Justice denied! Slipshod and circular reasoning in the judge's decision on our inBloom lawsuit!

Late Friday afternoon, we learned that Judge Breslin of the NY Supreme Court dismissed the lawsuit to prevent the NY State Education Department from uploading personal student data to inBloom, which in turn plans to share this information to vendors without parental consent. The judge's decision is nonsensical in many ways, as he didn't show how the state's disclosure of personal student data to inBloom was either necessary or specifically authorized by law, as the Personal Privacy Protection Law requires. Instead, his decision exhibits slipshod and circular reasoning.

Despite the chorus of inBloom supporters and others on the Gates payroll who pounced on this decision with glee, the Court did not make any independent judgments on the educational value or security of this information.  Instead, the judge pointed out an exception in the PPPL: that such disclosure can be made "to those who contract with, the agency that maintains the record if such disclosure is necessary to the performance of their official duties pursuant to a purpose of the agency required to be accomplished by statute or executive order or necessary to operate a program specifically authorized by law."  


However, the State did not prove that such disclosure to the contractor, in this case inBloom, was indeed"necessary  to the performance of their official duties" or "necessary to operate a program specifically authorized by law" -- so I'm really not sure how the Judge came to this conclusion, and it seems to be based upon a very slippery argument. 

Moreover, according to the experts that we've spoken to, the contractor would itself be bound by the PPPL law and thus required to protect privacy to the same extent as the State Education Department.  This means that inBloom could not redisclose any personal data to vendors, including the dashboard providers, without parental consent.

The only real discussion of this issue by the judge in his decision is on p. 15, where he says that the "determination...to utilize a third party vendor to design and effectuate the portal and the dashboard systems" was "not unlawful" as it was made to "carry out the duties of the agency which is promote and further the educational process and supervise all public schools." 

So that the disclosure to a contractor, namely inBloom, is allowed "inasmuch as disclosure is necessary to the performance of respondents' official duties."   Because SED says it is done to carry out its "duties," therefore it is "necessary" and the PPPL does not apply?  Why have a law that restricts the actions of state agencies to disclose personal information unless it is "necessary," and then defer blindly to the agency whenever it claims that such disclosure is needed to perform its duties?

How do we know that disclosing this data to inBloom is unnecessary? No other state is providing its student data to inBloom, even states that received considerable Race to the Top funds.  No other state is outsourcing its entire student longitudinal record system to a private corporation, as far as we know.  The vast majority of New York school board members have opposed the disclosure of this inforrmation to inBloom, as does nearly every Superintendent who has spoken out on this issue.

The state itself says it will not upload the data to the inBloom cloud until at least April, because of contractor delay, and that it will take two months after that until the dashboards are fully operable, which means that it will be at least June until they are working.   

Ken Wagner's affidavit adds the salient fact that in "September 2014, the State's RTTT funding ends if we are unable to obtain an extension...At that point NYSED's rols as subsidizing and serving as a marketplace for...dashboard services will end and inBloom must delete all the data that we have given them."

NYSED also admits that even if they do get an extension, inBloom will start charging for its services in January 2015 -- and that they may have no budget to pay for it when it does. At that point as well, districts would have to pay separately for the dashboards, and none have so far said that they intend to do so. 

So that at most, there would be four months during the school year -- September to December 2014, and possibly even less time -- when the dashboards populated from the inBloom cloud would be operational.  Is uploading the most sensitive information of every public school student in the state onto a data cloud a rational decision, so that dashboards may operate for four months at most?  Is it really necessary for the performance of SED's official duties?  This shows how absurd, arbitrary and reckless this determination of Commissioner King--and Judge Breslin's rubberstamp opinion -- really is.

As we pointed out, the state had violated several other provisions of the Personal Privacy Law,including never having submitted a privacy impact statement in over thirty years, which is required by law.  This privacy impact statement is supposed to provide details as to what personal data every state agency are collecting and which of this data are being provided to  third parties,  under what legal justification,. NYSED also never appointed a privacy officer, as the law calls for as well.  Finally, the SED never established any rules governing the retention or disposal of the data supplied to inBloom, which also violates the PPPL . 

The Judge did not disagree, but the fact that Ken Wagner, (who I guess by default is SED's privacy officer!) did finally submit a privacy impact statement in December in response to our lawsuit, no matter how incredibly inadequate and late the statement is, seems to have satisfied him.  (See Wagner's laughably incomplete statement and the accompanying spreadsheet, especially vague as to who the state may decide to share this information with and under what authority and conditions.)

