new york state assembly - Granicus

NEW YORK STATE ASSEMBLY

ASSEMBLY STANDING ON EDUCATION

PUBLIC HEARING

Disclosure of Personally Identifiable Student Information

by School Districts and the State Education Department

Hamilton Hearing Room B

Legislative Office Building, 2nd Floor

November 20, 2013

10:00 A.M.

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Assembly Committee on Education, 11-20-13

Geneva Worldwide, Inc.

256 West 38th

Street, 10th

Floor, New York, NY 10018

ASSEMBLY MEMBERS PRESENT:

ASSEMBLY MEMBER CATHERINE NOLAN,

Chair - Assembly Standing Committee on Education

ASSEMBLY MEMBER MARC BUTLER

ASSEMBLY MEMBER STEVEN MCLAUGHLIN

ASSEMBLY MEMBER DEBORAH GLICK

ASSEMBLY MEMBER DANIEL O’DONNELL

ASSEMBLY MEMBER DIDI BARRETT

ASSEMBLY MEMBER PATRICIA FAHY

ASSEMBLY MEMBER KENNETH ZEBROWSKI

ASSEMBLY MEMBER PETER LOPEZ

ASSEMBLY MEMBER JOHN MCDONALD, III

ASSEMBLY MEMBER ELLEN JAFFEE

ASSEMBLY MEMBER BARBARA LIFTON

ASSEMBLY MEMBER THOMAS ABINANTI

ASSEMBLY MEMBER WALTER MOSLEY

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INDEX

Page

Panel:

Commissioner John B. King, 9

New York State Education Department

Deputy Commissioner Ken Wagner, 14

Assessment and Curriculum, New York State Education

Department

Panel:

Leonie Haimson, 149

Parent and Executive Director

Class Size Matters

Karen Sprowal, 171

Parent

Valerie Williams, 182

2nd Vice President

New York Citywide District 75 Council Committee

Panel:

Jane Lauer Barker, 198

Partner

Pitta & Giblin, LLP

Corinne Carey, 207

New York Civil Liberties Union

Panel:

Andrew Pallotta, 245

Executive Vice President

NYSUT

Catalina Fortino, 250

Vice President for Education

UFT

Steve Allinger, 256

Legislative Director

NYSUT

Panel:

David Little, 262

Director of Governmental Relations

NYS School Boards Association

Julie Marlette,

Deputy Director of Governmental Relations

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Panel:

Mary Fox Alter, 279

Superintendent of Schools

Pleasantville UFSD

Karen Zevin, 294

Croton Harmon

School Board Member and Treasurer Westchester School

Boards Association

Bob Lowry, 310

Council of Superintendents

Panel:

Julie Bigger, 319

Parent

Lisa Rudley, 320

Parent and Education Policy Director

Autism Action Network/NYS Allies for Public Education

Timothy Farley 319

Panel:

Kimberly Friedman, 344

Cortland County CARES (Caring Advocates for a Responsible

Education System)

Sheila Kaplan, 352

Education NY

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1 Assembly Committee on Education, 11-20-13


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(The public hearing commenced at 10:00 2

A.M.) 3

ASSEMBLY MEMBER CATHERINE NOLAN, CHAIR, 4

ASSEMBLY STANDING COMMITTEE ON EDUCATION: We‟d 5

like to get started in kind of good time I think, 6

you know just in a little bit, let everybody get 7

seated. Let me just say good morning. My name 8

is Catherine Nolan. I have the great privilege 9

of chairing the New York State Assembly Committee 10

on Education. We are here today to hold a 11

hearing regarding the discloser, disclosure, 12

usage and storage of student information, 13

personally identifiable student information. 14

We‟ll call it the Student Privacy Hearing. We 15

also would like to examine today, testimony that 16

will give us, I hope, an insight into the costs 17

of collaborating with third party vendors. Every 18

Committee in the Legislature tries to have one 19

hearing a year that will be sort of a budget 20

oversight type of hearing and in our function as 21

an oversight division, if you will, of the 22

Government, we‟ve chosen this very, very 23

important topic and I think from the large 24

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turnout of Members who were able to be here today 2

you will see that there is a great interest in 3

the Legislature and its oversight function of 4

this important issue. I‟m joined, I want to make 5

sure I have everyone‟s name properly, but I‟m 6

joined by Assemblywoman Pat Fahy, Assemblywoman 7

Ellen Jaffee, Assemblywoman Didi Barrett, 8

Assemblyman Danny O‟Donnell, a very wonderful 9

member of our Committee and a great help to me in 10

all the Committee‟s issues that we face. My 11

Colleague in education, the Chair of the Higher 12

Education Committee, Assemblywoman Deborah Glick, 13

Assemblyman Marc Butler, who with, we just had a 14

nice conversation about all the issues that he is 15

concerned about and I know Ed Raw [phonetic] is 16

not here, but I know the minority is always well 17

represented and they will be doing their own 18

series of forums and issues on this topic and 19

also Assemblyman McLaughlin. We are, we have a 20

kind of lengthy witness list and so I don‟t want 21

to say too much by way of an opening Statement 22

but I just want to point out, I always bring 23

these things to hearings, I have this 1984 24

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vintage edition of the Board of Regents 200th 2

Anniversary Document, and I always like to look 3

at it when we have a hearing because it does 4

point out how unique New York is. I think there 5

are only four States that have a Board of Regents 6

but two hundred years ago, our ancestors decided, 7

or over two hundred years ago now, that education 8

in our State would not be overly within the 9

control of either the Governor or the 10

Legislature, that there would be Professional 11

Educators making important decisions. Now why 12

did they do that, they did that because they felt 13

that education should not be provided only to an 14

elite or privileged few and that education should 15

be an opportunity open to all and that the best 16

way to do that would be to have an appointed 17

Board of Regents who then would appoint a 18

Commissioner. And I think that mission is still 19

true today but I also, and we do I think, give a 20

great deal of authority to our Commissioner and 21

to the Regents but I think that the Legislature 22

does have an appropriate role in oversight over 23

this Agency as the Executive does through the 24

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power of the budget. And I think we‟re all 2

aware, it‟s a very formal room and sometimes I 3

wish we could have a more informal dialogue at 4

these hearings but I think we are all aware that 5

the topic of how do we push our students forward, 6

the topic of whether the Common Core, which is 7

kind of the name for a lot of this, is the right 8

approach. You know, is it the right approach on 9

how we evaluate teachers, is the right approach 10

on how we spend money, all these things are 11

really not the subject of today‟s hearing but the 12

key for this hearing, that we think we will shed 13

insight in to all the other concerns that people 14

have and I, by now I think that it‟s close to 15

twenty thousand people who have participated in 16

forums across the State, is whether we use the 17

technology and the data which informs so much of 18

what we do today, that all the information we 19

collect, do we use it in a way that gives us true 20

knowledge and does it protect people‟s privacy. 21

It helps no one if someone knows too much about 22

an individual child in a way that is detrimental 23

to that child and that family so we are very 24

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concerned about what we‟ve heard. We‟ve read a 2

lot of the documents. We look forward to the 3

Commissioner‟s testimony. We do like to start 4

with our Agency first. We know that you‟re going 5

to have someone stay a bit to hear the concerns 6

of the public. We have interested parents here 7

today, we have Stakeholder Groups, we have some 8

Advocacy Groups and we‟re really anxious to hear 9

from you and get an insight into whether this is 10

the right path for our important, important State 11

Agency to work. So, if it‟s alright with my 12

Colleagues, if anyone else wants to say something 13

quickly but I‟d like to go right to the 14

Commissioner. Oh and Assemblywoman Lifton, I‟m 15

so glad that she is here as well from the Ithaca 16

area and also an Educator. It‟s interesting, we 17

do have a lot of women here, but we also have a 18

lot of people who have worked in the field of 19

education, the Members who have, so I‟m very 20

grateful to that and Commissioner, why don‟t we 21

let you just start, okay? Thank you everyone. 22

COMMISSIONER JOHN B. KING, NEW YORK 23

STATE EDUCATION DEPARTMENT: Thank you. Good 24

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morning Chairwoman Nolan, good morning Members of 2

the Assembly. Appreciate the opportunity to be 3

here. I‟m joined by our Deputy Commissioner Ken 4

Wagner who will help with the presentation and 5

also help in answering the questions. You have 6

in front of you a presentation deck from the 7

Department. We will try and go through that 8

quickly just to frame the issues. Certainly you 9

know that the Board of Regents committed four 10

years ago to an ambitious reform agenda, focus on 11

preparing students for college and career success 12

ensuring that we leverage the information and 13

data that we collect in education and support of 14

better student outcomes, working to support 15

improved teacher and principal evaluation and 16

working to improve performance in our most 17

struggling schools. The data work that is the 18

focus of our conversation today, turning to the 19

second slide, has a very clear set of goals. The 20

first goal is to make available, in all 21

districts, what is available today in many of our 22

most affluent districts. In many of our most 23

affluent districts around the State, parents can 24

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log in to a secure portal to access information 2

about their child and their child‟s experience at 3

school and teachers can log in through a secure 4

identification system, log in to a portal where 5

they can access information about their students 6

and collaborate with their colleagues. And the 7

first and most fundamental goal of our work on 8

the engage, what we call the Engage New York 9

Portal, is to make that kind of resource 10

available to all of our Districts. It‟s not just 11

about data, it is also about ensuring that 12

educators and parents have access to curriculum 13

materials, materials that will shape instruction 14

and student‟s learning experiences. It is not 15

just about data and those curriculum materials 16

but also creating a platform for collaboration 17

across schools where teachers might share work 18

that they‟re doing with each other, share input 19

on instructional practice through the use of the 20

portal and of course to ensure that we do all of 21

that in a way that is affordable and sustainable. 22

Turning to the, slide four, it‟s important to 23

emphasize that the portal work that we are doing 24

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as, is true for all the work on student data that 2

the Department does is governed by the Family 3

Educational Rights and Privacy Act, FERPA, which 4

imposes strict protections to ensure the privacy 5

and security of student data and we have been 6

doing this State level student data work, working 7

with third parties for the last decade. Turning 8

to slide five, not only does the State do this 9

kind of data work, but all of our districts do. 10

Our districts across the State have, for more 11

than a decade, worked with third party providers 12

to manage the data that is a part of the 13

educational process whether that is student, 14

student records, student transcripts, report 15

cards, the provision of student meals, the 16

management of student transportation, 17

establishing school schedules, all of those 18

activities typically involve the storage and 19

collection of student data and typically work 20

together with third party providers. On slide 21

six, what we try to emphasis is that as this work 22

takes place in districts, districts typically are 23

paying for two things. They are paying a third 24

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party provider for a tool, like the parent portal 2

or scheduling, an application that allows them to 3

create high school schedules and they are paying 4

at the same time for data standardization, some 5

way in which the local data is translated to 6

whatever third party application they are using. 7

As a result, they are paying more than is 8

optimally necessary. They have fewer options 9

than would be ideal. They are often are using 10

multiple systems through multiple access points 11

which adds a burden for teachers and 12

administrators and the data are stored across 13

these multiple systems with less security than 14

you would have if you had a standardized system 15

for data security like the work that we are doing 16

on the Engage New York Portal. As slide seven 17

illustrates, the most significant data security 18

risks today are things like records left 19

unattended, weak passwords, use of the same 20

password for multiple sources, open programs that 21

are left unattended, laptops that are left 22

unattended, sending student information through 23

non-secure e-mail, computers that are connected 24

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to the internet without the latest security 2

installed. Those are the biggest and most 3

significant risks to data security today. Many 4

of those are risks that can best be addressed 5

through the standardization of data security 6

protocols and through reducing the number of data 7

systems that a given teacher or administrator 8

needs to access. Let me ask, can Wagner, our 9

Deputy Commissioner, just walk through some of 10

the highlights on the Engage New York Project? 11

DEPUTY COMMISSIONER KEN WAGNER, 12

ASSESSMENT AND CURRICULUM, NEW YORK STATE 13

EDUCATION DEPARTMENT: Good morning Members of 14

the Assembly. Data security -- Sure. Yes, 15

thank you. So my name is Ken Wagner and I‟m 16

Deputy Commissioner for Curriculum Assessment and 17

Educational Technology. And data security and 18

privacy has been part of this project as a 19

primary goal since we began this work starting 20

our Race to the Top application in 2010, but even 21

prior to Race to the Top, when we started the 22

work years ago around Longitudinal Data Systems, 23

a key design principle of this work is data can 24

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only be used for legitimate educational purposes 2

consistent with FERPA as the Commissioner 3

mentioned, Commission, consistent with all State 4

and Federal privacy rules and regulations and can 5

only be used for purposes that are specifically 6

authorized by the party that provided the data, 7

whether it be the State or individual school 8

districts. Data can never be used for purposes 9

that are not authorized by the State or school 10

districts. Data cannot be bought or sold. Data 11

cannot be used for marketing or research or 12

development purposes of any kind. When we 13

provide data to third parties built in to those 14

contracts or those legally binding agreements are 15

strict, secure requirements around how to protect 16

the data which includes physical protections as 17

well as technology protections and when those 18

contracts terminate, when there‟s no longer a use 19

or a need for the data, those third parties are 20

required by contract to securely destroy the data 21

and to certify that they did in fact destroy the 22

data. Moving to slide nine, there‟s been 23

questions about what exactly are the data 24

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elements that would be provided as part of the 2

