The Private Life of Education.

• Author: Gamal, Fanna

Introduction I. Constructing Information Privacy in Schools A. FERPA and Information Privacy as Nondisclosure B. Nondisclosure in Context C. Emphasizing Nondisclosure II. Information Privacy Beyond Disclosure A. Data Creation and Misrepresentation B. Data Collection and School Welfare C. Documentation and Disability III. Information Privacy and Institutional Power IV. Principles for a Way Forward A. Collaboration and Solidarity B. Amendments to FERPA C. Redistributing Power Over Records Conclusion Introduction

Public education is one of the oldest and largest systems of state data collection. (1) Every one of the nearly 50 million students enrolled in U.S. public schools has a permanent record. (2) These records can contain sensitive information about virtually all aspects of students' lives: their grades and test scores, their medical history, names and addresses of important people in their lives, psychological evaluations, disciplinary history, photos, mental health records, and financial information. (3)

Educational recordkeeping, like all recordkeeping, is not independent of the system in which it exists. (4) These records reflect the pressures placed on schools (5)--both internally and externally--to fulfill myriad functions, including education, social sorting, discipline, and the provision of social services. To protect student information privacy, federal law has developed to regulate the transmission of these records outside the school.

The Family Educational Rights and Privacy Act (FERPA), (6) the primary piece of federal privacy legislation governing student records, is largely configured around the principle of nondisclosure of information to third parties outside schools. (7) Under FERPA, schools cannot disclose student information to third parties without seeking consent from a parent or a non-minor student; to do so would be a violation of students' information privacy. (8) Although FERPA grants parents and eligible students the right to inspect and challenge student records, its mechanism for challenging records is quite deferential to school officials, such that the statute effectively collapses information privacy into the right to prevent disclosure of information outside schools. (9) By configuring the right to information privacy primarily around nondisclosure, the law imagines the threat to student privacy as originating beyond the school itself. In this formulation, schools are the imagined information privacy protector, acting in alignment with and in the best interest of student information privacy.

This Article tells a different story, one where information privacy law permits schools to invade student privacy and where these privacy violations further disadvantage students along the lines of gender, race, class, and disability. This Article shows how FERPA reinforces schools' power over educational records by giving schools great authority over the "life cycle of information," (10) meaning the creation, collection, and documentation of student information. When information privacy law protects the internal information practices of educational institutions from legal scrutiny, schools gain immense power over the official archives that shape students' lives. By describing the consequences that this power can hold for transgender students, students of color, students living in poverty, and students with disabilities, this Article challenges information privacy law's impulse for institutional trust and preservation. It argues that protecting student privacy within the constantly contested institution of public education requires an expanded definition of information privacy, and it offers several high-level principles to inform legal thought and action.

This Article proceeds in four parts. Part I maps the legal construction of information privacy in American schools by examining FERPA and arguing that FERPA equates information privacy with the nondisclosure of educational records. (11) This emphasis on nondisclosure should not be considered unique in American information privacy law. Instead, this emphasis permeates American information privacy statutes and jurisprudence. (12) To demonstrate this broader trend, this Part also charts the prominent position that nondisclosure plays in constitutional information privacy law.

While the Supreme Court has avoided any explicit recognition of a constitutional right to information privacy, in discussing the right hypothetically, the Court has reasoned that information privacy is protected when individuals' information is prevented from unauthorized disclosure. (13) Although privacy scholars have long argued that the meaning of privacy is multidimensional and, at times, elusive, the legal production of the right to information privacy leans heavily on the idea that information privacy is achieved when an individual's information is protected against unwarranted disclosure. Part I maps the principle of nondisclosure in constitutional information privacy law and shows how this dominant understanding of privacy is rearticulated in federal law governing student information.

Part II explores the problems with narrowly defining student information privacy as a right to nondisclosure of information. While FERPA emphasizes the harms of unauthorized data disclosure, the statute inadequately protects students from the privacy violations that occur at other stages of the life cycle of information--namely, data creation, collection, and documentation. Part II challenges two assumptions embedded in FERPA: first, that students have no privacy interest at these other stages of the life cycle of information; and second, that students suffer no significant material or ethical consequences if their privacy is invaded at these other stages. Not only do students experience privacy violations in data creation, collection, and recording, but the outcome of these privacy violations is often increased subordination for students along the lines of gender, race, class, and disability.

Part II begins by examining the information creation stage. To speak of educational recordkeeping is to speak of one of the oldest and most robust systems of state information creation. Public education is arguably the most important arm of United States social policy and the records schools produce take on the authority of a state-sanctioned archive. (14) The information contained therein assumes an aura of truth, becoming the near-uncontestable fact of the matter. This power to create truth about young people--facts that follow them throughout their educational and adult lives--heightens the need for school records to be an accurate representation of students' personhood. Yet FERPA gives schools the overwhelming legal authority to determine what that truth is, with the consequences of this legal regime falling heavily on the most marginalized students. (15)

FERPA's regulatory scheme gives parents and students weak mechanisms to challenge student records that are inaccurate or misleading. If students or families disagree with information contained in the permanent record, FERPA grants them a right to a hearing to amend student records. (16) But schools have great authority in these hearings, since students and parents must convince a school to overturn its own recordkeeping decisions. (17) FERPA's procedural safeguards assume that meaningful participation in school-run hearings can occur without altering any existing power imbalances between schools and families. (18) Part II discusses the material and ethical consequences that flow from this assumption.

For trans and gender-variant students, and for trans students of color in particular, recordkeeping about gender identity and disciplinary history can falsely construct their identities. These false constructions often have lasting and negative consequences for trans people, interfering with their attempts to self-define. When legal frameworks narrow trans students' information privacy rights to the prevention of unwanted disclosure, they are left with little ability to control how they are represented in educational records. (19) Trans students, who experience the most extreme consequences of this narrow definition of information privacy, are also among the most likely to encounter discrimination.

Yet the story told in this Article is not simply one about biased school officials, or the ways in which individual acts of transphobia, racism, and other forms of discrimination calcify in educational records. Rather, this is a story about how law ignores the myriad forces that shape recordkeeping within schools before these records are ever disclosed to anyone else.

As I have argued elsewhere, public schools have come to occupy a central place in the American welfare landscape. (20) As other state services are cut back or eliminated, public schools are left to bear the cost of diminished economic and social services. (21) As many privacy scholars argue, the distribution of state-funded welfare is a powerful impetus for increased and often degrading forms of data collection. (22) Building on the work of legal scholars who trace the interwoven relationship between state surveillance and public welfare, Part II highlights the underexamined privacy implications of deregulating the collection of information in public schools given the central role schools play in an otherwise anemic welfare landscape.

The deregulation of information collection in schools reflects a troubling assumption that schools collect information like grades and test scores merely to fulfill their task of providing education to the public. (23) But FERPA's deregulation of data collection is especially worrying given that schools are key sites where state welfare services are both coordinated and dispensed, exposing students and families to heightened and sometimes intrusive data-collection techniques. (24)

Finally, Part II considers the privacy-invading...