The Judge also noted that Wagner finally provided information in hisstatement as to the disposal and destruction of this information. Wagner now says that inBloom will be required to destroy all the data when students graduate from high school, but that all of their personal data will be then transferred to the State archives for at least eight years following graduation,with uncertain restrictions on access and an indefinite time line for disposal-- which in itself seems to violate the strict conditions laid out in the PPPL. 

Never mind. We will continue fighting for laws, namely A.6059A, passed unanimously by the Assembly last session and now introduced in Senate S.5932,  that would put strict limits on the state's ability to share any personal information with third parties, and would  prohibit any vendor from redisclosing such information to third parties without parental consent, as inBloom plans to do. 

As the leaders of both parties have come out strongly against the state’s plan to share such sensitive student information with inBloom, I believe that they will never allow the Commissioner to go ahead with this unwarranted and massive violation of student privacy.

New York Parents Outraged by Governor’s Flawed Common Core Panel

FOR IMMEDIATE RELEASE:  February 9, 2014

More information contact:

Eric Mihelbergel (716) 553-1123; nys.allies@gmail.com

Lisa Rudley (917) 414-9190; nys.allies@gmail.com

NYS Allies for Public Education www.nysape.org

New Yorkers Outraged by Governor’s Flawed Common Core Panel

The leaders of the NYS Allies for Public Education (NYSAPE), a coalition of more than 45 parent and educator groups from throughout the state, expressed their outrage at Governor Cuomo's choice of appointees to his Common Core Panel.

As Lisa Rudley, Ossining public school parent and founding member of NYSAPE said, “As a parent I am offended that the Governor's Panel is stacked with known supporters of the Common Core, eliminating the chance for an objective evaluation.  The chair, Stanley Litow, Vice President of IBM, has already written an Op-ed saying full speed ahead with its implementation.  Dr. Charles Russo is one of the very few Superintendents in the state to publicly support the standards, including the flawed NYSED modules known to be rife with errors and questionable content.”  

As Leonie Haimson of Class Size Matters pointed out, “Several members selected by the Governor belong to organizations that are heavily dependent on funding from the Gates Foundation, which has spent more than $170 million on developing and promoting the Common Core. These include Dan Weisberg of The New Teacher Project, which has received $23 million from the Gates Foundation, including $7 million in the last year alone.  Nick Lawrence is a prominent member of Educators for Excellence, which received more than $3 million from the Gates Foundation in 2013.  This evident conflict of interest undermines their credibility not only concerning the Common Core, but also the highly controversial issue of whether the state should go ahead with sharing personal student data with inBloom Inc., a corporation established by the Gates Foundation with $100 million."

“Parents are tired of having education policy in this state hijacked by deep-pocketed billionaires who do not send their own children to public school and would never consider having their education stifled by a rigid regime of instructional text, scripted modules, test prep, and their personal data provided to for-profit companies without their consent,” said Eric Mihelbergel, Ken-Ton public school parent and founding member of NYSAPE.

Bianca Tanis a New Paltz public school parent and special education teacher noted, “Experts in special education, early childhood development and elementary school teachers have all noted that the Common Core standards are developmentally inappropriate, were created without their input and need significant reform.  And yet not a single individual from any of these groups was selected for the Panel, ensuring that their recommendations will be profoundly deficient.”

"I am astounded that the governor would fail to include any teachers of younger students and those with special needs, especially since many of the criticisms and concerns surround the issue whether the standards are appropriately designed for these children,” pointed out Lori Griffin, a Copenhagen public school parent and educator.

“The Governor argues that no decision should be made on the Common Core until this Panel has come up with its recommendations.  The fact that this Panel is so heavily stacked only reinforces our conviction that there is no reason to wait for the Panel's conclusions.    The Common Core standards must be immediately pulled back and revised, with input from educators and parents, the over-testing must come to a halt, the teacher evaluation system scrapped, and the contract with inBloom cancelled,” said Jeanette Deutermann, Bellmore public school parent and founder of Long Island Opt-Out.

Jessica McNair, New Hartford public school parent concluded, “Our children are suffering and cannot wait. If Commissioner King does not immediately stop the runaway train, call a halt to the standards and the testing, and withdraw his agreement with inBloom, the Legislature must act in his place.”

###

John King uses WSJ to threaten NYC on charter rent: are Amplify losses so great Rupert can't afford to pay fact-checkers anymore?

Today the Wall St. Journal carried one of the worst articles I have ever read, carrying baseless threats by the State Education Department that they are considering cutting school construction aid to NYC if the de Blasio charges charter schools rent.  

It would be an outrageous abuse of power to penalize NYC for failing to submit to the Commissioner's personal privatization agenda.  Remember that before being appointed to SED, King used to run a chain of charters called Uncommon charters, that benefit from free space in DOE buildings. The reporter failed to mention that fact.

