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Student-Data Ban Faces Test: A law meant to protect privacy makes it tougher to assess colleges and their performance

By Emily Wilkins, CQ Magazine

As president of the Minnesota State College Student Association, Dylan Kelly hears from students hesitant to enroll, unsure if pursing a degree will lead to a comfortable life or a debt trap.

Data on individual college students would help prospective students, colleges and policymakers alike better understand how much graduates make and how many students who transfer schools eventually earn a degree. But lawmakers concerned with student privacy have banned the Education Department from collecting student-level data. 

“A lot of students are people coming in and looking for job training  . . .  looking to improve their economic outlook for their families and themselves,” Kelly says. “They have a hard time trying to assess what it will take, especially with a limited amount of data.” 

Kelly and others are looking to Capitol Hill to close that information gap by lifting a 2008 ban on collecting specific student data they say can help families make informed decisions about what higher education programs will be worth the cost, whether students should transfer and what outcomes other students of their race, gender and income-level have experienced.

Yet, the idea for a database of student information faces stiff resistance from some lawmakers and privacy advocates. Currently, individual schools must prepare aggregated information for hundreds of indicators, including graduation rates and average tuition for students of different income levels. While this method provides more than 1,700 pieces of information, it leaves key questions unanswered, including financial outcomes for all students and the success of transfer students.

Republican House Speaker Paul D. Ryan of Wisconsin and GOP Sen. Marco Rubio of Florida, along with a majority of colleges and education advocacy groups, are pushing legislation to overturn the ban. With both chambers’ education committees set to work on updating the higher education law in the next Congress, that legislation has a chance of being a part of the larger bill. 

However, both committees will be chaired by Republicans, who want to keep the ban in place to protect student privacy rights and security.

“This election tells us the American public wants business done differently,” says Rep. Virginia Foxx of North Carolina, the heir-apparent to the House Education and the Workforce gavel. “They do not want an intrusive, overreaching federal government.”
Early Support for Ban

Although the issue is enmeshed in debate over the benefits and dangers of individual records being kept by the department, there was no opposition when Foxx offered her amendment creating the ban during a 2007 markup of the higher education bill.

At the time, the Education Department under President George W. Bush had tossed around the idea of building a system with data from individual students including their names, Social Security numbers, addresses, what programs they were enrolled in, their attendance status and financial aid details, according to a 2005 feasibility study from the department.

Such a system would risk the security of the information as well as violate students’ privacy, Foxx said of her amendment creating the ban. Then-Chairman George Miller, D-Calif., called the amendment “acceptable and I think across-the-board here.” It passed on a voice vote.

Because the ban is only on compiling records that can be traced to a specific student, the Education Department can and does collect aggregate data through an annual survey to colleges. Still, opponents of the ban point to some gaps in the information.

Graduation rates are only shown for first-time students who are enrolled full-time, which covers less than 14 percent of all undergraduate students, according to the National Center for Education Statistics. The scorecard shows an average salary of former students, but only if they received federal financial aid. While about 60 percent of undergraduates received federal assistance, their outcomes cannot be compared to the outcomes of those who didn’t qualify for aid.

Colleges also say the annual questionnaire is burdensome on administrations, with most four-year institutions needing more than 100 hours per year to complete the survey, according to a 2010 survey of schools from the Government Accountability Office.

Within several years of the ban passing, colleges, universities, student groups and higher education advocacy groups vocally opposed it, including the American Association of Community Colleges.

“In the early part of this century, the colleges and associations on behalf of them were more concerned about potential privacy considerations and more sensitive to that than we have become over time,” says David Baime, the organization’s senior vice president for government relations and policy. “We feel more secure about the ability to keep the data private.”

Not everyone agrees. Parent and teacher privacy organizations and the American Civil Liberties Union sent a letter this month to the Commission on Evidence-Based Policymaking, a federal study group established this year, urging opposition to a federal data system with individual information and questioning the Education Department’s ability to keep data safe.

“Any recommendation by the Commission to establish a federal data clearinghouse of student [personally identifiable information] could effectively create life-long dossiers on nearly every individual in the nation,” the groups said in the letter.

