The Kansas House and Senate Education Committees will be busy this week discussing data privacy, sex education, the Common Core standards and charter schools.
Concerns about data gathering and student privacy have been part of the conservative backlash against the Common Core standards, with many groups claiming falsely that the standards require the collection of massive amounts of personal data about students including, some have alleged, their families' religious and political affiliations.
In truth, there is no data-collection requirement in the Common Core standards. There is, however, an unrelated effort underway by the nonprofit organization inBloom — with support from the Bill and Melinda Gates Foundation — to collect and synthesize student data as a way to improve individualized learning.
The Kansas State Department of Education has never been part of that program, which appears to be sputtering anyway and is now down to only three participating states. And Education Commissioner Diane DeBacker has said repeatedly that Kansas will not collect any more data about students through its assessment program than it has been collecting for years. That mainly includes the student's name, age, grade, race, gender, socio-economic status if available, and scores on the tests.
Nevertheless, two bills are being discussed this week that would limit the department's authority to collect and disseminate personally identifiable student data.
Today, the House Education Committee conducts a hearing on House Bill 2606, the Student Data Accessibility, Transparency and Accountability Act, which would limit the department to using only "aggregate" data when reporting "to any federal agency, state or local agency outside the state of Kansas, or any other out-of-state organization or entity."
On Wednesday, the Senate Education Committee holds a hearing on Senate Bill 367, the "Student Data Privacy Act." It would prohibit schools from collecting any kind of "biometric data" about students without their parents' written consent.
On Tuesday, the House panel will hear testimony on House Bill 2620 which would essentially impose an "opt-in" policy for instruction in health and human sexuality. That means schools would be prohibited from providing instruction in that course, "unless written consent has been received from the parent or legal guardian of such student, clearly stating that such parent or legal guardian allows such student to participate in the health and human sexuality education class."
Kansas currently requires one unit of physical education and health for high school graduation, but families are allowed to "opt-out" if a physician certifies they should not participate, or if the family claims a moral or religious objection. Beyond that, however, local districts are allowed to set their own policies regarding health and human sexuality curriculum.
On Wednesday, the House panel hears testimony on House Bill 2621, nullifying the Common Core standards for reading and math, as well as the Next Generation Science Standards, and establishing an Advisory Council on Curriculum Content Standards. You can see our story from Sunday for more background on that bill.
And on Thursday, both panels will have a joint meeting to hear a presentation from Rick Ogston, founder and CEO of Ohio-based Carpe Diem Learning Systems, LLC, a private, for-profit charter school management company.
Kansas currently has one of the more restrictive charter school laws in the country. Charter schools here must be organized within the structure of a unified school district and must have the approval of both the local school board and state department of education.
But the Senate committee is considering Senate Bill 196, which would greatly expand charter schools by giving other entities authority to establish charter schools, including cities and counties, as well as public or private post-secondary institutions.
As we reported this week, Kansas University's Center for Educational Testing and Evaluation recently unveiled online practice versions of the new state reading and math assessments that students will take this spring. But if anyone followed the hyperlink in the story we published, they may have had trouble finding the instructions that go along with it.
The pathway to the instructions document is kind of odd, so here's the direct link.
First, you need to download the KITE client application, which is how you get into the system. Choose the one that goes with your operating system.
Once you've installed that on your computer, you need to launch the client and follow the rest of the instructions, which include the user names and passwords needed to access each of the practice tests.
The new tests are being developed in alignment with the Kansas College and Career Ready Standards — a.k.a., "Common Core" — that the Kansas State Board of Education formally adopted in 2010.
Coincidentally, though, at about the same time that CETE's Marianne Perie was briefing the state board on the status of developing those tests, a new bill was introduced across the street in the Statehouse that would declare those standards null and void and prohibit schools from administering any tests associated with them.
House Bill 2621, would also do away with the Next Generation Science Standards the state board adopted last year.
Henceforth, according to the bill, the state could only give tests "identical to the statewide assessments that were utilized by the state board of education in school year 2012-2013."
The bill is even more expansive than the one introduced last year that failed to pass the House. During her presentation to the state board Wednesday, Perie was asked about political efforts at both the state and federal levels to block implementation of the Common Core standards.
That's when she noted that if the state can't ask test questions related to Common Core standards, it could no longer ask them to find the hypotenuse of a right triangle, plot algebraic expressions or convert decimals to fractions — all standard math skills that students have always been expected to learn, and which are included in the Common Core math standards.
Actually, though, Perie clarified in a subsequent email that the way the bill is written, the state would simply go back to using tests aligned to the old standards.
The Common Core standards in reading and math in Kansas do not require states to collect massive amounts of personal data on every student. Nor is the Kansas State Department of Education taking part in any new national or international data mining system.
At least that's the assurance from Kansas Education Commissioner Diane DeBacker, who says she is puzzled about where those reports are coming from.
"There is no further data gathering because of Common Core," DeBacker said during a break in Tuesday's State Board of Education meeting, when scores of people lined up to advocate for and against approval of the Common Core and Next Generation Science Standards.
That's not to say Kansas doesn't collect data on students. It does and it's been doing so for many years, largely at the insistence of state and federal lawmakers who want the data to hold schools accountable for improving student performance and closing achievement gaps.
"We gather about 86 data points that any parent would expect if their student is enrolled in public school," DeBacker said, "from their name, their ethnicity, their race, their grade level and then, of course, their achievement as they move through our system."
And the only financial information the state gathers is whether the student receives free or reduced-price meals, DeBacker said, because that's the only indicator they have about a student's socio-economic status.
"That's the only time when income is asked because they have to qualify for that," she said.
But that's a hard message to sell to those who've been showing up at state board meetings the last two months, criticizing Common Core as a giant federal intrusion, not only into state education policy, but also into the private lives of every American.
