COUNCIL OF SCHOOL ATTORNEYS UDPATE: Student Data Privacy at the Brink of Legal Change

By Sonja Trainor
Director, Council of School Attorneys (COSA)

At last week’s National Student Privacy Symposium here in Washington D.C., one point was clear--student data privacy concerns are real, and real change is about to happen. The event, put on by the Future of Privacy Forum and the Data Quality Campaign, brought together thought leaders and advocates to discuss the potential power of data to improve student learning, along with the very real fears about how data is gathered, stored, and used. 

National Student Privacy Symposium

Now, with a handful of bills pending in Congress and 28 new data privacy laws enacted in state legislatures last year, we are in the midst of a storm of legal change that will inevitably affect how public schools form policy on student data privacy.

NSBA and its Council of School Attorneys have been actively participating in this discussion at the national level, providing the school board perspective in conversations on best practices and proposed legislation. In June, NSBA issued comments on a draft update to the 40-year-old Family Educational Rights and Privacy Act (FERPA). NSBA staff working in the legal, legislative, and technology areas have attended, spoken, and written on data privacy as a key issue facing public education. NSBA’s Data in the Cloud guide for school boards provides best practice recommendations.

Concern and Enthusiasm

The real concerns of privacy advocates, and the real potential to support student learning through the use of data, were on full display at the Symposium. One attendee expressed concern that personal student data like a student’s body mass index or grades are sometimes shared electronically in the classroom. A panelist noted parent fears about a “permanent record” following their children and education technology companies using student data to market to children or their families.

Many educators were excited about the power of technology to enhance a child’s educational experience. A Massachusetts teacher spoke of her use of online tools to engage students through active conversation, to access primary source material, to bring in speakers via video feed, and to discuss written work electronically.

Researchers spoke about their need for access to de-identified, but representative and detailed, data sets so they can produce helpful studies to inform decisions by policy-makers for the benefit of all students. They warned that mass “opt-outs” of research studies may create misleading findings.

The Future of Privacy Forum released the results from a recent parent survey. The survey found that a majority of responding parents were unaware of state and federal legal protections for student privacy and wanted to see new laws in place for this purpose.

The Future

Where is all of this discussion leading us? Toward new and updated federal and state laws.

In the bills introduced in Congress over the past several months, we see attempts to address the concerns on display at the Symposium. The Family Educational Rights and Privacy Act (FERPA) overhaul introduced in July, for example, would add requirements for schools’ contracts with providers of online educational services, and require certain security measures for student data. And, it would give the Department of Education authority to impose fines on districts that violate FERPA. Other bills would place tighter restrictions on companies that provide online educational services. In the meantime, state legislatures have been very busy enacting laws with similar themes.

As several panelists noted at this week’s symposium, we are at a crucial juncture in the student data privacy conversation, as we try to balance the privacy interests of the individual student against the larger good of using technology and data to support learning and to inform policy. NSBA and its Council of School Attorneys, with and through its member state school boards associations, will remain active participants in this conversation.

Check out NSBA’s Legal Clips, for updates on hot issues in school law, and the Council of School Attorneys pages for resources and live learning opportunities for school attorneys.

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