September 28, 2015

To: Members of the Administrative Rules Review Committee

Senators and Representatives,
The Utah State Oce of Education (USOE) will be in your meeting tomorrow, among other
things, to explain the Statewide Longitudinal Data System (SLDS)a large database that stores
a lengthy list of data points on each child in Utahs public schools (and tracks them through
adulthood, creating pertinent privacy and property rights problems surrounding the data). We
are concerned with how this database was set up and how its being used; as we are unable to
attend the meeting, we wish to briefly outline key concerns for your consideration.
We allege that USOE created, and now operates, this database without any legislative
authorization or oversight. Further, the federal funding USOE has obtained in order to build
and operate the database has required them to make certain policy commitments, as youll see
below, that exceed their authority and were done without public discussion on the matter.
While Utah law prioritizes parental authority above that of the state regarding the education
of a child, and while the law also allows parents to opt out of any test or curriculum that does
not benefit that child, there is no provision for parents to exclude their child's information
from this database; the SLDS tracks every public school child longitudinally, year after year,
collecting academic and nonacademic data points without parental consent, and in most cases,
without parental knowledge.
This letter outlines three actions that you should be aware of:
1. The Four Assurances promised by Governor Huntsman
2. A grant received by USOE to build the federally compliant SLDS
3. The 2015 grant announced two weeks ago to further develop and utilize the SLDS
The Four Assurances promised by Governor Huntsman
On April 15, 2009, Governor Jon Huntsman signed an Application for Initial Funding under
the State Fiscal Stabilization Fund Program, submitted to the U.S. Department of Education.1
The purpose of this application was to obtain federal stimulus dollars; here is the explanation
from the U.S. Department of Education (USDOE):
The State Fiscal Stabilization Fund (SFSF) program is a new one-time appropriation of
$53.6 billion under the American Recovery and Reinvestment Act of 2009 (ARRA). Of
the amount appropriated, the U. S. Department of Education will award governors
approximately $48.6 billion by formula under the SFSF program in exchange for a
commitment to advance essential education reforms2
Without legislative authorization, the Governor unilaterally made four assurances to the
USDOEa required step in order to receive any money. Those assurances were as follows:
785 E. 200 S., Suite 2, Lehi, UT 84043 801.901.0310 LibertasUtah.org

1. The state of Utah will take actions to improve teacher eectiveness and address
inequities in the distribution of highly qualified teachers between high- and low-poverty
schools
2. The state of Utah will establish a longitudinal data system
3. The state of Utah will
1. enhance the quality of the academic assessments it administers
2. comply with federal requirements related to the inclusion of children with
disabilities and limited English proficient students in State assessments; and
3. improve academic content standards and student academic achievement standards
consistent
4. The state of Utah will comply with regulations to support struggling schools.
Thus, without any legislation to back it up, USOE promised the federal government that the
state would adopt significant policy reforms: common education standards (Common Core),
new assessments, teacher evaluations, school grading, and a comprehensive data collection
system. All of this was done in pursuit of money as a priority, rather than being the outcome of
a well-informed policy discussion with parents, teachers, and elected ocials. Less than a year
later, U.S. Secretary of Education Arne Duncan announced that Utah had been showered with
$741,979,396 through the American Recovery and Reinvestment Act.3
Utah lawmakersand thus the public at largewere left out of the loop.
A grant received by USOE to build the federally compliant SLDS
Under the same Recovery (stimulus) Act, USOE was given a grant of $9.6 million to create
the Utah Data Alliancea longitudinal database that was fully compliant with USDOE
requirements. While data systems had obviously existed previous to this grant, this one was
geared, as USOE wrote, primarily towards satisfying questions and requirements asked by the
American Recovery and Reinvestment Act (ARRA), Institute of Educational Sciences (IES),
SLDS grants program; the ARRA, Race to the Top (RttT); and the State Fiscal Stabilization
Fund (SFSF) assurancesall federal mandates tied to funding USOE desired.
To our knowledge, the Utah legislature did not authorize the creation of the SLDS. The only
statutory references we have been able to identify merely refer to the pre-existing database;
none seem to have provided the authority to create or operate it in the first place. For example,
Senate Bill 82 in 2013 (which passed and was signed into law) had this language:
(e) "Utah Student Record Store" means a repository of student data collected from
LEAs as part of the state's longitudinal data system that is:
(i) managed by the Utah State Oce of Education;
(ii) cloud-based; and
(iii) accessible via a web browser to authorized LEA users.
(2) (a) The State Board of Education shall use the robust, comprehensive data
collection system maintained by the Utah State Oce of Education

