Louisiana court ruling eases journalists' access to education data sets -- but are school lawyers paying attention?



Journalists seeking statistics about the performance of schools are, by now, accustomed to a familiar (if legally unfounded) refrain: If the statistics pertain to a small group of students, they're confidential and can't be disclosed.

Reporters in Ohio ran into the "small data set" excuse when asking how many times students are caught bringing guns into schools. The state Department of Education claimed that the numbers were confidential if fewer than 10 incidents were reported in any particular school, because the number "7" or "8" might somehow be matched to an individual student in a way that compromises privacy. (Re-read that explanation as many times as you want; it still won't make sense.)

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In Delaware, advocates for English-language learners are frustrated in their efforts to track how well schools are serving immigrant students by a ponderous state requirement that says statistics about students won't be disclosed for any group smaller than 30. And an upstate New York school district says it won't identify how many students in the district are homeless if the number drops below five. 

None of these examples, and countless more around the country, are a logical reading of federal privacy law, which forbids only the release of "education records" that give away confidential information about identifiable students. Knowing that Central High School has four homeless students does not reveal anything matchable to a known student. (Indeed, even if the number is "1" and you are able to match that number to Joe Johnson, that's because you already know that Johnson is homeless, so the "1" tells you nothing new.)

These types of needless obstructions should become rarer thanks to a judge's resolution of a lawsuit involving two Louisiana education watchdogs who fought the state Department of Education over access to student enrollment data.

In an Oct. 5 order, District Judge Janice Clark instructed the state to stop "suppressing" statistics showing how many students in each school are classified as economically disadvantaged students or are learning English as their second language. The judge found that withholding the statistics was not justified by any legitimate exemption to the Louisiana public records act.

Judge Clark's order concluded an unorthodox "sue-the-requester" case brought by the state Department of Education against two Louisiana educators who make frequent requests for data under the state's public records act. Instead of waiting for Michael Deshotels and James Finney to take legal action to obtain the enrollment statistics, the state launched a preemptive-strike lawsuit, forcing the requesters to litigate whether they wanted to or not.

The state claimed that the statistics were confidential under the Family Educational Rights and Privacy Act ("FERPA"), a statute frequently misapplied to obstruct public access to records that schools prefer to keep secret. 

Deshotels suspected that similar gamesmanship was at work in his case, since his Louisiana Educator blog has broken some embarrassing stories about school wrongdoing, including revealing that some New Orleans schools were manipulating their dropout statistics to draw money from the state they weren't entitled to receive. 

While Judge Clark's order isn't binding in future cases, it provides yet another counterweight to the sky-is-falling insistence of school attorneys that disclosing data to the public will -- in a way they're never able to explain -- give away something injurious about specific students.

The U.S. Department of Education has never established a "magical size threshold" beneath which statistics cannot be released. The Department has merely cautioned that data should be withheld if it unmistakably points to an identifiable individual.

For example, if a school with one Asian student (let's call her "Jane") was asked to produce a statistical breakdown by ethnicity of the students who failed a graduation exam, the school legitimately could not release statistics for Asian students, because a "1" would unmistakably indicate that Jane failed the exam and a "0" would unmistakably indicate that she passed.  

By itself, that is a wholly unremarkable position, and if that was as far as schools understood their privacy obligation, it would be inarguable. But it's not. Educational institutions are compromising safety and accountability, perhaps intentionally, by withholding statistics that enable journalists and parents to evaluate how public schools perform, such as district-level statistics about truancy, that pose no conceivable risk to personal privacy.

Advocates for more transparent colleges and schools are starting to awaken to the downside risk of reassuring-sounding privacy laws that, while protecting no legitimate privacy interests, enable educational institutions to mask their under-performance. Recently, the student-rights group Young Invincibles called for reform to federal laws that, in the name of privacy, obstruct the public's ability to track student advancement and job-placement rates -- data that prospective recruits should be entitled to weigh in choosing a college.

Perhaps the Deshotels case will help provoke an overdue conversation at the U.S. Department of Education, which has sole discretion to interpret FERPA, about the need for clearer guidance that avoids more unnecessary lawsuits and gives the public access to essential school-performance data.

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