NYSED attempts to radically weaken NY Student privacy law to allow for the selling of student data

Here and below is a letter that NYSAPE, Class Size Matters and the Parent Coalition for Student Privacy sent to the Board of Regents last night.  

The Regents were set to discuss newly revised proposed student privacy regulations this morning which considerably weaken the state's student privacy law passed in 2014, NY Education § 2-d , that was approved by the Legislature as a result of the controversy over inBloom.  At that time, the Legislature blocked the state's plan to hand off a a wealth of personal student information to this Gates-funded corporation and also passed a new law modeled on CA legislation , which wisely prohibited the sale and use of personal student data for marketing purposes under any circumstances.  

Instead, the new proposed regulations  posted here would allow for the sale and use of student data for marketing purposes as long as there was “consent” on the part of parents and/or eligible students, by claiming that it would no longer be defined as marketing.  This radical redefinition of the law was made presumably at the behest of College Board and ACT.  

The College Board, which makes millions of dollars from selling student data while claiming that it does not, was recently exposed by the NY Times as selling the information to third parties which in turn sell it to even more unscrupulous organizations to make money off unsuspecting families.  The College Board harvests much of this data off students deceptively before the administration of the PSATs and SATs, without parent knowledge, a practice that we have written about extensively and more recently has been criticized by the US Department of Education.

There are many other problems with these proposed regulations that would further restrict the ability of parents to keep their children's information safe from abuse, as we had pointed out in our comments on the regulations as originally drafted.

In addition, according to the state law, NYSED Chief Privacy Officer is supposed to produce a report each year on the progress made in protecting student privacy, including the results of investigations of breaches and parental complaints.  And yet NYSED officials have refused to provide any such reports, even after being asked for them. 

Here is the agenda of today’s Regents meeting – the early morning session  were live-streamed but unfortunately not the session starting at 10:30 AM where these regulations will discussed.  

The letter was quickly drafted over the weekend because as it points out, we had no advance warning that these regulations were being released until they appeared on the Regents agenda; apologies if there are some grammatical errors.  More soon.

Why dumping the ESSA regs is not a big deal; and what is

There has been an unnecessary amount of angst and ink spilled on the blogs and elsewhere over the fact that Congress has voted on eliminating the ESSA regulations on accountability.  It bears repeating that the law itself -- the Every Student Succeeds Act -- still exists in force and is quite prescriptive, for good or for ill only now just a little bit less so.  Every state must still give standardized exams annually to students in every in grades 3-8 and once in high school; must evaluate and rate schools mainly on the results of those exams plus graduation rates; and must intercede in schools rated in the lowest 5 percent.  The fact that the regulations were ditched by Congress changes very little.  What this instead has done is give states a little more flexibility in deciding what to do with schools with high opt out rates, which is a good thing in my view.  

See the EdWeek explainer on this:

The Obama administration wanted schools to take the testing participation requirement in the law seriously, so that states, districts, and educators could have data on how English-learners and students in special education were doing relative to their peers. So it used the now-dead-in-the-water regulations to call for states to take pretty dramatic actions for schools that didn't meet the 95 percent threshold. The choices laid out in the regs included lowering the school's overall rating or putting it on a list of schools deemed in need of improvement. The Obama regulations also allowed states to use their judgement, putting in harsher penalties for a school that had a really high opt-out rate vs. one that didn't quite hit the 95 percent participation threshold. Some Republicans, including Alexander, thought this went beyond the bounds of the law. 

Now that the regs are being killed? We go back to ESSA, as it was written originally. Schools still must test 95 of their kids. But their state gets to decide what happens if they don't meet that target.

What this piece doesn’t mention is that the law still requires that in every state’s accountability system, at least 95% of the students in each testing grade must be included in the denominator of the academic indicator for each school, whether they took the test or not.  Unfortunately, this language was incorporated into the law, even though it appeared to contradict other sections of ESSA, including that the Secretary of Education is prohibited from telling a state how school participation rates will be factored into its accountability system and cannot punish states that allow kids to opt out of exams.  

