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Student Data Privacy Mostly Missing in ESEA Reauthorization

A deal to reauthorize the Elementary and Secondary Education Act is in place, with votes in both chambers of Congress expected in the coming weeks.

Our friends over at Politics K-12 have you covered on all the policies and provisions—from accountability to standards to school turnarounds—that made it in to the legislative language officially released Monday.  So far, reaction has been mostly positive.

But what about one of the key issues that mostly didn't make it into the newly dubbed Every Student Succeeds Act?

Congress largely punted on student data privacy, declining to include in the ESEA reauthorization amendments that would have updated the country's major federal student-data-privacy law or created a special committee to consider the best way forward on the issue. The changes there were included don't represent any big shifts in policy, but do signal Congress' attention to the issue.

That lack of tangible action will mean continued uncertainty for educators and ed-tech vendors alike, as we detailed in our October special report, "Data: Sharing + Privacy."

A number of bills to overhaul the Family Educational Rights and Privacy Act, or FERPA, have been introduced in the past year, including a proposal authored by the bipartisan leadership of the House education committee. There had been some hope that work would get folded into ESEA, but the sense from observers was that it proved too complex an issue to try to add to an already cumbersome proposal.

"At some point, it was decided strategically that ESEA couldn't be any more complicated," said Amelia Vance, the director education data and technology for the National Association of State Boards of Education.

"But we obviously know from past statements that [Reps. John Kline, R-Minn. and Bobby Scott, D-Va., the chair and ranking member of the education and workforce committee] have made that they are committed to student data privacy," Vance said. "This could indicate that they have a plan for dealing with this issue in the future."

Many want to see the 40-year old FERPA law updated to better encompass digital records, among other modernization efforts.

On the committee idea, meanwhile, Rachel Anderson, a senior associate of policy advocacy at the nonprofit Data Quality Campaign, was among those disappointed that an amendment originally introduced by U.S. Sens. Orrin Hatch, R-Utah, and Edward Markey, D-Mass. didn't win approval. 

"There was a lot of support, but not quite enough," Anderson said.

Not all was lost for those hoping to see federal movement on the issue, however.

Every Student Succeeds does include language that specifies that states and districts can use federal Title II funds for "supporting and developing efforts to train teachers on the appropriate use of student data to ensure that individual student privacy is protected."

Such professional development is "absolutely essential," Vance said, because "you can have all the policies in the world, but if you don't include ways for teachers to be trained how to protect and use the data, the policies won't be of any help."

Such uses of those funds were not disallowed before, but there was some confusion among states and districts that would be cleared up if the bill is signed into law. 

Every Student Succeeds also includes non-binding language that offers a "sense of Congress" on the issue, basically saying that student data privacy is important and suggesting that the U.S. Education Secretary "should review all regulations addressing issues of student privacy, including those under this Act, and ensure that students' personally identifiable information is protected."


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