With changes at the federal level happening at breakneck speed, we’re here to help make sense of these changes—whether it’s concrete examples of what’s changing at the federal level and for states, responses and ideas from the field, or things our organization and others are exploring. To accomplish this, we’re periodically bringing you our thoughts on the most salient conversations happening as people work to navigate the current education and workforce field of play.
We’re writing this column together to combine our perspectives: Jenn’s expertise comes from decades of education leadership experience at all levels, from the classroom to the district and federal levels, while Paige brings almost two decades working on state and federal education data policy and issues.
In the past two months, we’ve seen millions of dollars of federal contracts cancelled and more than 1,000 dedicated civil servants fired as part of crippling layoffs at the US Department of Education (ED). We’re digging into the “so what” for privacy as further announcements, executive orders (EOs), and investigations from the administration begin to directly impact student data privacy.
Currently, the privacy team at ED remains intact and the contract to staff the Privacy Technical Assistance Center (PTAC) remains in place. But overall, the administration’s recent actions suggest that it is seeking to significantly alter the role and scope of federal privacy infrastructure in alignment with its broader policy priorities.
Notably, Secretary McMahon has directed ED to clear a backlog of Family Educational Rights and Privacy Act (FERPA) complaints. We would normally comment here that enforcing FERPA is a good thing (because it is!). But coupled with the administration’s other FERPA-related announcements, it’s important to raise a few things that we’ll be watching closely.
- ED announced investigations into possible FERPA violations in California and Maine that focus on parental notification practices and gender identity. These department-initiated investigations are unusual because FERPA investigations are most often the result of a complaint filed by a parent with the department and are not often opened by the department itself, suggesting that this administration may be using FERPA to achieve some of its other policy goals.
- In a letter from Secretary McMahon to states, she lays out her “revitalized effort to make FERPA and PPRA the source of proactive, effective checks on schools that try to keep parents in the dark.” While FERPA has never been enforced this way, it is possible for McMahon to use FERPA to revoke federal funding from these states—an action that could have direct and harmful consequences for students. If an education agency is found to have violated FERPA, removing funding is the opposite of what is needed. States and districts need real support—financial and technical—to effectively ensure student privacy.
Over the weekend, ED and the Department of Justice (DOJ) announced a team that includes federal privacy staff to jointly investigate Title IX policies. This team—comprised of attorneys and civil rights investigators from ED and DOJ as well as caseworkers from ED’s Student Privacy Policy Office—has been tasked with interpreting Title IX to restrict the participation of transgender students in women’s sports. Similar to the FERPA investigations mentioned above, these investigations could also result in lawsuits and the loss of federal funding for institutions.
An EO on data sharing may also have direct privacy implications, giving federal employees access to unclassified data from federal agencies and data from all state programs that receive federal funding. Federal agency heads have been directed to identify any laws or regulations that may pose barriers to this access. This directive could encourage federal designees to access individuals’ data from federal financial and postsecondary data systems and from state P–20W data systems, among others—a prospect that rightfully concerns those of us committed to safeguarding data.
As federal agency heads catalogue relevant data and data access regulations, we’ll be keeping an eye on how the process plays out. We have many questions—but here are our top three:
- Will the EO lead to conflicts between state privacy and open access laws and federal privacy and data access laws?
- What are the implications, if any, from this recent court ruling on accessing ED, Department of Treasury, and Office of Personnel Management data? Is this the same type of case that could be filed in response to this EO?
- How do/don’t state laws address access to state agency data by federal agencies?
The administration has also discussed using AI in several ways, but has not prioritized transparency. Executive orders have called for the removal of barriers to AI innovation and revoked previous Biden administration executive orders that purportedly “hampered the private sector’s ability to innovate in AI.” We’ll be watching closely to see how the administration moves forward.
We know these aren’t the only questions out there. What questions do you have?