785 E. 200 S., Suite 2, Lehi, UT 84043 801.901.0310 LibertasUtah.org

According to USOE, a statewide longitudinal databasemostly compliant with federal

standardshad been in operation since 2005, and also received a federal grant in 2007.4
The 2015 grant announced two weeks ago to further develop and utilize the SLDS
On September 17, 2015, the Institute of Education Sciencesa project housed within the U.S.
Department of Educationannounced that Utah was awarded a grant under the Statewide
Longitudinal Data System Grant Program in the amount of $6.5 million, along with potential
continuation grants to provide more funding in the years ahead.5
USOEs application for this grant6, obtained through an open records request, sheds light on
the alarming nature of this project. In order to suggest a legislative blessing for the SLDS and
Utah Data Alliance, USOE argues that The Utah State Legislature awarded UDA partners
[individual state agencies] ongoing appropriations to support sustainability of the original
infrastructure (e.g., database, researchers, technicians, project director, and technical
contracts), which demonstrates the states commitment to the work and mission of the UDA
data warehouse. In other words, narrow appropriations for data projects in state agencies is
being interpreted as blanket and unqualified support of the overall SLDS project. We feel this
is a misguided and unreasonable inference.
Further, USDOEs Request for Applications document specifies that a successful data system
rests upon a governance structure involving both state and local stakeholders in the systems
design and implementation. However, USOEs application admits that only A memorandum
of understanding governs the partnership. A governance plan documents the policies of the
partnership and is continuously updated and refined to address emerging governance issues.
An MOU, which can continuously evolve free from vetted processes and public input, is
insucient to govern the requirements of such a large databaseone that has significant
privacy and security implications for all Utahns.
There are many disconcerting statements and policy priorities outlined in USOEs application,
but our main concern here is that the real stakeholders have been completely left out of the
loop. From information we have gathered, the State Board of Education was unaware of this
grant application. No vote was taken on the issue. No legislative authorization was given to
compile this information on every child, make the information available to state government
agencies (including individual-level data in the UDA data warehouse), or provide data to third
parties. Most importantly, the true stakeholders are almost totally unaware that this database
even exists; Utah law recognizes that the states role is secondary and supportive to the
primary role of a parent.
USOE may argue that the database is incidental to their existing authority and worka digital
version of the paper processes theyve used for decades. This is an inadequate response;
massive databases create central points of failure and abuse. Rogue employees can access and
abuse, or leak, this detailed information. Malicious actors can hack and release the
information. And big data is a huge economic boon to third party companies that want to sift
through the compiled information for their financial benefit. Make no mistake: the SLDS is
not merely an evolution of paperwork processes. It is a significant decision that should have
785 E. 200 S., Suite 2, Lehi, UT 84043 801.901.0310 LibertasUtah.org

been discussed and approved, subject to significant oversight to ensure privacy, parental
approval, chain of custody, security, etc.
We feel that a pattern exists within USOE, whereby education policy is dictated not with input
from parents and teachers, or even legislators or the State Board of Education, but by USOEs
seemingly insatiable appetite for federal grants, which inevitably come with significant strings.
For this reason, late last year we organized a still-pending lawsuit against the State Board of
Education over its rushed adoption of Common Core, done in an eort to obtain federal
money under the Race to the Top grant.
If strings are to exist, then they must be openly discussed, debated, and authorizednot
agreed upon behind closed doors with the unscrutinized stroke of a pen.
You as legislators have been circumvented and deemed largely irrelevant on this issue.
Significant education policies are being adopted and implemented without public input. We
encourage you to take an active interest in this issue and bring transparency and scrutiny to
USOE grant applications and the policies that necessarily follow from them.
Sincerely,

Connor Boyack
President, Libertas Institute
DOCUMENT SOURCES
1

Application for Initial Funding under the State Fiscal Stabilization Fund Program, http://www2.ed.gov/programs/
statestabilization/stateapps/ut-sub.pdf
2

State Fiscal Stabilization Fund, U.S. Department of Education, March 7, 2009, http://www2.ed.gov/policy/gen/leg/
recovery/factsheet/stabilization-fund.html
3

Utah to Receive More Than $129 Million in Additional Recovery Funds, U.S. Department of Education, http://
www.ed.gov/news/press-releases/utah-receive-more-129-million-additional-recovery-funds
4

UTAH STUDENT RECORDS EXCHANGE, https://nces.ed.gov/programs/slds/pdf/Utahabstract.pdf

INFORMATION RELATED TO FY15 GRANTS, http://nces.ed.gov/programs/slds/grant_information.asp

Enhancing Utah Data Alliance College and Career and Evaluation and Research Capabilities through Web
Technology, http://libertasutah.org/drop/slds_2015.pdf

785 E. 200 S., Suite 2, Lehi, UT 84043 801.901.0310 LibertasUtah.org