Last Month’s SCOTUS Case Is an Education Burrito with Civil Rights on the Side in a Fair-Housing Wrapper

To date, I’ve mostly shared FERPA musings on the EdJurists Blog, but after reading an article published last month in the Wall Street Journal and perusing the SCOTUS’ docket this term, I decided to tackle a different issue—even at the risk of jading readers by my incorporation of sociology and economic theory. So let’s start with a game I’ve cribbed from Sesame Street.

Which one of these is not like the other: school choice; school resource allocation; educational achievement outcomes; and the Fair Housing Act? Though their relationship may not seem intuitive at first blush, race, school choice and resource allocation, educational achievement outcomes, and the Fair Housing Act may be may indeed by intimately related. Uncovering the effect of neighborhood and school racial composition or the interaction between any two of these concepts, however, is a difficult endeavor for several reasons. First, extricating racial composition effects at the neighborhood and school level requires carefully sorting these effects from the many facets of neighborhood and school quality, including differences in student abilities and family background. Second, and perhaps more importantly, “racial mixing is not accidental but instead an outcome of government and family choices” (Hanushek, et al., 2006). Legal regimes at the federal, state, and local levels, as well as household residential decisions integrally form the racial composition of neighborhoods and schools. For instance, the Brown v. Board of Education Supreme Court decision precipitated massive national and state movement to desegregate local school districts. Over the intervening sixty years, however, the wide variation in patterns of school desegregation intensity and white flight from the urban landscape adds to distinct differences among jurisdictions, school districts, neighborhoods today (Hanushek, et al., 2006).

Recent studies in North Carolina (Billings, et al., 2014), Tennessee (Smrekar & Goldring, 2009), Texas (Hanushek, et al., 2006), among other places, have again made relevant and evident the link between housing and zoning policy and education policy (see also Schwartz, 2010; Vigdor, 2011). Their findings demonstrate that, as students and their families’ school choice options are reduced, typically by a zoning regime that assigns neighborhood schools—with the exception of magnate schools—student achievement outcomes decline; conversely, as school choice increases, student achievement outcomes outpace those for students and their families with fewer educational options, and particularly for students, regardless of their race, in neighborhood schools where minority students comprise the majority demographic population (Billings, et al., 2014; Smrekar & Goldring, 2009; Welnar & Spindler, 2009; Hanushek, et al., 2006). The resulting achievement gaps, as measured by standardized achievement scores, between students with increased school choice options and their counterparts without are rather consequential. For instance, Smrekar & Goldring find that these gaps amounted to: thirty-seven points in reading and forty-three points in math (Smrekar & Goldring, 2009). For those on the short end of the achievement gap, this deficit represents diminished labor prospects and quality of life in later years (Massey, 2007).

These findings seem to indicate that a widening, not decreasing, inequality, despite efforts by school districts to mitigate the effect of de facto segregation through compensatory resource allocation (Billings, et al., 2014). Massey (2007) argues that these effects are exacerbated by exclusionary housing lending and neighborhood restrictions, which shamefully still occur, resulting in what Massey has called a “new ecology of inequality” as manifested by spatial separation between races and a new de facto segregation of schools. Perhaps problematically, resolving the very issue that desegregation sought to achieve—interracial interfacing to promote equality of opportunity—requires a legal solution informed by empirics.

Traditionally, the court system has been wary to entangle itself in legal questions that require empirical methods to be resolved. Luna (2006) opines that this may be because the law is concerned with certainty, while empirical solutions are prone to bias and proffered with a certain level of uncertainty. However, the line on constitutional precedent borne from the Equal Protection Clause of the Fourteenth Amendment and its basis in civil rights legislation, has given rise to a number of legal claims which require an empirical foundation to meet the burden of proof. For example, a claimant may prove a violation of Title VII of the 1964 Civil Rights Act, by showing that an employment practice or policy has a disproportionately adverse effect on members of the protected class (which includes laws include race, color, religion, national origin, gender, and depending on the legislation, other traits such as disability) as compared with non-members of the protected class. This burden of proof is almost always met by demonstrating this disparity through empirical measures and methods.

