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Tuesday, April 7, 2015

(Tewksbury Public) Schools Release Private Student Data

From the Tewksbury Town Crier

By Brendan Foley and Jayne Miller
April 4, 2015

Special Education Department publishes list grading parents on ‘cooperativeness’.

Tewksbury Public Schools face angry parental backlash following the release of private student information online last week. A document included in a 222-page School Committee packet remained online for the better part of a week, before being taken down Monday.

Awareness of the data, which details private information for the out-of-district placements of 83 students--and rates their parents according to their “cooperativeness” with the district-- raised outrage on social media over the weekend.

In December, the district blamed a projected $2 million shortfall for FY2016 on ‘skyrocketing’ out of district costs, and said that it could not implement a proposed free full-day kindergarten program as a result. That action generated distrust and backlash by the special education community, and this most recent release of data has parents ready to file complaints at the state and federal levels.

The seven-page memo from Rick Pelletier, Director of Student Services, to the Superintendent was included in the School Committee packet as part of its budget justification package last week. The memo includes a spreadsheet that listed all the students with out-of-district placements – and also included a ranking on ‘parental cooperativeness.’

The amount of data included could indicate a violation of state and federal law.

The list, which replaces student names with numbers, remains in alphabetical order. Information included the student’s current grade, the out-of-district school, the last school attended, the year the student began attending the new school, information on whether or not the decision was made by the IEP team, a legal settlement (typically kept strictly confidential), or if the student moved in from another town, and miscellaneous detail such as the involvement of the Department of Children and Families, passage of MCAS assessments, and more.

The office of Student Services also published its rating of parents according to their ‘cooperativeness with the district.’ Parents rated a ‘1’ are cooperative, ‘2’ somewhat cooperative, and those rated ‘3’ are ‘not cooperative.’

The Town Crier could easily identify seven families included in the list, and was contacted by others that could identify more families based on the material in the sheet. The Town Crier will not publish the names of the families, nor the document, out of consideration for the privacy of the families and in accordance with state and federal law.

Massachusetts’ Response

Jacqueline Reis, spokesperson for the Massachusetts Department of Elementary and Secondary Education, told the Town Crier that districts “cannot post anything that is personally identifiable; just removing name and date of birth isn’t enough.”

As to the level of detail of information released, which Reis had not seen, she stated, “I think that crosses a line. There is enough information that someone would be able to figure out who that is.”

Notably, that law pertains to any third party, including finance committees.

However, Program Quality Assurance (PQA), the arm of the DESE that ensures compliance with special education law, only investigates when a parental complaint is made. As of Tuesday evening, no complaints had yet been filed. Reis said the matter may come up in another review, however.

As to the ranking of parents for their cooperativeness with the district, Reis said, “I have not heard of ranking parents. That’s not something that we’ve advised districts to do.”

When Reis raised the question among PQA professionals, they “seemed surprised. It raised eyebrows.”

Massachusetts law (603CMR2307.04) is stricter than the federal law, known as FERPA (Family Educational Rights and Privacy Act), which also requires that nearly all private student data cannot be released without parental consent.

U.S. Department of Education Response

According to an Education Department spokesman:

“In general, a school may release information, without consent, after the removal of all personally identifiable information, if the school has made a reasonable determination that a student’s identity is not personally identifiable. This means that the release does not include information that is linked or linkable to a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty.”

That same spokesman told the Town Crier that if the information was publicly disclosed and a parent believes that the disclosure of this information is personally identifiable to their child, they may file a complaint with the Family Policy Compliance Office for consideration.

Response from the Administration

Superintendent Dr. John O’Connor spoke to the Crier about the release on Monday and explained that the information was in response to questions raised by the finance committee during the budget hearing.

“The question to us was what kind of programs can you build to get kids back into the district, and how likely are those parents to come back to the district,” said O’Connor. “That was how it was put to us, and we put it (the document) together based on the grade levels, the schools where they were and where they came from and whether or not it was a team decision, a settlement decision or a move in.”

As for the cooperativeness ranking, O’Connor said,

“Probably the choice of wording for the descriptor in the heading should be something different. We were trying to convey to the school committee and finance committee, even if we were to build programs, I’m not certain that all of the families with children who might benefit from the program would want to come back. That is the explanation for that.”

