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FERPA SLDS and Unit Record

FERPA SLDS and Unit Record

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Published by Barmak Nassirian
A brief description of the student unit-record issue, the development of SLDS, and their impact on FERPA.
A brief description of the student unit-record issue, the development of SLDS, and their impact on FERPA.

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Published by: Barmak Nassirian on Feb 12, 2013
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02/12/2013

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Memo
To: Interested ColleaguesFrom: Barmak NassirianSubject: Unit-Record, FERPA, SLDSDate: February 12, 2013I’ve had conversations with some of you about the stalemate we have collectively created onthe related topics of educational privacy, legitimate access to data, and compliance burdenson institutions. I thought I’d write a quick summary of where I believe we are, and propose are-examination of policy options in search of a compromise that might address the needs andconcerns of the various parties to the debate.As you recall, back in 2004, when NCES launched a formal inquiry into replacing severalIPEDS surveys with a federal unit-record data collection alternative, I was quite willing toconsider their ideas, provided that the proposed system include meaningful privacy protectionfor students. Other colleagues were irrevocably opposed to the very concept on absolutist privacy grounds, or because they believed that student-level data collection would be evenmore burdensome for institutions than IPEDS, and/or because they viewed the effort as athreat to institutional autonomy. On the other side of the debate, state and federal policymakers, researchers, and accountability advocates were adamant in their demand fomuch greater access to student-level data, which they viewed as indispensible for arriving atsome of the most basic facts about outcomes and for better higher education policy. Hours of discussion can be had around any of these beliefs and demands, none of which will prove tohave been absolutely correct, but I will resist the temptation to start that here.In 2005, before the ink on the NCES report (Feasibility of a Student Unit Record SystemWithin IPEDS) was dry, Congress intervened to stop the controversy by adopting the FoxxAmendment in the House version of the HEA reauthorization bill (HR 609) then under consideration. Despite this decisive message from the (Republican-controlled) House, theCommission on the Future of Higher Education, appointed by Secretary Spellings endorsed afederal unit-record system in 2006, and the Secretary herself signaled some interested increating such a federal database. The matter seemed to have been settled when (aDemocratically-controlled) Congress finally passed the Higher Education Opportunity Act of 2008 to reauthorize the HEA. The bill included the original Foxx ban on a federal datasystem, but modified it with what would prove to be consequential language (through anamendment offered by then-Rep. Heath Shuler, D-NC) that explicitly excluded any
 state
 systems from the Foxx prohibition. The Shuler Amendment was not seen as particularly problematic at the time, because the states were viewed as unlikely to come up with theresources to go beyond the handful of nascent data systems sponsored by the Feds since 2005and because it required any state data collections to fully comply with FERPA, whose settledlegal interpretation posed insurmountable privacy challenges to state access to theeducational records in question. It is fair to say that those opposed to the unit-record datasystem declared victory and moved on to other issues.But, as with every thing else in Washington, no victory is permanent, and this one was moreshort-lived than most. In very rapid order, ARRA dumped $500 million of federal money into
 
the pre-existing State Longitudinal Data System (SLDS) grant program early in 2009, and theDepartment issued final regulations later that year (State Fiscal Stabilization Fund, InterimFinal Rule, November 2009) that declared all non-consensual releases of non-directoryinformation to SLDS to be FERPA-compliant. The combination of these twodevelopments—massive federal funding and regulatory removal of FERPA barriers—werean astonishing reversal of fortunes for the advocates of unit-record data, who certainly lookedlike they had pulled an amazing come-from-behind win. And, if there were any doubts aboutwho had the upper hand, the Department proceeded to eliminate FERPA as a threat tounfettered collection, warehousing, and sharing of educational data by promulgating what Icontinue to view as lamentable FERPA regulations in December 2011 that (unnecessarily and preemptively) eviscerated educational privacy.While it may be tempting to believe that the matter has now been settled in favor of unit-record advocates, the truth is that the various sides have managed to inflict mortal damage totheir opponents’ policy priorities, but without accomplishing their own substantive goals. The pro-unit-record groups have, for example, managed to undermine educational privacy, butthey are no closer to actually obtaining national data than before the expenditure of millionsof dollars since 2005. Indeed, it would behoove the advocates of unit-record data tocontemplate the Balkanized data environment they have been backed into creating in lieu of anational data system. I, for one, don’t believe that the obscenely over-priced SLDS will provesustainable over time (i.e., when 100% federal funding runs out) or that they will
ever 
besufficiently interoperable as to provide the most basic universe data, such as unduplicatedenrollments, transfers, or cross-border distance education statistics. The decentralization of what should have been a singular centralized data system has certainly cost plenty of timeand money. But even more damaging to the cause of better data is the unintended creation of a powerful political lobby—the current SLDS grantees—to any future federal data systemthat might derail their gravy train. For an example of a very similar federal-state“partnerships” from the recent past, one need look no further than the history of guaranteedstudent loans and the rent-seeking behavior of state-affiliated guaranty agencies andsecondary markets, whose self-interest consistently trumped the public purposes which theytheoretically served. Once the SLDS take root, their primary mission—i.e, self- preservation—will prove an insurmountable obstacle to better national data, which they willcontinue to promise and never deliver. If this is winning, one wonders what losing looks like! Not that the privacy crowd (with whom I identify) has done much better. Blocking thecreation of a national unit-record data system might have prevented direct federal access toall records, but it also created irresistible pressure for circuitous access to the same datathrough far less capable state agencies. The fragmented patchwork of SLDS, with their appalling privacy practices, their lack of transparency and public accountability, and their questionable information and security practices are doing much more damage to educational privacy than a federal system ever could. Any federal data system designed and managed bythe NCES would have vastly better privacy and security characteristics than the best SLDS.In addition, instead of the opaque and arbitrary process by which the various states areselecting data elements for collection, virtually every feature of a federal system would bedefined through the standard NCES TRP process.And the damage to educational privacy and privacy rights doesn’t stop with the SLDS. TheAdministration’s unfortunate decision to needlessly mutilate FERPA through the December 2011 regulations compound the harm that will certainly be caused by the SLDS. In their zeal

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