Monday, July 22, 2013

Regarding FERPA, what does "legitimate educational interest" mean? (Student Privacy-6)

I've been asked to explain what a "legitimate educational interest" means when it comes to FERPA.

FERPA, the federal law protecting confidential and personally identifiable student information from being improperly disclosed, states that employees in an educational institution may only have access to the student information in which they have a legitimate educational interest. But, what constitutes a legitimate educational interest?

Put succinctly, when employees need certain confidential student information in order to do their jobs, then they have a legitimate educational interest that information.

Some relevant points:
1. Being curious about student information is not a legitimate educational interest. 
2. An  employee's need to know (confidential student information) must be directly related to that employee's ability to carry out his/her job responsibilities.
3. Employees' legitimate interest in viewing confidential student information is limited. The ability of employees to access confidential student information does not mean employees are permitted to have unrestricted use.
4. The digital age in schools, where so much confidential student information is accessible to employees, comes with benefits and risks. While the benefits are to be embraced and used to enhance student learning, the risks must be mitigated to protect student privacy. According to Supt. Pat Brady, "There have been limitations within SchoolTool to be able to provide information to a specific employee in need without opening it up to the larger group." Thus, employees who do not need certain confidential student information in order to do their jobs, are being given that information anyway, due to weaknesses in the software program.

As our nation grapples with the issue of privacy infringement, it's contingent on adults to be the voice for young people who do not yet grasp the need to protect their privacy.

Wednesday, July 17, 2013

Confidential Student Information Revealed: Blame the sub? ( Student Privacy -5)

The legal and ethical requirement to protect confidential student information is illustrated in the following example of an incident at the PCSD that shows an egregious lapse in such oversight.

The student's parents have given their permission to have the story revealed (with no names mentioned) because they believe the public might exert pressure on school officials (Board of Education and Administrators) to make the protection of private student information a high priority.

These parents were reluctant to have their child tested for possible learning disabilities because they feared the information might not be kept strictly confidential. This concern of theirs was even included in the summary notes taken at a school meeting to discuss the matter. School officials assured the parents that the testing of their child and the results would be kept secure and confidential.

One day the information about the testing of this particular student got into students' hands and spread throughout the student body. How did this breach occur? The parents contacted the principal when their distraught child told them what had transpired. This child's private testing and its results were now fodder for the gossip mill and the child was taunted, bullied, and humiliated.

The principal told the parents that the regular classroom teacher had been absent and the substitute had not protected the confidential documents from students. The parents, and all community members for that matter, might ask the following:

  • Why didn't the classroom teacher ensure the security of confidential student information?
  • How well-trained are employees in the importance of protecting confidential student information? Or, as a Dept. of State official noted, is there rampant ignorance about FERPA?
  • What is Potsdam Central's protocol for training (and updating the training of) employees who are given access private student information?
  • How much confidential student information - that can even be accessed via computer at employees' homes- is made available to employees? Are there barriers or is access wide open?
  • Are employees permitted to access only the specific confidential student information that they NEED to fulfill their job responsibilities?
  • Is confidential student information regularly in jeopardy when there is a substitute teacher? (The parents believe the principal was attempting to shirk responsibility by blaming the privacy violation on a substitute.)
  •  Does the BOE and administration understand that breaches of confidentiality can result in liability for the school district by way of a lawsuit and/or the loss of federal aid? 
Most importantly, what was the impact on the student? How do school officials un-ring that bell? Money might have been one limited type of reparation for the student but the parents, fortunately, did not sue the district. After that incident, one would think the district would have:
~ implemented stringent oversight protocols for access to confidential student information
~ limited employee access to only that confidential student information in which the employee has a legitimate interest
~ provided employees with documents (on paper or in electronic form) that explain FERPA and outline the type of access the district gives to employees
~ required annual training of employees about their legal and ethical obligations pertinent to the protection of confidential student information

Thursday, July 11, 2013

Teachers and Student Privacy (4)

Confidential student information should be shared with teachers ONLY if they have a legitimate need to see it.   Why? It's the law and it protects students.