Engage New York Portal Project and we need to 3

make a distinction between the larger set of data 4

that the Department collects for a variety of 5

Federal and State requirement purposes versus the 6

subset of those data that are posted on our 7

website and the link is included in the deck that 8

are needed for the instructional and classroom 9

purposes that the Commissioner laid out before. 10

There‟s about six categories of data that we 11

would be providing in to this system and schools 12

may provide additional local data if they wish to 13

do so, but if they do provide additional local 14

data they have to do that consistent with our 15

local data security and privacy policies and 16

protections. It‟s important to mention that, and 17

I said the State Education Department, does not 18

and will not collect social security numbers. 19

There are several reasons why it‟s important for 20

us to provide a statewide data set in to the 21

Engage New York Portal for these purposes as the 22

Commissioner outlined. First is, we know that 23

school districts have a need to compare their 24

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local classroom results and their local school 2

and district results to how students are 3

performing in other schools within a district 4

other districts within their region, other 5

regions in the State including in the county and 6

then results for students statewide. That kind 7

of comparison information is really critical, not 8

just for teachers, but also for building 9

administrators and even for parents. Also 10

there‟s a need for statewide data because when 11

students move from one district to another, the 12

receiving district, let‟s say a student moves 13

from district A to district B, district B that 14

received that student has an immediate need to 15

provide high quality services to that student 16

that is now enrolled in their district. Right 17

now the way system works, is those records are 18

exchanged through paper processes whether it be 19

through mail or through faxing and what typically 20

happens, is it‟s a matter of at least days and 21

often weeks before those educational records are 22

transferred to district B, district B having a 23

legitimate educational need to see those records 24

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to provide services. And given that we have many 2

of these records electronically, one of our 3

purposes is to help to facilitate the immediate 4

transfer of those electronic records as soon as 5

district B has a legitimate educational need for 6

those services. Equally important is the 7

Department has a need consistent with its Federal 8

mandate to monitor, evaluate, and help improve 9

student services throughout the State, to have 10

access, secure and accessible access to statewide 11

data when our Department Representatives visit 12

various districts around the State to fulfill its 13

program monitoring, program improvement 14

requirements, we, like school districts have a 15

need for secure access to student data. So one 16

of the things that we are trying to do is not 17

just provide tools to districts that do not yet 18

have these tools, and we‟ve been very clear, if 19

school districts have existing data portal tools, 20

for example, we don‟t want them to stop using the 21

tools that they have and that they may like 22

better than the State tools but what we are 23

asking them to do is experience the opportunity 24

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to have options where currently they do not have 2

options. So we‟re trying to make some strategic 3

investments while we have Federal dollars to 4

invest in a system where there can be a secure 5

platform that stores data under standard 6

definitions so when districts elect, if districts 7

do elect, to spend their scarce resources on data 8

and other educational software tools, that they 9

don‟t have to pay twice as the Commissioner laid 10

out, but rather they can use those scarce 11

resources to get the maximum value for their 12

dollar for paying for tools that are built to 13

standard, so they will work out of the box, so to 14

speak with their local data. So they‟ll spend 15

less, if they chose to spend at all, and they‟ll 16

have more options. And then as the Commissioner 17

mentioned, because teachers would have access to 18

a variety of tools within a single secure sign-on 19

environment, teachers would have to spend less 20

time integrating data across systems. The 21

average school district typically has multiple 22

systems. So if they spend less time integrating 23

data, then in fact, they can spend more time 24

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teaching and helping our students. And then 2

finally, right now when school districts navigate 3

this process, each school Superintendent does his 4

or her best to navigate this process on their own 5

and one of the goals of this system is to help 6

standardized, not just data protocols, but also 7

security protocols so we can provide support to 8

our Superintendents across the State when they 9

navigate these systems. There‟s been lots of 10

questions about inBloom. InBloom is a nonprofit 11

organization that has initial funding, initial 12

philanthropic funding, that is developing 13

standardized protocols for storing data and also 14

making data accessible, but secure standardized 15

protocols for storing and making data accessible. 16

All of inBloom‟s work is nonproprietary, it‟s all 17

open, all of the standards are posted on their 18

website and will be shared publically as they 19

move forward. So what that means is if anyone 20

else, whether that be a school district or a 21

BOC‟s or RIC or another nonprofit or another for-22

profit organization wants to compete with inBloom 23

in terms of what the services are that inBloom‟s 24

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providing. All of that work is publically 2

available and anyone else, if they think they 3

could do it better than inBloom, would have the 4

opportunity to do that. And any school district, 5

once our project ends, if a school district likes 6

the work that we started and elects, optionally 7

elects, to continue that work, they would not 8

have to just partner with an organization such as 9

inBloom, but they could partner with other 10

organizations that potentially could compete with 11

inBloom. So these platform services provide 12

access to more options at a lower cost and in a 13

more secure way. Something very important about 14

inBloom services is the data that is stored at 15

inBloom are encrypted. They are encrypted both 16

when they‟re being stored and they‟re encrypted 17

when they‟re in motion, when they‟re being 18

transferred, which means that even in the 19

unlikely event that someone were to get past the 20

firewalls, someone were a hacker, for example, 21

were able to get past the external protections, 22

even in that unlikely event, the data would be 23

unusable because the data are encrypted so that 24

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hacker, so to speak, would not be able to read 2

the data. I don‟t know of a single school 3

district in New York right now that has that 4

double level of protection. Every school district 5

that stores data online has firewalls, but I 6

don‟t know of a single school district that has 7

encryption because it‟s phenomenally expensive 8

for school districts to provide that level of 9

protection on their own. So inBloom did not 10

create, nor did the State Education Department 11

create the notion of sharing data with private 12

third party providers, even for-profit third 13

party providers, that‟s been happening across New 14

York and across the country for well over a 15

decade but what we‟re trying to do is provide the 16

nonproprietary services that will help make that 17

process more secure and more efficient over time. 18

As I mentioned, anyone who could pick up on the 19

work that inBloom has been providing and extend 20

upon that work and serve as a competitor to 21

inBloom services, but without a similar service, 22

that we‟re trying to provide through the Engage 23

New York Portal Project and that we‟re trying to 24

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provide in partnership with inBloom right now, 2

what that means is school districts will continue 3

to pay too much for the services that they‟re 4

already contracting for, they‟ll continue to have 5

fewer options including very, very few options 6

for our parents and for our students and they 7

will continue to struggle with data security and 8

privacy challenges that we‟re trying to address 9

and then finally teachers will spend too much 10

time integrating data and less time teaching 11

students. There‟s been questions about Cloud 12

storage. All Cloud storage means is that data 13

are stored on computers that are attached to the 14

internet, just like many of our educators 15

computers are attached to the internet both at 16

home or at school, just like many of our servers 17

in school buildings and school districts are 18

attached to the internet. Any time you have 19

data, whether it be paper data or data that‟s 20

stored on a computer or data that‟s stored on a 21

computer connected to the internet, the questions 22

isn‟t whether or not you collect data but how you 23

protect those data and you could make a case that 24

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Best-in-Class Cloud storage of data is actually 2

more secure than individual school districts 3

struggling in these tight fiscal times to protect 4

data on their own when we all know that when 5

school districts have to make painful decisions 6

about whether or not to cut IT services or to cut 7

a teacher, they‟re likely going to elect to cut 8

IT services. All of our Cloud storage services 9

are required to be consistent with Federal 10

guidelines, called the FedRAMP initiative, which 11

is posted on the Federal Education Department 12

website. That FedRAMP certification is Best-in-13

Class guidelines on how to make data stored on 14

shared servers connected to the internet secure 15

and it‟s very important to remember that even 16

though data may be stored on shared servers, just 17

like health care data is starting to be stored on 18

shared services and financial and banking data is 19

starting to be stored on shared services, those 20

data absolutely remain separate and distinct so 21

New York data remains separate and distinct from 22

any other data that is stored on those services. 23

Data cannot be merged because it is not part of 24

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the contract or the agreement to have those data 2

be merd, merged, so there is no national data 3

base that comes out of this work. New York‟s 4

data would be stored separate from all other 5

school and district data. So, without-- 6

ASSEMBLY MEMBER NOLAN: All of the what? 7

I‟m sorry, all of, all of the what? 8

DEPUTY COMMISSIONER WAGNER: All other 9

school and district data. 10

COMMISSIONER KING: I just want to close 11

with just highlighting a few of the common 12

questions that we get. On slide seventeen, one 13

of the questions is, are all districts and 14

schools required to use the Engaged New York 15

Portal? As part of the Race to the Top 16

commitments, districts committed to try out the 17

Engaged New York Portal, that is, they will 18

select a portal from one of three options and 19

they will make passwords available so that they 20

can try out that portal. Now as I mentioned some 21

districts, particularly some of our more affluent 22

districts, already have third party portals that 23

they like and may continue to use but for some 24

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districts, this port-, this will be the first 2

opportunity to have a portal that could be 3

accessed by parents or teachers. On slide 4

eighteen, we address the question of whether 5

those districts that are not participating in 6

Race to the Top will have information stored with 7

the State and with inBloom and the answer to that 8

is yes. The information that the State stores 9

and has stored for a long time, for a variety of 10

purposes, is stored with third party providers. 11

InBloom is one of those party providers but no 12

one will have access to that data if there is not 13

a parent or teacher portal in use, the data will 14

be stored and the only access will be when 15

there‟s aggregate data that‟s used to compare, 16

for example, performance at the district or 17

regional level. On slide, on slide nineteen, we, 18

the question about third party providers, just to 19

make very clear, the data that are stored with 20

inBloom cannot be sold, they cannot be used for 21

marketing purposes or research purposes. The 22

data are stored there for use in the portals by 23

districts for the authorized purposes. Slide 24

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twenty-- 2

ASSEMBLY MEMBER NOLAN: You know, I just 3

want to, I feel a little bit, maybe the Assembly 4

Staff, I assume people in, this is a public 5

hearing, so we have a document that we gave us 6

but I know you‟re referencing slides but we 7

don‟t, the slides aren‟t up on one of these 8

screens. 9

COMMISSIONER KING: Oh, I see. 10

ASSEMBLY MEMBER NOLAN: I just, if it‟s 11

possible to do that, fine. If not, we‟ll make 12

sure that it goes on, I guess, whatever hearing 13

document we produce because, you know, you keep 14

referencing slides and we don‟t have any slides, 15

we have pieces of paper. 16

COMMISSIONER KING: Right. Well, we‟ll 17

post them as well. 18

ASSEMBLY MEMBER NOLAN: It‟s, you know, 19

it‟s okay that you didn‟t submit a traditional 20

testimony, I get that, but I just want to clarify 21

that for the public so people know what you‟re 22

talking about. 23

COMMISSIONER KING: And we could post, 24

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we could post it on the SED-- 2

ASSEMBLY MEMBER NOLAN: Okay. 3

COMMISSIONER KING: website as well. 4

ASSEMBLY MEMBER NOLAN: So page 23, why 5

don‟t we call it page 23, I think that works a 6

little better. 7

COMMISSIONER KING: Okay, so, so-- 8

ASSEMBLY MEMBER NOLAN: What page are we 9

on now? 10

COMMISSIONER KING: On page 20-- 11

ASSEMBLY MEMBER NOLAN: Yeah. 12

COMMISSIONER KING: Again the data that 13

are stored for the portal purposes are not all 14

data. One of the common areas of misconception 15

or confusion about the Engage New York Portal is 16

the idea that all the data that the State has are 17

going to be stored with inBloom as part of the 18

Portal Project that is not accurate. The only 19

data that are stored with the Portal Project are 20

those that would make sense for parent access or 21

teacher access for instructional purposes and 22

those data elements are posted on the SED 23

website. On page 21, one of the common questions 24

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is why disability information or attendance or 2

suspension information would a part of the 3

portal. In terms of disability information, 4

schools are required by Federal Law to ensure 5

that school staff, who work with a student, are 6

aware of the student, the student‟s disability 7

status. The only piece of information that is 8

provided through the portal is the students 9

disability status consistent with those Federal 10

requirements but it is worth pointing out that 11

many districts use third party providers to 12

provide tools that allow them to track student‟s 13

IEP‟s and to track the services that are provided 14

to students through those IEP‟s. The, another 15

component of the Portal Project is what‟s called 16

an early warning system with the idea being that 17

schools should identify early, students who may 18

be getting off track, because of poor attendance 19

or poor academic performance, intervening early, 20

particularly early in a student‟s high school 21

career, can be the difference between whether or 22

not that student stays on track to graduation. 23

So the attendance and suspension information, 24

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again just the, the fact of the suspension as 2

part of the attendance data, those are a part of 3

the early warning system that is a part of the 4

Portal Project but there are no details of the 5

suspension information stored and none of that 6

information on suspensions or attendance are a 7

part of the transcript process where people will 8

be able to use the portal to submit transcripts 9

for college application purposes. On page 22, we 10

address the issue of parent opt-out. Data 11

systems that are used in schools are critical to 12

the operation of schools, whether it‟s a teacher 13

analyzing the academic performance of his or her 14

students or a high school principal creating the 15

school schedule, it‟s critical that the data that 16

are collected for those purposes be available to 17

schools to allow the good functioning of schools. 18

To allow those, an opt-out, from those types of 19

uses of data would make the operation of schools 20

dramatically more complicated, if not impossible, 21

on a day-to-day basis. Again, the principal of 22

the high school has to be able to create a high 23

school schedule, identify which students are 24

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going to which classroom at which time. Finally 2

just to close, the goal of this project, 3

fundamentally is to say there is, there are a set 4

of data that are collected by the State and 5

districts. They should be used to support good 6

instruction for students. They should be secure 7

and protected and those are the values and 8

priorities that have driven this work. I‟m happy 9

to take your questions. 10

ASSEMBLY MEMBER NOLAN: Thank you. 11

Thank you very much and I know we want to move 12

the hearing forward. We have a lot of witnesses, 13

a lot of members. So I just want to ask a few 14

and then we‟ll, obviously my other colleagues 15

have some as well. First I want to say, I was 16

very disappointed, we did reach out to the 17

inBloom company to ask them to testify and we, 18

they refused. So I was very struck in your 19

comments, Deputy Commissioner, about oh, they‟re 20

going to make this available, they‟re going to 21

make that available, they‟re going to make this 22

available, but they honestly didn‟t make 23

themselves available to us so one of the 24

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realities is that there, there‟s a growing sense 2

of unease about this privacy issue and I think 3

that‟s one reason we‟re having a hearing. And I 4

always say, and it‟s a very comprehensive 5

presentation, I thank you both for the 6

professionalism and the dedication, but I‟m 7

always kind of happy at these Education Hearings 8

that my main role is a parent, because I think I 9

bring that perspective. And I listened and I 10

said gee, does that mean that when you, for 11

example when you mentioned the suspension data, 12

like, what does that mean, like for my son, what 13

would that mean if my son was ever suspended so I 14

think we‟re going to need from the Department, a 15

little bit more, not today obviously, about how, 16

and I really don‟t want to hear that it‟s a 17

FERPA, whatever that, you know, we have an 18

anagram for everything in government. If the 19

Federal Government turned around tomorrow and 20

said we‟re going to change that, does that mean 21

that all that information is then just given out, 22

and you know, so I think we need to have a 23

rigorous State protection here, not just what 24

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this company has sold you and not just what the 2

