Political winds shift on federal unit records database -- but how much?

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Bill introduced Thursday would create a federal database to track students through college and into the work force, but it's unclear whether "unit record" idea will find more favor than it did seven years ago.

We need a new student data system -- but the right kind of one (essay)

The New America Foundation’s recent report on the Student Unit Record System (SURS) is fascinating reading.  It is hard to argue with the writers’ contention that our current systems of data collection are broken, do not serve the public or policy makers very well, and are no better at protecting student privacy than their proposed SURS might be. 

It also lifts the veil on One Dupont Circle and Washington behind-the-scenes lobbying and politics that is delicious and also troubling, if not exactly "House of Cards" dramatic. Indeed, it is good wonkish history and analysis and sets the stage for a better informed debate about any national unit record system.

As president of a nonprofit private institution and paid-up member of NAICU, the industry sector and its representative organization in D.C. that respectively stand as SURS roadblocks in the report’s telling, I find myself both in support of a student unit record system and worried about the things it wants to record. Privacy, the principle argument mounted against such a system, is not my worry, and I tend to agree with the report’s arguments that it is the canard that masks the real reason for opposition: institutional fear of accountability. 

Our industry is a troubled one, after all, that loses too many students (Would we accept a 50 percent success rate among surgeons and bridge builders?) and often saddles them with too much debt, and whose outputs are increasingly questioned by employers.

The lack of a student record system hinders our ability to understand our industry, as New America’s Clare McCann and Amy Laitinen point out, and understanding the higher education landscape remains ever more challenging for consumers. A well-designed SURS would certainly help with the former and might eventually help with the latter problem, though college choices have so much irrationality built into them that consumer education is only one part of the issue.  But what does “well-designed” mean here? This is where I, like everyone, gets worried.

For me, three design principles must be in place for an effective SURS:

Hold us accountable for what we can control. This is a cornerstone principle of accountability and data collection. As an institution, we should be held accountable for what students learn, their readiness for their chosen careers, and giving them all the tools they need to go out there and begin their job search. Fair enough. But don’t hold me accountable for what I can’t control:

  • The labor market. I can’t create jobs where they don’t exist, and the struggles of undeniably well-prepared students to find good-paying, meaningful jobs say more about the economy, the ways in which technology is replacing human labor, and the choices that corporations make than my institutional effectiveness.  If the government wants to hold us accountable on earnings post-graduation, can we hold it accountable for making sure that good-paying jobs are out there?
  • Graduate motivation and grit. My institution can do everything in its power to encourage students to start their job search early, to do internships and network, and to be polished and ready for that first interview.  But if a student chooses to take that first year to travel, to be a ski bum, or simply stay in their home area when jobs in their discipline might be in Los Angeles or Washington or Omaha, there is little I can do.  Yet those have a lot of impact on the measure of earnings just after graduation.
  • Irrational passion. We should arm prospective students with good information about their majors: job prospects, average salaries, geographic demand, how recent graduates have fared.  However, if a student is convinced that being a poet or an art historian is his or her calling, to recall President Obama’s recent comment, how accountable is my individual institution if that student graduates and then struggles to find work? 

We wrestle with these questions internally.  We talk about capping majors that seem to have diminished demand, putting in place differential tuition rates, and more.  How should we think about our debt to earnings ratio? None of this is an argument against a unit record system, but a plea that it measure things that are more fully in our institutional control.   For example, does it make more sense to measure earnings three or five years out, which at least gets us past the transitional period into the labor market and allows for some evening out of the flux that often attends those first years after graduation? 

Contextualize the findings. As has been pointed out many times, a 98 percent graduation rate at a place like Harvard is less a testimony to its institutional quality than evidence of its remarkably talented incoming classes of students.  Not only would a 40 percent graduation rate at some institutions be a smashing success, but Harvard would almost certainly fail those very same students. As McCann and Laitinen point out, so much of what we measure and report on is not about students, so let’s make sure that an eventual SURS provides consumer information that makes sense for the individual consumer and institutional sector. 

If the consumer dimension of a student unit record system is to help people make wise choices, it can’t treat all institutions the same and it should be consumer-focused.  For example, can it be “smart” enough to solicit the kind of consumer information that then allows us to answer not only the question the authors pose, “What kinds of students are graduating from specific institutions?” but “What kinds of students like you are graduating from what set of similar institutions and how does my institution perform in that context?”

This idea extends to other items we might and should measure. For example, is a $30,000 salary for an elementary school teacher in a given region below, at, or above the average for a newly minted teacher three years after graduation?  How then are my teachers doing compared to graduates in my sector? Merely reporting the number without context is not very useful. It’s all about context.

