Grading the GOP’s Latest Education Bill: Needs Improvement (on Data Privacy)


The House Education and Workforce Committee completed their mark-up last week of HR 4508, which they have named the Promoting Real Opportunity, Success, and Prosperity through Education Reform (PROSPER) Act. Here is an update on the data privacy implications of this bill.

The good news is that the ban on a student unit-record system is still in place. The previously proposed College Transparency Act would have allowed non-consensual tracking of personally identifiable information from college through the workforce by monitoring individual data from the colleges and universities, the IRS, and the military. (See also here and here for more details.) Committee chairwoman Rep. Virginia Foxx (R-N.C.) deserves great thanks and kudos for authoring that ban in the last version of the Higher Education Act and for keeping it in place in PROSPER.

The other college data bill we have been warning about is the Student Right to Know Before You Go Act, sponsored in the House by Duncan Hunter (R-Calif.) and in the Senate by Ron Wyden (D-Ore.) and Marco Rubio (R-Fla.). Previous versions also would have removed the ban on the student unit-record system, allowing non-consensual life-long tracking of students. Although the present version does not overtly remove the student unit-record ban and is improved regarding data security, it still collects far too much data from too many sources, especially with other data bills like the Foundations for Evidence-Based Policymaking Act (FEPA) seeking to greatly increase data sharing between federal agencies — resulting in a de facto national database. Fortunately, the language from this bill did not end up in PROSPER either.

The bill did, however, commission a two-year study to examine “the feasibility of having the National Student Clearinghouse, a private nonprofit entity, set up a third-party data system for analysis of institution- and program-level student outcomes.” The data-hungry members of the higher ed and foundation world were unhappy with this. Hopefully, the firm opposition of Chairwoman Foxx, who authored the ban on the student unit-record system, will continue to hold sway.

Both Reps. Hunter and Paul Mitchell (R-Mich.), the sponsors of these problematic data bills, serve on the House Education and Workforce Committee that marked up PROSPER. While they both voted for the final product, they both expressed discontent to Politico that the bill did not collect enough data:

Several Republicans on the panel were also split over how the bill should require collection of data on student outcomes and the performance of colleges. Paul Mitchell (R-Mich.) supported the House GOP bill but said it “falls short in truly allowing American consumers to make the best decision for them in pursuing higher education, upward mobility, and long-term success.” Hunter also said he’d like to see the legislation do a better job of providing students with earnings data and other information about colleges’ performance. “I would beg, ask and cajole the chairwoman and committee staff that they would work with me on this important matter before this bill reaches the floor,” he said.

PROSPER also added new language to streamline the Free Application for Federal Student Aid (FAFSA), which Jane Robbins and Emmett McGroarty have demonstrated is so problematic with data security and privacy. The language seeks to enable FAFSA to be populated with data from parents’ IRS tax forms immediately. This may be more efficient, but there seems to be little to protect individual privacy by decreasing the number of questions or their invasiveness. Privacy is protected merely by a reference to the Family Educational Rights and Privacy Act (FERPA), which we have long discussed as being severely outdated and also weak, because it was gutted by the Obama administration in 2012. And as we have discussed, there have been data breaches of the IRS tool used for FAFSA.

Section 121 of the bill updates the current College Navigator section of the statute and now calls it the “College Dashboard.” It greatly increases the amount of data about students that colleges are expected to provide about the institution and the students that attend. Most of this data is in aggregate form. One concerning part of the section requires institutions to provide data on:

(I) The median earnings of students who obtained a certificate or degree in an educational program from the institution and who received Federal student financial aid under title IV in the course of obtaining such certificate or degree—

(i) in the fifth and tenth years following the year in which the students obtained such certificate or degree;

(ii) set forth separately by educational program;

This begs the question: How will the college determine the median earnings 5 and 10 years out if it’s not tracking individual students? And if the college has that data, will the government have access to it at some point? We will be monitoring this provision and keeping you updated as we learn more.

Finally, one other provision of the bill deserves cautionary mention. An amendment offered by Rep. Jared Polis (D-Colo.) that was adopted allows 4-year colleges to non-consensually disclose non-directory information of their transfer students back to the latter’s community colleges of prior enrollment on the theory that they may be eligible for an associate’s degree if they combine their 4-year courses with the community college work they had done before transferring. The typical scenario cited for this is that of a transfer student who ends up not getting a baccalaureate, but who could qualify for an associate’s degree if only the community college knew of his or her coursework at the 4-year school. The amendment requires student consent for a degree to be conferred — but not for the disclosure in the first place.

A noted privacy expert observing the mark-up said:

This is terrible policy. Allowing schools to send not just transcripts, but theoretically any non-directory data, to any third party, even a prior school, undermines the most basic protection of educational privacy for people. If they have a suspicion that someone may be eligible for degree (that they may or may not want), they can just send them a letter to inform them and ask for their consent to have a transcript sent. It’s also really awful higher ed policy: students have always had to apply for graduation, and go through a degree audit to be awarded degrees. This is another foundation-driven proposal that takes the decision out of individuals’ hands and hands it to “systems” to drive.

This last provision is one that should be explained and opposed, but overall, we are pleased that the privacy gutting language of the College Transparency Act and the Student Right to Know Before You Go Act was not included in this bill. Analysis of other issues of competency-based education and education as workforce preparation will be provided in the near future. PROSPER will be considered on the House floor sometime in 2018 and the Senate has not yet started putting together their version. Stay tuned.

Karen R. Effrem, MD

Dr. Karen Effrem and her husband have three children. She is trained as a pediatrician and serves as national education issues chairman for Eagle Forum and president of Education Liberty Watch.

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