The extent of their fear was evident in the comments of Barbara Penn of Lenexa, who identified herself as "a public school educator for about 24 years" in Kansas.
"I don't need to know (my students') political affiliation," she said. "I don't need to know their religious affiliation. I don't need to know their blood type. These things don't help me be a better educator."
"I'm concerned with the data mining that's going on," she continued. "I'm concerned about privacy. I never thought that growing up in this country that the issues we're having with the IRS now would come about. They have information. OK, what's happening to the information being collected on our children, our grandchildren, our nieces, our nephews? Why does this need to follow them?"
Penn wasn't the only one to conflate the alleged data-gathering under Common Core, which isn't actually happening, with other recent controversies involving federal agencies.
The original J-W story about the state board meeting, quoted freshman Republican Rep. Allan Rothlisberg of Geary County as saying, "We've seen in the news lately, obviously with the IRS, spying on us. Why on earth would we expect the Department of Education — which is not constitutionally authorized, as previously said — to look out for our children?"
Theories about a data-mining operation being a requirement under Common Core are rampant in the blogosphere. A simple Google search using the terms "Common Core" and "data collection" pulls up a treasure trove of such sites.
One website dedicated specifically to opposing Common Core has multiple articles linking the data collection system to the IRS and NSA scandals.
Another called the Daily Herald website contains an essay by one Oak Norton who traces the data-mining conspiracy back to a 2004 agreement between Bill Gates and the United Nations.
"Bill Gates knew that education was a huge multibillion dollar industry and if he could be at the crest of that wave, he would make billions,"Norton writes, evidently missing the fact that, at the time, Gates was already the wealthiest man on the planet Earth.
Like many exaggerated theories, though, there is a kernel of truth behind this one.
What is happening, according to education experts, is a project by a non-profit corporation called inBloom, Inc., backed by a $100 million grant from the Bill & Melinda Gates Foundation, to build a database which, theoretically at least, would be more accessible and user friendly than current state-based or school-based systems, allowing teachers greater access to information so they can better tailor instruction to the individual needs of each student.
That project has indeed raised privacy concerns among education professionals, notably the American Federation of Teachers. That's probably why hardly any states or individual districts so far have signed up to take part in it.
For an interesting discussion of those issues, check out this recent blog post from Valerie Strauss of the Washington Post.
But Kansas is not taking part in that project, DeBacker said.
The Kansas House on Saturday narrowly defeated a bill that almost certainly would have resulted in a costly – and potentially embarrassing, for the Legislature – lawsuit over who controls the content and standards for public education.
House Bill 2391 was forced onto the House and Senate floors in the final days of the session. Its purpose was to put the brakes on public schools implementing the Common Core standards in reading and math, and to completely block the State Board of Education from adopting the proposed Next Generation Science Standards.
It also would have set up a legislative oversight committee to review those standards and make recommendations to next year's legislature about whether any of those standards should be allowed to continue.
In some people's eyes, that would have created a broad and sweeping new power of the legislature to block or usurp the constitutional authority of other branches of government – in this case, the elected Kansas Sate Board of Education.
In the gallery above the Senate chamber, where the bill passed, 24-12, and in the hallways outside, three State Board of Education members told me they had already begun talking among themselves about challenging the bill in court if it became law. The exact nature of such a legal challenge was yet to be determined, but board member Janet Waugh, a Kansas City Democrat, said: “Our next meeting (June 11) should be interesting.”
And in the gallery above the House chamber, where the bill narrowly failed, 55-58, Education Commissioner Diane DeBacker acknowledged some sort of legal action would be necessary.
It takes 63 “yes” votes to pass a bill in the House. Twelve members were absent, but had they been present it's entirely possible the bill would have been approved. When asked about the bill, in between the Senate and House votes, Gov. Sam Brownback would not indicate whether he would sign it, saying only, “Let's wait and see what happens in the House.”
DeBacker said she believed the real issue behind the bill was not Common Core, but rather the new science standards, which the State Board is expected to vote on June 11. She also wondered aloud whether the board shouldn't ignore the law, if it passed, and adopt the science standards anyway, in effect daring the legislature to try to stop them.
Had the law passed, and had the state board stood up to the challenge, it would have set up a dramatic face-off between the legislature and state board over who has constitutional authority to set educational standards. But it's a contest that has already been litigated in Kansas – several times, in fact – and most legal authorities agree it is virtually certain which side would have won.
Article 6 of the Kansas Constitution gives the legislature authority of “establishing and maintaining public schools,” but it gives the state board authority to supervise how they are operated.
Article 2 gives the legislature what is commonly called “the power of the purse” - the authority to appropriate money. But it does not give the legislature authority to use that power for unconstitutional purposes, such as de-funding another branch of government or blocking that branch from exercising its own constitutional duties.
That issue was litigated in 1973 when the Kansas Supreme Court handed down a landmark decision interpreting Article 6 of the Constitution. The case, State ex rel. vs. Board of Education, commonly known as the Peabody, established that the Constitution gives the state board “self-executing” powers, meaning the board doesn't need any further legislative authority to exercise the power granted to it by the Constitution:
"The state board of education authority to exercise general supervision of the public schools, educational institutions and educational interests of the state . . . is self-executing in effect," the Court ruled. "Where a constitutional provision is self-executing the legislature may enact legislation to facilitate or assist in its operation, but whatever legislation is adopted must be in harmony with and not in derogation of the provisions of the constitution."
The opinion itself does not seem to have been published on the internet, but it is explained in a 1983 attorney general's opinion. It also is referenced in other Supreme Court cases, including USD 443 vs. State Board of Education (1998). And it's discussed in the 2001 "History of Kansas Education," by Sherrill Martinez and Lue Ann Snider of the Kansas State Department of Education