Federal Government has a regulation on, but 3

something here in New York that protects New York 4

families especially since, and I, one of the 5

questions I guess I want to start off right away 6

is, are we the only State with inBloom, like how 7

did that happen? When we talked about this, four 8

years ago, you know, I was led to believe and no 9

putting your words in anybody‟s mouth, but this 10

was a Race to the Top, all 50 States are going to 11

be involved in this and now I get letters from 12

people in the public saying we‟re the only State, 13

so maybe you could explain that disconnect as a 14

first. And we‟ve passed two bills in the 15

Assembly to strengthen student privacy. We‟re 16

hoping that the Senate will consider them but as 17

you know the Department had some objections to 18

both of them. So I guess my question is, given 19

that inBloom wouldn‟t come, given that life in 20

the real world means that data is breached, given 21

that we‟re only really talking about a fegu- 22

Federal Regulatory System to protect student‟s 23

privacy, what do you recommend we do in New York 24

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to make sure that all those good things you 2

talked about, you know, you know, are protected 3

and why are we the only State with this 4

particular vendor and what, what is going on? I, 5

and I say it just like people, you know, as a 6

parent, what, what are you doing? I appreciate 7

all the testimony but what are you doing because 8

it seems like a big departure from what we were 9

told four years ago when all 50 States, I heard 10

the words all 50 States countless times and now I 11

get letters from the public saying only New York 12

has inBloom and they wouldn‟t come to the hearing 13

so they can‟t be, frankly, as open as you‟re 14

saying they are because if they were open, they 15

would have come to the hearing. So, and they 16

used that excuse, you know, they‟re private, they 17

didn‟t have to come. See, they‟re not, they‟re a 18

vendor. I hate that because they sold you, that 19

they said they were public, they‟re nonprofit, 20

but that‟s not what they said when they, you 21

know, they answered the letter. And, you know, 22

these Committees have subpoena power and in 29 23

years in the Legislature I have never asked to 24

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have to have that invoked but I came very close, 2

very close last week, but I tried to stay calm, 3

Danny tells me to stay calm. We‟re going to work 4

our way through this but I was really chagrinned 5

about that so can you just explain why we‟re 6

where we‟re at and what are we going to do, what 7

are you going to do to make sure that students 8

are protected. 9

COMMISSIONER KING: Yeah. Let me make a 10

couple framing remarks and then let Ken respond 11

as well. So the States across the country are 12

storing significant amounts of student data with 13

third party providers, that‟s standard practice 14

at States and districts. There are two States 15

now, New York and Illinois that are working with 16

inBloom. There are districts around the country 17

that are working with inBloom but inBloom is just 18

one of a multitude of possible third party 19

providers that States may work with. One of a 20

multitude of third party providers that New York 21

is working with and districts are also-- 22

ASSEMBLY MEMBER NOLAN: Do they have to 23

be, do they have to be approved by the Federal 24

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Government though-- 2

COMMISSIONER KING: No. 3

ASSEMBLY MEMBER NOLAN: or is it just 4

anybody, if I, you know, my brother-in-law is the 5

data guy, come on, I mean, what was the process? 6

Do you have to vetted to be one of these are how 7

many are there? 8

COMMISSIONER KING: Yeah, so-- 9

ASSEMBLY MEMBER NOLAN: You say they are 10

one of many. 11

COMMISSIONER KING: So, there are, there 12

are many third party providers who are providing 13

data services. They have to comply with Federal 14

and State laws that govern student data privacy 15

and protection. 16

ASSEMBLY MEMBER NOLAN: But there‟s no 17

separate vetting, the way there might be for, you 18

know, the tinsel strength of steel on a, you 19

know, or a widget. There‟s no special test. 20

They just, anybody can say that they 21

affirmatively will agree to apply and then they 22

can be a, they can be a possible choice. 23

COMMISSIONER KING: Well certainly in 24

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New York, any contract that we engage in, goes 2

through multiple layers of State review but, but-3

- 4

ASSEMBLY MEMBER NOLAN: But this this 5

didn‟t go through the Comptroller‟s review 6

because you called it a Service Agreement. 7

COMMISSIONER KING: Yeah. The contracts 8

for the data portals, it‟s important to 9

distinguish between inBloom and the data portals. 10

The data portals, which operate off of inBloom, 11

which are the access point for parents and 12

teachers, that went through a full procurement 13

process, full approval process from the State 14

Comptroller and so forth. What inBloom is, is a, 15

in a sense a third party intermediary for those 16

portal providers. InBloom‟s role is to, in a 17

sense, standardize the data, transfer the data 18

communication between a district and the portal 19

providers but to be clear the data are only 20

accessed by the student‟s parent who has a unique 21

password to be able to access the data and the 22

school, the teacher or principal who is accessing 23

information about the student because that is a 24

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part of their, of their role. Ken do you want to 2

add to that? 3

DEPUTY COMMISSIONER WAGNER: Yeah, and 4

so in this instance, inBloom is a service 5

provider to the State. And if-- 6

ASSEMBLY MEMBER NOLAN: Right, but their 7

contract wasn‟t reviewed specifically by the 8

Comptroller because you called it a Service 9

Agreement. I was actually, I was intrigued at 10

the Commissioner‟s Statement that the portals 11

will be reviewed by the Comptroller because they 12

so no. Matter of fact, they didn‟t want to 13

testify. They said they had no role in this, 14

they had no role in it, it was all your show. So 15

that‟s, and you see that starts to set up that 16

Legislative anxiety, right? 17

DEPUTY COMMISSION WAGNER: Yeah. 18

ASSEMBLY MEMBER NOLAN: It‟s all your 19

show but you‟re saying that they have some role 20

and then they don‟t come because they say they 21

have no role. When you‟re in the Legislature, 22

like that‟s, that‟s like a red flag or us, like 23

what? What? What‟s going on here, what‟s going 24

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on? So and, and you know, I mean every other 2

State seems to have dropped out and apparently 3

there‟s a move in Illinois or it‟s only three 4

districts in Illinois so like, what are we doing 5

here? 6

DEPUTY COMMISSIONER WAGNER: Yep. 7

ASSEMBLY MEMBER NOLAN: These people 8

wouldn‟t come, you made a Service Agreement 9

instead of a regular contract so the Comptroller 10

got to, got to, you know, pass that hot potato 11

and it‟s all in your lap, like, and so what are 12

you doing to, how‟d that happen and what are you 13

doing to make sure it isn‟t just about some 14

Federal Regulatory scheme but an additional level 15

of New York protection-- 16

DEPUTY COMMISSIONER WAGNER: Sure. 17

ASSEMBLY MEMBER NOLAN: for New York 18

Kids. 19

DEPUTY COMMISSIONER WAGNER: So we have 20

five, five contracts that were approved by the 21

Comptroller‟s office that are part of this 22

project. One contract with each of our three 23

data, data dashboard providers, those are the 24

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three dashboards that school districts elect one 2

of the three and then we have an overarching 3

contract to build some of the system services and 4

then finally we have a contract with a nonprofit 5

third party to help evaluate the project 6

integrity as well as the data security and 7

privacy protections that are in place. Each of 8

those five contracts was approved by the 9

Comptroller. Each of those contracts explicitly 10

made mention that we would be using inBloom‟s 11

services and inBloom is a service provider to use 12

in order to execute those contracts. We have New 13

York specific protections around this work. We 14

are not just relying on FERPA, nor are we relying 15

on the privacy policies of each of those third 16

party providers, but we built in to each of those 17

contracts New York specific data security and 18

privacy protections that encompass everything 19

that‟s required by the Federal Government, 20

encompasses everything that‟s required by the 21

State and even goes a bit farther in terms of 22

some of the data security and privacy 23

protections. Those are a part of each of those 24

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legally executed, Comptroller approved contracts 2

that are in place. What we would love to do is 3

an outgrowth of this project is to do, to provide 4

guidance to school districts around best 5

practices when you are contracting with a third 6

party provider. One of things that we‟ve learned 7

is how little local communities are aware of 8

these processes and are transparent to those 9

processes so we‟d love and we plan to provide 10

guidance to school districts to basically benefit 11

from what New York has done to put those kinds of 12

protections in place. In terms of the States 13

that are involved with inBloom. When this 14

project started there was a notation that was a 15

phase one or a phase two State. There were five 16

phase one States, New York, Colorado, Illinois, 17

Massachusetts, and North Carolina and then there 18

were four phase two States, Delaware, Kentucky, 19

Louisiana, and Georgia. What happened is, the 20

commitment from each of those States was during, 21

what was considered the pilot phase of inBloom, 22

which meant that during the period of time where 23

philanthropic funds would cover inBloom‟s 24

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services. Phase one States, New York, North 2

Carolina, Massachusetts, Illinois and Colorado 3

were expected to do something with inBloom‟s 4

services and phase two States, Georgia, Kentucky, 5

Louisiana and Delaware were not expected to do 6

anything with inBloom‟s services but rather just 7

sit at the table and advise the project. Over 8

the course of that time there was a change in 9

leadership in Louisiana and Louisiana for a brief 10

period of time decided that it wanted to become a 11

phase one State which means that it would do 12

something with inBloom‟s services before December 13

2014 but what Louisiana quickly realized is they 14

had not done the kinds of outreach that other 15

States had done, including New York, clearly we 16

have not done enough outreach to answer all of 17

the questions but we have been talking about this 18

project in public space for oh, upwards of two 19

years now. Louisiana had not, so they in fact, 20

went back to their phase two status. Of the 21

phase one States that committed to do something 22

with inBloom prior to next December, our 23

understanding is Colorado just recently shifted 24

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its strategy, Illinois remains involved in the 2

project, New York remains involved in the 3

project. My understanding is that North Carolina 4

remains involved in the project but more on the 5

content side as the Commissioner mentioned. 6

InBloom is providing services, not just around 7

data, but also about making instructional 8

resources more available to teachers, educators 9

and parents. So North Carolina remains involved 10

on the content side and my understanding is that 11

Massachusetts is currently undecided about what 12

it plans to do with inBloom prior to next 13

December. 14

ASSEMBLY MEMBER NOLAN: I think this is 15

part of the hearing we would like to explore 16

further. Particularly I would, you did not 17

enumerate what additional feeling or protections 18

you feel you‟ve done and maybe, maybe this form 19

isn‟t the place for it and we have a lot of 20

witnesses and a lot of questions, I think, 21

generally though, the issue of why the Service 22

Agreement was not submitted to the Comptroller 23

for review even if these dashboard models were, 24

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it‟s something that the Committee remains 2

concerned about. We‟re concerned that inBloom 3

declined to testify, it doesn‟t speak well when 4

people say they won‟t come and talk to us and so 5

I think we‟re going to be back to you again on 6

that. I guess, you know, there are a lot of 7

other questions, I guess I‟ll just ask the one 8

more. What is the biggest risk to data security 9

that you see out there in this model and what are 10

you doing to, you know, in the event of a 11

security breach, for example, what happens? And 12

then we do want to know a little bit more about 13

how it was funded. You said something about 14

philanthropic, I didn‟t understand what you meant 15

so, a little bit about what happens when 16

something goes wrong, always an important 17

question and the funding and then I‟m, I want to 18

turn it over to-- 19

DEPUTY COMMISSIONER WAGNER: On, on the 20

funding piece-- 21

ASSEMBLY MEMBER NOLAN: We will be back 22

to you because we‟re not, we‟re not happy. I 23

guess that‟s the best way to say it. You know 24

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when people refuse to come, it‟s really not good. 2

So, we‟ll be back to you and to them, you know 3

with some follow up but, but the two issue were 4

raised, thank you. 5

COMMISSIONER KING: To, foundations, 6

Gates Foundation, Carnegie Foundation provided 7

the initial funding for the launch of inBloom, 8

the nonprofit service provider. There are Race 9

to the Top funds which are supporting the work in 10

the five contracts that Ken described. The work 11

that is being done to provide specific services 12

to New York school districts as part of the data 13

work that we laid out in our Race to the Top 14

application. So that‟s the nature of the 15

funding. The philanthropic funding allows the 16

operation of inBloom for its first few years. As 17

Ken described, the inBloom infrastructure is 18

nonproprietary, so at the end of that initial 19

philanthropic funding, New York and districts 20

would be in a position to use similar services 21

from inBloom or from other providers. So that‟s 22

the background on the funding. Ken, do you want 23

to add anything on that? Okay. And the second 24

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part of your question? 2

ASSEMBLY MEMBER NOLAN: What happens 3

when something goes wrong? 4

COMMISSIONER KING: Yeah, so-- 5

ASSEMBLY MEMBER NOLAN: Because it will 6

right-- 7

COMMISSIONER KING: Yeah. 8

ASSEMBLY MEMBER NOLAN: we all know 9

that. It‟s the State government-- 10

COMMISSIONER KING: So the most-- 11

ASSEMBLY MEMBER NOLAN: So, when, when 12

something happens, and this is life right? 13

COMMISSIONER KING: Mm-hmm. 14

ASSEMBLY MEMBER NOLAN: When something 15

goes wrong, you know-- 16


ASSEMBLY MEMBER NOLAN: do I have to 18

feel that, you know I made a joke earlier and you 19

know, I went to a school called Grover Cleveland 20

High School, 1976, class of 76. I was a very 21

good girl, never cut a class. I was a do-gooder 22

but if I had, it was on a Delaney Card and guess 23

what, it was a pre-internet, that Delaney Card is 24

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in the basement somewhere at Grover Cleveland. 2

