Privacy group’s challenge to Department of Education FERPA regs could hamper school accountability

Today’s Atlanta Journal-Constitution features a multi-part investigative blockbuster that uses computer-assisted reporting to identify suspiciously sharp gains in student aptitude test scores in districts across the country — gains that, in Atlanta, were found to be evidence of widespread cheating by administrators and teachers.

According to the AJC findings, about 200 school districts nationwide — including schools in Houston, St. Louis and even Manhattan — exhibited year-to-year improvements in student performance that were so statistically improbable that experts consider them indicative of cheating. The investigation required analyzing 1.6 million test results from federally mandated competency exams administered in schools across the country to children in grades 3 through 8.

Because dishonesty in schools appears to be so rampant — and of course, is not limited to K-12 schools by a long-shot — it is essential that watchdog agencies have complete access to the information they need to uncover corruption or mismanagement.

But a recently filed lawsuit by a nonprofit privacy group is challenging just how much student information can be shared with auditors or reviewers outside of the school without violating federal privacy laws.

The suit contends that the U.S. Department of Education (“DOE”) cannot open up access to student records to inspectors or academic researchers outside of the school, even if the outsiders are legally bound to safeguard and promptly destroy identifying student information.

At issue are regulations that the DOE adopted in December 2011 to clarify its interpretation of the Family Educational Rights and Privacy Act (“FERPA”). Under FERPA, the Department can deny federal education funding to a school or college that fails to enforce a policy of keeping students’ education records confidential.

In a complaint filed Feb. 29 with the U.S. District Court for the District of Columbia, the Electronic Privacy Information Center and four of its individual board members allege that the DOE exceeded its lawful authority in enacting the 2011 rules.

Under federal law (the Administrative Procedure Act), an agency such as the DOE can exercise only the power that Congress has delegated it. If an agency adopts a rule contradicting instructions given by Congress, then the rule is void under the APA.

That, in essence, is what EPIC contends the Department did by attempting to loosen FERPA’s concept of who is an “authorized representative” of a school, to include not just school employees but also external regulators or contractors. Under FERPA, only an “authorized representative” can have access to confidential student information.

To be clear, the remedy sought by EPIC does not directly impact the ability of journalists to obtain sets of data with student identifying information removed (although, if the DOE’s position is repudiated, many education agencies likely will take away the imprecise message to refrain from sharing even anonymous data with anyone, journalists included).

What the lawsuit would directly impact is the ability to give outside investigators unfettered access to the records they need to act as a meaningful check on school wrongdoing.

In Georgia, for instance, the scope of employee cheating in the Atlanta Public Schools was discovered only with the help of a team of independent investigators appointed by Gov. Nathan Deal, aided by data analysts borrowed from other state agencies and by an “erasure analysis” performed by a private contractor. (“Erasure analysis” looks at whether a statistically improbable number of student papers show wrong answers changed to right ones; teachers in several districts have admitted to boosting student scores by fixing incorrect responses.)

That type of independent analysis — requiring access to individual student exam papers — would be legally dubious if EPIC’s restrictive understanding of FERPA prevails.

If EPIC is correct, then schools and colleges may not share student records for auditing purposes — and that may well include the test papers that must be examined for suspicious erasures to confirm cheating.

While the lawsuit may be misguided, the fact that it is even possible to interpret FERPA in such a self-defeating way that undermines the public’s interest in honest government should be an alarm bell to the slumbering congressional watchdogs who have allowed FERPA to be misused for many years.

Rather than risk an unfavorable court ruling, Congress should pull FERPA in for a complete overhaul and restore the statute to what its drafters intended — a narrow set of privacy protections that simply requires schools to refrain from publicly posting grades or otherwise sharing core academic or disciplinary information with third parties who might realistically use it to students’ detriment.