Last month, the Supreme Court heard oral arguments to resolve whether the Fair Housing Act of 1968 creates a cause of action for disparate impact in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc. This marks the third effort three years by Court to consider both the intent and scope of the Fair Housing Act. Ostensibly, before the Court is a case about whether a viable legal claim of disparate impact under the Fair Housing Act exists. However, as the foregoing discussion has revealed and our title makes mention, the Court’s decision will almost certainly have implications on school choice, school resource allocation, and educational achievement outcomes as well.

REFERENCES

Billings, S.B., Deming, D.J. & Rockoff, J. (2014). School segregation, educational attainment and crime: Evidence from the end of busing in Charlotte-Mecklenburg. Quarterly Journal of Economics, 435-476.

Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).

Hanushek, E.A., Kain, J.F. & Rivkin, S.G. (2009). New evidence about Brown v. Board of Education: The complex effects of school racial composition on achievement. Journal of Labor Economics 27, 349-383.

Luna, A.L. (2006). The faculty salary equity cases: Combining statistics with the law. Journal of Higher Education, 77, 193-224.

Massey, D.S. (2007). Categorically unequal: The American stratification system. Russell Sage Foundation: New York, NY. 

Orfield, G. & Frankenberg, E. (2014). Brown at 60. Los Angeles: The Civil Rights Project at UCLA. Los Angeles, CA: UCLA.

Smrekar, C.E. & Goldring, E.B. (2009). Neighborhood schools in the aftermath of court-ended busing: Educators’ perspectives on how context and composition matter, in From the Courtroom to the Classroom: The Shifting Landscape of School Desegregation. Cambridge, MA: Harvard Education Press.

Schwartz, H. (2010). Housing policy is school policy: Economically integrative housing promotes academic success in Montgomery County, Maryland. New York: The Century Foundation. http://tcf.org/publications/2010/10/housing-policy-is-school-policy.

Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., Nos. 12–11211, 13–10306. (5th Cir., Mar. 24, 2014).

Vigdor, J. (2011). School Desegregation and the Black-White Test Score Gap, in G. Duncan & R. Murnane (Eds), Whither Opportunity?: Rising Inequality, Schools, and Children’s Life Chances. New York: Russell Sage. 

Welch, F. & Light, A. (1987). New evidence on school desegregation. Washington, DC: United States Commission on Civil Rights. 

Welner, K.G. & Spindler, E.R. (2009). Examining School Districts’ Policy Options for Mitigating Racial Segregation, in C.E. Smrekar & E.B. Goldring (Eds.), From the Courtroom to the Classroom: The Shifting Landscape of School Desegregation. Cambridge, MA: Harvard Education Press.

Big Brother, Big Responsibility: Faculty Emails, Open-Records Acts & FERPA Compliance

Utilizing an open-records request to uncover faculty emails, records, and other personal and professional documents is something of a controversial topic and, increasingly, a cause for debate. Earlier this year, contributing editor to The EdJurists, Dr. Neal Hutchens, et al., published an article [1] in the Chronicle of Higher Education discussing a few such cases—including a request lodged by a political advocacy group to access a law professor’s documents after the latter authored a political opinion piece [2] criticizing the state’s governor. Dr. Hutchens and his co-authors underscore an important consideration in the dialogue about public access to faculty documents. The prevailing issue with these requests isn’t the important interests of transparency and accountability that state open-records acts demand; rather, the problem is that these requests are often used to suppress debate, and even harass faculty. However, state legislatures have begun --and may continue--to remove unfinished research, [3] or other certain types of faculty communication unrelated to government functions from the scope of disclosure under state open-records laws. [4] Dr. Hutchens and his co-authors also wisely suggest that courts and institutions should balance between the interests of disclosure and academic freedom. However, instead of spilling more ink on what Dr. Hutchens, et al., have ably discussed, I would like to briefly investigate another quadrant of the “access to information” map.