It‟s kind of hard for a potential employer to 3

check it out, you know. 4


ASSEMBLY MEMBER NOLAN: And amazingly 6

enough, for those of you who don‟t know, the City 7

keeps those Delaney Cards, I think still, even 8

from people who are much older than me. But the 9

point is that you can‟t find out. 10


ASSEMBLY MEMBER NOLAN: The fear that 12

everyone has, the fear that everyone has is that 13

you know, you were a jerk when you were in high 14

school, because we were all jerks, and you do 15

something stupid and you get suspended and now 16

five years later, you‟re going for a job and big 17

brother has found out that when you were a junior 18

in high school, you know, you did something 19

stupid. And, you know, that‟s going to happen. 20

We, you know, that happens on Facebook everyday 21

so what are you doing to make sure that when it 22

happens, because something‟s going to leak out, I 23

don‟t believe that these things are airtight, 24

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water gets in a lot of places, right, you know, 2

what are you going to do then? 3

COMMISSIONER KING: Yeah. So there are, 4

there are penalties for any provider that allows 5

a data breach. But it‟s worth saying that the 6

biggest security risks are the presence of so 7

many third party providers. All the information 8

that the State has today is stored with multiple 9

third party providers-- 10

ASSEMBLY MEMBER NOLAN: We, we get that 11

John, but-- 12

COMMISSIONER KING: and all the 13

information that comes to us from school 14

districts, that is stored by State, comes to us 15

through third party providers. The inBloom 16

infrastructure is encrypted, as Ken mentioned 17

encrypted in storage and transfer. That is not 18

true of all the range of third party providers. 19

So there are penalties in place when there are 20

security breaches but, but-- 21

ASSEMBLY MEMBER NOLAN: From the Federal 22

Government or from your contracts? 23

COMMISSIONER KING: Both, both. Ken, do 24

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you want to add? 2

DEPUTY COMMISSIONER WAGNER: Sure. So 3

our contract includes penalty provisions as well 4

as FERPA includes, if anyone is alleged to have 5

violated FERPA, then the Federal Government does 6

an investigation and may-- 7

ASSEMBLY MEMBER NOLAN: Yeah, I didn‟t 8

see that in the Service Agreement. Where, where 9

would I find those penalties and what-- 10

DEPUTY COMMISSIONER WAGNER: In the 11

Service Agreement? 12


DEPUTY COMMISSIONER WAGNER: There, 14

there‟s a, there‟s a piece in the in the Service 15

Agreement-- 16

ASSEMBLY MEMBER NOLAN: Yeah, well we 17

read it quickly but I, at OATH last week but-- 18

DEPUTY COMMISSIONER WAGNER: Yeah. 19

ASSEMBLY MEMBER NOLAN: could you, could 20

you tell us a little bit more about that? 21

DEPUTY COMMISSIONER WAGNER: I don‟t 22

have the information in front of me. 23

COMMISSIONER KING: We could follow up 24

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and identify the page numbers that cover the 2

penalties. 3

ASSEMBLY MEMBER NOLAN: So, and the 4

penalties are monetary penalties? 5

DEPUTY COMMISSIONER WAGNER: My 6

recollection is that there are both requirements 7

to remedy the situation as well as potential 8

monetary remedies if, if appropriate as well as 9

potential Federal consequences if, for example, 10

FERPA was violated. 11

ASSEMBLY MEMBER NOLAN: You know, the 12

State has its own versions of privacy. Perhaps 13

we need to expand that with the Legislation we 14

passed to provide a stricter mechanism when the 15

breach has happened because inevitably they will. 16

DEPUTY COMMISSIONER WAGNER: Just in 17

terms of your question about what, what if 18

something goes wrong. The State has been 19

managing a statewide set of all student data 20

since 2004 in a single repository with a third 21

party with other third party provider access. We 22

are, we have experience doing that. To my 23

knowledge we have never been party of a data 24

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breach over that past decade. They‟re, as we 2

mentioned before, there are lots of places where 3

data security can go wrong, including at school 4

districts where paper records are left 5

unattended. Our general strategy is if we‟re not 6

confident that we can‟t, we‟re not yet ready, for 7

example to display data to parents, because 8

that‟s complicated. Nobody has yet figured out 9

how a part from a third party vendor solution, 10

there‟s no school district that has the ability 11

to provide secure data to parents unless they 12

rely on a vendor solution, typically their 13

student management system. So what we‟re trying 14

to do is build the capacity to provide resources 15

securely to parents but we will not launch that 16

functionality-- 17

ASSEMBLY MEMBER NOLAN: But there is a 18

way-- 19

DEPUTY COMMISSIONER WAGNER: until we‟re 20

confident-- 21

ASSEMBLY MEMBER NOLAN: You go to the 22

school-- 23

DEPUTY COMMISSIONER WAGNER: that it‟s 24

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going to work-- 2

ASSEMBLY MEMBER NOLAN: No, but I mean 3

let‟s be-- 4

DEPUTY COMMISSIONER WAGNER: as 5

intended. 6

ASSEMBLY MEMBER NOLAN: There is a way, 7

you go to the school as a parent, they show you 8

the child‟s work, you-- 9

DEPUTY COMMISSIONER WAGNER: No, but 10

right now what parent-- 11

ASSEMBLY MEMBER NOLAN: You saw it. The 12

report card is there. I mean I, you know-- 13

DEPUTY COMMISSIONER WAGNER: But right 14

now a parent in New York has no ability to view 15

their statewide records. Parents can view the 16

records within an individual school district. 17

Only the State has access to the statewide 18

records. Many, many of our parents move from 19

school district to school district. 20

ASSEMBLY MEMBER NOLAN: Right. 21

DEPUTY COMMISSIONER WAGNER: And right 22

now if a parent, the first step toward protecting 23

data security and privacy is to be aware of the 24

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data security, the data that‟s currently being 2

collected. Until we provide this functionality, 3

there is literally no convenient ability for 4

parents to view their child‟s statewide records. 5

They can view their local school district 6

records. 7

ASSEMBLY MEMBER NOLAN: What would, 8

alright, I‟m going to let Deborah. We‟ll follow 9

up on that as well and I thank you. 10

ASSEMBLY MEMBER DEBORAH GLICK: Okay, to 11

follow up, what‟s the difference? 12

DEPUTY COMMISSIONER WAGNER: I‟m sorry? 13

Oh, what I just described? 14

ASSEMBLY MEMBER GLICK: Yeah. What‟s 15

the difference between a parent going in and 16

having access to their own child‟s records and 17

then they move from New York to Rochester and 18

they don‟t have access to the statewide, what, 19

what is collected statewide that is different 20

than what would be available to a parent at their 21

home school and then at their new school? What 22

is it their not, what is it they don‟t, wouldn‟t 23

have access to? 24

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DEPUTY COMMISSIONER WAGNER: So what‟s 2

emerging as the convenient way for parents to 3

view their educational records is through local 4

school district parent portals and any local 5

school district portal can only display the data 6

that‟s stored electronically in that local school 7

district. So if, in the example you raised, a 8

parent was in a school district downstate and the 9

student took a Social Studies Regents and the 10

student scored a 97 and then they moved to an 11

upstate school district but the downstate school 12

district reported that score inaccurately. 13

Instead of reporting it as a 97 they reported it 14

as a 79 and the parent moved to the upstate 15

district and they checked the records in the 16

upstate district, that error that was reported 17

electronically downstate will not be available in 18

the upstate districts parent portal. The only 19

way that the parent could view that electronic 20

error would be if they had access to statewide 21

data and currently there is no system that 22

provides access to electronic statewide data. 23

ASSEMBLY MEMBER GLICK: So if I have a 24

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child and we go to Rochester and somebody says 2

you get, at the new school, a transcript, you 3

can‟t get your child‟s transcript and you can‟t 4

possibly know that somebody inverted the numbers? 5

I find that more upsetting than anything I 6

thought about before I walked in here today. So 7

you could have-- 8

ASSEMBLY MEMBER NOLAN: But that does 9

not, you get the transcript. 10

ASSEMBLY MEMBER GLICK: You‟re, so I‟m 11

just trying to figure out, how you would never 12

know that your child‟s record had been completely 13

screwed up. 14

COMMISSIONER KING: Ken, Ken‟s point is 15

about the portal access that in district, if you 16

move from district A to district B, the parent 17

portal that you would access in district B would 18

not necessarily have the information that was 19

collected in district A. But I guess the broad, 20

two broader points on this. One is, today many 21

of the most affluent districts in the State, 22

parents can go on to a portal and they can see 23

their child‟s, they can access their child‟s, not 24

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only their State records, but they can access 2

their child‟s grades, whether or not their child 3

turned in their homework assignments, what lunch 4

is going to be next week and parents regularly 5

access those portals. This project is about 6

making that same service available to all 7

districts and not limiting it just to those 8

districts that are most affluent. Similarly, in 9

some districts in the State, teachers can 10

collaborate with their colleagues through a 11

secure portal on the development of materials. 12

That‟s a paid service that‟s available in many 13

districts, but not all districts, and this is an 14

opportunity to make that available in all 15

districts. This is a opportunity to provide a 16

service consistently across the State. 17

ASSEMBLY MEMBER NOLAN: What if the 18

district decides it doesn‟t want it? 19

COMMISSIONER KING: Then they don‟t have 20

to use the service. 21

ASSEMBLY MEMBER NOLAN: Are they 22

sanctioned by the State Ed. somewhere? 23

COMMISSIONER KING: No, they have-- 24

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ASSEMBLY MEMBER NOLAN: If I chose, if 2

I‟m school district X and I chose not to 3

participate inBloom, do I have that option? 4

COMMISSIONER KING: You do. You, the, 5

to be clear, as a part of Race to the Top, what 6

districts committed to do was to pick one of the 7

three dashboards and make the passwords for the, 8

unique passwords available, to their parents and 9

staff to access that dashboard. If they chose 10

not to use the dashboard, they don‟t have to, 11

they can continue to using their existing 12

dashboard tools or ignore the dashboard tool. If 13

a district opts-out of Race to the Top, decides 14

they don‟t want to participate in Race to the 15

Top, they don‟t have to choose a portal. But the 16

only Race to the Top requirement was that you 17

choose one of the dashboards and you make access 18

to the dashboard available. 19

ASSEMBLY MEMBER GLICK: The, on one 20

slide it talks about districts and schools 21

provide data to third parties to meet their 22

instructional and organizational 23

responsibilities, which include everything from 24

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student enrollment and school schedules, school 2

lunch and transportation, I‟m not quite sure what 3

that, why that is, but in another location on 4

another slide it says data are not sold or used 5

for other commercial purposes. I‟m just 6

confused. It seems to me that the primary 7

interesting sharing of data, I would think, would 8

be about student achievement and student records 9

and yet there seems to be a sharing of a broad 10

range of scheduling data and I‟m not sure the 11

purpose and whether, at the moment it‟s 12

philanthropic and there‟s no cost to the State, 13

three years from now, is it anticipated that 14

there will be a cost to the State? 15

COMMISSIONER KING: So, let me address 16

that first part of the question first. The, on 17

the tools that districts use, there was a time 18

when high school principals would create the 19

school schedule on paper, so they would work out 20

with little slips of paper which students were 21

going where or on a chalkboard, what got -- which 22

students were going where. Over time most 23

districts have evolved to have a, some sort of 24

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third party provided data tool that they use to 2

create their school schedule. Similarly to 3

create bus routes. Bus routes are often now, set 4

up through a third party tool that helps them 5

[unintelligible] [0:54:53.0]-- 6

ASSEMBLY MEMBER GLICK: Yeah, they did a 7

great job in New York City a few years ago. 8

COMMISSIONER KING: But those are, 9

those, the key is that those third party, the 10

information that is used with those third party 11

tools can only be used for that purpose by the 12

district. It can‟t be shared or sold, that was 13

the distinction that we were trying to make 14

there. That these services, and these are just a 15

sampling of the services, are things that the 16

district might contract with a third party to 17

provide and the data can only be used for that 18

purpose that the district has contracted for. On 19

the other part of your, yes, on the other part of 20

your question about the pricing. So the initial 21

funding for the, for inBloom is being provided 22

philanthropically for that, for the service that 23

inBloom is providing. The portals of the 24

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dashboards are funded through State funds 2

through, that are provided through Race to the 3

Top. At the end of the Race to the Top period, 4

districts will decide whether they want to 5

continue to use one of those dashboards or some 6

districts may decide they want to keep using 7

another dashboard that they have secured through 8

a third party contract and at that time the State 9

and districts will need to decide whether or not 10

to continue to use inBloom for their services or 11

another provider and the structure of how that 12

inBloom service will be covered will depend in 13

part on how much use there is of these dashboards 14

and whether or not the dashboard services that 15

are provided through use of inBloom service, want 16

to continue to use inBloom for that service. If 17

you want to add to that at all Ken. 18

DEPUTY COMMISSIONER WAGNER: So again 19

we‟re trying to make some strategic investments 20

to help school districts do what they‟re already 21

doing. If those services are useful then school 22

districts would opt-in and elect to use those 23

services when State dollars go away. If those 24

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services are not useful or they‟re just not cost 2

effective then school districts would not elect 3

to continue those services when Race to the Top 4

dollars go away. So there is no cost to school 5

districts during the period of Race to the Top, 6

the data that we‟re collecting and providing is 7

data that school districts are already required 8

to provide and there is no required cost to 9

school districts when Race to the Top dollars go 10

away unless it makes sense to them in their local 11

context. 12

ASSEMBLY MEMBER GLICK: Do we have any 13

idea, let‟s say, school districts do find that 14

there is some value and they would like to 15

continue using one of these services, do we know 16

what that projection might be of the cost that 17

having these services available. They‟re not 18

paying for it, “they‟re not paying for it now” 19

but if they decided they wanted to, because you 20

know, one of our responsibilities is to talk 21

about what the budget is going to be for 22

education and there are increasingly scarce 23

dollars and we can‟t do this and we can‟t fund 24

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art and we can‟t fund music and we can‟t do all 2

of these other things but we seem to increase our 3

outsourcing of work and contracts, etc. So, I‟m 4

just trying to understand, if this is to 5

continue, what‟s the price tag? 6

DEPUTY COMMISSIONER WAGNER: Yeah. So 7

when we went through the selection process for 8

the current school year, the 13-14 school year, 9

we wanted school districts to have information to 10

make an informed decision. We didn‟t want them 11

to select a dashboard, love it, and then have no 12

idea what the out year costs would be so to 13

support that selection process, and we‟ll go 14

through another selection process at the end of 15

this year for the 14-15 school year, we posted 16

two guides to school districts. One was a guide 17

dashboard by dashboard, all of the different 18

features that were or were not included in each 19

of the dashboards so districts had information in 20

addition to regional demonstrations that we 21

provided about what each dashboard did and did 22

not do and then we also provided a cost estimator 23

where they could plug in their local information 24

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and see what those things might cost if they were 2