Research about teacher perception of students has shown, over and over again, that what teachers expect of students impacts how they treat students and how teachers treat students (due to these expectations) impacts how well students do at school.  Thus, if a teacher can access students' grades (past grades and grades in other subjects) and disciplinary records, this information can and will bias the teacher's opinion of students.

In the book, Teaching as a Subversive Activity, the authors wrote about an August 8, 1967 New York Times front page story - "Study Indicates Pupils Do Well When Teacher is Told They Will" by John Leo. An experiment was conducted in which teachers were told that students in certain classes were very intelligent and creative. In point of fact, the classes were filled with regular, heterogeneously grouped students - no different from the makeup of the other classes. The teachers were told to expect dramatic gains in these "high-performing" classes. What happened? The gains expected by the teacher actually occurred - unlike the performance of students in the other regular classes who did not achieve similar gains and whose teachers had not been told they were high-achievers.

The authors of the book, Postman and Weingartner, wrote: "The teachers 'perceived' these children as intelligent because they were expecting to see 'intelligent behavior.' The teachers...made the reality that was there." Basically, conclude the authors, the teachers treated the students in a certain way (because they expected them to be very intelligent) and the students (once treated that way) responded with better performance. Negative teacher response to students was minimized by positive teacher expectation of those students. Conversely, negative teacher response to students would be maximized by negative teacher expectations of students. And negative expectations are exactly what are likely to result from providing teachers with student information they do not need. A teacher who refers many students to the office may have problem students or s/he may have weak classroom management skills. Thus, the disciplinary record might be misleading.

A few conclusions:
  • Students have a right to have their confidential information shared only with those school employees who NEED to have it. (FERPA)
  • Students have a right to begin all new courses with a positive (or neutral) teacher perception of them. This can only occur if teachers formulate their own opinions of students via students' performance and behavior not by reviewing other teachers' grades and disciplinary comments on students. 
  • Students and parents have a right to know how much confidential student information is available to school employees (esp. teachers) via computers. What boundaries or walls, within computer programs, have administrators erected so student privacy is protected? 
  • Boards of Education have an obligation to ensure that they have policies and procedures to protect student privacy and comply with the law. In addition, they have an obligation to ensure that the superintendent oversees full compliance with such policies and procedures.
  • Administrators must ensure that in this computer age, teachers (and non-professional employees) are only permitted to access the confidential student information they need.

By way of just one of many anecdotes, I had a conversation, outside the school setting, with a PCS secretary while I was on the BOE and she told me she had looked in her computer records to see how a particular student was "doing." I spoke to the superintendent about this because the employee clearly had no idea she was violating student privacy. Her conduct was part human curiosity and part "rampant ignorance" about FERPA. The fault, I felt, was on backs of school officials who had not adequately trained employees about their legal and ethical obligations to protect student privacy - just like a doctor, and his/her employees, must protect patient information.

Monday, July 8, 2013

Modern Technology & Lax Oversight: A risk to student privacy (3)

Modern technology has raced ahead of wise policy - whether on the national, state, or local level. The lack of insightful policy has and will continue to result in significant negative consequences for society.

In the case of public schools, student privacy, one would think, would be a very high priority item. However, one would be wrong. A NYS Dept. of State official recently stated that there is  rampant ignorance around the state regarding the federal requirements to protect confidential student information. "Superintendents don't want to hear what I have to say," stated the official.

A federal law, called FERPA, is designed to protect confidential student information from being made public or being made available to those who do not have an educational interest in seeing such information. Schools risk losing their federal funding and/or being sued if they are found to be negligent about the protection of confidential student information.

What confidential student information do schools possess? Academic data (grades, exam scores) disciplinary records, special education designations, medical information, and - for some - family income data.

Within a public school district, who is permitted to see confidential student information? The law reads, in part:

§ 99.31   Under what conditions is prior consent not required to disclose information?
(a) An educational agency or institution may disclose personally identifiable information from an education record of a student without the consent required by § 99.30 if the disclosure meets one or more of the following conditions:

(1)(i)(A) The disclosure is to other school officials, including teachers, within the agency or institution whom the agency or institution has determined to have legitimate educational interests.

