In December 2011, President Obama signed an Executive Order amending The Family Educational Rights and Privacy Act (FERPA), dramatically expanding disclosure exceptions and authorizing increased sharing of student personally identifiable information (PII) without parental consent. The changes to FERPA stripped away every shred of privacy protection students and their families have with respect to sensitive personal information.
The Obama Administration downplayed the changes by describing them as “unlocking the data,” which sounds innocuous, but is a gross oversimplification of what actually happened. The Administration counted on the ambivalence of the American people, and complicit state governments. For the most part, parents don’t know what or how student information is protected, much less who has access to it outside teachers and school administrators. State officials, well aware of the elimination of privacy protections, have turned a blind eye.
With the big push toward functional literacy, Positive Behavior Intervention Strategies (PBIS), anti-bullying legislation, and the expansion of Title IX to include gender identity as a protected class, education records contain a dearth of highly sensitive information far in excess of academic data. Private information about students (criminal history, discipline records, and history of pregnancy and child birth, for example), is available for use in behavioral, psychological, and social science research unrelated to academics.
Since the election of Arizona Governor Doug Ducey in 2014; a man whose campaign platform included strong opposition to federal involvement in public education, conservative Arizona legislators have been unsuccessful pushing through legislation that would, among other things, prohibit the collection and distribution of personally identifiable and non-cognitive data. Early in 2015, legislation passed in the Arizona House and the Senate Education Committee, giving privacy advocates some hope. Interestingly, Lisa Graham-Keegan, a former Superintendent of Public Instruction and education co-chair of the governor’s transition team, testified in opposition to the bill at the Senate hearing. Governor Ducey’s response to the proposed legislation was markedly different.
Not only did the governor not give vocal support for the bill, he actively pushed back against the legislation. Governor Ducey publically rejected the proposed legislation before a final hearing in the Senate. Faced with a veto, the bill failed to secure sufficient votes and the privacy provisions intended to protect Arizona students went down in flames.
In April, 2015, a group of parents met with the governor to discuss concerns about Common Core and its progeny; testing, accountability, and the collection and release of increasing amounts of non-cognitive student data. When privacy concerns were raised, Governor Ducey seemed surprised by the fact the Arizona Department of Education was releasing PII, and made assurances he would investigate.
Five months later, Governor Ducey was asked what, if anything, he had done since the April meeting to protect the students of Arizona and stop the release of PII. His answer was elusive and referenced an unnamed “duly elected official.” Needless to say, there has been no movement by the state’s Chief Executive to halt the release of student PII to outside vendors not under the control of any local, state, or federal agency.
A group of Arizona parents and legislators have finally decided enough is enough. Led by Representative Mark Finchem (R), 11th Legislative District, a movement has been born; a movement fueled by the desire to protect our most valuable natural resource, our children. Rep. Finchem spearheaded the creation of an organization called It’s My PII, a grassroots effort to do what state officials have chosen to ignore.
Rep Finchem said about the birth of It’s My PII, “The impetus was a response to many parents contacting me from around the state for help. Between the bullying of parents by out-of-control school officials obsessed with the pursuit of ‘federal education funding’…, and the unrestricted harvesting and distribution of personally identifiable data, parents are outraged.”
The parental call for action resulted in a review of data collection and sharing agreements at the office of Arizona Superintendent of Public Instruction. “Once we found out that the agreements were in direct violation of federal law, it was clear that litigation would be unavoidable,” said Finchem.
The organization’s goal is threefold: educate parents and community members, network with like-minded organizations around the country, and seek redress through litigation and legislation at the federal, state, and local level.
Finchem noted, “The frustration of parents in Arizona, and around the nation, is off the charts. The Legislature can only move so fast, and that is by design. We are engaged in a two pronged effort to restore parental authority, over which government school officials are running rough shod, citing a presidential executive order as their excuse.”
Regarding legislation, Rep. Finchem said, “I will be introducing legislation on the opening day of next session to do three things: provide parents the power and legal standing to opt out of high stakes testing; reinforce the parental authority that has been trampled on by the United States Department of Education, and prohibit the harvesting and distribution of personally identifiable information without specific and informed parental consent.”
But none of the It’s My PII officers and committee members are so naïve to believe legislation alone is the answer. Only through litigation will parents and communities have their voices heard by those who have chosen not to hear. Therefore, the group is working diligently to expand grassroots support and raise the necessary funds to secure legal representation. The plan is to seek injunctive relief preventing the distribution of PII, until the constitutionality of the Obama Administration’s backroom amendments to a federal statute is determined.
“The purpose of the injunction is to enjoin the use of executive orders that interfere with FERPA, force the Arizona Department of Education to observe and fulfill the elements of FERPA [as intended by Congress], to prohibit certain actions that interfere with parental rights and responsibilities, and [to halt] the collection and distribution of personally identifiable information,” continued Rep. Finchem.
An independent non-profit research center in Washington D.C., attempted to do just that in February 2012. The Electronic Privacy Information Center (EPIC) filed a lawsuit against the U.S. Education Department. The lawsuit argued that the agency’s December 2011 regulations amending the Family Educational Rights and Privacy Act exceeded the agency’s statutory authority, and were contrary to law. The Court dismissed the lawsuit for lack of standing; however, the Court did not reach EPIC’s substantive claims asserted in the complaint.
The litigation is a civil, class action law suit to force the government school systems around America to respect parental authority and student privacy. If you would like more information about It’s My PII and joining the grassroots movement, or have interest in supporting the organization with a donation, visit the website at www.ItsMyPII.com, or contact Rep. Mark Finchem directly at (520) 906-8081.