Capitol Deal Underway: School Board & Newspaper Lobbyists Throw Public School Students, Parents Under the Information Reform Bus

UPDATE 4/8/10 House redeems itself, passes amendment removing exclusion! There was no objection and it passed swiftly. Also, an amendment to include a fee waiver option did not pass. Video link below. Senate floor yet to come!

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Educational justice is being compromised in a state known for making kids a priority. The average citizen is about to gain a streamlined, cheaper way to resolve disputes over government data requests (HF2899/SF2354) via the Office of Administrative Hearings, but a glaring exclusion was placed on educational data. In other words, people seeking to resolve conflicts over government data can now go before an Administrative Law Judge instead of suing the government agency in question. However, if the data dispute involves school records, you still have to file in district court.

Minnesota Newspaper Association lobbyist Mark Anfinson, a leader of the corporatist media lobby, has hyped this bill as an information freedom improvement not intended to create a "privileged class for journalists." Well, that’s misleading, because what it does do is create an underprivileged class of students and parents. Twin Cities Indymedia has found Anfinson and Thomas Deans, counsel for the Minnesota School Boards Association, arranged to cut out educational data from the deal, because the school boards threatened to block the bill, according to interviews (below). This bill may win House passage any day this week, and advocates suggest citizens contact their legislators immediately -- on the Senate side it's now at the Finance Committee.

Below the fold: Edited audio of key House hearings, interviews with transparency & parent/student advocates, how Anfinson & Deans did the deal. Updated: More details, edits 4/8/2010. More: Earlier HF2899/SF2234 data practices bill coverage: Jon Collins in MnIndependent | AP  | Strib: Closed Door Sessions pushed by School Boards

Educational data applies to all public school students, including those over 18 and those in state colleges. One estimate counts hundreds of thousands of people affected. If the education data exclusion is left in the bill, education attorney Margaret O'Sullivan Kane insists it would most affect students with disabilities, whether the new remedy be given or denied them. Kane is an unapologetic, no-nonsense defender of student rights, whether it be discrimination, harassment, maltreatment, or special education issues. She explained to TC Indymedia how instrumental school records are for determining the needs of disabled children, adding, "Educational records are the cornerstone of education accountability." 

"Since the families with children with disabilities face a fairly complex process as it is, denying them access to relief available to all others, adds yet another layer of time and resources." Kane refers here to the usual cumbersome process of going to court if a parent feels they need to force a school to comply with the Data Practices Act while advocating for their child's unique educational needs.

"Why in the hell are the legislators permitting this to happen?" she asks, referring to the majority of the Legislature so far going along with this piece of discriminatory madness. "Getting state legislators to see the impact of their decisions on children with disabilities is like having to pass through the gates of Hell. 'Abandon all hope, you who enter here'."

The offending language is a clause inserted by Deans on behalf of the Minnesota School Boards Association into Section 3, Subd. 2, (a) of House File 2899 and companion Senate File 2354. 

It reads: "An action may not be filed under this section in matters involving requests for educational data classified under section 13.32." Section 13.32 of the Minnesota Statutes refers to a student's educational records. This clause means the faster, cheaper, easier administrative law judge route may not be used to resolve any disputes involving educational data, hence the disparity between justice for all and justice for students. Donald Gemberling, former director of the Analysis and Policy Division of the Minnesota Department of Administration, asks "Why would you want to exclude from one remedy disputes about educational data? The answer is there's no good reason."

How did this come about? In a nutshell, infamous Minnesota School Boards lobbyist Tom Deans told Mark Anfinson, lawyer-lobbyist for the Minnesota Newspaper Association, that if they didn't accept the exclusion they would kill the bill. The School Boards gave no public testimony on it, yet they explained the move by alluding to a non-existent/vague requirement of federal law.

Gemberling knows federal and state law pertaining to educational data very well, having trained many school board members and school administrators in his days working for the Department of Administration. His breakdown of the situation is clear: "When somebody from the Minnesota School Boards Association says they can't do this because an Administrative Law Judge might say we have to do something in violation of federal law and we might get sued under federal law, the answer is you can't get sued under federal law because the U.S. Supreme Court said you can't use Federal law to sue schools."

