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Will Common Core Require The Dissemination of Individual Student

April 19, 2013

The short answer is no, there are no requirements for Utah to share student personally identifiable data with the federal government or any other entity because of our flexibility waiver from No Child Left Behind (also known as Utah’s ESEA Flexibility Waiver) or because of our contract with AIR to provide Utah’s adaptive assessments.

Utah’s Flexibility Waiver from the Elementary and Secondary Education Act (ESEA) also known as No Child Left Behind (NCLB), does not require a state to report personally identifiable student information to the federal Department of Education.

Although a state is required to report student proficiency or achievement on state assessments, that information is aggregated and does not contain personally identifiable student information.

A federal regulation, 34 C.F.R. 200.7(b), specifically states that disaggregated information may not be used to report student achievement results if the results would reveal personally identifiable information about a student:

“(b) Personally identifiable information. (1) A State may not use disaggregated data for one or more subgroups under § 200.2(b)(10) to report achievement results under section 1111(h) of the Act if the results would reveal personally identifiable information about an individual student.
(2) To determine whether disaggregated results would reveal personally identifiable information about an individual student, a State must apply the requirements under section 444(b) of the General Education Provisions Act (the Family Educational Rights and Privacy Act of 1974).”

In May 2012, Utah submitted “Utah’s ESEA Flexibility Request” which you can find here:

http://www.schools.utah.gov/data/Educational-Data/Accountability-School-Performance/Utah-ESEA-Flexibility-Request.aspx

The Utah State Office of Education has posted some Frequently Asked Questions about Utah’s ESEA Flexibility:

http://schools.utah.gov/data/Educational-Data/Accountability-School-Performance/Utah_ESEA_Flexibility_FAQs.aspx

http://schools.utah.gov/data/Educational-Data/Accountability-School-Performance.aspx

Utah’s ESEA Flexibility Request (it is a total of 189 pages with attachments) does not contain any requirements for Utah to share personally identifiable student data with anyone.

The State Board of Education’s (Board) contract with AIR to provide services related to the development and administration of Utah’s adaptive assessment system is posted on the Board’s website and can be found here:

http://www.schools.utah.gov/assessment/Adaptive-Assessment-System.aspx
http://www.schools.utah.gov/assessment/Adaptive-Assessment-System/136199-AIR.aspx

Other frequently asked questions related to AIR posted on the Board’s website can be found here:

http://www.schools.utah.gov/assessment/Adaptive-Assessment-System/FAQTop10Questions.aspx
http://www.schools.utah.gov/assessment/Adaptive-Assessment-System/FAQs.aspx

As a contractor for the Board, AIR is under the same restrictions to protect personally identifiable student information as the Board. The Board, or the Utah State Office of Education on the Board’s behalf, enters into many contracts each year with private providers to provide services for the Board and the State of Utah.

The Board has always had a contract with a private developer outside of Utah to facilitate and score Utah’s statewide assessments. For example, the Board had contracts in place with “NWEA” to conduct Utah’s adaptive assessment pilot for at least three years and had contracts with many other developers including “Measured Progress” and “Pearson” to facilitate and administer Utah’s CRTs (the assessment system used by Utah before the new adaptive assessment system).

The Board has a very similar contract currently in place with “Measurement Inc.” to facilitate Utah’s writing assessment. With AIR, the Board is following the same process and using the same security protections it has for all of its past contracts.

Under FERPA, an educational entity (such as the Board or the State Office of Education) may disclose personally identifiable student information to a contractor (in this case AIR) “to whom an agency or institution has outsourced institutional services or functions” if the contractor “performs a [service] for which the agency or institution would otherwise use employees. . . .” 34 C.F.R. 99.31(a).

If the Board shares personally identifiable information with AIR, FERPA requires the information to be maintained “under the direct control of the [Board]” and requires both the Board and AIR to protect the information from re-disclosure. 34 C.F.R. 99.31(a)

This means that although the Board may decide to share personally identifiable information with AIR (for purposes of AIR administering Utah’s statewide adaptive tests), AIR may not disclose or sell the personally identifiable information to the federal government, another state entity, or anyone else.

AIR will have access to student identifiable information because AIR will be facilitating the assessments and scoring the results. All assessment facilitators in the past have had the same access to student identifying information because the assessment contractors (such as AIR, NWEA, and Measured Progress) are performing a function that would otherwise be performed by USOE employees. AIR is acting on the Board’s behalf when administering the adaptive test.

If AIR, on its own, discloses personally identifiable student information to the federal government or sells the information to a third party, AIR would be in violation of both federal and state law.

AIR is also not likely to disclose Utah’s student information or sell it because it would destroy AIR’s credibility and ability to act as an assessment facilitator for Utah or other entities.

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From → 2013 Interim

One Comment
  1. There is more to the story. The federal government does collect information about students at the Edfacts data exchange. Utah also reports federally via its SLDS longitudinal database, as is stated in the ARRA grant which gave Utah $9.6 million federal dollars to build the SLDS. The grant states that “the core purpose of the SLDS is to fulfill federal reporting.” On top of that, we have Arne Duncan’s datapalooza and Obama’s executive order on student data sharing. We also have the fact that the Dept. of Ed altered federal FERPA laws so that they loosen, rather than tighten, requirements about getting parental permission before sharing personal student data with others, including contractors, researchers, and school volunteers. That is in the Federal Register. Utah legislators would be wise to write legislation that supports Utah’s FERPA, which is protective of family rights over student data unlike the federal FERPA. Utah legislators would be wise to research the conditions of the SLDS grant, which include adhering to PESC and other schemas that can and will intrude upon student privacy. While there is no document I’ve seen that forces schools to give personal information directly to the federal government, there are many that fail to set up protections and policies that would prevent the sharing of personal student data. And school districts are not given a choice whether or not to submit student data to the state SLDS system. Neither are parents. Please do not make it sound as if all is well when it is not. Please, instead, create protections for our students’ privacy and create an opt-out option for parents who do not want the state or the federal government tracking their children without consent.

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