My last post dealt with the proliferation of student data collection, [5] which seems to be experiencing something of an upswing amidst privacy concerns. [6] The topic of student data privacy concerns is not far afield from, and in fact inextricably linked to, faculty privacy concerns. This is because open-records requests for faculty emails and other records or communications not only impact academic freedoms; they may have a chilling effect on day-to-day faculty responsibilities. Sometimes, between faculty, there are justified reasons for sharing identifiable student data, or other critical student information, particularly to serve a legitimate educational interest or even to address a health or safety emergency. Generally speaking, a faculty member’s email records at a public postsecondary institution may not be exempt from an open-records request. Furthermore, it may be difficult or impossible to search, cull out, and redact emails containing potentially private student data in the open-records request window. This means any resident of the state (including the press, a political organization, or a student's parent) could gain access to faculty emails with sensitive information. Assuming, arguendo, that this situation occurred, it risks disclosing protected information to someone who presumably has no legitimate educational interest in it, and would directly violate FERPA. [7] While most states’ open-records laws would shield faculty email correspondence in such an instance, as a practical matter, this example illustrates the need for expanded exemptions to open-records laws in the interest of student--and faculty--privacy. Ultimately, this issue is more than just a student or faculty issue; it is a systemic issue that, sooner or later, all educational institutions (and state legislatures) must address.

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[1] Neal H. Hutchens, Jeffery C. Sun, Karen Miksch, Open-Records Requests and Academic Freedom, Chronicle of Higher Educ. (Jan. 10, 2014), available at http://chronicle.com/blogs/conversation/2014/01/10/open-records-requests-and-academic-freedom/. While this trend seems to have increased in recent years, as Dr. Hutchens and his co-authors note, the “weaponization” of open-records laws to harass a speaker or impair an organization’s work was earlier catalogued in a 2006 Journal or Higher Education article. See Michael K. McLendon, James C. Hearn, Mandated Openness in Public Higher Education: A Field Study of State Sunshine Laws and Institutional Governance, 77 J. of Higher Educ. 645 (2006). For a discussion of the response one university faculty has made addressing the problems Dr. Hutchens’ article discusses, see Colleen Flaherty, Protecting Faculty Records, Inside Higher Ed (Jan. 14, 2014), available at http://www.insidehighered.com/news/2014/01/14/ucla-produces-statement-designed-protect-faculty-inappropriate-open-records-requests.

[2] Gene Nichol, McCrory’s Stands Strain His Ties, News & Observer (Oct. 14, 2013), available at http://www.newsobserver.com/2013/10/14/3281798/mccrorys-stands-strain-his-ties.html. To be fair to the Civitas Institute, Mr. Nichol’s criticism verged on the ad hominem--not a great look for a former university president. Id.

[3] See, e.g., N.J. Rev. Stat. Ann. § 47:1A-1.1 (2014); Ohio Rev. Code Ann. § 149.43(A)(5) (2014).

[4] See, e.g., Ga. Code Ann. § 50:18-72 (35) (2014).

[5] CJ Ryan, Private Eyes: FERPA and Student Data Security Breaches, The Edjurists (Apr. 2, 2014 at 8:50 pm), available at http://www.edjurist.com/blog/.

[6] See, e.g., Benjamin Herold, Danger Posed by Student-Data Breaches Prompts Action, Educ. Week (Jan. 22, 2014), available at http://www.edweek.org/ew/articles/2014/01/22/18dataharm_ep.h33.html?tkn=LSOFCCaHP3qLAhA8rjypHkxMwnf%2BBfllt9Vy&cmp=clp-edweek. Even critics of the No Child Left Behind Act, Pub. L. No. 107-110, 115 Stat. 1425 (2002), acknowledge that the act promoted a salutatory leap in data collection--generally thought to be a good thing. However, the rate at which data collection has increased since the passage of the act, and more importantly, the kind of data collected, has caused alarm in recent months, particularly among opponents of the Common Core. Perhaps concerns like these prompted a modest response from the U.S. Department of Education on responsible collection of student data through online educational vehicles. U.S. Dept. of Educ., Protecting Student Privacy While Using Online Educational Services: Requirements and Best Practices, Feb. 2014, available at http://ptac.ed.gov/sites/default/files/Student%20Privacy%20and%20Online%20Educational%20Services%20%28February%202014%29.pdf.

