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Using Student Data to Identify Future Criminals: A Privacy Debacle

By Mark Lieberman — November 24, 2020 8 min read
Silhouette of group of students with data overlay.

Experts on data privacy and student security are calling for investigations and parents are expressing alarm after a news report last week revealed that a county police department in Florida uses sensitive data from the local school district to keep a secret list of middle and high school students it deems as potential future criminals.

The Pasco County sheriff’s office uses academic performance and discipline data from schools, as well as records from the state Department of Children and Families, to identify “at-risk youth who are destined to a life of crime,” according to an 82-page sheriff’s office intelligence document obtained by the Tampa Bay Times. Slightly more than 400 students out of 30,000 in the district’s secondary schools are on the list, the sheriff’s office told the Times.

Students can be placed on the list if they get a “D” grade in a class, miss school three times in a quarter, get a single discipline referral during a quarter, or have experienced childhood trauma, according to the Times report.

The Pasco sheriff’s office has said it uses the list as a tool for targeting students who need additional support and mentorship.

The existence of the list was not public knowledge until the Times report was published Nov. 19. Students on the list and their families have not been told that the sheriff’s office has identified them as potential future criminals. District superintendent Kurt Browning and two Pasco County school principals told the Times they weren’t aware the list existed.

Browning, who in 2012 was elected to the superintendent role and this month won re-election to a third term, said he wasn’t troubled by the revelation.

“We have an agreement with the Sheriff’s Office,” the superintendent said in an interview with the Times. “The agreement requires them to use (the data) for official law enforcement purposes. I have to assume that’s exactly what they are using it for.”

Stephen Hegarty, a spokesperson for the Pasco County school district, told Education Week on Nov. 20 that he hadn’t had a chance to discuss the Times investigation at length with the superintendent. “We’ll look it over,” he said.

Hegarty said it’s too early to say whether the district will contact families about this issue or suspend the practice of sharing student data with the police department. The need for a strong relationship between police and schools, according to Hegarty, was highlighted by school shootings like the one at Marjory Stoneman Douglas High School in Parkland, Fla. in February 2019.

“We’re not going to make any rash changes in terms of our relationship with the sheriff’s department,” he said.

A spokesperson for the Pasco sheriff’s department told Education Week in a Nov. 24 email statement that the department has no plans to change its policies and procedures around student data. “We stand by this program and are proud of our partnership with Pasco County Schools,” the spokesperson wrote.

Both the sheriff’s department and the school district shared with Education Week a copy of a written agreement that requires the police officer assigned to each Pasco County middle and high school (also known as a “school resource officer” or SRO) to “hold any education records in strict confidence” and “fully comply” with federal and state data privacy laws.

The district pays the sheriff’s office $2.3 million a year for law enforcement services in schools, according to the Times.

Experts on student data privacy believe the existence of the list may represent an illegal use of student data. Regardless of legality, they say, the list puts students and families at risk of being unfairly targeted before they’ve done anything wrong.

The risk could be particularly harmful for students of color, who are already subject to disproportionate scrutiny from police nationwide. In the wake of nationwide protests for racial justice this summer, several school districts severed ties with police departments, while others considered removing school resource officers but decided against it.

“What’s happened here is they’ve got an apparently improper use of FERPA data,” said Pam Dixon, founder and executive director of the World Privacy Forum. “This is a lot more problematic than the school district is apparently understanding.”

Deb Herbage, who has a daughter in 10th grade at a Pasco County high school, told Education Week she felt “mortified” when she first read the Tampa Bay Times article.

She’s not concerned that her daughter, a straight-A student in Advanced Placement classes, is on the list. But her friend’s son was struggling to keep his grades up during remote learning this year, and his school had called home to ask why the student had missed so many deadlines.

“That fact alone would scare the heck out of me,” Herbage said. “Now, I’d be thinking, ‘My kid’s on the list.’”

Is the list illegal?

