In every privacy debate across every industry, the same questions arise about the rights of individuals to “opt-out” of their data being collected or used. So it should come as no surprise that the “when” and “how” of parent and student opt-outs of education data collection or use has become a robust focus of attention.
The first stop on the path to a basic understanding of education opt-outs begins with the Fair Information Privacy Principles, or FIPPS, which form the basis of most privacy laws in the U.S. and around the world.
The FIPPS require data collectors to specify the purpose for which they are collecting data, and to seek informed consent for the collection and use of this data. Consent can be implied when the purpose of collection is obvious and the primary reason for collecting the data. But when the use is unrelated, additional permissions are needed.
So, how do these privacy principles help us think about student data?
How Data Collection Helps Students
It’s useful to analyze which purposes of student data collection are primary, for which permission is expected and implied when data is collected.
Some “primary use” categories are obvious. In order for schools to function, they need basic information about students and parents. They need to record grades, know who is eligible for subsidized lunch, and who has special learning needs. Schools need to share data with vendors who operate cafeterias, school buses, and data storage systems for the school. In general, we might think about administrative and educational purposes as primary purposes of a school system where data collection is necessary, expected, and where it is not feasible to provide parents with choices because to do so would prevent the school from providing students with basic school educational services.
Then, there is the use of data to understand how well students perform over time, how well a school system is serving different populations, and how well different educational strategies are succeeding.
Although the accuracy or effectiveness of this data is sometimes debated, assessing performance through data analysis is often an essential step in order to improve education and address areas of concern.
Encouraging individuals to opt-out prevents schools from getting an accurate picture of how good of an education is being provided for all students. If primarily low-income students opt-out, or primarily high-income students opt-out, schools and policy makers would have a lack of knowledge and understanding about the challenges and barriers facing students of diverse backgrounds. Without data that accurately represents all sectors of the school community, we create the risk that decisions will be made in response to those who lobby the hardest or shout the loudest, rather than in response to the needs of all students.
When to Opt-Out
There are some secondary uses of data where parents should make choices about data use. Certainly, this would include sharing any student data for purposes unrelated to the educational and related activities that are expected by parents.
Sharing data for anything related to marketing, or for surveys that collect sensitive information, or before making data public all should allow parents to make informed choices before data is used for these uses which are not primary to the school system. It’s no coincidence that these are some of the areas where FERPA mandates schools provide parents with opt-out choices.
Why Opting Out Isn’t the Solution
Unfortunately, the debates over opt-out policies often get tethered to arguments about education policy that have little to do with privacy practices. Critics who don’t trust vendors with data may call for opt-out rights. Parents who object to the number or type of tests given to students call for opt-outs. Advocates who are worried about state or federal government policies argue for additional choices.
But in each of these cases, providing individual parents with options that disrupt the ability of data to be used for essential educational purposes isn’t the best option.
Legitimate education policy concerns need to be addressed by fixing these problems for all students, not just the minority who protest by opting out. Parents may legitimately seek to opt-out as one form of protest against policies and programs that need improvement. The concerns of frustrated parents seeking to object to policies they oppose need to be heard and resolved.
Policymakers seeking to set privacy rules for student data need to consider both the privacy rights of parents and students and the expectations of parents that teachers and administrators have access to the data needed to make smart decisions about managing our educational system.
Opt-out rights should be an opportunity for parents to decline uses of data that truly are secondary to the functioning of our educational system – not an opportunity to avoid resolution of education policy issues that affect all students.
Jules Polonetsky is the Executive Director and Co-chair of the Future of Privacy Forum. Brenda Leong is a Legal and Policy Fellow at the Future of Privacy Forum.
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