Not only would cutting school construction aid be illegal-- as the state capital funding reimbursement formula is written into law -- but essentially the Commissioner would be punishing NYC for complying with state law.

Yet the reporter, Lisa Fleisher,  misstated the law, by erroneously writing that "school districts "may" contract with charter schools "at cost."

Section 2853 of state education law clearly says that if districts choose to contract with charters for space and services, "any such contract shall provide such services or facilities at cost.”

http://law.onecle.com/new-york/education/EDN02853_2853.html

This is a huge legal difference between “may” and “shall" of course. 

Perhaps Rupert Murdoch is losing so much money with Amplify he can't afford fact-checkers at the WSJ anymore. 

The reporter also omitted mentioning that as part of their applications to be authorized, charters have to submit a financial plan that covers rent. 

I have written to the Wall St. Journal, asking them to retract this egregious error; perhaps others could too at wsjcontact@wsj.com  Let's see if they respond.  Below is the letter Arthur Schwartz of Advocates for Justice sent John King today.

February 7, 2014

Commissioner John King

New York State Education Department

89 Washington Avenue

Albany, New York 12234

                                Re:         Penalizing NYC if It Charges Rent to Charter Schools

Dear Commissioner King:

                We are counsel to petitioners in two lawsuits which challenge the current policy of the NYC Department of Education not to charge rent to charter schools co-located in NYC public school buildings.  Both suits, one titled NYC Parents Union v. NYC Board of Education and the second titled Leticia James, et al. v. NYC Board of Education, are based on Section 2853 of the Education Law, which clearly says that if districts choose to contract with charters for space and services, “any such contract shall provide such services and facilities at cost.”

                We have always read this statute as excusing school districts from the requirements of Education Law § 403-a, which requires that rentals not be less than “fair market rental value.”  “At cost,” however, does not mean “for free,” and NYC’s Independent Budget Office has calculated a “cost,” for the space allocated to co-located charter schools, of more than $2,000 per student.  This sum, we have contended, is an unlawful subsidization of charter schools that co-locate (money not given to charter schools that rent).

                There is an article in the Wall Street Journal today that reports that the New York State Education Department is “studying how the pledge [by Mayor De Blasio] to charge rent [to charters] could affect the amount of funding the City receives for facilities.”

                We are dismayed to hear this.  It is our understanding that the State reimbursement rate for City spending on school construction is set in law and cannot be abrogated because of the policy preferences of the State Education Department.

                Moreover, the Wall Street Journal reporter misstates the State law.  The law does not say that “school districts may contract with charter schools ‘at cost’”; it says “shall.”  We fear that the reporter got this version of the law from your office.

                The article quotes your office as being concerned about the City “making a profit” by charging rent to charters.  Charging rent at cost does not cause a district to “make a profit,” nor has a school district charging market rent for space (far more than “cost”) ever resulted in a penalty.  In fact, under Section 403-1, your office penalizes districts that fail to rent space at market rates.  See Appeal of Robert A. Forrest, No. 14501 (July 15, 2013, aff’d ___ Misc. 3d ____ (Sup. Ct. Albany County, January 2014); Ross v. Wilson, 308 N.Y. 605; Yeshiva of Spring Valley, Inc. v. Board of Education of East Ramapo Central School District, 132 A.D.2d 27.

                We wish to know whether the discussions reported in the Journal are truly taking place, and what possible legal basis the Commissioner could have for withholding state aid to a district charging rent to a charter “at cost.”  Such a move could only lead to unpleasant litigation.

                                                                                                                Very truly yours,

                                                                                                                Arthur Z. Schwartz

AZS:dr

cc:           Hon. Bill De Blasio
                Richard Trautwein, General Counsel, State Education Department

                Hon. Leticia James

                Hon. Melissa Mark-Viverito

                Leonie Haimson

                Jonathan Westin

                Mona Davids

Please reverse the damaging co-locations! Sign our petition to the Chancellor now!

Over 30 school co-locations proposals were pushed through during the last few months of the Bloomberg administration that will cause even more overcrowding and take away the critical space that children need for a quality education.

Please sign our petition and let the new Chancellor and the new members of the Panel for Education Policy that these co-locations should be reversed. And be sure to add a comment on the petition page, especially if the school that your child attends or one in your community will be negatively affected. Thanks!

The petition can be found by clicking here or by clicking the link on the side of the blog.

Dear Chancellor Fariña and Panel members,

I want to thank you for focusing your efforts on improving opportunities for NYC public schools students.

I hope you will reconsider and reverse the co-location proposals made by Mayor Bloomberg in the last few months of his administration, which would lead to more overcrowding and would push thousands of kids out of their classrooms, as well as their art, music and science rooms, and the dedicated spaces special needs students need to receive their mandated services.

