February 15, 2016
There have been a number of posts on this website, and elsewhere, expressing concern that a federal court has recently ordered the public disclosure of confidential student records. Nothing could be further from the truth. The board of the CA Concerned Parents Association (CCPA), would like the parents in California understand that we are very concerned about the privacy of all students in the state. Each school district has been instructed by Tom Torlakson’s office to post the objection form on their website, however, we understand that some of the attorneys who represent the school districts have informed districts that posting is only optional and/or advised against posting the information in the form which was ordered by the Judge.
We would like parents to understand that we had offered to mediate a settlement with the California Department of Education (CDE- Defendants) many times and have offered to receive the information with “pseudo” names (fake names). The attorneys for the CDE refused which forced the judge to make this ruling. Please read the case and you will understand that our only concerned is to ensure the safety and legal rights of those with disabilities. The judge appointed a special master to ensure the security of information upon transfer. Further, only a very small set of people on the legal team will have access to the information under a very strict order from the Court.
Two non-profit organizations, Morgan Hill Concerned Parents Association (MHCPA) and California Concerned Parents Association (CPA), filed an action against the California Department of Education (CDE) in 2011 alleging that the CDE was not providing California’s children with disabilities with a free appropriate public education (FAPE) as mandated by federal law. In order to vindicate the rights of these children, Plaintiffs’ legal team and experts require access to a limited amount of student data and education outcomes. During the two years leading to the issuance of this court order, Plaintiffs attempted to negotiate with CDE production of these materials in an anonymized form. CDE persistently declined. The Court overseeing this litigation, faced with an uncooperative CDE, ordered the materials produced subject a tight protocol that would protect the data.
To ensure the appropriate level of security, the Court took a number of aggressive steps. First, it issued a Protective Order that prohibits counsel for the parties and their experts from disclosing any confidential information that is exchanged in the course of this litigation. To the extent any such information needs to be presented to the Court, it will be presented under seal and will not become part of the public record.
Second, the Court retained a Special Master who is an expert in cyber security and data breach prevention. The Special Master is tasked with, among other things, ensuring that the handful of Plaintiffs’ representatives (less than 10 individuals) who will have access to the student data are following the strict measures imposed by the Court. Nobody in the association will have access to this material. No data will be exchanged unless and until the Special Master has certified that the Plaintiffs’ security measures meet his rigid standards.
Third, the Court has appointed a Magistrate Judge who will work with the Special Master and the parties to ensure that this protocol is uncompromisingly observed and applied.
Parents who have ongoing concerns about the security of their children’s data should take the steps outlined in the Notice posted on the CDE’s and the school districts’ websites. But they should keep in mind that thousands of individuals employed by the California school system have access to these data without the safeguards that will be in place in this litigation.
Finally, the data Plaintiffs seek in this case are not the students’ actual records, which are maintained by the school districts. Rather, Plaintiffs sought derivative data that the districts report to the CDE, in the process of which many state employees and state contractors have already access to the data.
If you do not wish to have the information of your student accessed, you are welcome to follow the procedures the court set forth in the FERPA notice posted on the CDE website.
One article that puts a thoughtful look on the controversy can be found at http://www.huffingtonpost.com/christine-bronstein/what-all-parents-need-to-_b_9350438.html