On Monday, Nov. 6, Johanna Garcia, President of the Community Education Council in District 6 and a public school parent, filed a FERPA complaint with the US Department of Education, challenging the right of the NYC Department of Education to release her child’s personal information to charter schools without her consent, for the purpose of recruiting and marketing their schools.
FERPA, or the Family Educational Rights and Privacy Act, was passed in 1974, and allows the non-consensual disclosure of student education records only in limited circumstances. In her complaint, Ms. Garcia relates how she has received multiple mailings from charter schools, including promotional materials and flyers addressed to her and her daughter, for at least the last four years. She questions whether charter operators were also receiving students’ test scores, grades, English learner and/or disability status in addition to contact information, based on her personal experience with the selective charter recruitment of her three children.
More evidence for this possibility is also contained in an email from DOE Chief Privacy Officer Joe Baranello, in response to an inquiry about the legal status of these disclosures. In the email, he claims that DOE has the authority to disclose personal student information to charter schools without parental consent under the “school official” exception in FERPA, which is reserved for vendors, contractors, government agencies and volunteers who perform a service for the district and need student personal data to carry out their contractual responsibilities. This is not the case with charter schools, which perform no services for public schools, and are not under their direct control, as the school official exception requires.
DOE has supplied the contact information for students and families to charter schools without parental consent to charter schools since at least 2007 and perhaps before, as revealed in emails FOILed by former Daily News reporter Juan Gonzalez in 2010. As Eva Moskowitz, CEO of Success Academy Charter schools wrote to then-Chancellor Joel Klein in December 2007, she needed this information to“mail 10-12 times to elementary and preK families” so that she could grow her “market share.” In 2010, it was estimated that Success Academy spent $1.6 million in the 2009-2010 school year on recruitment and promotion costs alone, amounting to $1300 for each new enrolled student.
The FERPA complaint, which is posted here , argues that this long-standing DOE practice may also violate the state student privacy law passed in 2014, which bars the disclosure of personal student information for “commercial purposes.”
Said Johanna Garcia, “While my three children have attended NYC public schools, charter schools have sent me multiple mailings over many years — but only for the purpose of recruiting my daughter, who is the only one of the three whose test scores qualified her to enroll in a citywide gifted program. I cannot conceive of how charter schools could distinguish between my three children unless they also receive information about their test scores, and/or that my other two children have IEPs.”.
She added: “In any case, the ability of charter schools to access the personal information of public school students without parental consent is egregious, given how charter schools are governed by private corporate boards that resist any efforts to make their practices transparent and accountable to the public.”
“There are exemptions written into FERPA for good reasons, but they must not be abused. This is a serious charge, and we need to get to the bottom of it right away,” said Manhattan Borough President Gale A. Brewer. “If the Dept. of Education has warped the privacy rules to help charter schools cherry-pick some students and weed out others, or has been failing to notify parents of their rights under the law, it has to stop instantly.”
Right now, the Nashville and Memphis school boards are battling the Tennessee Education Commissioner, who is demanding they release personal student information to charter schools for recruiting purposes, in compliance with a new state law passed this summer. There is no such law in New York state, and yet the NYC DOE is voluntarily going out of its way to provide this information to charter schools to help them expand their market share.
As Leonie Haimson, Executive Director of Class Size Matters and co-chair of the Parent Coalition for Student Privacy concluded, “The DOE practice of disclosing personal student information to charter schools without first asking for parental consent must immediately cease. Not only does this violate state and federal student privacy laws, but by helping in their recruitment efforts, they are actively undermining the opportunities of public school students whose interests they are supposed to serve, by enabling charters to divert increasing amounts of resources and space from our schools.”
Source: Class Size Matters