We won in court today to keep PS 25 open -- probably for at least another year!

See also my open letter to Chancellor Carranza in today's Washington Post Answer Sheet , urging him to revoke the decision of the previous Chancellor to close PS 25, and an article in the CSA News.  The NY Post , Politico, and Bklyner also wrote about our win in court.

Today in court, we won our temporary restraining order to keep PS 25 open! 

Judge Katherine Levine of the Kings County Supreme Court issued a decision from the bench that unless she has an epiphany in the next two weeks, the school will remain open next year and she will decide the complex legal merits of the case more carefully over the next few months.

She seemed impressed with our research showing how all the other 33 schools DOE offered these students to apply to 1- all had far lower positive impact ratings 2- many of them were miles away, 19 of the schools in Staten Island alone 3- 25 were overcrowded, and 4- none had class sizes as small as PS 25.  And the DOE has not offered to provide busing for the students.

In short, she was impressed that in most every other proposal to close schools, the DOE had promised higher performing schools that students could apply to, but they didn’t in this case, because according to DOE's own estimation, there are only three other public elementary schools as good as PS 25 in the entire city and they are full.  

In fact, the City itself admitted in their response papers to the lawsuit that according to the school performance dashboard, PS 25 is the "second best public elementary school in Brooklyn and the fourth best in the City, and that PS 25 outperforms charter school other than Success Academy Bronx 2 in its positive impact on student achievement and attendance."

The Judge was also interested in the zoning issue, and that the CEC hadn’t voted to approve the closing of a zoned school.  The City argued instead that they hadn't changed any zoning lines, but that they had just eliminated the zoned school, which is absurd.  As the  PS 25 plaintiffs' memo of law points out, argued by Laura Barbieri, the pro bono attorney from Advocates for Justice who argued the case:

“Entirely eliminating a zoned school and without replacing it with another zoned school, leaving the families in this neighborhood without any zoned school that their children have the right to attend, as occurred in this instance, is the most radical change in zoning lines that can be conceived.”

The Judge was concerned that there was little case law on this subject, but Laura explained the precedent of the Grinage case, in which in 2009, the NYCLU sued the DOE to block the proposal to close three zoned schools without a vote of the CECs.  Chancellor Klein, not a risk averse attorney himself, promptly withdrew these proposals just two weeks after the lawsuit was filed.  Yet incredibly, today in court, the City's attorney claimed that nine years later, Grinage was "still pending."

The Judge asked if the CEC hadn’t voted to approve this, what public input was there?  The DOE explained there were public meetings, etc. where parents expressed their concerns.  The Judge said but you don’t have to listen them, right? Is that the DOE’s  position?  

Finally, she asked the attorneys as regards the temporary restraining order: what’s the balance of harm?  What the worst that happens if I leave the TRO in place?  The PS 25 students have the benefit of an excellent school for another year?  

The City attorney tried to argue this would hold up assignments for all other 3000 kids at closing schools, but as the Judge responded, that was a "ridiculous" argument.  All those transfers and assignments can go through, this will only affect the students at PS 25. (Actually there aren’t 3000 kids in closing schools –  instead there are about 2000 kids in all and 661 in elementary schools, but none of them will be affected but the students at PS 25, whose parents want them to stay).

We were all whooping it up inside the courtroom when the Judge issued her decision from the bench, including PTA Vice President Crystal Williams, one of the plaintiffs.  Afterward, we all hugged and expressed huge relief. Above is a photo after the  hearings of PS 25 parents, supporters and our attorney Laura Barbieri, in front of the Kings County court house.  I just heard from Darcy Griffin, the PTA president, that the parents at PS 25 were all thrilled when they picked up their kids and heard the news.

Let's hope that the Chancellor withdraws the proposal to close this terrific school, as I urged him to do in today's Washington Post; which not only would serve the case of justice, preserve this excellent school, save the parents, teachers, and students at PS 25 much anxiety, and city taxpayer money.

This is how I closed today's open letter in the Washington Post Answer Sheet:

Chancellor Carranza:  On Tuesday in hearings before the New York City Council, you spoke eloquently about how the city should be celebrating our successful public schools, rather than allowing others to denigrate them. In particular, you noted that you had seen some great teaching in Bed-Stuy schools. If you are serious about this, you should rescind the decision to close this school and instead celebrate its accomplishments.] 

