, and making an end run around government officers.”  According to Odato, because they are privately funded, the Regents Fellows are not bound by ethics rules or the Public Officer's Law that govern the behavior of other government officials.

We also know through a FOIL submitted by activists in Louisiana that that Amrit Singh, the Regents Fellow in charge of inBloom in New York, was actively recruiting John White, the Louisiana State Superintendent, into the project last year, and helped persuade him to provide a statewide set of student data to inBloom Inc.  A few months after the Louisiana student data as uploaded, White ordered the data be deleted from the inBloom cloud, after protests by parents and school board members. 

We also know that the Gates Foundation gave at least $15 million to the NY State Education Department between 2007 and 2012, for this and other programs, including the Common Core. See our spreadsheet here.  In the Washington Post, principal Carol Burris pointed out how Gates Foundation has provided financial support to Common Core Inc., which produced the highly flawed math modules that NYSED purchased for $14 million, drawing on earlier research by Jessica Bakeman of Capitol NY. 

Last week, an article in the Catholic Education Daily reported that the Gates Foundation has donated more than $10.5 million to private companies like Common Core Inc., to help them develop Common Core aligned curricula.  Mercedes Schneider has explored how Gates has spent at least $150 million to develop these products and convince states to adopt the Common Core.  

We also know that last year, the NYC Department of Education received $1.8 million from the Gates Foundation through its private fundraising arm called the Fund for Public Schools, for the “integration of Common Core implementation strategies with new forms of teacher professional development to align with emerging functionalities and capacity of Shared Learning Infrastructure [SLI is another name for inBloom’s data system].  Thus, Gates has more than a quarter of a billion dollars invested in the Common Core and inBloom alone.

At this point, we don’t know what other financial incentives the Gates Foundation may have provided to NYSED officials since 2012 or now may be dangling in front of them, as they watch one state after another disengage from their data-mining project. All we know is now, New York is the last state standing that appears willing to sacrifice the privacy of its public schoolchildren at the altar of the Gates Foundation and inBloom Inc.