Baime and other advocates point out that the Education Department already keeps sensitive individual-level information on every student who receives financial aid — something possible outside the ban because students provide their own information to the department rather than having it sent to the department by a school.

More than 3,500 institutions also submit individual-level data to the private National Student Clearinghouse. However, the information isn’t available to the public and can’t be paired with Internal Revenue Service data to assess students’ financial outcomes.

Beyond the security and privacy debates, Baime says colleges’ and lawmakers’ view of the ban has shifted as college has become both an increased necessity and a financial burden to students and their families.

“Expectations about higher education have changed over time,” he says. “They’ve become more public and policymakers have become more demanding about knowing how the system is serving students.” 

Those policymakers include Foxx, who says increasing transparency in data for students is a top priority for her when working to update the Higher Education Act. She wants to collect some of the same data as those who oppose the ban, such as how long it takes students to graduate from their program and what salary students can expect with their degree.

But Foxx doesn’t trust the Education Department to keep individual student records safe, and says lawmakers needed to look at alternatives to gathering information, including using a third party to collect records or finding other ways to continue using aggregate data.

“You don’t have to know what every single person did to establish what the norm is going to be,” Foxx says. “You don’t have to have a student unit record to be able to gather information that is useful to people.”

Similar worries about privacy are held by Senate Health, Education, Labor and Pensions Committee Chairman Lamar Alexander, who “has grave concerns about a massive federal database that collects and stores extremely personal information on American college students,” according to a statement from the Tennessee Republican’s spokeswoman, Margaret Atkinson.

Other opponents of a federal student-unit record system, including the National Association of Independent College and Universities, do want more information provided to students than what is currently available in the scorecard.

What Do You Want?

Before data is collected using personal information, lawmakers and advocates need to put forward specific questions they want answered and prove that the benefit of having the data is worth the potential privacy invasion for students, says Sarah Flanagan, head of government relations for NAICU.

For example, when it comes to using individual records to calculate post-college salaries, Flanagan points to a 2015 Education Department study showing only about 5 percent of a four-year college graduate’s salary can be attributed to what school they attended.

“The advocates for the federal unit system have not put forward what they want to collect,” says Flanagan. “They say we want everything and then we’ll figure out what we’ll use it for. That in our minds is not an appropriate balance on privacy.”

Several proponents of lifting the ban refuted that statement, noting that tracking the path of transfer students and compiling earnings data for all graduates, and then being able to break that data down by race, gender and income level, cannot be accomplished without individual student unit records.

But Matthew Soldner, a principal researcher at the American Institutes for Research, says a benefit of a unit record system is the ability to answer policy questions as they arise. The alternative — updating the department’s survey to schools — can take about two to four years to develop the questions, add them to the test and collect the data.

“If you had unit records data, you could break down any kind of race by any kind of disaggregation that was policy-relevant at the time,” Soldner says. “The trick is always being forced to guess what the policy-relevant questions are going to be  . . .  it opens up the ability to ask questions you haven’t been able to get at before.”

Since 2011, a bipartisan group of lawmakers have supported ending the ban on the department collecting student-level data. The sponsor of a bill to end the ban in the Senate, Democrat Ron Wyden of Oregon, didn’t initially support the student-unit records system, but wanted more information on college outcomes to help low-income students avoid being stuck in debt.
“After he heard feedback from more and more experts in the field it became clear that the best way to do that was through a simple, single system,” Wyden’s spokeswoman,  Samantha Offerdahl, said in a statement.

Wyden has introduced his bill (S 1195) in each Congress since 2011, and each time he was supported by Rubio. The bill currently has five sponsors: two Democrats and three Republicans. The House companion bill (HR 2518) also has a wide range of support, including Ryan and Rep. Jared Polis, a Colorado Democrat on the Education and the Workforce Committee.

Advocates pushing to end the ban realize that with Foxx and Alexander leading the reauthorization, removing it will be difficult. But Craig Lindwarm, director of congressional affairs with the Association of Public and Land-Grant Universities, says he is seeing support grow on the Hill.

“The more and more we talk to the lawmakers, they see the real need here,” he says. “The more they look into higher education issues, the more they realize they can’t answer some of the most fundamental questions about higher education.”

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