to elect to use those tools after Race to the Top 3

dollars went away. Our dashboards, we negotiated 4

five years of pricing, even though we could only 5

support the project through year three, so 6

through five years, two of the three dashboards 7

are about a dollar or less per student and the 8

third dashboard is about three dollars per 9

student so there‟s differences amongst the 10

dashboards. To put in to comparison school 11

districts typically spend more than that for 12

comparable educational tools. So we were able to 13

get good pricing because we went, we kind of 14

forced three vendors to compete with each other, 15

not just to get the contract, but even after the 16

contract was executed because vendors get more 17

money if more people select them for their 18

services. InBloom‟s services, we also posted 19

what inBloom‟s costs would be if school districts 20

wish to continue those services. The current 21

estimate right now is anywhere from about three 22

to five dollars per student for the backend 23

services that inBloom provides. Now that cost, 24

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the three to five dollars per student, will be 2

cost effective, we did analyses. If you want to 3

use more services within that ecosystem that 4

inBloom is supporting, if you only want to buy 5

one product, again we‟re not asking people to 6

spend money, but if you are going to spend money, 7

if you only purchase one tool then it would not 8

make sense to use inBloom‟s services. It would 9

not balance itself out. If you were to elect to 10

use about three tools, then that would be at the 11

breakeven point, where it makes sense to use 12

inBloom‟s services but you have not yet saved 13

money. It‟s only if you elect to use more than 14

three tools that you start to get to the point 15

where inBloom‟s services allow school districts 16

to save money. As point of comparison though, 17

districts typically use five, six, seven or more 18

different tools including their student 19

management system which combines a scheduling 20

engine, a way to collect enrollment information, 21

a way to generate report cards, a way to generate 22

transcripts, a parent portal and a student 23

portal. That‟s six different tools that are 24

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bundled all in to one, that school districts are 2

paying anywhere from ten to 15 dollars a student 3

forever, for that single bundled tool. So what 4

we‟re trying to do is break that bundle and force 5

providers to compete and allow school districts 6

to spend their money for individual tools and in 7

that context it may make sense to keep using 8

inBloom‟s services. 9

ASSEMBLY MEMBER GLICK: One last 10

question because we have a lot of colleagues 11

here. In another arena, there was always a 12

concern that information was being collected, 13

this was in a health care arena, and that 14

people‟s names and in some way they would be 15

identifiable to a particular individual and we 16

forced the State to use unique identifiers that 17

were not actually able for someone to identify 18

the individual. How are you collecting this 19

data? What personal information has been 20

collected, you know at this point, and already 21

uploaded to the system and how could somebody 22

identify that that is this student? 23

DEPUTY COMMISSIONER WAGNER: So in terms 24

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of identifiable information, we for Federal and 2

State purposes already collect and school 3

districts already provide information about 4

students, who they are, they‟re biographic 5

information, where they go to school, they‟re 6

enrollment information, State achievement scores, 7

any additional services that students receive 8

including services for students with 9

disabilities, English Language Learner services 10

and so on. We collect both a unique identifier 11

and we collect student names and which is used 12

depends on what the purpose is. When we provide 13

data directly to teachers and directly to school 14

districts, for example to verify their data and 15

so on or to use the data for instructional 16

purposes, it would not be useful to teachers to 17

say here‟s your class roster and display one 18

hundred student numbers. They wouldn‟t have the 19

time to crosswalk the numbers to the names, so 20

when we display data to teachers, for example, we 21

provide student names. So we use the name when 22

we need to use the name. We do not, for example, 23

provide student level data to the Federal 24

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Government. The Federal Government is forbidden 2

from collecting student level data. So we use 3

the data with the level of information that we 4

need. Right now we have provided a statewide 5

data set to inBloom and to the project, the 6

various service providers, for the purposes of 7

developing and testing the system. We have not 8

yet provided student names because during that 9

process of developing and testing there is no 10

need for the names but as we get closer to 11

providing the actual tools, the dashboards to 12

educators, of course we will need to provide the 13

names about one or two months prior to launching 14

so we can finalize the testing process. 15

ASSEMBLY MEMBER NOLAN: And I should 16

have, I apologize, we were joined by Mr. 17

Abinanti, Mr. Zebrowski and Mr. O‟Donnell, so we 18

really have a full house of Members. 19

DEPUTY COMMISSIONER WAGNER: Okay. 20

ASSEMBLY MEMBER DANIEL O‟DONNELL: I‟m 21

most concerned with page or slide 22 which is, 22

has to do with opting-out of this. I was struck 23

by the following sentence. It would be virtually 24

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impossible to conduct much of the day-to-day 2

management of schools without this information. 3

Let‟s just say in the decorum of this room, I 4

consider that hyperbole of the first order. 5

Okay. That you would actually go and write that, 6

is outrageous to me. It‟s outrageous to me. 7

Schools operate in a variety of ways. Some 8

schools choose to operate in certain ways, other 9

schools choose not to. Now, do you know who 10

Cynthia Stevenson is? 11


ASSEMBLY MEMBER O‟DONNELL: Well, she 13

was the Superintendent of Jefferson County 14

Colorado public schools and she apparently had a 15

very similar world view to you, in fact, I think 16

she must have read your PowerPoint because she 17

basically made the same exact arguments and the 18

same exact positions about the storage and 19

collection of this data. And well, see this is 20

what happened, there was no opt-out for those 21

parents in Jefferson County, so you know what 22

they did, they voted out the School Board who 23

fired Ms. Stevenson. Okay, so the parents of 24

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Jefferson County in Colorado, had an opt-out 2

because they had a vote to decide whether or not 3

the person making the decision, that this was an 4

appropriate thing to do, could be gotten rid of 5

by the power of the ballot box. So, my question 6

to you Dr. King, about some of this data, Ms. 7

Nolan referenced her own son, I don‟t have 8

children, I only have nieces and nephews, and God 9

children, a total of sixteen of them. Many of 10

them attend public schools in the State of New 11

York. The question of absences is something that 12

I want to ask you. So, just as a personal note, 13

my mother died of breast cancer in 1973, when I 14

was twelve. I was one of five children, 13, 12, 15

ten, nine and six. Our life was turned upside 16

down. We had no one to cook dinner, we had no 17

one to clean the house, we had no one to wash our 18

clothes, we had no one to do anything. We all 19

had to learn how to do that overnight, okay. 20

Guess what, we all missed a lot of school. We 21

missed a lot of school Dr. King. We weren‟t on 22

the path to dropping out, we weren‟t truant, we 23

weren‟t blowing up things or stealing things but 24

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we were missing a lot of school. If a parent, in 2

the State of New York, has a child who is 3

physically ill, mentally ill, has issues in 4

school, is being bullied, is being threatened, 5

whatever that is and they are not going to school 6

with the regular school schedule and there‟s an 7

explanation for why that is, don‟t you think that 8

parent might want to be able to say, look I don‟t 9

think you shouldn‟t take down the information 10

that Danny‟s absent today, because I know that 11

you have to keep track of that, but that maybe I 12

don‟t want that information sent on the World 13

Wide Web, because maybe the trauma in their life, 14

maybe the cancer that they have, maybe the 15

disease that is wrecking their family is going to 16

go away. And they‟re not bad children, they‟re 17

not truant children, they‟re not beating kids up 18

in school, if that‟s what a suspension is, but 19

something is going on. Don‟t you think a parent 20

might have the right to say, I don‟t want that 21

information shared about my child on the World 22

Wide Web where I don‟t have any control six or 23

ten or twelve years later to know about it? 24

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COMMISSIONER KING: Absolutely and the 2

information and the approach that we‟re taking to 3

data at the State level today and through this 4

project would not be shared. The information 5

would only be available to that child‟s parent 6

and that child‟s teacher or the administrator of 7

that child‟s school. I would say, we know that 8

students who are chronically absent, often go 9

unnoticed. Unfortunately what happens in many 10

school districts, not just in New York, but 11

around the country, is that students have chronic 12

absences and it‟s not recognized and that 13

student, over time, particularly by school level 14

administrators, who might be able to ensure that 15

the student gets the support that they need. And 16

there‟s a lot of evidence that when students that 17

who are chronically absent, get support, the 18

support they need, whether it‟s a mental health 19

services or family services, that can be the 20

difference between that student getting back on 21

track, not just academically, but in terms of 22

their socioemotional health and wellbeing. So 23

it‟s important-- 24

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ASSEMBLY MEMBER O‟DONNELL: Right, but 2

the question-- 3

COMMISSIONER KING: for the school to 4

have that information. 5

ASSEMBLY MEMBER O‟DONNELL: is really 6

about opting-out though, Dr. King. Don‟t you 7

think a parent should be able to say that, I 8

understand that the Commack public schools has to 9

have this information. 10


ASSEMBLY MEMBER O‟DONNELL: I understand 12

the principal and the social worker and that 13

other stuff, I even understand that State Ed. 14

needs this information for purposes-- 15

COMMISSIONER KING: Right. 16

COMMISSIONER KING: --of calculating X, 17

Y or Z, but I don‟t want that information shared 18

beyond that and I want to opt-out of the inBloom 19

transfer. I don‟t trust that inBloom transfer. 20

I don‟t believe that this may not come back to 21

haunt them in some way and so I‟m choosing, which 22

is what my, Ms. Nolan and I, our bills say, I‟m 23

choosing either to not have my student‟s data at 24

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all in this or maybe even just one component of 2

the data is not going to be shared with inBloom. 3

COMMISSIONER KING: Right. But again, 4

it‟s not being shared. It‟s being stored with 5

one of the eight-- 6

ASSEMBLY MEMBER O‟DONNELL: Okay, they 7

don‟t want it stored with inBloom. 8

COMMISSIONER KING: But the problem is, 9

if you set up a system where individual parents 10

are saying, I do want my information shared with 11

Power School but not with inBloom. I want it 12

shared with Transportation-- 13

ASSEMBLY MEMBER O‟DONNELL: Who‟s Power 14

School? 15

COMMISSIONER KING: It‟s one of the many 16

third party providers that stores student 17

information. That, it is-- 18

ASSEMBLY MEMBER O‟DONNELL: Right, but 19

if you‟re, look if you-- 20

COMMISSIONER KING: an information 21

service provider. 22

ASSEMBLY MEMBER O‟DONNELL: I‟m going to 23

stay with Commack because that‟s where I grew up. 24

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So, if you go to school in Commack and the 2

Commack public schools decide they want to go 3

PowerPoint, or whatever that thing was called, 4

Powerball, whatever it was right? They decided 5

that they‟re going to do that and you as a parent 6

don‟t like what that is. You say, wait a minute, 7

you‟re sharing seventeen thousand things about my 8

kid and I don‟t want to. Right? There is power 9

there because there‟s a public school election, 10

they go in and they vote and they tell the School 11

Board, I want to change who the School Board is 12

because I don‟t think Powerball information, 13

you‟re sharing too much information. There‟s 14

power in that. But there‟s not power here across 15

the State to do it because individual parents, in 16

whatever other school district there is, if that 17

information is, they choose to do that 18

electronically because it‟s easier, that‟s fine 19

but if they then transfer that information to 20

somebody else, they lose control of that 21

information, right? 22

COMMISSIONER KING: The problem is that 23

all information that‟s stored electronically, 24

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typically involves today, some third party 2

provider and we‟d all agree it‟s important for 3

the school, the district, the State to have 4

attendance data and so that‟s going to involve 5

third party providers. The key thing is, what 6

are the security provisions in place? How do we 7

ensure that the data are protected throughout but 8

attendance data is a critical part of the 9

information that schools, districts and the State 10

need. 11

ASSEMBLY MEMBER O‟DONNELL: The point 12

I‟m making to you, Dr. King, is that I think that 13

is a parent‟s prerogative. The parent has the 14

right to say that. Now I don‟t, I never went to 15

a school, I had Delaney Cards like Ms. Nolan, 16

and, you know that information is in the 17

permanent records perhaps in the bowels of 18

Commack High School South, there is a record 19

about when I did and didn‟t show up. I don‟t 20

really know. But there‟s a lot of data out there 21

that, in this day in age, do you know that with 22

criminal records, that if you get arrested, there 23

are now companies that will find out that you 24

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were arrested, send a letter to your home saying 2

we have a arrest record for you and if you pay us 3

three hundred dollars a year, we‟ll squash it. 4

So this problem is not unique to education, it 5

exists in other forms of our life where our 6

ability to protect our privacy has not caught up 7

with the mechanisms that we use to store and 8

convey data, but in the end, I think that parents 9

ought to have a choice, in that, if a parent does 10

not wish their child to participate in that, that 11

they ought to be able to either, you ought to get 12

a permission slip from the parent or the parent 13

ought to be able to say I‟m choosing not to have 14

this data which you are required to collect 15

attendance records, I‟m choosing that you don‟t 16

send it to X. I think that they should have the 17

right to do that and I don‟t really understand 18

why you folks who run the State educationally 19

don‟t understand that, don‟t respect that and in 20

fact, don‟t endorse what that is, which is that 21

there may be times and circumstances for those 22

individual parents and those individual children, 23

that that option is what they feel is the only 24

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way to permanently protect their child. Thank 2

you. 3

ASSEMBLY MEMBER NOLAN: I want to let 4

Mr. Butler ask some questions. We have a great, 5

always have had a bipartisan approach to 6

education. Well, you know what, but so do some 7

of the other people and otherwise I have to, Didi 8

wants to go to, so you know what, Didi, you go 9

first then we‟ll go to Mr. McLaughlin. No, go 10

ahead. 11

ASSEMBLY MEMBER DIDI BARRETT: Are you 12

sure? 13

ASSEMBLY MEMBER NOLAN: Go ahead. Mm-14

hmm, mm-hmm. She, they came in together. I just 15

want to, go ahead. She has to go to so once we 16

start that we-- And I just want to say the 17

article Mr. O‟Donnell referenced, I‟m sure that 18

Commissioner you are familiar with it, it was in 19

the Times, October 2013 about what happened in 20

the Jefferson County, but, in the Colorado, but, 21

go ahead Assemblywoman Barrett. 22

ASSEMBLY MEMBER BARRETT: I just have a 23

quick follow up on that. I have two districts at 24

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this point in Dutchess County, which I know 2

you‟re familiar with, that have already, the 3

School Boards have voted to not take Race to the 4

Top money in order, and made the point of saying, 5

in order to protect and not be part of inBloom 6

and protect the privacy of their kids. I‟m not 7

sure whether the Superintendents are onboard with 8

that but this is what the School Board has done. 9

Can you tell me, in addition to, obviously, you 10

know, not getting that money, what will the 11

ramifications be for these districts and why do 12

you think these districts are choosing to take 13

this action at this point. 14

COMMISSIONER KING: In the, the primary 15

consequence is they lose the opportunity to 16

provide the dashboard service to their parents 17

and teachers and potentially absorb additional 18

costs that they will bear if they choose to 19

provide those dashboard services through some 20

other third party provider. That‟s the primary 21

consequence in addition to losing their Race to 22

the Top funds. Given there is a lot of 23

misinformation about the nature of data 24

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collection, what inBloom is, I think it is not 2

