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Security Checks of U.S. Education Contractors to Change

By Debra Viadero — March 28, 2008 6 min read

Researcher Andrew A. Zucker was designing a federally financed study of middle school science teaching two years ago when he came up against new U.S. Department of Education security rules that would have required him to undergo fingerprinting and an extensive background check.

Mr. Zucker refused to comply, ultimately losing out on the chance to work on that federal contract. He didn’t, however, go quietly.

Instead, the Massachusetts-based scholar called members of Congress, the 25,000-member-strong American Educational Research Association, and other Washington-based research societies. His alert started the ball rolling in a campaign to put in place less intrusive security-screening procedures for researchers working on federal Education Department contracts.

Now, two years later, that issue is coming close to being resolved, according to panelists who spoke this week at the AERA’s annual meeting here. They said department officials are reviewing a less stringent set of rules—guidelines that the education research group itself proposed—for maintaining federal security and protecting the privacy of people who take part in federally subsidized research.

“It sounds like we’re going to be way better off than we were,” said Mr. Zucker, a senior research scientist with the Concord Consortium, a nonprofit research group based in Concord, Mass.

The flap over security screening stemmed in part from a presidential directive issued in August 2004 and prompted by the Sept. 11, 2001, terrorist attacks. Known as Homeland Security Presidential Directive-12, the order was aimed at standardizing identification procedures and background checks for federal employees and contract workers. (“Education Dept.’s Stricter Background Checks Questioned,” Feb. 21, 2007.)

Some researchers were alarmed, though, at the open-ended nature of the background investigations allowed under the directives, which permitted federal reviewers to probe researchers’ financial records, question their doctors, and ask questions about their sexual orientation. Researchers also questioned whether the intensive checks were necessary for those with no access to federal buildings or federal information systems, and they worried what the federal government would do with the personal information it collected.

“I wasn’t provided the same confidentiality protections that we ensure for participants in our own research,” said Jill J. Crowley, a researcher at the Palo Alto, Calif., office of the American Institutes of Research, at the AERA meeting.

She balked at providing her children’s names and phone numbers for friends and relatives. But, in the end, Ms. Crowley complied, as did thousands of other researchers.

The discontent was not limited to contractors working with the Education Department, though. Most notably, a group of engineers, scientists, and contractors affiliated with the National Aeronautics and Space Administration’s Jet Propulsion Laboratory at the California Institute of Technology in Pasadena filed a lawsuit challenging the new requirements.

On Jan. 18, the U.S. Court of Appeals for the 9th Circuit, in San Francisco, issued an injunction to keep the space agency from enacting the more intensive background checks until the case is decided.

Seeking Balance

At the Education Department, the directive coincided with an inspector general’s report revealing that contractors had not previously been asked to undergo any background checks, said Winona H. Varnon, the director of security services for the department.

Moreover, the Education Department took the position in negotiations with the AERA that even if the presidential directive did not apply to education researchers, they were covered under another federal law, the Federal Information Security Act of 2002, that applies to cases in which contractors collect information on behalf of a federal agency.

Security Concerns

“I wasn’t provided the same confidentiality protections that we ensure for participants in our own research.”
Jill J. Crowley,
Researcher
American Institutes of Research

“It is the case that after September 11, the total message was ‘protection, protection, protection.’”
Winona H. Varnon,
Director of Security Services
U.S. Department of Education

“This is the thorniest and potentially most consequential issue that affects the nation’s statistical system.”
Katherine K. Wallman,
Chief Statistician
Office of Management and Budget

“It sounds like we’re going to be way better off than we were.”
Andrew A. Zucker,
Senior Research Scientist
Concord Consortium

Because that law does not explicitly require personnel screenings, though, department officials agreed to negotiate with the education research group on alternative security-screening procedures, according to Felice J. Levine, the AERA’s executive director.

“It is the case that after September 11, the total message was ‘protection, protection, protection,’ ” said Ms. Varnon. “Now, we’re having more conversations and trying to get more balance in what we’re doing.”

Ms. Varnon said the department’s general counsel is currently reviewing the AERA’s proposed new procedures. The probability that the proposal would be accepted, she predicted, was “98.5 percent.”

The draft proposal was not available at press time. But officials said it builds on requirements that most researchers already face under federal law when they conduct studies involving human subjects. The revisions also employ less intrusive background investigations for researchers when there is no risk that they will be working with sensitive material or on federal property.

Familiar Tensions

Nonetheless, tensions between privacy rights, security concerns, and the needs of scholars and the government to gather information are not going to disappear anytime soon, said Katherine K.Wallman, the chief statistician for the federal Office of Management and Budget. She oversees statistics-gathering efforts at 80 federal agencies.

“This is the thorniest and potentially most consequential issue that affects the nation’s statistical system,” she said. “Individually identifiable data are frequently provided to us by people on a voluntary basis, and our ability to get information rests on their trust.”

That’s increasingly hard to do, Ms. Wallman added, as demand for government data grows, computer hackers become more sophisticated, and confidentiality breaches continue to figure prominently in national news.

Those are familiar tensions to the estimated 15,000 researchers who turned out for the March 24-28 meeting in New York. Under federal human-protections laws, studies that involve human subjects—a category that includes most research in education—first have to be approved by institutional review boards, or IRBs, based at researchers’ home universities or research organizations.

Review-Board Shopping?

But that process can sometimes be fraught with frustration and distrust, too, according to participants at another session at the AERA meeting.

“While I was behind the curtain, it seemed to me that our board was quite reasonable,” said Frederick D. Erickson, a professor of anthropology in education at the University of California, Los Angeles. He has served on three institutional review boards over the course of his career. “Now, I’ve got a project of my own in expedited institutional review,” he added, “and it’s being jerked around in ways that make my blood boil.”

Some problems with the process, said Melissa S. Anderson, an associate professor of higher education at the University of Minnesota- Twin Cities who has studied IRBs, is that researchers often disagree with the boards’ judgments or may be skeptical of their authority.

“It’s, ‘What right do they have to tell me whether or not I can do research?’ ” she said. “The issue of peer review when peers aren’t seen as peers is … a sticking point.”

“This can lead to IRB shopping,” Ms. Anderson added, which is what occurs when researchers working on a study involving multiple universities try to figure out which one’s board is most likely to approve their project. “That’s becoming increasingly common and problematic.”

In a national survey of scientists that Ms. Anderson and her colleagues conducted last year, 5 percent of respondents admitted to having ignored or circumvented human-research requirements sometime in the previous three years. When medical researchers were removed from the sample, that percentage rose to 8 percent.

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