The government data guru gets to the heart of the matter: "Part of what offends me about it, because I'm a policy wonk, is the School Boards invented a false argument. ..." When pressed on the reason the legislature has gone along with what he identifies as "bad policy", he attributes it not to political ulterior motives, but to "ignorance." After 36 years of public service, he's been able to observe that people tend to believe whatever they're told about complicated laws they don't understand. He urges citizens to get informed and add their voices to the legislative discussions. "People think that laws come from legislators. They kind of do, but they mostly come from lobbyists." In a final caution, he extends to the rest of us a reminder of what it means to be an American. "One of the problems we have right now is that people defer to authority figures and I don't think that's what the Founding Fathers had in mind when they wrote the Declaration of Independence and the Constitution."

All hope is not lost for this bill. There are some in the legislature who feel it's wrong to exclude students from the new remedy. Mary Liz Holberg (R-Lakeville), member of the House Civil Justice Committee, is one of them. She plans to propose an amendment to the bill to remove the questionable language. Holberg tells Indymedia that there are others in the March 10th meeting who visibly disagreed with this treatment of students as well. The bill probably will go to vote on the House floor today when the Legislature returns from the Easter recess. Holberg, a self-professed data privacy "geek," muses that the Data Practices topic "doesn't have the sexiness of sex offenders and other issues." Nevertheless, "when people run into a real problem, it can have adverse effect on people's lives." She stresses the importance of understanding the reality of living in a time when so much data is kept about us. Below is a list of examples of what can go wrong with educational data, in particular.

In the face of lobbyist maneuvering, then, Kane emphasizes the overwhelming need for a unified parental effort toward greater influence in lawmaking. That kind of movement will especially benefit those who are most vulnerable. "The reality is that most, if not all, of the state laws are worthy of anger from parents with students with disabilities. They are a forgotten minority."

She elaborates further on the sorry state of educational rights in Minnesota, contrasting her vision with how she sees the well-known advocacy group PACER (Parent Advocacy Coalition for Educational Rights). The Bloomington-based organization's mission is to help children with disabilities and their families. "Parents need to develop a lobbying force at the Legislature. PACER is to be that lobbying agency but in reality they do little if any good for families of children with disabilities If the truth were to be told, PACER continues to suck up resources without making a serious commitment to addressing how soft the laws in this state have become. In fact, PACER has actually contributed to the decline in the laws by asserting that it is better to 'work with schools' rather than challenge them. By declining to challenge schools and school administrators, PACER ends up horse-trading the rights away - thus the consistent erosion of rights."

The battle over education data practices is also just one part of the larger controversies over other data operations reported recently by Twin Cities Indymedia, like poorly regulated law enforcement databases and Hennepin County Sheriff Stanek's proposed Kingfish cell phone spying technology. It's not too late to get this proposal reformed, ensuring education data is made fairly available to the public.

Find your local legislators' contact info:
MN Senate: 651-296-0504 
MN House: 651-296-2146

Lookup legislators @ http://www.leg.state.mn.us:80/leg/districtfinder.asp

Audio - Three MN House hearings with uncut, unedited discussion of HF2899. Remarks by Reps. Gene Pelowski (DFL-Winona) & Mary Liz Holberg (R-Lakeville), citizen privacy advocate Rich Neumeister, Don Gemberling & more:

http://tc.indymedia.org/files/civil031010.mp3 - 21MB - March 10 2010 Civil Justice Committee

http://tc.indymedia.org/files/statepol022510.mp3 - 61MB - March 25 2010 State & Local Government Operations Reform, Technology & Operations Committee

http://tc.indymedia.org/files/statepol030210.mp3 - 30MB - March 2 2010 State & Local Government etc Committee

Video later - Windows Video (WMV) edits difficult! Legislature needs open compression codecs :-( 

Streaming video links/times for now:
http://www.house.leg.state.mn.us/htv/archivesHFS.asp?ls_year=86 - Go to "Thursday, April 8, 2010" and click on "watch this program".
-View from 2:26:40-2:29:00: Reps. Holberg, Paymar, and Pelowski propose amendment removing exclusion and it passes;
-See 2:29:00-2:39:55 for other amendments and House vote on HF2899, most notably 2:35:00 for rejected amendment proposed by Rep. Mack to allow fee waiver.
-Bill vote comes after, and ends at 2:39:55.