The negative impact on PS 25 families would be severe if this closure is allowed to go forward, especially for the large number of homeless students, because the school is a sanctuary of stability in their lives. As Mark Cannizaro, the president of the CSA, the New York City principals’ union, has said, “the students, families and educators of PS 25 deserve better.”  Instead of closing this exceptional school, we urge you to honor PS 25’s achievements, emulate and expand it — and enable more NYC schools and students to have the same chance to succeed.

Congrats to the parents, students and teachers at this amazing school, to Laura Barbieri, our wonderful pro bono attorney, and my research assistant, Sebastian Spitz, who did much of the data and factual analysis for the case. Here are some of the legal briefs filed in the case, opposing the PS 25 closure:  

Memorandum of Law in Support of Preliminary Injunction to Stop the Closure of PS 25 
The memo of law explains the legal basis for why the DOE must keep PS 25 Eubie Blake open until the court is able to make a final decision on the legal merits, including the irreparable harm to its students if the school closes this year and they have to transfer to lesser schools.

Parents' Legal Petition Against the Closure of PS 25 This verified petition explains the background of the case, including PS 25's high quality, and the legal argument for why the DOE does not have the right to close the school.

Affidavit of Leonie Haimson, Class Size Matters My affidavit explaining the research showing the importance of class size, and how PS 25's small class sizes are a critical reason for the school's success.

Appendix to Leonie Haimson's Affidavit: Summary of Class Size Reduction Research on the proven benefits, in the short term and long term, of small class sizes, especially disadvantaged children who make up the overwhelming majority of PS 25 student population.

Affidavit of Crystal Williams  Crystal Williams, parent of two students at PS 25 and the Vice President of the PS PTA, explains how PS 25 has helped her children and why she and other parents oppose its closure.

Order to Show Cause and Request for Temporary Restraining Order to Stop the Closure of PS 25 This document requests that the court prevent the DOE from taking any further steps to close PS 25 until the court decides on its legality. 

Here are the response documents filed by the City:

Verified Answer of DOE in PS 25 Case  The DOE explains why they want to close PS 25 – though they admit on p. 3 that according to their school performance dashboard,  it is the 2^nd best public elementary school in Brooklyn and the fourth best n the city and outperforms all other charter schools than Success Academy Bronx 2 in its positive impact on student achievement and attendance.

Analysis of Public Comments on the Closure of PS 25 This document summarizes the various public hearings, etc. held about the school's proposed closure, revealing widespread public opposition to the plan. 

DOE's Memorandum of Law in Opposition to Temporary Injunction and Show Cause
The Department of Education's argument explaining why they should have the right to close PS 25 before the court makes a final decision on the merits of the case. 

 

State Longitudinal databases: Tracking students from birth to the workforce and beyond

Yesterday, this piece on the collection and sharing of large amounts of personal student data by states was posted  as “The astonishing amount of data being collected about your children.” at the Washington Post AnswerSheet.  It is also posted at our Student Privacy Matters website.  If you are interested in the issue of protecting your children against this sort of data collection and tracking, please join the Parent Coalition for Student Privacy.  thanks, Leonie

By Leonie Haimson and Cheri Kiesecker, Parent Coalition for Student Privacy 

Remember that ominous threat from your childhood, “This will go down on your permanent record?” Well, your children’s permanent record is a whole lot bigger today and it may be permanent. Information about your children’s behavior and nearly everything else that a school or state agency knows about them is being tracked, profiled and potentially shared.

During a February 2015 Congressional hearing on “How Emerging Technology Affects Student Privacy,” Rep. Glenn Grothman of Wisconsin asked the panel to “provide a summary of all the information collected by the time a student reaches graduate school.” Joel Reidenberg, The Center on Law & Information Policy Fordham Law School Director, responded:

“Just think George Orwell, and take it to the nth degree,” Reidenberg said. “We’re in an environment of surveillance, essentially. It will be an extraordinarily rich data set of your life.” 

Most student data is gathered at school-via multiple routes; either through children’s online usage or information provided by parents, teachers or other school staff. A student’s education record generally includes demographic information, including race, ethnicity, and income level; discipline records, grades and test scores, disabilities and Individual education plans (IEPs), mental health and medical history, counseling records and much more.

Under the federal law known as FERPA, the Family Educational Rights and Privacy Act, if medical and counseling records are included in your child’s education records they are unprotected by HIPAA (the Health Insurance Portability and Accountability Act passed by Congress in 1996). Thus, very sensitive mental and physical health information can be shared outside of the school without parent consent.