Under the federal Family Educational Rights and Privacy Act (FERPA), schools can share student records with a contractor or outside party to whom the school has outsourced certain functions, if that outside party (like a designated school resource officer) meets all three of these conditions:

  1. The outside party is performing a service that would otherwise be performed by school employees.
  2. The outside party’s use of education records is under the direct control of the school.
  3. The outside party does not use the education records for anything other than the reason they were originally shared, and does not share the education record with anyone else unless it secures written consent from the parent of the student.

Dixon said she believes the Pasco sheriff’s office’s list of potential future criminals violates at least two of these conditions. School employees would not keep a list of at-risk students for the purpose of identifying future criminals, and the Pasco district officials have said they are not involved in the sheriff’s office’s use of the data.

Harold Jordan, a senior policy advocate who works on federal and state education issues for the American Civil Liberties Union of Pennsylvania, believes the Pasco program may also run afoul of federal allowances for sharing student data with law enforcement officers.

According to his analysis, FERPA allows schools to share data with police in three situations:

To protect the health and safety of students or other school community members in an emergency situation. According to Jordan, the U.S. Department of Education has issued several guidance documents clarifying that this rule applies to emergencies on the scale of a school shooting, natural disaster, terrorist attack, or epidemic outbreak.

If a judge signs a formal court order allowing a student to be investigated for a particular crime.

If a law enforcement officer in a school has been designated as a school official with “legitimate educational interest.” The district would have to The district would have to disclose that designation at the beginning of each school year, and the officer could only use student data for educational purposes, not law enforcement.

The federal Individuals with Disabilities Education Act includes similar requirements for sharing student data, focused on students with disabilities, Jordan said.

“This notion that you can do mass sweeps of students’ records and combine it with other kinds of information -- that is clearly not what federal privacy law intends,” he said.

What are the long-term risks of the list?

The factors that determine a student’s designation as “at-risk” may not be evidence of future criminal activity, experts say.

If a student’s presence on this list ends up in their records long-term, it could affect their ability to be admitted to college or hired by employers, experts said. Police officers could also inadvertently use their perceptions of students who appear on the list to make decisions about how to adjudicate a crime that takes place, according to Jordan.

“I don’t think it’s much of a step to suggest that these kids are likely to be subject to suspicion and harassment in a school environment,” Jordan said.

Subsequently, students might be less inclined to trust adults in the school building, and less likely to share useful information in the event a crime does take place or the school community is threatened. Research suggests students’ trust in teachers and school officials has made the difference in many school shooting situations that have been prevented before they happen, according to Jordan.

“You’re really undermining the trust of the adults who run the school system, and the law enforcement that works in schools,” Jordan said.

What should happen next?

Several experts told Education Week they believe the school should temporarily stop sharing data with the sheriff’s office.

Linnette Attai, president of PlayWell, a privacy compliance consulting firm with education clients, said she’d advise the district to “undergo a thorough and transparent review, report on it, and really consider whether or not this is something they believe is lawful and ethical.”

She also believes parents of students on the list deserve full transparency from the district and the sheriff’s office about why they’re on the list, where the list has been shared, how they can request to be taken off the list, how they’ll be notified in writing that their name has been removed, and “assurance about how they might be able to trust this would not happen again.”

Herbage said she posted the Times article on some local Facebook groups. Several people responded saying they wanted to find out if their kids are on the list, she said.

The Tampa Bay Times pointed readers to contact information Pasco parents can use to find out whether their children are on the list. It’s unclear whether the Pasco police will disclose that information upon request.

Experts said they haven’t seen evidence that the practices revealed in the Times article are happening on a bigger scale nationwide.

“I think we have every reason to believe that the overwhelming majority of schools are being run by thoughtful people and care deeply about their students,” Attai said. “To the extent that there might be outliers out there, it is critically important that we shed light on that quickly and meaningfully.”

A version of this article appeared in the December 09, 2020 edition of Education Week as Using Student Data to Identify Future Criminals: A Privacy Debacle

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