[7] 20 U.S.C. 1232g(b). As a result of this federal statute’s requirements, some public postsecondary institutions explicitly discourage or altogether disallow their faculty and staff members’ posting protected student information in email correspondence, but as the statue does, carve out an exception for records kept in the sole possession of the record’s creator. Compare Office of the Registrar, Preserving Student Privacy, Univ. of Cal. Davis, available at http://registrar.ucdavis.edu/faculty-staff/privacy/ (containing in pertinent part: “Students have a right to access most information in the records that the University maintains about them, including e-mail messages between faculty or staff that refer or relate to them. Knowing that a student might read your e-mail message later, keep your e-mail messages focused on facts and try to avoid communicating subjective judgments.”) with Univ. Registrar, FERPA Guidelines for Faculty, Staff, and Students, Univ. of La. Monroe 5, available at http://www.ulm.edu/registrar/ferpa.pdf (strictly prohibiting: “[t]he transmission of grades electronically (e-mail) to any party, including the respective student . . . even at the student’s verbal or written request. Such transmissions could result in a privacy violation because they may not be secure and could be retrieved by an unauthorized party.”).

Private Eyes: FERPA & Student Data Security Breaches

It is something of a truism to say that data collection is integral to individualizing student learning, providing educators with immediate feedback on the success of pedagogical delivery methods, and supporting successful educational methods with evidence-based rationale. To serve these important goals, states now have large-scale longitudinal information systems and upload large quantities of student data in an effort to track student performance over time. [1] Even local school districts now contract with third-party providers of database management, [2] storing everything from contact information and curriculum planning, to grades, test scores, disciplinary data, Social Security numbers, health information—representing extremely confidential information. [3] But, as with all data, when this information is not properly guarded, it is low-hanging fruit for the unscrupulous digital underworld. [4]

It should be noted that recent changes to the Family Educational Rights and Privacy Act (FERPA), relaxed security measures for this data. For example, under the prior regime, schools were required to obtain parental permission before sharing information in their school’s educational record. [5] Now, schools may disclose directory information (such as name, address, phone-number)—even to third-party vendors—so long as parents are provided the opportunity to opt out of any such releases. [6] But a concern greater than third-party vendor access to student information is that security breakdowns in confidential student data, particularly P-12 student data, may result in identify-theft fallout, which may not be known for years.

The call for safeguards to student data [7] exposes the shortcomings of the latest changes to the FERPA regime. While debate may continue over whether a student or student’s family’s ability (or right) to limit who collects or maintains information, including the data that companies and schools collect and retain, at the very least, students should have a right to responsible, secure data collection practices. A lot of ground lies between codifying this right into FERPA and granting a private right of action for violations of FERPA (which is currently unavailable to a victim of a FERPA violation); perhaps, it is time that policy and law makers tilt the pendulum back in the direction of privacy.

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[1] See Benjamin Herold, States Make Progress on Data Systems, Advocacy Group Reports, Educ. Week (Nov. 19, 2013), available at http://www.edweek.org/ew/articles/2013/11/19/13data.h33.html.

[2] See Natasha Singer, Deciding Who Sees Student Data, N.Y. Times (Oct. 5, 2013), available at http://www.nytimes.com/2013/10/06/business/deciding-who-sees-students-data.html?_r=0. Yet, for a fairly nascent cottage industry, the education technology software industry for pre-kindergarten to twelfth grade represents an $8 billion market. Id. See also, Natasha Singer, Regulators Weigh in on Online Educational Services, N.Y. Times (Feb. 25, 2014), available at http://bits.blogs.nytimes.com/2014/02/25/regulators-weigh-in-on-online-educational-services/?_php=true&_type=blogs&ref=education&_r=0.