Many parents first became aware of how widely their children’s personal data is being shared with third parties of all sorts when the controversy erupted over inBloom in 2012, the $100 million corporation funded by the Gates Foundation. Because of intense parent opposition, inBloom closed its doors in 2014, but in the process, parents discovered that inBloom was only the tip of the iceberg, and that the federal government and the Gates Foundation have been dedicated to the goal of amassing and disclosing personal student data in many other ways.

Ten organizations joined together, funded by the Gates Foundation, to create the Data Quality Campaign in 2005, with the following objectives:

• Fully develop high-quality longitudinal data systems in every state by 2009;
• Increase understanding and promote the valuable uses of longitudinal and financial data to improve student achievement; and
• Promote, develop, and use common data standards and efficient data transfer and exchange.

Since that time, the federal government has mandated every state to collect personal student information in the form of longitudinal databases, called Student Longitudinal Data Systems or SLDS, in which the personal information for each child is compiled and tracked from birth or preschool onwards, including medical information, survey data, and data from many state agencies such as the criminal justice system, child services, and health departments.

A state’s SLDS, or sometimes called a P20 database (pre-K to 20 years of age), P12, or B-20 (data tracking from birth), have been paid for partly through federal grants awarded in five rounds of funding from 2005-2012. Forty seven of fifty states as well as the District of Columbia, Puerto Rico, and the Virgin Islands have received at least one SLDS grant.

Although Alabama, Wyoming and New Mexico are not included on the site linked to above, Alabama’s Governor recently declared by executive order that “Alabama P-20W Longitudinal Data System is hereby created to match information about students from early learning through postsecondary education and into employment.” Wyoming uses a data dictionary, Fusion, that includes information from birth. New Mexico’s technology plan shows that they moved their P-20 SLDS to production status in 2014 and will expand in 2015. This site run by the Data Quality Campaign tracks each state’s SLDS.

Every SLDS has a data dictionary filled with hundreds of common data elements, so that students can be tracked from birth or pre-school through college and beyond, and their data more easily shared with vendors, other governmental agencies, across states, and with organizations or individuals engaged in education-related “research” or evaluation — all without parental knowledge or consent,.

Every SLDS uses the same code to define the data, aligned with the federal CEDS, or Common Education Data Standards, a collaborative effort run by the US Department of Education, “to develop voluntary, common data standards for a key set of education data elements to streamline the exchange, comparison, and understanding of data within and across P-20W institutions and sectors.”

Every few months, more data elements are “defined” and added to the CEDS, so that more information about a child’s life can be easily collected, stored, shared across agencies, and disclosed to third parties. You can check out the CEDS database yourself, including data points recently added, or enter the various terms like “disability,” “homeless” or “income” in the search bar.

In relation to discipline, for example, CEDS includes information concerning student detentions, letters of apology, demerits, warnings, counseling, suspension and expulsion records, whether the student was involved in an incident that involved weapons, whether he or she was arrested, whether there was a court hearing and what the judicial outcome and punishment was, including incarceration.

This type of information is obviously very sensitive and prejudicial, and often in juvenile court, records are kept sealed or destroyed after a certain period of time, especially if the child is found innocent or there is no additional offense; yet all this information can now be entered into his or her longitudinal record with no particular restriction on access and no time certain when the data would be destroyed.

Expanding and Linking Data across States

Nearly every state recently applied for a new federal grant to expand its existing student longitudinal data system, including collection, linking and sharing abilities. You can see the federal request for proposals here. Pay special attention to Section V, the Data Use section of the grant proposal, requiring states to collect and share early childhood data, match students and teachers for the purpose of teacher evaluation, and promote interoperability across institutions, agencies, and states.

The fifteen states and one territory, American Samoa, that won the grants were announced Sept. 17, 2015, and are posted here. The President’s 2016 budget request has a number of additional data­ related provisions, including a near tripling in funding for State Longitudinal Data Systems ($70 million) and Department of Labor Workforce Data Quality Initiative ($37 million) aimed at attaching adult workforce personal data with his or her student records.

Though the federal government is barred by law from creating a national student database, the US Department of Education has evaded this restriction by means of several strategies, including funding multi-state databases, which would have been illegal before FERPA’s regulations and guidance were rewritten by the Department in 2012.