necessarily clear and we need to continue to make 3

clear to everyone that inBloom is not sell- is 4

not going to sell data, that data can‟t be used 5

for marketing purposes or research purposes. 6

There are people who believe that inBloom is a 7

for-profit company that‟s somehow profiting from 8

the data, when in fact, it is a nonprofit service 9

provider to the State. So, given there‟s a lot 10

of misinformation and we are working hard to try 11

to correct that. 12

ASSEMBLY MEMBER BARRETT: Thank you. 13

ASSEMBLY MEMBER NOLAN: Yeah, go ahead 14

Ellen. 15

ASSEMBLY MEMBER ELLEN JAFFEE: It‟s on? 16

Am I? 17

ASSEMBLY MEMBER NOLAN: Yeah, go ahead. 18

ASSEMBLY MEMBER JAFFEE: Okay, great. 19

Thank you. What I don‟t understand, when we 20

began discussing sharing, schools sharing 21

information at the State level so that the State 22

could have data to be able to review what‟s 23

happening in our school districts and provide 24

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support or, in a variety of ways. But, I don‟t 2

understand why the names of each child needs to 3

be attached any of this data. If a school 4

district is going to forward information about 5

the success or the lack of success of the 6

students within their population, why do we need 7

to understand every biographical feature of every 8

student and their name being provided as well? 9

Why not just an overall understanding of the 10

tests scores, let‟s say on Regents Tests or on 11

some of the other tests, success rate of college, 12

college access, failure in a variety of ways of 13

the school itself, so that we can, you know, 14

review what‟s going on in the school, provide the 15

kind of support, hopefully we‟re looking at it 16

that way, in a positive way, provide the kind of 17

support that many of our schools need, especially 18

in the high need poverty areas, rather than spend 19

all this money and time on creating a data system 20

that is biographical on every single student that 21

is absolutely unnecessary as far as I‟m concerned 22

as a student, as a teacher can walk in to the 23

school, in to the guidance counselor‟s office and 24

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have access immediately to any kind of document 2

and the numbers of, what the, how the student is 3

doing in the classroom or visit with the, their 4

teachers. It just seems to me it imposes a cost 5

that‟s unnecessary, that over time is going to 6

obviously, you know, cost our schools even more 7

as well as the danger of the lack of security, a 8

breach in security, which we have seen throughout 9

this nation happening as well as throughout the 10

world. The breaches in security and therefore 11

the access to private information that we‟re all 12

finding very uncomfortable now, in terms of what 13

is possible and what has happened. So those are 14

a couple of things that I have concern about. 15

My understanding is that exhibit C of the Shared 16

Learning Collaborative Memo of Understanding 17

States that I, “If a school district decides they 18

no longer wish to use the Shared Learning 19

Infrastructure System, they may request that the 20

district data be deleted from the Shared Learning 21

Infrastructure Data Store”. Does, how does this, 22

that‟s, how does that impact and effect the 23

districts? Will their information be deleted? 24

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Can they actually not provide the information if, 2

I don‟t understand, if they‟re not in Race to the 3

Top, why do they have to provide the information. 4

So, I don‟t quite-- 5

ASSEMBLY MEMBER NOLAN: That‟s good. 6

ASSEMBLY MEMBER JAFFEE: understand that 7

-- 8

ASSEMBLY MEMBER NOLAN: And Ellen, what 9

I want-- 10

ASSEMBLY MEMBER JAFFEE: And what you‟re 11

suggesting is that they still will have to be a 12

part of it? 13

ASSEMBLY MEMBER NOLAN: It‟s a good, 14

very good question, I want to get the answer, I 15

just want to ask you, when he finishes, we‟ll 16

just run over to our other side because they have 17

to leave, so yes, go ahead. It‟s a critical 18

question, we talked about it a little earlier 19

but, it‟s a critical question-- 20


ASSEMBLY MEMBER NOLAN: that she just 22

asked and I think we‟d like it, both our 23

colleagues really raised it so-- 24

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DEPUTY COMMISSIONER WAGNER: So, thank 2

you. So some of the requirements that 3

necessitate collecting data involves more 4

information than just test scores, for example, 5

for Federal accountability purposes, we have to 6

calculate various things including the 7

comparisons of student subgroups, so for example, 8

we need demographic information about students so 9

we can evaluate whether or not there are 10

achievement gaps that need to be addressed. Some 11

of the Federal rules require information about 12

when a student entered school or for students 13

with disabilities, some of those rules are based 14

on dates of birth as opposed to dates of entry in 15

to school, so a lot of Federal requirements 16

require more detailed information than at first 17

glance would appear to be necessary. What we do 18

know is that when we collect data in aggregate, 19

just give me the number, tell me the number of 20

disabled students that you‟re servicing, the data 21

quality is never as high as when you have to 22

report data student by student. Because the 23

number, you know, 40 students with disabilities 24

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has to be driven up from 40 different students 2

that are reported and in the 2007-2008 school 3

year, we actually went from an aggregate only 4

reported system, for students with disabilities, 5

to a student level system and it was primarily 6

for that purpose. Because the Federal Government 7

was auditing these data, because lots and lots of 8

funding decisions were made based on these data, 9

we needed to put all the supports in place to 10

makes sure that the data were complete and 11

accurate and one of the reasons why names are 12

required, if you‟re a building principal and 13

you‟re asked at the end of the school year to 14

sign-off on your data, that is a daunting task 15

and if we withheld student names and just asked 16

principals to sign-off on your data where you had 17

to crosswalk a number, if they have 700 students 18

in that school, I was a Principal in a middle 19

school with 700 students, if I had to look at 700 20

numbers and try to figure out who those kids 21

were, it would be even more daunting. 22

ASSEMBLY MEMBER NOLAN: But the question 23

my colleagues keep asking is, if you decide, as 24

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they did in the, Colorado, you know, in that 2

article in the Times or if they decide in 3

Dutchess County or if they decide in Rockland 4

High, they don‟t want it-- 5


ASSEMBLY MEMBER NOLAN: they don‟t want 7

it. They heard everything you had to say and the 8

parents are still unhappy and they don‟t want it. 9

DEPUTY COMMISSIONER WAGNER: Yep. So 10

when-- 11

ASSEMBLY MEMBER NOLAN: I get it that 12

you feel there are challenges that the school 13

would face but are there penalties? Do you lose 14

State Ed.? Do you lose Special Ed. money? I 15

mean is there a consequence that‟s negative for 16

choosing not to march forward in this glorious 17

vision that this company has managed to sell the 18

Federal Government? 19

COMMISSIONER KING: So if they‟re to 20

distinguish between the dashboard project and 21

overall State data collection, districts have to 22

provide all the data elements that the State 23

collects for various State and Federal-- 24

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ASSEMBLY MEMBER NOLAN: But there‟s 2

[unintelligible] [1:23:10.0] get that done. 3

COMMISSIONER KING: --purposes and we 4

store all of those. 5

ASSEMBLY MEMBER NOLAN: We get that. 6

COMMISSIONER KING: So when a district 7

says, we don‟t want to send data, they can‟t say 8

well we don‟t want to send our attendance data or 9

our enrollment data and so forth, all of that 10

data is required to be collected by the State. 11

In terms of the dashboards, if a district isn‟t 12

using a dashboard, no one has access to the 13

information except in the aggregate, so district 14

A and district B are neighboring districts, 15

district A isn‟t participating in the dashboard 16

project, no one can access districts A‟s data 17

except when district B looks at their student‟s 18

performance versus the rest of their BOC‟s or 19

county. They can see the aggregate data from 20

district A. 21

ASSEMBLY MEMBER NOLAN: But there are 22

no, let me see if I can, there are no financial 23

penalties or sanctions to the district in 24

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Dutchess or Rockland that says thank you but no 2

thanks. 3

DEPUTY COMMISSIONER WAGNER: If 4

districts, if-- 5

ASSEMBLY MEMBER NOLAN: Okay, just 6

[unintelligible] [1:24:04.3] hang on. Do they 7

still have to-- 8

DEPUTY COMMISSIONER WAGNER: Districts 9

are required to send the data and we collect the 10

data separate from this Engage New York Portal 11

process-- 12

ASSEMBLY MEMBER NOLAN: I understand-- 13

DEPUTY COMMISSIONER WAGNER: So the-- 14

ASSEMBLY MEMBER NOLAN: we‟re not asking 15

the question. Let me see if I can, for my 16

colleagues, try to as Chair, no one is saying 17

that the district is not complying with what‟s 18

currently required for attendance and other 19

things. 20

DEPUTY COMMISSIONER WAGNER: Mm-hmm. 21

ASSEMBLY MEMBER NOLAN: You‟re saying 22

that your, this system will replace those older 23

things, so you have no choice but to give it the 24

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data? 2

COMMISSIONER KING: The data, this 3

project, the Portal Project, is being used for a 4

number of purposes, some for the districts to 5

provide the dashboard, some for the State to 6

conduct it‟s program monitoring responsibility-- 7

ASSEMBLY MEMBER NOLAN: So you‟re 8

switching to this system? Is that the-- 9

COMMISSIONER KING: For some purposes. 10


COMMISSIONER KING: For some purposes. 12

ASSEMBLY MEMBER NOLAN: So alright so 13

attendance has been, the State has to-- 14


ASSEMBLY MEMBER NOLAN: Dutchess sends 16

in its attendance statistics now, I guess they‟ll 17

send it in a new way, but the fear and the thing 18

that‟s been expressed to us is that the districts 19

are forced to, you know, there are 400 data 20

points inBloom they‟re forced to do it all. In 21

other words, they can‟t pick and choose. 22


ASSEMBLY MEMBER NOLAN: They don‟t want 24

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it, but they understand they have the certain 2

traditional things that have been sent in the 3

past, they‟re going to continue to comply but 4

they don‟t want it. 5

COMMISSIONER KING: Right, so the-- 6

ASSEMBLY MEMBER NOLAN: So what happens 7

to them? 8

COMMISSIONER KING: The data elements 9

that are part of this project are data elements 10

we already collect. This is just a subset of the 11

data elements we collect. We‟re not collecting 12

new data from districts. These are data that we 13

already collect. 14

ASSEMBLY MEMBER NOLAN: But I want to 15

say that‟s at odds with everything else everyone 16

has said because you said that there‟s going to 17

be all kinds of new data that will make people be 18

more efficient and more effective and more cost 19

effective so there has to be something new. 20

COMMISSIONER KING: The two-- 21

ASSEMBLY MEMBER NOLAN: There‟s 400 data 22

points, right now it‟s only an attendance thing 23

that‟s sent in. 24

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COMMISSIONER KING: No, no, so, a few 2

things. The 400 data points are actually a 3

smaller number of categories of data where there 4

are multiple elements and so-- 5


COMMISSIONER KING: So-- 7

ASSEMBLY MEMBER NOLAN: But there‟s a 8

lot of information. 9

COMMISSIONER KING: So for example, the 10

school type, I think has 18 elements to it but 11

it‟s really one data point. The, what‟s new 12

about the dashboard project is for parents and 13

teachers to be able to access the information 14

through the portal, not the collection of the 15

data. 16

ASSEMBLY MEMBER NOLAN: Right, but what 17

happens to the district that doesn‟t want to 18

play? 19

DEPUTY COMMISSIONER WAGNER: So if a 20

school districts-- 21

ASSEMBLY MEMBER NOLAN: They don‟t want 22

to do it. 23

DEPUTY COMMISSIONER WAGNER: If a school 24

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district says, I want to collect and report the 2

data but I don‟t want our teachers or our parents 3

or our students to actually use the data, that 4

will be a district prerogative. 5

ASSEMBLY MEMBER NOLAN: And what if they 6

say they don‟t want to collect and give to you 7

and a private, it‟s not you, it‟s inBloom, it‟s a 8

company, it‟s not, you know, ten Bureaucrats at 9

State Ed. who have worked there for 30 years, 10

it‟s a company that refused to testify at a 11

public hearing because they could get away with 12

that, right? So it‟s different. You couldn‟t 13

really say no to us, you‟re a State Agency, you 14

got to come. I mean-- 15


ASSEMBLY MEMBER NOLAN: maybe you don‟t 17

like it, but you have to come. We, there‟s a lot 18

of things have to do in State Government and the 19

Legislature we don‟t like, but we‟re public 20

people, we have to do it. These people didn‟t 21

have to do that. They said, see yah. So, I now, 22

I‟m a school district and I say, gee I read that 23

article about Jefferson, I don‟t like it. We 24

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vote no, we don‟t want to send all that data. 2