More: House Video & Audio Archives: http://www.house.leg.state.mn.us/audio/default.asp

Senate Media Services Archives: http://www.senate.leg.state.mn.us/media/index.php?ls=

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Other key points about the bill and educational data:

There is a $1,000 filing fee to pay for the services of the new remedy. The winning party gets all but $50 back. The other party has to pay the cost of the proceedings from the $1,000. In addition, there is no waiver option for inability to pay, as may be available for court proceedings. Some people have an issue with this part of the bill, too. Legislators say the fee is necessary due to a lack of state funds to pay for the new remedy. They also stress that this is cheaper than hiring a lawyer for a lawsuit, as in the past when suing was the only option for enforcing Data Practices compliance.

Gemberling explained that there are many situations in which a dispute may arise over educational data, not just cases in which a parent or student cannot obtain data. He summed up a few of these, though the IPAD site has many more opinions listed by the Commissioner of Administration. Some scenarios that have happened in the past:

• A school discloses data to people for whom it has no consent to do so.
• At least one school has given a student's IEP (Individualized Education Plan - for special education) in the past to the police, which violated state and federal law.
• A parent who found out sensitive records regarding their child were disposed of, and discovered by a passerby, in a dumpster instead of in a secure manner.
• The worst of them all - the story of the child whose family had to spend 3 years and roughly $30,000 to get the truth about what happened to their teenage son who committed suicide after an argument with a principal.

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Excerpts from Twin Cities Indymedia interview with Don Gemberling, former IPAD Director & current MnCOGI member (MN Coalition on Government Information).

TCIMC: Is there any truth to the MN Newspaper Association quote regarding the federal reason for the exclusion?

Gemberling: The quote [from the Minnesota Newspaper Association] is not relevant. If it's only to do with media getting access to data [that you're talking about], it makes sense. If you look at what the bill really says, it does not make sense. It's from their perspective.

I told that to the Minnesota School Boards Association. Mark, a lobbyist for the School Boards Association, told me the amendment excluding educational data came from Tom Deans, a lobbyist for a private law firm representing the School Boards.

When I first heard about the amendment, I knew where it came from because I know how Tom Deans works for too long.

TCIMC: How long?

Gemberling: 25 years.

The Teachers Union put an amendment in but it was not clear what they wanted to accomplish. The School Boards never testified about it publicly, and the Teachers Union never testified about it publicly. ...

Here's a general description of the deal. The Newspaper Association really wants this bill. The people who normally kill bills are government associations like the League of [MN] Cities, the Association of [MN] Counties, school boards. They are the people who normally kill bills like this.

So because the MN Newspaper Association really wants it, their lobbyists sat down with representatives of the government associations. They said 'Here's our idea. What do you need to make it acceptable to you?' This kind of stuff goes on in the Capitol all the time. It's part of the deal. ... 

Any dispute [over government data] can be addressed with the new remedy except for disputes about educational data. And the school board attorney told the lobbyists for the newspapers if they don't take the amendment, they will kill the bill. I'm still mystified as to why the Newspaper Association would accept that argument, but they did put the amendment in the bill. The reason it mystifies me is it is just bad policy. 

TCIMC: On what grounds?

Gemberling: The overall idea of the whole bill is that it's easier to resolve disputes over information (as in easier, cheaper, faster).

So why would you want to exclude from one remedy disputes about educational data? The answer is there's no good reason.  What I've been told is the School Boards' attorney said, 'We need to do this because of federal law.' 

Here's the problem with this stuff - and by 'this stuff' I mean this kind of legislation, these kinds of laws - is it gets pretty complicated. One of the things that happens with complicated laws which most people don't understand, is you can say anything about it and most people won't look at it. 

Now, here's why excluding disputes about educational data is bad policy. [...] At some point because of what I did for the State of Minnesota, because it was obvious to me that I needed to learn federal law and because I know federal and state law, as part of my job I trained school board associations, school administrators, and teachers. 

So when somebody from the Minnesota School Boards Association says they can't do this because an Administrative Law Judge might say we have to do something in violation of federal law and we might get sued under federal law, the answer is you can't get sued under federal law because the U.S. Supreme Court said you can't use Federal law to sue schools.

Part of what offends me about it, because I'm a policy wonk, is the School Boards invented a false argument when in reality you can't get sued under federal law, because the highest court in our land, the U.S. Supreme Court, says you can't be sued.

