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Student-Data-Privacy Debate Comes to U.S. House (Again)

AP_Foxx-01-blog.jpgCongress is still wrestling with a basic question: How to use educational data to improve schools, without further jeopardizing student privacy?

That was the subject taken up by the House Committee on Education and the Workforce, in a 90-minute hearing on "Protecting Privacy, Promoting Policy: Evidence-Based Policymaking and the Future of Education."

Should any bipartisan clarity ever be reached, there could be significant implications for ongoing attempts to update or rewrite federal student-data-privacy laws, as well as for proposals on the Hill to codify into law recommendations issued last fall by the Congressionally appointed Commission on Evidence-Based Policymaking.

But the takeaway from Tuesday's hearing—or at least from the expert witnesses assembled to offer their insights—seemed to be that there's a still ways to go.

"There are no silver bullets that make data useful for good purposes but [immune to] privacy violations," said Georgetown law professor and privacy expert Paul Ohm, a member of the Congressional commission.

Implications for Federal Privacy Laws

Rep. Virginia Foxx, R-N.C., the committee chairwoman, kicked off the hearing by noting that "both Republicans and Democrats agree that the use of good research and evidence allows us to make good policy," but that "information should not come at the cost of a student's private and personal information."

Indeed, most of the parties taking part in Tuesday's hearing said they want at least some data and evidence to be used make better decisions at some level. And most everyone acknowledged the need to better protect student privacy.

There remains considerable disagreement, though, over how the two should be balanced—and whether safeguards for student data should come primarily from technological improvements, enhanced parental-consent provisions, or by rethinking how educational research is conducted.

One big part of the challenge before Congress (and schools) is that an explosion of data generated by new digital technologies in the classroom, combined with new techniques for combining and analyzing administrative data housed by government agencies, makes it unclear how to best balance the competing desires for useful evidence and better privacy protections.

For example, Jane Robbins, a senior fellow at the libertarian-conservative American Principles Project, pointed out the growing capacity of both government agencies and private companies to: 

  • Collect sensitive information on children's "attitudes, mindsets, and beliefs"—a key component of the growing push behind "social-emotional learning;"
  • Take data that were collected for one (authorized) purpose and use it for another (unauthorized) purpose, even when data have ostensibly been made anonymous; and
  • Generate predictions and recommendations for individuals based on information they may not be aware of or have access to.

Such concerns have helped stall what is now a years-long effort to overhaul or replace the federal government's primary law protecting student privacy, known as the Family Educational Rights and Privacy Act, or FERPA.

Foxx said she hoped the hearing would spur along those efforts, as well as attempts to update and modernize ESRA, short for the Education Sciences Reform Act.

But no timeline for either effort is immediately evident.

Before those laws can be updated, Congress is likely going to have to decide what to do about the Foundations for Evidence-Based Policymaking Act. 

That measure would encourage more governmental sharing of interagency data while also beefing up privacy protections for personally identifiable information (including, but not limited to, educational data) is held in federal databases.

The bill was passed by the House in November, but the Senate has yet to vote companion legislation of committee.

Pros and Cons of Educational Data

Carey Wright, Mississippi's State Superintendent of Education, told the committee about the potential for educational data to be put to positive use.

The state's longitudinal data system, known as LifeTracks, has been leveraged "to strengthen the state's workforce development efforts by using the system to track high school and college graduates and statewide job opportunities," Wright said. 

The state also tracks the preschools children attend, then compares that information to evaluations conducted when the children enter kindergarten.

The result has been expanded access to high-quality early childcare, especially for low-income students and children of color, Wright said.

But such work is largely reliant on bringing together into a single place disparate data that historically had been kept separate.

While there is tremendous potential in merging public schools' "dispersed, heterogeneous, and incompatible data systems," said Ohm, the Georgetown privacy-law professor, there is also considerable risk.

Most notably, Ohm said, such large clearinghouses expand the opportunity for data to be reused in unauthorized ways, and they can become targets for hackers and criminals.

Ohm suggested that some new technologies may partially address some of those concerns.

And Neil Finkelstein of the nonprofit research organization WestEd said that the greater attention to the mechanisms of research—how data is collected, stored, analyzed, and destroyed—can also help.

But Robbins of the American Principles Project focused on parental consent, saying that the best protection for student data comes not from technological fixes or researcher assurances, but families having more power to opt out of participating in any data collection effort that makes them uncomfortable.

In other words, the contours of the debate and disagreements that have stymied lawmakers for years remain mostly in place, until further notice.

Photo: Rep. Virginia Foxx, R-N.C. addresses a conference in Washington in 2016. --Cliff Owen/AP

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