Are Student-Privacy Laws Getting in the Way of Education Research?
Education research can be a high-wire act between districts and researchers, balancing the need for straightforward access to data—and frank conversations about study results—with protection of student and teacher privacy.
If Louisiana’s two-year-old privacy law is anything to go on, that balancing act may get a lot trickier for researchers as states move to protect student data. That’s according to researchers speaking at a symposium at the National Center for Education Statistics annual meeting in Washington recently. Considered one of the strictest in the country, Louisiana’s law bars school districts from sharing nearly all personally identifiable information for students without a data-sharing contract or written consent from a student’s parent or guardian. The law imposes personal penalties of up to $10,000 or six months in jail for staff or researchers who share data improperly.
The law arose out of “real concern among parents” not just that student data would be released, but of how the state and federal government and even private researchers might use it. “There’s a real fear of us [at the state education department] and of researchers,” said Kim Nesmith, the data governance and privacy director for the state, at the symposium.
Louisiana’s state education agency no longer directly collects individual student data. Instead, districts now report accountability and other student data to a data management company, eScholar, which provides the masked data to the state agency. The firm created and issued more than 700,000 new identification numbers in five months, and has updated five years of historic student data since the law went into effect in 2015.
In the meantime, the state has focused on training for school districts and more outreach to parents about the existing protections for student data.
“Having data governance that balances privacy and transparency is not for sissies; it’s tough, really tough, work,” Nesmith said. “I hate that [the data privacy law] is scary, because it causes people to be afraid and overreact, but it’s good because I don’t have to fight to prove the importance of [student privacy and data governance.]”
Since 2013, “we’ve had the landscape completely shift” with regard to state approaches to data privacy, according to Amelia Vance, education policy counsel for the nonprofit Future of Privacy Forum. Thirty-nine states have passed new laws dealing with student data privacy, with nearly two dozen that affect K-12 or early-childhood data. In an analysis of both the bills introduced and laws passed during that time, the forum found only about 1 in 5 focused on training staff to secure data; often many were introduced without input from researchers or district data experts. “You’ve seen a lot of laws that react to the political zeitgeist more than respond to concrete privacy concerns,” Vance said.
Some of the most stringent laws, Vance said, “tend to incentivize, instead of really good data practices, they incentivize doing nothing with data at all.”
That has left educators and researchers to figure out workarounds for systems that don’t always gel with modern, data-intensive education systems.
Working Within Limits
For example, the Pelican State uses a broad definition of personal information—basically, any information that could be used on its own or with another piece of information to trace an individual’s identity, including a Social Security number, date of birth, medical or financial information, education achievement or transcripts over time, and even biometric information like height or weight. The law also requires that all personally identifiable data from Louisiana students remain physically in the state.
“It certainly raised some challenges,” said Patrick Wolfe, a professor of education policy and a chair in school choice at the University of Arkansas who has studied Louisiana school choice issues since 2013, before the privacy law passed.
“Of all the states I’ve worked in ... Louisiana has the most strict education-data-access law that I’ve seen so far. It does basically mean you have to do more planning at the front end.”
For example, in one ongoing evaluation of the state’s voucher program, Wolfe had only a single week to analyze school data at a secure facility in Metairie, La. That analysis led to follow-up questions, which he had to do long-distance with help from a locally based Tulane University graduate researcher. “It’s a little tricky writing computer code when you can’t see the data you are writing for,” he said.
Wolfe continues to study Louisiana, but Nesmith said the law has had somewhat of a chilling effect on researchers working there.
“It just adds time and cost to research when you have to find workarounds to state laws like Louisiana’s,” Wolfe said. “You can still do solid research within the law as it stands. ... As an academic researcher I just wish they made it easier for us.”
One recent attempt to create flexibility for education researchers to use student data under the law passed the state legislature, but was vetoed by the governor.