So then we have to go to 'Why did they really want this?' And my opinion, and I testified before the Senate on this. [Feb 24 Senate Hearing] And I basically said what I just said to you, that the real reason for this from a logical standpoint is that schools don't want to make it easier for parents to resolve disputes.

Not all disputes about educational data are 'Do I get access to the data?' 

[Example 1997 IPAD case on Education Data: http://www.ipad.state.mn.us/opinions/1997/97050.html ]

TCIMC: Do you consider this a social justice issue?

Gemberling: Absolutely. [...] Part of what most people believe about justice is that we don't discriminate. If you're entitled to justice, you're entitled to justice no matter who you are -- race, creed, color, all that stuff, should not make any difference.

And so with this new remedy, if that's what we really believe, why would we want to exclude parents, students from this new remedy, this new form of justice.

[...] People think that laws come from legislators. They kind of do, but they mostly come from lobbyists.

In federal rules on education, what it says about educational records is the school has to comply with FERPA [Family Educational Rights and Privacy Act], and must also comply with DPA. Federal law in general, and FERPA in particular , says if states want to give people more rights, it can do so. Everyone has to comply with FERPA. The educational data section in the Data Practices Act [13.32 of Minnesota Statute] quotes portions of federal law and incorporates them by reference into Minnesota Law. So it kind of repeats the fact that schools have to comply with federal law, but the big difference is that under state law you can sue schools.

[...] In our democracy, one of the problems we have right now is that people defer to authority figures and I don't think that's what the Founding Fathers had in mind when they wrote the Declaration of Independence and the Constitution. 

TCIMC: Why did the MN Newspaper Association want the bill so badly in the first place?

Gemberling: Because if some government agency does something that the newspaper believes violates the Data Practices Act, especially access to public data, they gotta go to court and sue.

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Twin Cities Indymedia condensed & edited interview with education lawyer Margaret O'Sullivan Kane.

TCIMC: What do you think of this exclusion to the new remedy?

Kane: It is denying families with children with disabilities due process under the law since it excludes all families with children in the public school environment. The laws should be equally applicable as should the remedies. In this case, it is a fast resolution of a education data dispute.

TCIMC: What are the legal or other implications of this bill for students in Minnesota?

Kane: Students will be required to pursue relief in state courts rather than have their matters heard in an expedited manner under the Data Practices Act.

TCIMC: For those who think this issue is not important, why do educational records matter to everyday parents and students?

Kane: Educational records are the cornerstone of education accountability. The only way to determine that a child is learning is to review the education records. This is particularly applicable for students with disabilities as the progress that is made is based on documentation from regular and special education staff.

TCIMC: Why is educational justice important for our society?

As we spend more and fall further behind other countries in the quality of our education, we are creating generation after generation of individuals ill-equipped to become engaged and educated citizens. Our Republic is dependent upon a populace that is educated, discerning and engaged. If the citizens are not engaged in the process, we will see a continuation of poor government and a failure to protect the powerless from the powerful.

TCIMC: Who might be held back by denial of this remedy, or who might be left out when they really need the remedy?

Kane: ... Disabled students who are unable to obtain their education records will be unable to easily determine whether the program is meeting their unique needs or not. Since the families with children with disabilities face a fairly complex process as it is, denying them access to relief available to all others, adds yet another layer of time and resources.

TCIMC: Is there anything that might turn out to be illegal or unconstitutional about this exclusion?

Kane: Potentially, one could challenge this statute on a denial of due process and equal protection since its negative effect will be on families with children with disabilities.

TCIMC: Do you anticipate anger from students and families when they realize what this law means, if it goes through?

Kane: The reality is that most, if not all, of the state laws are worthy of anger from parents with students with disabilities. They are a forgotten minority. [...] Parents need to develop a lobbying force at the Legislature. PACER is to be that lobbying agency but in reality they do little if any good for families of children with disabilities If the truth were to be told, PACER continues to suck up resources without making a serious commitment to addressing how soft the laws in this state have become. In fact, PACER has actually contributed to the decline in the laws by asserting that it is better to "work with schools" rather than challenge them. By declining to challenge schools and school administrators, PACER ends up horse-trading the rights away - thus the consistent erosion of rights.