What we measure will matter. This is obvious and it speaks to both the power of measuring and raises the specter of inadvertent consequences.  A cardiologist friend commented to me that his unit’s performance is measured in various ways and the simplest way for him to improve its mortality metric is to take fewer very sick heart patients. He of course worries that such a decision contradicts its mission and why he practices medicine. It continues to bother me that proposed student records systems don’t measure learning, the thing that matters most to my institution.  More precisely, that they don’t measure how much we have moved the dial for any given student, how impactful we have been. 

Internally, we have honed our predictive analytics based on student profile data and can measure impact pretty precisely.  Similarly, if we used student profile data as part of the SURS consumer function, we might be able to address more effectively both my first and second design principles. 

Imagine a system that was smart enough to say “Based on your student profile, here is the segment of colleges similar students most commonly attend, what the average performance band is for that segment, and how a particular institution performs within that band across these factors.…”  We would address the thing for which we should be held most accountable, student impact, and we’d provide context. And what matters most -- our ability to move students along to a better education -- would start to matter most to everyone and we’d see dramatic shifts in behaviors in many institutions.

This is the hard one, of course, and I’m not saying that we ought to hold up a SURS until we work it out. We can do a lot of what I’m calling for and find ways to at least let institutions supplement their reports with the claims they make for learning and how they know.  In many disciplines, schools already report passage rates on boards, C.P.A. exams, and more.  Competency-based models are also moving us forward in this regard. 

These suggestions are not insurmountable hurdles to a national student unit record system. New America makes a persuasive case for putting in place such a system and I and many of my colleagues in the private, nonprofit sector would support one. 

But we need something better than a blunt instrument that replaces one kind of informational fog for another.  That is their goal too, of course, and we should now step back from looking at what kinds of data we can collect to also look at our broader design principles and what kinds things we should collect and how we can best make sense of that data for students and their families. 

Their report gives us a lot of the answer and smart guidance on how a system might work.  It should also be our call to action to further refine the design model to take into account the kinds of challenges outlined above.

Paul LeBlanc is president of Southern New Hampshire University.

Federal privacy law should be deemed unconstitutional (essay)

We’ve known for a long time that the federal student privacy law, the Family Educational Rights and Privacy Act (FERPA), is disastrous for public accountability. Now we know that it’s almost certainly unconstitutional as well.

The threat of financial ruin that theoretically accompanies a FERPA violation – theoretically, because in the 38-year history of the statute, no one has ever been penalized for violating it – causes schools and colleges to irrationally withhold information from the public on the grounds of “educational privacy.” Even if the information is neither educational nor private.

Colleges have invoked FERPA to withhold records as benign and non-confidential as lists of athletes on scholarship and tape recordings of Student Senate meetings. And FERPA has become the default excuse to conceal wrongdoing by coaches, boosters or athletic-department tutors.

But the end of FERPA’s stranglehold on public records is in sight.

In National Federation of Independent Businesses v. Sebelius (the “Obamacare” ruling), the Supreme Court struck down a federal statute that conditioned federal financial subsidies – in that case, Medicaid funding – on complying with Congressionally mandated conditions.

The Court’s primary opinion, authored by Chief Justice John Roberts, traced the history of challenges to Congress’s authority to dictate policy through the Spending Clause in Art. 1, Sec. 8 of the Constitution.

Conditions attached to federal spending have been upheld as constitutional, the chief justice wrote, when they amount to “relatively mild encouragement,” such as the requirement to increase the drinking age to 21 as a condition of receiving federal highway aid.

But in this case, Roberts wrote, the coercive bargain – to greatly expand the rolls of Medicaid-eligible patients or forfeit every dollar of federal Medicaid funding – simply went too far: “[T]he financial ‘inducement’ Congress has chosen is much more than ‘relatively mild encouragement’ — it is a gun to the head.”

Mr. Chief Justice, meet FERPA.

The 1974 federal privacy statute, which requires all schools and colleges receiving federal money to enforce policies safeguarding the confidentiality of students’ “education records,” carries a (theoretical) wallop that is comparably knee-buckling to Obamacare’s: Violators forfeit their eligibility for federal education funding.

The federal government contributes 10.8 percent of the cost of K-12 public education in America. While the percentage of direct support is less at the postsecondary level, ineligibility for federal funding includes life-sustaining Pell Grants, a $35 billion-a-year program.

Because the Department of Education knows that withdrawing federal money would amount to burning the proverbial village to save it, the DOE has never come close to imposing the “fiscal death penalty” on a FERPA violator. In fact, it has enacted regulations to make certain that no school will ever be de-funded simply for honoring a public records request.
If documents are released in violation of FERPA, the DOE issues a “compliance plan.” Only if the department determines that the school will not voluntarily comply can financial penalties be imposed. (The Supreme Court has ruled that families aggrieved by the release of their records cannot sue under FERPA, so DOE sanctions are the only penalty.)

Congress enacted FERPA with good intentions: to keep misleading records of aptitude tests or disciplinary scrapes from coming back to haunt young people. FERPA entitles families to see these records on demand, to challenge their accuracy, and to insert clarifying material. And it makes those same records confidential for everyone but the family.