DEPUTY COMMISSIONER WAGNER: Right. 3

ASSEMBLY MEMBER NOLAN: We don‟t just 4

want to not let our people see it, we don‟t want 5

to send it. We only want to send what we used to 6

send. What happens to that district? Am I 7

asking the question the way you, my colleagues 8

wanted to ask, am I spitting it out the way it, 9

alright, well, we‟re going to give them the 10

opportunity to answer it Tom. 11

COMMISSIONER KING: So there‟s, again 12

the data that are being sent to inBloom are data 13

that are already sent by the district to the 14

State and stored with third party providers. 15

ASSEMBLY MEMBER NOLAN: I get that John. 16

COMMISSIONER KING: Alright, so-- 17

ASSEMBLY MEMBER NOLAN: I get that. 18

COMMISSIONER KING: inBloom is one of 19

the third party providers that, with which, the 20

data will be stored. So even if a district says 21

they do not want to participate in the inBloom 22

Portal Project, data from that district will be 23

still be a part of the data set, the subset of 24

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data, that will go to inBloom but it will only be 2

accessed-- 3

ASSEMBLY MEMBER NOLAN: Wait, how could 4

that be? 5

COMMISSIONER KING: Because, for 6

example-- 7

ASSEMBLY MEMBER NOLAN: They say no. 8

They‟re a district in Westchester, they say no, 9

we‟re not doing it. 10


ASSEMBLY MEMBER NOLAN: We have local 12

control of schools, we‟re not doing it. How do 13

the, how is the data still sent? 14

COMMISSIONER KING: Because the data are 15

State data that are collected for State purposes. 16

They don‟t have to send additional local data but 17

the State data are collected now and stored with 18

third parties. It couldn‟t be that a district 19

could say, the State can store data with this 20

third party provider but that, but not that third 21

party provider. But the key thing is that that‟s 22

districts information, if they‟re not providing 23

the parent portal or the teacher portal, the only 24

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access to that data will be by the State or 2

aggregate data that we, that might be reported. 3

ASSEMBLY MEMBER NOLAN: Okay, so let me 4

just walk through this so I understand it. 5


ASSEMBLY MEMBER NOLAN: And then I know 7

Mr. Bokman‟s, Mr. Butler wants, even we‟ll let 8

Mr. McLaughlin go, but, things change, you know, 9

data was sent. Maybe parents didn‟t even know 10

data was sent. Now The New York Times writes 11

this wonderful story, there‟s three TV things, 12

advocacy groups are going, new people get elected 13

to a School Board. They say, you know what, we 14

think we‟ve gone too far in this area. We don‟t 15

really think State Ed. needs to know the last 16

time the child went to the bathroom, so we‟ve 17

decided we‟re opting-out. We‟re the new team, we 18

won election to School Board A and we‟re going 19

to, we‟re going to take a step back. We‟re 20

concerned about breaches to privacy. We‟re going 21

to take a step back. That‟s not an unreasonable 22

thing to, that could happen. What happens to 23

that school district then, under this system? 24

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COMMISSIONER KING: The-- 2

ASSEMBLY MEMBER NOLAN: What happened 3

last year if a school district decided to do it? 4

But you know, things change-- 5


ASSEMBLY MEMBER NOLAN: you know, people 7

initially sometimes with the computers, people 8

are like alright, you know, now people are seeing 9

the other side of the coin, gee there‟s a data 10

breach, there‟s this and that, so a new School 11

Board‟s elected in, where are you from, Herkimer, 12

a new School Board‟s elected in Herkimer County. 13

They say, you know what, we think we‟ve gone too 14

far, throw the other guys out. We don‟t want to 15

do any of this. What happens to them? Or and if 16

that had happened five years ago, what would 17

happen to them? Did happen to them. 18

COMMISSIONER KING: School district, all 19

the data elements that are required by the State 20

are required by Federal, State Law regulation. 21

We use the data to run State Aid calculations. 22

We use the data to secure the Federal Funds for a 23

variety of purposes for the State. Districts 24

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can‟t opt-out of providing the data elements that 2

are required under a variety of Federal and State 3

Laws and Regulations. 4

ASSEMBLY MEMBER NOLAN: So, you have no 5

choice is what you‟re telling us? 6

COMMISSIONER KING: We have a set of 7

data that we have to collect for variety of 8

purposes-- 9


COMMISSIONER KING: whether it‟s to 11

report information for the State-- 12

ASSEMBLY MEMBER NOLAN: But, but it, 13

but-- 14

COMMISSIONER KING: or for the Federal 15

Government. 16

ASSEMBLY MEMBER NOLAN: five years ago, 17

you, in other words, do you have to give it then, 18

if you choose not to give it to inBloom, as a 19

district? 20

COMMISSIONER KING: Alright, so the, 21

again the distinction is between, data management 22

generally and these portals. So no, a district 23

does not have to have a data dashboard. If they 24

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don‟t use the service that the State is 2

providing-- 3

ASSEMBLY MEMBER NOLAN: Mm-hmm. 4

COMMISSIONER KING: with inBloom but 5

they want to have a data dashboard, they are 6

contracting with another third party to provide 7

that. 8

ASSEBMLY MEMBER NOLAN: You know, I 9

think there‟s going to be, I want to make you 10

both aware, I think there‟s going to be a move in 11

the Legislature to look and examine those laws 12

and see whether people have a little more rights 13

than you guys seems to think that they have at 14

the district level because there‟s definitely a 15

lot of parents looking at the other side of the 16

coin. Information is power and information is 17

great and I understand. I listen how sincere and 18

what you think you‟re going to accomplish, but a 19

lot of people are very nervous and it‟s their 20

children. I always tell you this, I must have 21

said this to Mayor Bloomberg a thousand times, 22

when you‟re a modest person, your child is your 23

treasure and you do not want to feel that 24

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anything you do as a mother, as a parent, as an 2

uncle, as a family member, as a School Board 3

Member, puts that child at risk for some harm. 4

Now, it‟s one thing to say in New York State, we 5

want you to be vaccinated. We have parents that 6

don‟t want to do that right? But we‟ve got a lot 7

of data and a lot of science that says you know 8

what, you‟re a public health risk, you must do 9

that. Yeah, I have parents coming to me all the 10

time, they don‟t want their kids vaccinated, I 11

have, I have always been pro-vaccination. I 12

won‟t, I tell them we‟re not going to do bills to 13

do that because the risk is so great of more harm 14

but this is not a health issue. This is just 15

information. And the risk of information that 16

hurts your kid, you know, I‟m sitting here 17

listening to it, I‟m getting a little more 18

anxious than I was when we first starting talking 19

about it. So I think, I understand what you‟re 20

saying but I think there‟s going to be, I see it 21

here, we have all these Members here, there‟s a 22

growing body of concern and I think you have to 23

start to recognize that in what you‟re doing here 24

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because otherwise, just like what happened in 2

Colorado, the whole thing is over there, gone. 3

Sometimes when you overreach, you fall. So, I 4

think we have to really look at this in a very, 5

very systematic way. I want to let Mr. Butler, 6

just to make a Statement but I‟m hearing it and I 7

hope you‟re hearing it. I hope your 8

understanding. Did you want to respond? 9

COMMISSIONER KING: I just want to 10

emphasize that I share your concern about student 11

data security and about data privacy. We are 12

happy to work with the Legislature and with other 13

States to find ways to increase data security and 14

data privacy. But there is a set of information 15

that is necessary for the good functioning of 16

schools, districts, States and what we have to do 17

together is ensure that it‟s as safe as possible. 18

ASSEBMLY MEMBER NOLAN: Private schools 19

don‟t have to do this and Charter schools don‟t 20

have to do this right? 21

COMMISSIONER KING: Charter schools are 22

participating in Race to the Top and are choosing 23

portals or not if they‟re not participating in 24

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Race to the Top. 2

ASSEBMLY MEMBER NOLAN: Can they opt-3

out? 4

COMMISSIONER KING: No, the information 5

that‟s collected by the State is held by the 6

State. 7

ASSEBMLY MEMBER NOLAN: And private 8

schools? 9

COMMISSIONER KING: There are, private 10

schools are not participating in the Portal 11

Project but there is information that is 12

collected from nonpublic schools that is held by 13

the State, some of which involves third parties. 14

ASSEBMLY MEMBER NOLAN: Eight fifty 15

three schools? 16

COMMISSIONER KING: Again, I don‟t think 17

participating in the Portal Project but Special 18

Acts are participating in the Portal Project. 19

ASSSEMBLY MEMBER NOLAN: Forty two oh 20

one schools? Special Acts Schools? 21

COMMISSIONER KING: Special Acts Schools 22

are. 23

ASSSEMBLY MEMBER NOLAN: Eight fifty 24

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three no? 2

COMMISSIONER KING: Eight fifty three‟s 3

I don‟t believe are, have access to the portal 4

currently but we‟ll double check that. 5

ASSSEMBLY MEMBER NOLAN: Alright, so we 6

want to know about 4201, 853, Special Acts, 7

that‟s [unintelligible] [1:34:15.2]. Yes, Mr. 8

McDonald. Get a lot, get a lot of it. 9

ASSEMBLY MEMBER JOHN MCDONALD, III: 10

Yeah, a lot a, a lot a-- 11

ASSSEMBLY MEMBER NOLAN: You got a 12

little Irish section. You have Mr. McLaughlin 13

here. 14

ASSEMBLY MEMBER MCDONALD: You got a 15

little Irish section here. Commissioner King and 16

Deputy Commissioner Wagner. I apologize to 17

everybody that I have to leave, but it‟s actually 18

education related, I‟m teaching a college course 19

at Schenectady County. I have to-- 20

ASSSEMBLY MEMBER NOLAN: Which is really 21

a thought [unintelligible] [1:34:32.5]. 22

ASSEMBLY MEMBER MCDONALD: Yeah I have 23

to go teach that and I‟m glad every day that the 24

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colleges are not part of this Common Core but a 2

couple a questions for you. Can you give me a 3

number, has any money changed hands between the 4

State of New York and inBloom or is this all 5

being funded so far by the Gates Foundation? 6

COMMISSIONER KING: InBloom is funded 7

through philanthropy. The portals, the 8

dashboards, those are part of Race to the Top 9

contracts with the State-- 10

ASSSEMBLY MEMBER MCDONALD: That‟s the 11

700 million? 12

COMMISSIONER KING: It‟s a portion. 13

ASSSEMBLY MEMBER MCDONALD: 14

Approximately. 15

COMMISSIONER KING: The total on the 16

portal project is roughly 50 million. 17

ASSSEMBLY MEMBER MCDONALD: So the Gates 18

Foundation is funding inBloom, right? 19

COMMISSIONER KING: Among other 20

foundations, yes. 21

ASSSEMBLY MEMBER MCDONALD: Okay. 22

COMMISSIONER KING: Along with the 23

Carnegie Foundation. 24

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ASSSEMBLY MEMBER MCDONALD: Any idea 2

when that funding runs out or is this just in 3

perpetuity, that Bill Gates is going to fund 4

inBloom. 5

COMMISSIONER KING: In December of 2014, 6

inBloom will shift to needing to have an 7

alternative funding source to the philanthropy to 8

support the service, as Ken described, there‟s a 9

structure by which the service will be subsidized 10

by the Portal Project itself. So if people are 11

using the dashboards and the dashboards are 12

running off inBloom, that will be a mechanism to 13

sustain inBloom at a lower cost than districts in 14

New York and around the country are today paying 15

for such data dashboard tools. 16

ASSSEMBLY MEMBER MCDONALD: So, we‟re 17

roughly a year away from the funding, the 18

philanthropic funding, running out? 19

COMMISSIONER KING: For the inBloom 20

service, although we and, and New York have a 21

plan to provide the dashboard access for longer, 22

that‟s subsidized by the State, but ultimately 23

districts will have to decide and the State will 24

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have to decide whether the dashboards are of 2

sufficient value to continue funding once the 3

Race to the Top funding ends. 4

ASSSEMBLY MEMBER MCDONALD: And at what 5

cost to the State will that be? Do we have a 6

number on that yet? 7

COMMISSIONER KING: Again, that was the 8

process that Ken described earlier but Ken, you 9

can describe it again. 10

DEPUTY COMMISSIONER WAGNER: The number 11

for the dashboards contracts? 12

ASSSEMBLY MEMBER MCDONALD: Right, going 13

forward, what‟s this going to cost the people of 14

New York, once we get past December of 14, a year 15

from now basically, what is the number going to 16

be to the people of New York and that will be a 17

year after years basis, I would assume. 18


we would use, for the dashboard projects, which 20

includes the inBloom services, we would continue 21

to use Federal funds for that. If after the 22

dashboard projects is over and after Race to the 23

Top is over, if the State wants to continue to 24

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help school districts, it‟s called Authentication 2

Identity Management, to figure out how to provide 3

secure tools, separate from inBloom, just secure 4

tools to teachers and to students and to 5

families. If that was a valuable service that 6

the State provided, again completely separate 7

from inBloom, then that‟s something that State 8

dollars would have to continue to fund. But the 9

Race to the Top, inBloom, Engage New York Portal 10

Project will be solely funded with Federal Funds. 11

ASSSEMBLY MEMBER MCDONALD: But I‟m 12

asking what those State dollars are and you don‟t 13

have a number? 14

DEPUTY COMMISSIONER WAGNER: On the 15

identity side separate from, that‟s something we 16

are still working out. 17

ASSSEMBLY MEMBER MCDONALD: Okay and you 18

talked briefly about penalties if data is 19

breached but you don‟t know how much even though 20

this is a, this is about student data security 21

and information but you don‟t have a number for 22

us about what those penalties are, if in fact, 23

data is breached right? 24

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DEPUTY COMMISSIONER WAGNER: I just 2

don‟t recall the numbers that are in the 3

agreement. 4

ASSSEMBLY MEMBER MCDONALD: I‟d like 5

that to be-- 6


ASSSEMBLY MEMBER MCDONALD: reported to 8

this Committee so that the people know what those 9

penalties are. And how is the student made whole 10

if their data is breached. The penalty, we don‟t 11

even know if there‟s a monetary penalty yet, but 12

how is that student made whole if their data is 13

breached because once it‟s out there, it‟s out 14

there and specifically I want to talk to you 15

about, you, do you know about the Sachem School 16

District down in Long Island? Was there a data 17

breach? 18

DEPUTY COMMISSIONER WAGNER: My 19

understanding is that somebody-- 20

ASSSEMBLY MEMBER NOLAN: Wait, wait, 21

wait, wait, we don‟t know-- 22

DEPUTY COMMISSIONER WAGNER: Oh, I‟m 23

sorry. 24

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ASSEMBLY MEMBER NOLAN: what you‟re 2

talking about? 3

ASSSEMBLY MEMBER MCDONALD: Well, it was 4

an article-- 5

ASSSEMBLY MEMBER NOLAN: We kind of do, 6

but why don‟t you elaborate [unintelligible] 7

[1:38:21.0]. 8

ASSSEMBLY MEMBER MCDONALD: Yeah, 9

there‟s an article, an article talking about 10

police and the school district investigating a 11

hacker being able to access and this is data that 12

you said repeatedly is triple, double encrypted. 13

Was there, looking in to a possible data leak, 14

where a hacker was able to access and leak to a 15

web forum, personal student data including 16

medical and disciplinary records. To your 17

knowledge, did that occur in the Sachem school 18

district? 19

DEPUTY COMMISSIONER WAGNER: To my 20

knowledge the data were not hacked, but someone 21

who had access to the data chose to post those 22

data in a public forum so that was a malicious 23

act by someone who had, my understanding, had a 24

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legitimate access to the data, who then chose to 2