[3] See Benjamin Herold, Danger Posed by Student-Data Breaches Prompts Action, Educ. Week (Jan. 22, 2014), available at http://www.edweek.org/ew/articles/2014/01/22/18dataharm_ep.h33.html?tkn=LSOFCCaHP3qLAhA8rjypHkxMwnf%2BBfllt9Vy&cmp=clp-edweek.

[4] In recent months, student data breaches have occurred in Loudon County, VA, Chicago, IL, Tallahassee, FL, and Long Island, NY. “The 71,000-student Loudoun County [Virginia] public schools was thrust into damage-control mode last month after an outside vendor, New York City-based Risk Solutions International, inadvertently uploaded and left unprotected some schools’ emergency evacuation plans, as well as ‘directory information’ that included students’ names, addresses, telephone numbers, dates and places of birth, course schedules, and attendance histories . . . . Last November, the [Chicago school] district reported that 2,000 students participating in a free vision-examination program offered by the city had their names, dates of birth, gender, and ID numbers, as well as information from their exams, accidentally posted online. . . . In June, the Tallahassee Democrat reported that roughly 47,000 participants in state teacher-preparation programs had their personal information—including names and in some cases Social Security numbers—posted on the Internet for two weeks last spring. The information was being stored by Florida State University. . . . The 12,000-student Sachem Central School District [on Long Island, NY] suffered three data-security breaches in recent months, including one in which the names, ID numbers, and designations for free-lunch programs of 15,000 former students were posted online, according to a Newsday report.” Herold, supra note 3. Florida State is not the only postsecondary institution to fall victim to a data breach; Indiana University has spent more than $80,000 responding to a data breach that exposed the names, addresses and social security numbers of students enrolled at any of the IU’s campuses from 2011 to 2014. Data Breach Response Costs IU More Than $80,000, Diverse Issues in Higher Educ. (March 17, 2014), available at http://diverseeducation.com/article/61254/.

[5] See, generally, 20 U.S.C. § 1232g (2007); Parents’ Guide to the Family Education Rights and Privacy Act: Rights Regarding Children’s Educational Records, U.S. Dept. of Educ. (Oct. 2007), available at http://www2.ed.gov/policy/gen/guid/fpco/brochures/parents.html.

[6] See, generally, 20 U.S.C. § 1232g (2011); Revised FERPA Regulations: An Overview for Parents and Students, U.S. Dept. of Educ. (Dec. 2011), available at http://www2.ed.gov/policy/gen/guid/fpco/pdf/parentoverview.pdf.

[7] In December 2013, the Electronic Privacy Information Center, a Washington-based nonprofit, filed a complaint with the Federal Trade Commission accusing the popular financial-aid website Scholarships.com of selling sensitive student information to third-party marketers without adequate disclosures. See Herold, supra note 3. To that end, Common Sense Media announced a new initiative last week to encourage the educational technology industry to safeguard student data from falling into the hands of corporate interests. See Ben Kamisar, Group Calls on Companies to Safeguard Student Data, Educ. Week (Jan. 22, 2014), available at http://www.edweek.org/ew/articles/2013/10/23/09privacy.h33.html?tkn=XVTFfIPR7XvFa3FV7mZ0a5%2B8aYacxuog25JF&cmp=clp-edweek. See also Valerie Strauss, Why a ‘Student Privacy Bill of Rights’ is Desperately Needed, Wash. Post (March 6, 2014), available at http://www.washingtonpost.com/blogs/answer-sheet/wp/2014/03/06/why-a-student-privacy-bill-of-rights-is-desperately-needed/; Adrienne Lu, Protecting Student Privacy in the Data Age, USA Today (Dec. 17, 2013), available at http://www.usatoday.com/story/news/nation/2013/12/17/stateline-student-privacy-%0A%0Adata-education/4054307/.