Last week I noted a situation in Oklahoma that I found infuriating. In short, parents of students who sought an exemption from state law so that they could be granted a high school diploma were provided with a waiver form that waived their rights under FERPA, the federal law that protects the privacy of students’ education records.
The waiver form, which I have read, does not tell the parents the extent to which their child’s records will be shared publicly. To the contrary, it suggests that the sharing would be limited to what would be necessary to secure the services the parents were seeking for their children. The waiver did mention that meetings might be in public and/or subject to open records laws. The waiver did not inform parents whether they could seek the exemption without waiving their FERPA rights.
And so, in what may have been a well-intentioned but utterly privacy-violative move, the state handed out the packets of information that the board would be considering in executive session. The records were also uploaded to the Internet with students’ names, grades, learning disabilities, and other personal and sensitive details. Clearly, there was no benefit to the students of having their identifiable records exposed on the Internet, and that aspect was just to satisfy what the state understood to be its obligations under their open records law.
The uproar within the state was immediate, with some arguing over whether the state’s open records law trumps FERPA. I’m not sure that’s even the right question since the parents had been put in the position of signing what amounted to a blanket waiver of FERPA rights.
The state subsequently redacted some of the publicly available information. Looking at the redacted files, I can probably determine/re-identify the students with just a list of the seniors at each high school.
It is a godawful privacy nightmare as far as I’m concerned and as I tweeted over the weekend.
Today’s The Oklahoman has an editorial on the matter. They write, in part:
Sometimes policy seems to have no basis in reality. Even when it does, the public often doesn’t have enough information to connect policy to real life. But allowing the public, including policymakers, to see how real-life graduation requirements affect real students makes that connection in a way people can understand. Stories of individual students presented in the media and through school officials clearly made an impact on board members.
With enough information, people can decide for themselves whether the requirements and the new appeals process are the right policy for Oklahoma and its students. We want and need that kind of thinking in our state in places outside the Capitol.
Perhaps the solution is just using student initials. Or maybe assigning them a random number. Members of the state Board of Education have proved themselves to be a thoughtful, deliberative body. We believe they can reach a legally and ethically acceptable compromise that balances the need for student privacy with the benefits of providing as much information as possible to the public.
While the state debates within itself, PogoWasRight.org calls on the U.S. Education Department to clarify what should have happened in this case under FERPA and whether it’s ever permissible for a state to require the waiver of FERPA rights as a precondition for securing services or benefits for students.
Transparency in the decision-making process can be achieved without violating student privacy. This is not a situation such as the one in Illinois where the identity of students might be crucial in determining whether political connections and favors were involved in the admissions process of a university. And unlike The Oklahoman’s editors, I do not see any need to compromise on privacy. Indeed, one could argue that the process will be even more objective if the board is presented with the facts of each case without knowing the name or personally identifying information.
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