Education privacy law failing, including racialized 'dirty data,' KU law professor writes

Mike Krings, KU News Service

LAWRENCE — Congress passed the Family Educational Rights and Privacy Act, known as FERPA, in 1974 in large part due to concerns about inaccurate and misleading data collected in schools that could negatively affect students. New research from Najarian Peters, associate professor of law at the University of Kansas, argues that FERPA should be enhanced to add more protections to prevent the inclusion of that type of information, known as dirty data, in the education record.

Najarian PetersWhile FERPA was intended to protect students and their families from misleading or damaging information in the education record, the law lacks protections against inaccurate data inclusion at the point of collection. In an article published in the Washington and Lee Law Review (.pdf), Peters outlined how the law could be enhanced.

Peters coined the term “digital golemization” for the phenomenon of inaccurate, incomplete or misleading data being placed in the digital record, which then goes on to potentially shape and influence a student’s reputation and resulting structure of opportunities.

The author cited research that has long shown how children of color are regularly overrepresented in disciplinary measures taken in schools and how they are reprimanded more severely than white children even for similar infractions. Furthermore, data has long shown that such students are underrepresented in access to programs such as advanced placement.

“This data goes only one way across the country. That should tell us there is something very wrong with the patterns, practices and, perhaps most importantly, the intentions at work here,” Peters said.

The author examined how data, which is not required to be verified upon its inclusion in the educational record, is similar in effect to that in the criminal justice system and plays a role in placing some students in the school-to-prison pipeline. Peters also tracked the history of how FERPA was developed in the early '70s in part as reaction to President Richard Nixon’s concern about privacy and how inaccurate records could harm people “beyond the point of repair.”

FERPA has failed, however, to protect students from inaccurate data in their record, and Peters calls for a prescription to enhance the law to prevent the problem or allow dirty data to be corrected. First, she argues for the verification of information before it is entered in a student’s record. That could be accomplished by requiring that a teacher, educator or administrator verify disciplinary information with a parent, student or via a standardized form or discipline board.

That requirement could be bolstered by a second prescription, a right to reasonable inference. In other words, those entering data should not jump to the conclusion an incident occurred because the student was disrespectful, aggressive or because unwanted behavior was due to a subjective deficit behavior, Peters said.

Finally, law enforcement officers’ presence in schools needs to be considered. Peters argues for an amendment to FERPA requiring accounting of disclosures to law enforcement. School resource officers, or police working in schools, can access student records without alerting students or their families. That information can be used in criminal investigations outside of school without the knowledge of students or their families. Peters argues that officers handling student records are able to further introduce dirty data or use information against students in negative ways and should, at the least, be required by schools to notify individuals when accessing such records.

The article is part of a new area of privacy law that Peters is developing regarding privacy and racial marginality.

Read this article from the KU News Service.