The federal grants encourage participation in these multi-state data exchanges. One existing multi-state database is WICHE, the Western Interstate Commission for Higher Education, which includes the fifteen Western states that recently received an additional $3 million from the federal government. This WICHE document explains that the project was originally funded by the Gates Foundation, and that the Foundation’s goal of sharing personal student data across state lines and across state agencies without parental consent was impermissible under FERPA until it was weakened in 2012:

Upon approval of WICHE’s proposal by the Gates Foundation, the pilot MLDE (Multistate Longitudinal Data Exchange) project began in earnest in June, 2010, and the initial meeting to begin constructing the MLDE was held in Portland, Oregon, in October, 2010. It is worth placing the launch of the MLDE pilot within an historical timeline of events bearing on the development and use of longitudinal data. As the project got underway, the federal government’s guidance on the application of the Family Educational Rights and Privacy Act (FERPA) was still fairly restrictive. Indeed, based on a subsequent conversation with a member of the Washington State Attorney General’s office, our plans to actually exchange personally identifiable data among the states would be impermissible under the FERPA guidance in effect at that time. Though we were told we would have been able to assemble and use a de-identified dataset, which would have shown much of the value of combining data across states, not being able to give enhanced data back to participating states would have been a serious setback. Changes in the federal government’s guidance on FERPA that went into effect in January, 2012 resolved this problem.
The new guidance permitted the participating states to designate WICHE as an authorized representative for the purposes of assembling the combined data, while also allowing the disclosure of data across state lines and between state agencies.

Since 2010, the Gates Foundation has funded WICHE with more than $13 million. Just to underscore how powerful this organization has become, the Lieutenant Governor of Colorado, Joe Garcia, just stepped down from his post to head WICHE. Here is a helpful chart showing how student personal data is to be shared, among state agencies and across state lines.

Existing multi-state databases include not just WICHE, but also SEED, formerly Southeastern Education Data Exchange, now called the State Exchange of Education Data, including Alabama, Colorado, Florida, Georgia, Kentucky, North Carolina, Oklahoma, and South Carolina.

This North Carolina PowerPoint from 2013 describes what detailed information is to be shared among the states participating in SEED: data aligned with CEDS, including demographic information, academic and test score data, and disciplinary records. Here is a Georgia document, explaining how SEED will be “CEDs compliant” and describes in even more detail the sort of information that will be exchanged.

In addition, the two Common Core testing multi-state consortia funded by the federal government, PARCC and Smarter Balanced, are accumulating a huge amount of personal student data across state lines, and potentially sharing that information with other third parties. Under pressure, PARCC released a very porous privacy policy last year; Smarter Balanced has so far refused to provide any privacy policy, even after requests from parents in many of the participating states.

What Parents Should Do

Ask your State Education Department if they applied for this new grant to expand their SLDS, and if so, ask to see the grant proposal. You can also make a Freedom of Information request to the US Department of Education to see the grant application. Ask what methods your state is using to protect the data that the SLDS already holds, and if the data is kept encrypted, at rest and in transit. Ask what categories of children’s data they are collecting, which agencies are contributing to it, and what third parties, including vendors and other states, may have gained access to it. Ask to see any inter-agency agreements or MOUs allowing the sharing education data with other state agencies. Ask if any governance or advisory body made up of citizen stakeholders exists to oversee its policies.

You should also demand to see the specific data the SLDS holds for your own child, and to challenge it if it’s incorrect – and the state cannot legally deny you this right nor charge you for this information under FERPA.

This was conclusively decided when a father named John Eppolito requested that the Nevada Department of Education provide him with a copy of his children’s SLDS records, and the state demanded $10,000 in exchange. He then filed a complaint with the US Department of Education, which responded with a letter on July 28, 2014, stating that the state must provide him with the data it holds for his child, as well as a record of every third party who has received it; and that they cannot charge a fee for this service.

Parents also have the right to correct their child’s data if it is in error. Apparently Mr. Eppolito found many errors in his children’s data. Even if it is accurate, the data that follows your child through life and across states could diminish his or her future prospects. As this Department of Education study points out,

“…imagine a student transferring from another district into a middle school that offers three levels of mathematics classes. If school staff associate irrelevant personal features with mathematics difficulties, the representativeness bias could influence the student’s placement… educators have been found to have a tendency to pay more attention to data and evidence that conform to what they expect to find. “ 

Schools could use this data to reject students, push them out, or relegate them to remedial classes or vocational tracks.