Parents, however, take issue with the notion of being rated for cooperativeness. Notably, all parents considered cooperative (rated a ‘1’) were the result of team decisions or move-ins. Nearly all settlement decisions resulting in a cooperativeness rating of 3.

Additionally, the Town Crier learned, some families considered cooperative have children with high medical needs and/or in residential settings, programs the district would not create due to prohibitive cost.

“If parents are upset, I certainly understand and I am apologetic,” said O’Connor. “It was never intended to characterize a family as not being cooperative.”

Parental Reaction

Kelly Preble, co-Chair of the Special Education PAC, also released a statement to the Town Crier.

“For me, it's extremely disheartening that the school system has written a document that ranks the cooperativeness of a parent, implying that parental cooperativeness is an indication on why a child would have an out of district placement. I find it very unfair and I don't see any purpose for this information to be included.

“As a TSEPAC co-chair, I have spent countless hours of my own time to work with parents of special education children and the school district to improve the relationship between the two. This is just one more example by the school district that makes me question their willingness to work with parents and treat them with respect,” continued Preble.

“I think the district should stop ranking parents’ cooperativeness and try listening to the parents' concerns regarding programming in the district. I'm sure that if the district was serious about improving programming, and truly wanted to collaborate with parents, they would find that some parents would be happy to have their children back in district."

A number of parents on the list reached out with comments to the Town Crier, speaking on condition of anonymity.

“What is the purpose for such a list? There are more appropriate ways to provide financial information and isn’t it bad enough that families in town blame us and our kids for the fact that there is no full day Kindergarten this year? When the new Student Services director was hired, O’Connor said he wanted someone who would change the image of the special education department. Well, this listing certainly doesn’t do that,” said one mother.

Another mom wrote in an email,

“I am not only upset that my child has been identified in such a crude and public manner but that I have been classified as an uncooperative parent. I guess if you do what is right for your child, then you are "uncooperative".”

Erin Knyff, who spoke out at a School Committee meeting in December when out of district placements were blamed for not offering full-day K, said in response to this latest incident, ”When I last attended a school committee meeting to voice my anger at statements made by our superintendent, I was chastised by Brian Dick, Chair of the school committee, who said he found my “comments offensive."

I would like to know if our school committee, in particular Brian Dick, finds the cooperativeness rating and subsequent public release of that document offensive? And what are they going to do about the widening gap between parents and the district?”

School Committee Reaction

The Town Crier also reached out to Brian Dick on the matter, and he echoed O’Connor’s statements.

“The information enclosed in the packet was there to satisfy questions of the FinCom. There was no intention of doing anything wrong or hurting anybody or calling anybody out,” he said. “Going forward we will make sure that the information is not in the packet and that there is no identifying information.”

Dick dismissed concerns that there was enough personally identifiable information in the document to identify kids saying, “There might be certain people who understand who some of those kids are, and that is unfortunate. But as a whole, unless you are in that community, it’s much harder to identify kids on the list.”

However, he added, “I agree that that information is sensitive and I definitely understand the concern of parents and we want to do right by them.”

Legal Consequences

This release of data has the potential to drive legal costs up should parents pursue complaints at the state and federal levels, or litigation.

Robert Crabtree, a prominent Boston attorney specializing in education law with clients in Tewksbury on that list, said in a statement to the Town Crier,

"I became aware of this fiasco yesterday when some of our clients began to call with concerns about the publication of that list. I did get a look at the list and I agree that the identities of many families are quite thinly veiled and easily ascertainable. The perpetrators not only violated students’ privacy laws under FERPA, IDEA and Massachusetts Student Records provisions, but they even violated non-disclosure provisions of settlement agreements under which parents and the district had agreed to maintain the confidentiality of the resolution of their disputes.”

“In tight fiscal times, especially very polarized times like these, families of children with disabilities in all communities are vulnerable to being castigated for the extra resources their children need in order ultimately to graduate into a productive and fulfilling adult life.

The posting of this list has painted a letter “D” for disability on the foreheads of Tewksbury’s special needs families and there is no justifiable reason for the act,” said Crabtree.

“That they claim to have posted the information only to contribute important information to the school committee’s discussion of budgetary difficulties is, frankly, disingenuous… This is one of the lowest forms of demagoguery I’ve witnessed in my many years as a special education attorney.”

“No legal remedy can undo the harm this sort of attack causes, though I have no doubt that the Office of Civil Rights will be asked to investigate and there may be other avenues pursued as well,” added Crabtree.

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