The Electronic Privacy Information Center has filed a lawsuit against the United States Department of Education.
EPIC’s lawsuit argues that the agency’s December 2011 regulations amending the Family Educational Rights and Privacy Act exceed the agency’s statutory authority, and are contrary to law.
In addition, the lawsuit contends that
Contrary to the agency’s contentions, Congress itself articulated specific reasons for precluding non-educational state agencies from accessing, altering, or storing records containing the personally identifiable information of students. The law’s chief sponsor Senator James L. Buckley specifically intended that FERPA would prevent linking academic data to non-academic data for the purpose of measuring schools’ impact. Senator Buckley’s statement in the Congressional Record describes FERPA as a safeguard against “the dangers of ill-trained persons trying to remediate the alleged personal behavior or values of students,” which include “poorly regulated testing, inadequate provisions for the safeguarding of personal information, and ill-devised or administered behavior modification programs.”40 In support of his concern, Senator Buckley entered into the Congressional Record a Parade magazine article decrying “welfare and health department workers” accessing student records that included “soft data” such as “family, . . . psychological, social and academic development . . . personality rating profile, reports on interviews with parents and ‘high security’ psychological, disciplinary and delinquency reports. Congress has yet to alter its stance on FERPA legislative safeguards, a prerequisite for the agency’s tracking of ‘soft data’ and other non-academic characteristics, charting them with SLDS, and sharing the results with non-academic institutions. Still, the agency asserts that the most cursory mention of SLDS in the ARRA constitutes “intent . . . to have States link data…”
The latest round of revisions to the regulations enforcing FERPA were promulgated in the aftermath of the release of billions of dollars of funding for new State Longitudinal Data Systems (SLDSs). SLDSs are seen as a necessary tool for education improvement—they provide administrators, researchers, and policy makers with reliable, actionable data on the educational and labor-market outcomes of all students in a state. Without the loosening of the restrictions in the FERPA regulations, many data elements in the SLDSs will not be feasible.
If EPIC’s suit is successful, it may spell doom for some States’ SLDSs, especially those constructed and managed by private vendors.
What do you think? Has the Department of Education overstepped its authority, or is this a legitimate exercise of the authority granted by FERPA?