There is also abundant research that shows that a teacher’s expectations play a significant role in how a student performs – especially for marginalized groups. This is called the Pygmalion effect in the case of a teacher’s positive expectations, and the Golem effect in the case of negative expectations. These studies reveal that if teachers are provided with positive or negative information about their students before having a chance to form their own opinions based upon actual experience, this prior information often tends to bias their judgments and perceptions of that student, creating self-fulfilling prophecies.   Parents should be legitimately fearful that positive or negative data may be used to profile their children, and potentially damage their chance of success.

What Else Can You Do? 

If you send your children to a public school, under current federal law you have no way of opting out of the P20 profile that has been created by your state and potentially shared with others. You also have no right to refuse to have your child’s data disclosed to testing companies and other corporations in the name of evaluation and research. Researchers have legitimate interests in being able to analyze and evaluate educational programs, but any sensitive personal data should be properly de-identified and there must be strict security provisions to safeguard its access and restrict further disclosures, as well as a time certain when it will be destroyed. You do have the right to see that data, and challenge it if it is inaccurate.

You should also advocate for stronger state and federal laws to protect your child’s data and laws that give parents and students the right of ownership, including the ability to decide with whom it will be shared. You should urge your State Education Department to create advisory or governance boards that include stakeholder members, to provide input on restrictions on access and security requirements.

Any federal and state student privacy legislation should embrace five basic principles of student privacy, transparency and security, developed by the Parent Coalition for Student Privacy. Ask your elected officials to support TRUE data privacy and transparency legislation, to protect children. Parents deserve to know the data collected and shared about their children, and they should be guaranteed that their children’s data is safe from breaches and misuse.

Gary Babad breaks his contract and is demoted to DOE's press office

In a violation of his exclusive contract with the NYC Public School Parent blog, Gary Babad has published a exclusive report on the Washington Post blog about the appointment of a new Superintendent of DC schools.

We dragged Gary out of obscurity and propelled him to fame and fortune, and this is how he repays us? (Okay, there was no pay involved, but still!)

Gary's photo is at right, at the Class Size Matters fundraiser in May, talking to famed attorney Norman Siegel and to me; an occasion in which he never even hinted at his future betrayal.

As punishment, we are sending Gary to the bowels of the Tweed building to head their PR department, otherwise known as the NYC Department of Education press office.

This department is short-handed because of much turnover in recent months; and it's obvious they need help with their spin control. (The new hires haven't even managed to subscribe to our NYC education news list yet, the first step in any genuine attempt to control the news.)

For example, last week, when a press spokesperson tried to explain the lack of action for five years in a DOE investigation into the misconduct of a principal, recently shown to have misused funds in an audit from the State Comptroller's office, the excuse was that "Our lawyers are very thorough."

More recently, a DOE press spokesperson fed the absurd line to an Ed Week reporter that the DOE "is poised to introduce online credit-recovery options for students this coming school year in 10 schools" and then, only when a teacher is present.

Meanwhile, we know from numerous news articles that credit recovery is pervasive throughout the city, and credits are being handed out like candy to students, through cut-and-paste online programs, even when they failed to attend their classes and had flunked their courses.

We also know through DOE's own job postings and RFPs that online "learning", as they call it, is being used in at least 42 schools this year, with a plan to spread the discredited practice more widely next year, through "multi-million dollar online learning technology development projects" to be utilized during and beyond the school day - from home, library, or anywhere students have access to online resources.""

And in today's Daily News, this is how the DOE press office explained their decision to grant tenure to a principal, two days after a girl had drowned on a field trip at his school, a trip which had occurred without adequate supervision and permission slips:

"In the heartbreaking days following Nicole's death our primary focus was not on the tenure status of Columbia Secondary School officials," said Education Department spokeswoman Natalie Ravitz..

As Steve Koss, contributor to this blog pointed out, "such a statement is ridiculous and belied by their own actions, since it certainly didn't take them long to focus on the employment status of the teacher (now fired) and the AP (now demoted from administration back to being "just" a teacher.)"

We're sorry, Gary, that we have to demote you to heading the press office at Tweed, but at least at DOE, you can be assured that poor performance and/or misconduct are not punished, but are rewarded with a higher salary and assurances of lifetime employment.