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Split Ruling on Confidentiality

August 23, 2010

A federal judge ruled last week that education researchers at Arizona State University and the University of Arizona can't be forced to release records that identify individual teachers they interviewed for their studies, which have become part of a court battle. But the judge ruled that the names of schools and districts studied must be released.

The scholars involved promised confidentiality both to the teachers and to the schools and districts, so while faculty members cheered the part of the ruling protecting the names of teachers, they said the other part of the ruling could hinder research involving schools.

The judge's ruling concerned subpoenas that had been obtained by Tom Horne, the state superintendent of education, for documents about research conducted by the Civil Rights Project at the University of California at Los Angeles. The UCLA center has been coordinating a major research effort on Arizona's controversial policies about education for schoolchildren learning English, and the research team includes professors at Arizona and Arizona State, such that many records exist at those universities and are subject to the subpoena.

Those researchers -- whose work has questioned the effectiveness and fairness of Arizona's policies on teaching English -- are expected to be expert witnesses in a trial about the state's approach.

Their findings are particularly critical of rules forcing those learning English to be separated from other students so they can focus solely on English four hours a day. The research has found that this approach -- which state officials say promotes learning English -- has failed to close education gaps among student groups and has effectively amounted to segregation, with a restoration of "Mexican rooms" that once served to separate Latino and Anglo students.

To date, the University of Arizona has turned over some of the documents requested (although not those with identifiable names) and Arizona State has not -- and many researchers have criticized the University of Arizona's partial compliance with the subpoena -- even before last week's ruling. Both universities, however, backed the legal effort to quash or limit the subpoenas.

Horne, the superintendent defending the state's policies, has said he needs all of the information about the research in order to make a strong case in court on behalf of the approaches that the research has questioned.

Judge Raner C. Collins ruled that Horne did have a right not only to the expert witnesses' written reports but to "data or information considered by the witnesses in forming their opinions." Judge Collins said that this would not extend to the names of individuals, saying that "research participants were promised their anonymity would be preserved and the court intends to honor that promise."

The ruling did not extend that protection to schools or districts, unless the researchers could show that they are so small that disclosing the school or district name would identify individuals. Arizona State officials said that they were still studying the ruling and University of Arizona officials did not respond to a request for comment.

Gary Orfield, co-director of the Civil Rights Project, said via e-mail that he was pleased that "the court has clearly recognized important protections for individual respondents" but said that the ruling on naming schools "created serious problems for researchers."

Orfield noted that it was necessary to offer schools and districts anonymity to get them to permit research, given the "very intense politics" in Arizona over the issues at the center of the research. "This decision could limit access to schools and districts elsewhere since it gravely undermines some of the guarantees of confidentiality if the researcher were to be called as an expert witness based on what he or she had learned in his research," Orfield said. "Since it is already very difficult to gain access to schools on sensitive issues, especially to obtain information on issues of racial and ethnic equity, this makes the job of researchers even harder and risks reducing the already limited information we have on many critical education and civil rights issues."

Felice J. Levine, executive director of the American Educational Research Association, said that there are important issues involving not only individual research subjects, but schools involved. She said that "caution" is needed in forcing the release of school names, since such information "can adversely affect the individuals who granted access or have a chilling effect on institutions that provided access under the expectation that their identities would be masked."

The Arizona case is not the only dispute in the news about state officials seeking access to private records of university researchers. The University of Virginia -- backed by the American Association of University Professors and other academic and civil liberties groups -- is trying to block a demand from Virginia's attorney general for information about a former professor who conducted climate change research. A judge in that case said Friday he would rule on the university's attempt to block the request within 10 days, The Washington Post reported.

 

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