These co-locations could also cause many children to lose access to their gyms, libraries and make it unable for them to eat lunch at a reasonable time.

They would take away space that could be used to expand preK and/or reduce class size, which is at a 15 year high in the early grades.

As a parent, teacher, or concerned New Yorker, there is no more critical issue to me than providing NYC public schoolchildren with the space they need to learn and grow, and these co-locations would hamper their opportunity to do so.
Yours sincerely,

Sincerely,
[Your name]

Did Obama blame parents for education low-performance in his State of the Union? And why I said he should send Duncan to Mars

On Tuesday night, Obama gave a brilliant State of the Union address. But I can't say I appreciated what he said about education.

He seems to have pivoted in his approach. Though I'm glad he is no longer assigning responsibility for low educational performance on ineffective teachers, he is now appearing to blame parents for not having high enough standards for their children or their schools.

In this, he seems to be taking his cue from Arne Duncan, who famously critiqued parents  protesting the flawed Common core standards, describing them as “white suburban moms who — all of a sudden — their child isn’t as brilliant as they thought they were, and their school isn’t quite as good as they thought they were.”  

More recently, Duncan spoke before the National PTA , and praised South Koreans as “parents [who] were relentless and had the highest of expectations – insisting their children receive an excellent education….I wished our biggest challenge here in the US was too many parents demanding excellent schools.” 

Duncan went on to exhort parents:  As you think about how to use your voice, your time, and your energy, I want to pose one simple question to you: Does a child in South Korea deserve a better education than your child? If your answer is no — that no child in America deserves any less than a world-class education — then your work is cut out for you.

Because right now, South Korea – and quite a few other countries – are offering students more, and demanding more, than many American districts and schools do. And the results are showing, in our kids’ learning and in their opportunities to succeed, and in staggeringly large achievement gaps in this country.

Doing something about our underperformance will mean raising your voice—and encouraging parents who aren’t as engaged as you to speak up.  Parents have the power to challenge educational complacency here at home. Parents have the power to ask more of their leaders – and to ask more of their kids, and themselves.”

No matter that according to OECD data, South Korean kids are the unhappiest in the world, and according to many studies, have high suicide rates.  US parents should be just as demanding more of their kids, even if their happiness and mental health be damned.

I’ve written before about Duncan’s misplaced envy of the South Korea, where 20% of the average family’s disposable income is spent on private tutoring, and even the Prime Minster has warned us against emulating their educational system. Many Korean families in fact move to the United States in order to  save their children from the horrible pressures of their system.  But now Duncan and the President appear to have taken this fixation even further.

Graciously, Obama started his State of the Union praising teachers: “today in America, a teacher spent extra time with a student who needed it and did her part to lift America's graduation rate to its highest levels in more than three decades.”  But then he went on to say:

 “Race to the Top, with the help of governors from both parties, has helped states raise expectations and performance. Teachers and principals in schools from Tennessee to Washington, D.C., are making big strides in preparing students with the skills for the new economy -- problem solving, critical thinking, science, technology, engineering, math.  Now, some of this change is hard. It requires everything from more challenging curriculums and more demanding parents to better support for teachers and new ways to measure how well our kids think…”

Good he and Arne have changed their line – at least temporarily – by saying that teachers need more support.  But now they are accusing parents of not having high enough expectations.  Can't we get over this blame game?  Or am I being too sensitive?

Below is what I wrote for Salon on what I hoped Obama would say in his speech, which sadly he did not.  Please add your comments below on what you wished he’d said.

Send Arne Duncan to Mars: “President Obama should start by apologizing for the recent comments of Secretary of Education Arne Duncan that parents who oppose the harsh over-testing regime that has afflicted our schools are just upset that their children aren’t smart enough. He will say he is withdrawing all federal support for the Common Core standards, exams and curriculum until they have been reassessed in a transparent manner by an independent task force of teachers, parents, early childhood experts and special education professionals, with full public input, as opposed to the secretive and incestuous way the standards were developed.

“At the same time, he will eliminate any federal mandates to require high-stakes testing or invalid teacher evaluation systems linked to test scores, and cancel all funding for programs targeted at closing public schools or turning them over to private corporate hands.  He will pledge that the FERPA regulations be immediately revised to protect privacy once again, rather than the way they have been rewritten by the U.S. Department of Education to encourage the tracking and sharing of personal student data without parental consent. He will announce the resumption of manned space flight, starting with a trip to Mars by Arne Duncan and Bill Gates, where they will try out their education experiments on any inhabitants they find there. The president will conclude by announcing that during Duncan’s absence, Diane Ravitch will serve as secretary of education.” 

— Leonie Haimson, executive director, Class Size Matters