Earlier this month, the United States Department of Education sent a letter to all college and university presidents to continue their efforts to curb student voting. The latest letter threatens colleges and universities if they participate in or use data from the National Study of Learning, Voting and Engagement, saying that if they do, they “risk being found in violation of FERPA.”
The Family Educational Rights and Privacy Act is a federal law that protects the privacy of student education records and applies to any institution that receives Department of Education funds. Like many actions by these administrations, this letter is designed to have a negative impact, as no decision has been made by the department that participation in, or use of, NSLVE studies violates any privacy principles.
In existence since 2013, with more than 1,000 colleges and universities across the country currently choosing to participate, NSLVE is a survey of student political engagement at institutions of higher education. NSLVE uses data that colleges and universities voluntarily provide to the National Student Clearinghouse, such as student registration records and public voting files to determine whether students are registered to vote and whether they voted—not who they voted for. NSLVE, housed at Tufts University, then uses the de-identified data it receives to send a confidential report to participating campuses about their students’ voting participation.
Under the guise of protecting student privacy, the Department of Education is arming FERPA to try to achieve the Trump administration’s goal of weakening voter participation, especially among college students, for political reasons. Education Secretary Linda McMahon herself said in a press release announcing the new directive that “America’s colleges and universities should focus on teaching, learning and research – not influencing elections.” And the department admits in its guidance note that its assessment of whether NSLVE violated FERPA is based on a “preliminary analysis” and that ED simply has “concerns” about NSLVE’s use of the data. The department does not conclude that NSLVE or NSLVE’s use of data violates any laws, including privacy laws.
NSLVE primarily uses identifier information—name, address and date of birth—that institutions may disclose without consent as long as they provide general public notice (including notice of an opt-out option) at the beginning of the academic year. Additionally, when other information is provided—such as gender, race/ethnicity and degree-seeking status—it is permissible because it falls under FERPA’s “academic exception.”
This exception allows information to be shared in courses that “enhance instruction.” NSLVE research is designed to enable colleges to improve civics education on campus—something that is a stated goal of this administration. In addition, NSLVE reports do not contain personally identifiable information and are only shared by the facility itself. It is for these reasons that the Department of Education, since the establishment of this program more than ten years ago, found that this activity is permissible under FERPA.
It is important for colleges to understand what this book is – and what it says. Students deserve to have their data protected, and the federal government has an important role to play in protecting their data. It is the responsibility of the Department of Education to use its resources to do so. It is very important for the government to ensure that any steps taken by institutions put the privacy of students first. But to suspect a possible violation of student privacy when there is none is a waste of resources and underestimates what is really at stake.
Given the Higher Education Act’s requirement that institutions of higher education provide voter registration forms to all of their students, colleges have an important role to play in promoting civic engagement and democratic participation among students. As long as they do so in a manner consistent with the data sharing permitted under FERPA, the federal government should not interfere with colleges’ participation in NSLVE—especially with threats that cannot be supported by legal findings. Data from the NSLVE is important for strengthening the informal social interactions of college students. Limiting the use of data in an election year does nothing to protect students—it is instead dangerous to them and to our democracy.