A key point here is that teachers are only permitted to see confidential student information if school district officials have determined the teachers have a legitimate educational interest in accessing that information. With the onset of computers and the collecting of copious amounts of information on students, school districts should:
~  have policies and procedures that are in compliance with the FERPA law
~  permit teacher access to confidential student information only if there is a legitimate educational interest
~ be rigorous about employee training in this high-risk, high-stakes issue

Is your school district vigilant in its protection of confidential student information or, as the NYS official stated, is there rampant ignorance that puts students at risk (of private information being disclosed) and school districts at risk (of liability claims)?

Next posting: Why teacher access to information can alter your child's educational experience

(Non-teacher employee access to student information will be discussed separately.)

Tuesday, July 2, 2013

PCS Officials: Use student knowledge to improve schools

"As a nation, we've wasted what students know about their own classroom experiences instead of using that knowledge to inform school reform efforts."  NY Times

If officials at Potsdam Central really want to know what students think about the school district, they should do the obvious - survey them. Exiting seniors should be surveyed mid-way through their last year. Everyone knows that it is extremely hard to get people to respond to surveys so why not do so when students are in school and schools officials can get a very high response rate?

In the 1990's a speaker at a School Boards' convention stated that annual surveying of seniors and PARENTS should be routine and the results should be printed in the budget bulletin (sent to all residents each year). Sometimes good advice is studiously avoided.

Three years ago, the Board requested a survey of the senior class. The uselessness of the survey (with too many questions administered to too few students) was attributed, by the high school principal, to teachers who, she said, declared they were too busy to have their students take the survey. The limited results did not provide useful information to use to examine school reform.

 For the past two years, no surveying of seniors has occurred at all...wasted opportunity after wasted opportunity and completely predictable.When the Board members who insist on accountability and school improvement are systematically voted off the board, it is not surprising that turning a blind eye to what students know ensues. Any flaws identified by students would have to be made public and remedied. If the flaws are never identified then no admission need be made as to their existence.

Administration, in the past, has complained about the amount of time it takes to administer surveys to students and to analyze the results. Here is one solution to those "barriers."

The following is a simple survey that school officials should give to students each year.

According to the NYTimes, in classes where students strongly agreed with these statements (#'s 1-3), the teachers tended to have high value-added scores. The remaining statements are from City Honors School in Buffalo, NY.

                      Strongly Agree........Agree..........Disagree.......or Strongly Disagree with the following statements:
  1. Our class stays busy and doesn't waste time
  2. In this class, we learn to correct our mistakes.          
  3. My teacher has several good ways to explain each topic that we cover in class. 
  4. I know what is expected of me in my classes.
  5. In my classes, I have the materials and equipment I need to do my work correctly.
  6. In one or more of my classes I have the opportunity to do what I do best on a regular basis.
  7. There is at least one teacher, counselor, or other adult at school who regularly encourages my achievement (development).
  8. About every week (regularly) I receive recognition or praise for doing good work from at least one of my teachers.
  9. My teachers regularly inform me about how I am doing in my classes.
  10. I believe my teachers are experts in what they teach.
  11. As a result of going to this school, I believe I am learning and growing in important ways.
  12. This school is meeting my expectations.

This survey is short, clear, direct, easy to administer, and likely to provide useful information to inform school reform efforts. Items 1-3 could be answered in each academic class students take. The remainder of the questions could be administered once - in homeroom.

The Board of Education should exercise leadership and require the annual surveying of exiting seniors. Board members should be wary of those who try to talk them out of doing so. Members may be told that surveying students "could" be seen as an evaluative tool by teachers and that teacher evaluation must be done strictly according to contract. The truth is that student surveys are not teacher evaluative tools and do not violate any contracts.

The survey results would show student opinions about their school experience and would invite administrative action to improve areas of weakness, to applaud areas of strength, and to use student knowledge to inform school reform efforts.

Twenty years ago, when I attended the above-cited School Boards' conference, I could not have imagined that two decades later, there would still be great resistance to something that makes so much sense. Who benefits from willful blindness to what students know about their classroom experiences? Not students, not parents, not good teachers, and not the public.

  "What Works in the Classroom? Ask the Students"

 City Honors School at Fosdick-Masten Park in Buffalo

Carvill 2012 blog posting