But FERPA went awry when it became the catch-all excuse for every school or college that finds disclosure inconvenient or embarrassing.

The default assumption under the law of every state and of the federal government is that individuals’ interactions with government agencies are a matter of public record and are subject to disclosure. Thus, when a person applies for a construction permit, receives a traffic ticket or incorporates a business, those transactions are transparent – even if the individuals involved would prefer otherwise – so the public can assess how government agencies are performing.

Public records are what enabled reporters from the Los Angeles Times to document massive waste and mismanagement in the L.A. Community College district’s $5.7 billion construction program. They’re what helped Chicago Tribune reporters document the existence of a backdoor admissions system for the underqualified children of VIPs at the University of Illinois, a scandal that helped topple UI’s president and most of its trustees.

Regrettably, school attorneys have become well-practiced at invoking the federal-funding bogeyman – at times in confoundingly frivolous ways – when faced with a demand for information they’d prefer to keep concealed.

In July, the Iowa Supreme Court denied a newspaper’s request to compel production of public records relating to the University of Iowa’s internal investigation of how rape accusations against two Hawkeye football players were handled.

The victim’s family complained that the university dragged its feet in investigating the attack. An independent law-firm investigation confirmed wrongdoing that led to the firing of two university vice presidents.

The players’ names have been in the national news for years; one pleaded guilty to assault and the other was convicted at trial. Yet the Iowa court put their “privacy” interests – in being felons – ahead of the public’s interest in memos and correspondence that could shed light on how Iowa responded to the victim’s complaints.

Because it’s possible to read FERPA to produce such absurd results – a literal reading of the statute makes “education records” absolutely confidential even if everything in them is already widespread public knowledge as a result of the student’s own criminality – it’s time to sweep the statute into the dustbin and start over.

Based on the Court’s June 28 ruling in NFIB, there are seven likely votes to invalidate FERPA. Dissenting Justices Anthony Kennedy, Antonin Scalia, Clarence Thomas and Samuel Alito used even stronger language than Roberts and his two co-signers in condemning the Medicaid expansion mandate: “If the anticoercion rule does not apply in this case, then there is no such rule.”

The dissenting justices even helpfully pointed out that, after Medicaid, the second-largest federal aid program is education, accounting for 12.8 percent of all federal assistance to states and 6.6 percent of the average state’s total yearly expenditures.

So, do states have a meaningful opportunity to accept or refuse education funding? Let’s ask America’s colleges and universities.

In 2011, the head table of American higher education weighed in behind the University of Illinois in a dispute with the Chicago Tribune over records of its secretive “clout admissions” program.

A federal district court decided that FERPA was no excuse for withholding the documents the Tribune sought. In a ruling that has since been vacated on appeal, the district judge ruled that FERPA is not an outright prohibition on disclosure, since a college can choose to accept or reject federal funding.

In the university’s successful appeal to the Seventh Circuit U.S. Court of Appeals, the American Council on Education and nine other education groups filed a supporting brief arguing that FERPA is, to use Justice Roberts’ words, “a gun to the head” of their member institutions.

They noted that 19.1 percent of the University of Illinois’ operating revenues comes from Pell Grants and other federal sources, the loss of which would be crippling if not fatal.

“As a practical matter, [educational] institutions have no real ‘choice’ in the matter as the federal government is the single largest provider of student loans and other student financial assistance for higher education, which funding serves as a central component in each institution’s budget,” the groups argued. “Given the fact that federal education funding comprises such a significant percentage of a school’s total operating revenue, the District Court’s conclusion that schools can simply discontinue receipt of those funds is not grounded in reality.”

Indeed, in its Supreme Court brief in NFIB, the government expressly cited FERPA as a Spending Clause condition analogous to the challenged Medicaid expansion – a condition that, if the Medicaid expansion fell, would be thrown into question.

FERPA is a “dead statute walking.” It relies on a coercive funding threat indistinguishable from that just declared unconstitutional in NFIB. Having acknowledged as much in the Illinois case, colleges and schools cannot retreat from that position when the inevitable constitutional challenge arises.
To be clear, striking down FERPA will not throw open genuinely private records that everyone agrees should be kept confidential. Grades, minor disciplinary scrapes and other non-newsworthy information still may be kept secret, because open-records statutes exclude information that clearly invades personal privacy.

With FERPA off the books, schools and courts will be free to make common-sense judgments as to when privacy has been waived – for instance, when a nationally known athlete admits committing a crime – and secrecy serves no rational purpose.

This balancing test – weighing, case-by-case, personal privacy against the community’s interest in disclosure – is the right way to protect legitimate confidences while giving the public the information essential to evaluating how its schools are being managed.


Frank D. LoMonte is a lawyer and executive director of the Student Press Law Center, a nonprofit organization based in Arlington, Va., that supports greater transparency in schools and colleges.

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