What this seemingly technical but very damaging requirement would seem to do is to force states to label schools with high opt out rates as failing – which would be a travesty especially in New York, where many otherwise high-performing schools had opt-out rates of 50% or more. s  Yet as NYSAPE and Class Size Matters pointed out in our memo to the Regents,  while the denominator may be specified in the law, there is nothing that specifies the numerator.  Thus, we propose that instead of counting opt-out students as having failed the state exams for the purpose of rating schools, the average test scores for the school’s overall student population or the subgroup they belong to should be substituted as their scores in the numerator. 

Now many of the Inside-the-Beltway education advocacy groups protested hugely against Congress’ elimination of the ESSA regs, arguing that this somehow would lessen the need for states to try to improve struggling schools and help low-scoring kids.  If they really cared about addressing low-performance rather than merely punishing schools with opt out rates, they should have supported this additional flexibility – to ensure that those schools that really need extra help are provided with the extra support they need.

Of course, the biggest problem with ESSA is that we have no idea whether the support offered struggling schools will work to improve them.  Ever since NCLB, the federal government under Bush and then Obama hasn’t encouraged or required positive, effective reforms for struggling schools but instead pushed districts to fire teachers, close schools, and/or turn them into charter schools.   These same disruptive models were subsequently incorporated into the $7 billion School Improvement Grant program by Arne Duncan that proved to be a bust. The federal model for failing schools itself failed, and now ESSA will leave the decisions of how to intercede up to states, which probably won’t do much better but likely won't do worse.

Instead of helping schools improve, the experience of being identified as a failing school in NYC and elsewhere has been harshly negative, leading to a downward spiral of declining enrollment, losing  programs, and teachers fleeing or being fired -- as in NYC's faltering Renewal program.

If schools with low test scores were merely offered more money to reduce class size, along with hiring more counselors and offering more arts and other programs, I doubt if these initiatives would be experienced as so damaging.  That is why NYSAPE and Class Size Matters have proposed that as part of the state’s accountability system, an Opportunity to Learn index be included along with the mandated academic factors, to give all schools the incentive to provide kids with the right conditions to succeed. 

All schools should have to report and make efforts to improve their class sizes, to provide arts education, recess, and phys ed, and proper numbers of counselors and librarians, as well as the other programs that we identified as part of our OTL index; as these are the features that parents want to see in their children’s schools and evidence shows contributes to their success.

Moreover, smaller classes and these other supports are especially critical in schools with large numbers of high-needs children, whether they be students with disabilities, from low-income families, or English language learners – and research shows these are the children who benefit most from these programs. Rather than schools be judged exclusively or primarily on test scores, as Kemala Karmen points out, a better solution would be to require that these supports be provided especially in schools with the most intense concentration of high-needs students.   

Test scores are not only an unreliable way to assess the quality of schools, but by placing so much pressure on tests much of what is involved a well-rounded education is squeezed out of the curriculum, and in the race to boost test scores, too much of the joy of learning is extinguished.  Finally, it makes no sense to provide these opportunities when schools have low test scores only to take them away from students when the school begins to improve, making it likely that this will cause them to struggle once again.

I only wish that the accountability hawks within the DC corporate reform groups and civil rights organizations would pay as much attention to the conditions of learning as they do on testing.  By now, they should  recognize that access to high-stakes tests has never been a necessary precondition to improving schools, nor has it been helpful.  In fact, research shows that there was more narrowing of the racial achievement gap in the 1970’s and 1980’s before NCLB and annual testing than since. More recently, the achievement gap between children from high- and low-income families has actually widened, and is “roughly 30 to 40 percent larger among children born in 2001 than among those born twenty-five years earlier.”

In any case, these are the debates we should be having – how the quality of schools can be more reliably measured, how should they can be incentivized to provide students with a better chance to learn, and how states should intercede when schools need more support in a manner that is helpful rather than hurtful.  Not whether Congress dumping the ESSA accountability regulations is somehow a big deal, when it is not.