Education Department Guidance Targets Test Privacy

Connexeo - 06/19/2018

Now that states and school districts have become primary sources of registration and payment for college entrance exams, such as the SAT and ACT, issues of protecting student privacy have surfaced.

The U.S. Department of Education’s Privacy Technical Assistance Center issued guidance – which it designated as “significant – on May 23 concerning:

  • Pre-test surveys that accompany the SAT and ACT.
  • How districts sign up students for the tests.

The guidance states that the tests and the issues raise “potential issues” several federal and state privacy laws, such as the Protection of Pupil Rights Amendment (PPRA). The pre-test surveys in particular have come into question, especially the optional nature of those surveys, information from which is sold to colleges and scholarship organizations who wish to target certain students for recruitment.

“We have heard from teachers and students…that the voluntary nature of these pre-test surveys is not well understood, and that each of the questions requires a response, and the student must affirmatively indicate in response to multiple questions that the student does not wish to provide the information.”

This wasn’t an issue back in the days when students registered for the college-entrance exams individually with the testing companies, because those companies weren’t acting on behalf of the state or school district. That changes when the public entity is signing up and paying for the student to take the test. That has been a growing trend in the past 10 years, as schools seek to increase college opportunities for their students and states have passed laws requiring some sort of assessment during high school years, which the SAT and ACT qualify.

The pre-test survey is especially vulnerable to privacy issues because of the nature of the questions it asks – everything from extracurricular activities, to religious affiliation to parental income.

Under the PPRA, parents (or students ages 18 and older) must provide signed consent for any of this information to be released to third parties. The Education Department guidance strongly suggests that school districts:

  • Establish policies that consult parents (and age 18-plus students) about the pre-test surveys.
  • Allow students and parents to review pre-test survey questions.
  • “Explicitly communicate” to students, families and faculty that the pre-test surveys are voluntary and optional.
  • Tell students and families that the surveys contain PPRA-protected topics, and that they can opt out.
  • Require prior written consent from parents (or age 18-plus students) for disclosure of personally identifiable information from the student’s education record to a third party for recruiting purposes.

In other words, a student shouldn’t go into the testing room and be surprised by a survey that has nothing to do with academic skills and that they don’t know is optional. The student, and parents, should have been well informed that 1) the survey would be offered to them; 2) it contains some potentially invasive personal questions; 3) the answers will be sold to colleges for recruitment purposes; 4) the survey is most definitely voluntary; and 5) signed consent is needed for the information to be disseminated.

The guidance also delves into the contracts between the testing companies and the school districts or states. These agreements should include clauses that before personal information is disclosed nonconsensually, these companies, when acting on behalf of the school districts, will comply with federal privacy laws, specifically the Family Education Rights and Privacy Act (FERPA) and the Individuals with Disabilities Education Act (IDEA).

The “significant” designation is important. The College Board, which administers the SAT, and ACT, though non-profit, derive a great deal of their operating income from the sale of student information and test scores to colleges and scholarship programs. If the Education Department were to find one of these organizations in violation of federal privacy laws, an analysis on the Future of Privacy website stated, it could, for example impose a five-year ban on data transfer from the organization to the violated school district.

This would be a challenging condition for these organizations, and would only hurt the students at that school hoping to take the free test.

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