break that confidentiality. 3

COMMISSIONER KING: And to be clear, the 4

Sachem incident involved Sachem data that‟s held 5

at the district level. That was not us, that was 6

not part of the State data system. 7

ASSSEMBLY MEMBER MCDONALD: Nothing to 8

do with inBloom? 9


DEPUTY COMMISSIONER WAGNER: No. 11


Alright, going forward you said that school 13

districts would have the option of whether to 14

continue these portals or not. What‟s the plan 15

for, if they‟re going forward, are you saying 16

that‟s going to all be funded by the State? Is 17

that the idea? Because my question was going to 18

be how are less affluent school districts going 19

to be able to afford to fund this? 20

DEPUTY COMMISSIONER WAGNER: So that, 21

that‟s exactly the challenge that we‟re trying to 22

figure out. When the State no longer has the 23

funds to provide these kinds of tools, can we at 24

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least make some investments now in the underlying 2

system so when State dollars go away, it becomes 3

easier for less affluent school districts to use 4

their own dollars to do this. If we just 5

provided a dashboard tool for a period of two 6

years and then everything went away without 7

trying to struggle with these underlying system 8

functions, then less affluent districts would be 9

no better off than they were before we had Race 10

to the Top so what we‟re trying to do is make 11

investments, so when our dollars go away, we‟ve 12

changed the landscape within which they operate 13

so they‟ll be able to make their dollars go 14

farther. 15

ASSSEMBLY MEMBER MCDONALD: Thank you. 16

And I‟d read that there was a, about a, at least 17

a dozen parents down in the New York City area 18

that have sued and sought a restraining order to 19

protect data. Do we have an outcome on, has that 20

gone to Court yet? Is there any outcome on 21

that? 22

DEPUTY COMMISSIONER WAGNER: Yes. So 23

that is ongoing litigation and-- 24

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ASSSEMBLY MEMBER NOLAN: I know you have 2

to go but if you, if you can stay while we finish 3

up, we have some people involved [unintelligible] 4

[1:40:46.3]. 5

ASSEMBLY MEMBER MCDONALD: I wish I 6

could, but I‟m going to have a classroom full of 7

student with nobody to talk to but I, but I will 8

be, I‟ll be watching this, you know, I‟ll watch 9

the entire recording but thank you. So, we‟ll, 10

if parents are, you know, school districts, some 11

school districts are now writing to inBloom 12

directly and they‟re requesting that their 13

student records be deleted. Is inBloom honoring 14

that request and how do we prove whether they are 15

or they are not? 16

COMMISSIONER KING: InBloom is directing 17

those requests to the State. The, inBloom is a, 18

one of many third party providers that‟s used by 19

this State for data projects. It‟s the State 20

that has that responsibility to manage the data 21

system and as we‟ve described, the data elements 22

that we collect are required by a variety of 23

Federal and State Laws and Regulations. 24

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ASSSEMBLY MEMBER MCDONALD: So that 2

answer would be that they‟re not honoring that 3

request-- 4

COMMISSIONER KING: They‟re, an, any-- 5

ASSSEMBLY MEMBER MCDONALD: that their 6

student data be deleted. 7

COMMISSIONER KING: any communications 8

to inBloom are referred to the State. If a 9

parent was requesting to not have the State hold 10

the data that the State is required to hold, we, 11

that‟s a request that could not be honored. 12


Alight. Thank you so much. I appreciate the 14

time. 15

ASSSEMBLY MEMBER NOLAN: Well thank you. 16

Ms. Fahy, we‟re going to start with Fahy and then 17

Mr. Abinanti and Mr. Zebrowski and Mr. Butler, if 18

you want to, yes [unintelligible] [1:42:00.6]. 19

ASSSEMBLY MEMBER NOLAN: Alright, Ms. 20

Fahy. 21

ASSEMBLY MEMBER PATRICIA FAHY: Thank 22

you. Thank you for hosting this Ms. Nolan. And 23

thank you for being here. I have a few questions 24

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and I just want to follow up on a couple of 2

things that were already Stated. One of the 3

things, I represent four different school 4

districts, and one of the things that I‟ve heard 5

from my school districts is that they see this as 6

yet another unfunded mandate that when the State 7

funding, you know, set aside the privacy 8

concerns, which I‟m also hearing a lot about as 9

well, but just funding issues for right now. 10

They see it as a duplication of effort because 11

the school districts I represent already have a 12

number of data systems in place and so they see 13

this as an unfunded mandate and they‟re not sure 14

what they‟re going to be on the hook for. Now 15

you just mentioned that you‟re trying to save 16

monies but I‟m not sure our school district has 17

even been told what they‟re on the hook for, so I 18

think what you‟re saying from the previous 19

questions, from Mr. O‟Donnell, is that school 20

districts, school districts essentially have no 21

choice right now, right? And in less than two 22

years, they‟re going to be financially on the 23

hook for this. When will they know how much 24

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they‟re on the hook for and how, how is this not 2

another unfunded mandate if they already have so 3

many systems in place? 4

COMMISSIONER KING: So I will respond to 5

that question then I actually have to, I have to 6

leave, as you know, to get to Skrin [phonetic] 7

Lake, so there‟s no new mandated activity here. 8

The data elements that are collected are data 9

elements that the State already collects. A, the 10

only obligation under Race to the Top for a 11

district, is to select one of the three 12

dashboards and provide passwords, secure 13

passwords so that their teachers, administrators 14

or parents could access the dashboard. If they 15

don‟t like the dashboard and they prefer a portal 16

that they already use, they‟re not obligated to 17

use the State provided dashboard. And at the end 18

of the, at the end of Race to the Top, they‟re 19

not obligated to continue to use the State 20

provided dashboard if they don‟t want to. 21

ASSEMBLY MEMBER FAHY: Dr. King, that‟s 22

not the way it‟s been presented to the school 23

districts. They‟ve, the way it‟s been told to 24

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me, is that they must participate and that they 2

will be liable for the funding once your Federal 3

Funding goes away. 4

COMMISSIONER KING: That-- 5

ASSEMBLY MEMBER FAHY: They‟re saying if 6

they just say okay, we‟ll give you whatever data 7

we now provide you and then they can go on and 8

continue to use the data systems that they have 9

in place-- 10

COMMISSIONER KING: Yep. 11

ASSEMBLY MEMBER FAHY: and essentially 12

not be on the hook for any additional funds if 13

they don‟t want any of these three options that 14

you talked about? 15

COMMISSIONER KING: Yes. The dashboards 16

are provided as a resource. They, again, 17

they‟re, the districts obligation was to select 18

one of the three dashboards to distribute unique 19

identifiers, unique passwords for people to 20

access and try out the dashboard but if they 21

don‟t want to use the State provided dashboard, 22

they don‟t have to and if they‟re, if they don‟t 23

want to continue the dashboard after the end of 24

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Race to the Top, they don‟t have to. 2

ASSEMBLY MEMBER FAHY: And is there any 3

penalty for not participating? 4

COMMISSIONER KING: There‟s no penalty. 5

ASSEMBLY MEMBER NOLAN: You, and I hate 6

to, I didn‟t realize the Commissioner said he has 7

to leave [unintelligible] [1:45:22.6]. The 8

Deputy Commissioner is staying so we‟ll, I want 9

to let everybody, I apologize for-- 10

ASSEMBLY MEMBER FAHY: Okay. 11

ASSEMBLY MEMBER NOLAN: cutting you a 12

little short but [unintelligible] [1:45:30.0]. 13

ASSEMBLY MEMBER FAHY: Okay. I have one 14

more, but that‟s-- 15

ASSEMBLY MEMBER NOLAN: If you could 16

just give us a couple more minutes and let the 17

three members that didn‟t get a chance to speak 18

yet, I just, if you could just try to make a 19

quick thing-- 20

ASSEMBLY MEMBER FAHY: Okay, thank you. 21

ASSEMBLY MEMBER NOLAN: Marc did you 22

have anything? 23

ASSEMBLY MEMBER MARC BUTLER: Yeah. 24

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ASSEMBLY MEMBER NOLAN: I apologize Pat, 2

I know-- 3

ASSEMBLY MEMBER BUTLER: Thank you. 4

ASSEMBLY MEMBER NOLAN: I didn‟t 5

realize. Just pick it up on that, yes. 6

ASSEMBLY MEMBER BUTLER: Thank you very 7

much Madam Chairman and I will be brief. I just 8

have a couple questions. First of all, in your 9

presentation, you began with the reality that, 10

that the Board of Regents had encouraged this 11

whole reform movement, has there been any 12

reaction or response from the Board of Regents? 13

I think you‟ve got a pretty clear indication from 14

both the minority and the majority here, the 15

direction the Legislature seems to be moving on 16

this. Has there been any indication from the 17

Board of Regents whether they‟re reconsidering 18

this whole inBloom or are they, has there been 19

any dialogue with them? 20

COMMISSIONER KING: We‟ve reviewed this 21

project with the Board of Regents consistently in 22

public meetings for four years. As we began the 23

work on Race to the Top, developed the strategy 24

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that resulted in the Engage New York Portal plan, 2

as we have developed the relationship with 3

inBloom and the strategy on the portals and we 4

continue to provide regular updates to the Board 5

on that. 6

ASSEMBLY MEMBER BUTLER: It just seem, 7

it occurs to me and as the discussion has 8

unfolded here, you‟ve said other States that 9

began this with apparently some enthusiasm have 10

dropped by the wayside or are now expressing 11

interest rather than full scale cooperation. 12

It‟s my belief from everything I‟ve read and come 13

to understand that their concern is around this 14

security. I guess my question is what do we here 15

in New York seem to know or not know that 16

everybody else, why are we buying in to this so, 17

you know, so greatly when every other State seems 18

to be having some real serious questions. 19

What‟s-- 20

COMMISSIONER KING: Well as Ken 21

described, New York was better positioned to 22

launch this project because of work that has been 23

done over the last decade around data management, 24

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data security, data protocols between districts 2

and the State over the last decade. We are, 3

again, very committed to data privacy and data 4

security, have ensured that all of the contracts 5

that are a part of this project reflect those 6

data privacy and data security priorities, have 7

clear polices and consequences and we‟ll continue 8

to, and we‟ll continue to monitor that, monitor 9

that very closely as we move forward. 10

ASSEMBLY MEMBER BUTLER: Okay. One, 11

just one final question. 12

ASSEMBLY MEMBER NOLAN: The Deputy 13

Commissioner‟s going to stay [unintelligible] 14

[1:48:00.7]-- 15

COMMISSIONER KING: I can stay 16

[unintelligible] [1:48:01.9]. 17

ASSEMBLY MEMBER NOLAN: Ken and-- 18

ASSEMBLY MEMBER BUTLER: Okay. 19

ASSEMBLY MEMBER NOLAN: Mr. Abinanti 20

have their moment too. 21

ASSEMBLY MEMBER BUTLER: But one final 22

question and then I‟ll certainly pass it along. 23

But you talked about one of the data areas that 24

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would be provided would be biographic information 2

about students, biographical information, could 3

you give me a little more detail in what would 4

involve with that, in other words, parents, 5

parents affiliations, you know, any of those 6

kinds of, and also how to, and it‟s been brought 7

up, how do you account for differences between 8

Charter Schools and all of those things, how is 9

that, is that included and if not, for example 10

socioeconomic conditions, I would think, would be 11

very important in formulating curriculum plans or 12

remedial plans and if that isn‟t included, how 13

does that taken in to account in all of this? 14

COMMISSIONER KING: Again, just, and 15

I‟ll let Ken answer on the specific data 16

elements, but just to be clear, all the data 17

elements at issue here, are ones that the State 18

already and has long collected. Now, districts 19

may, as part of the dashboard project, may input 20

additional local district information but the 21

State information is information that the State 22

already collects and stores with third party 23

providers. Ken do you want to add? 24

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ASSEMBLY MEMBER BUTLER: But does that 2

currently include information about parents, 3

siblings-- 4

COMMISSIONER KING: So, for example-- 5

ASSEMBLY MEMBER BUTLER: family 6

relationships-- 7

COMMISSIONER KING: For example, one of 8

the pieces of information we collect, is whether 9

or not a student is eligible for free and reduced 10

price lunch, which would go to the question of 11

socioeconomic status. 12

ASSEMBLY MEMBER BUTLER: Okay. 13

COMMISSIONER KING: So that is a piece 14

of information that the State already collects as 15

part of the State data system. The element, the 16

data elements that are relevant to inBloom are 17

ones that are instructionally related, like the 18

student‟s academic performance. Information that 19

would inform teachers and parents and that is the 20

only set of information that‟s stored in inBloom, 21

so I just want to make the distinction again 22

between the subset of data that‟s stored with 23

inBloom and the broader data set that the State 24

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collects. 2

ASSSEMBLY MEMBER NOLAN: Mr. Zebrowski, 3

real quick and Mr. Abinanti, I apologize, but… 4

ASSEMBLY MEMBER KENNETH ZEBROWSKI: 5

Thank, thank you. 6

ASSEMBLY MEMBER NOLAN: Thank you Mr. 7

Butler for the cooperation. I appreciate it. 8

ASSEMBLY MEMBER ZEBROWSKI: I have 9

several questions but I guess before the 10

Commissioner, and maybe I could address then-- 11

ASSEMBLY MEMBER NOLAN: Yes, we‟re going 12

to have to be back. 13

ASSEMBLY MEMBER ZEBROWSKI: the more 14

specific stuff with Deputy Commissioner-- 15

ASSEMBLY MEMBER NOLAN: I really 16

apologize for this. 17

ASSEMBLY MEMBER ZEBROWSKI: after. 18

ASSEMBLY MEMBER NOLAN: We‟re trying to-19

- 20

ASSEMBLY MEMBER ZEBROWSKI: I, okay, so 21

I guess I won‟t really go in to, obviously my 22

constituents and my parents, I mean they have a 23

lot of concerns. They read, they go on to 24

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inBloom.org and they read that, you know, inBloom 2

cannot guarantee the security of the information 3

stored. They‟ll, you know, prior to that, it 4

says they‟ll take all reasonable administrative 5

and physical safeguards and they‟re worried about 6

their student‟s information and their privacy 7

obviously. These are the legitimate concerns, I 8

would say. I guess it‟s quite disturbing, I 9

just, as an overall sort of question and 10

Statement. You know, we‟re all elected, we all 11

represent 130 thousand people and they feel and 12

they feel as though these educational, State 13

educational guideline changes should be addressed 14

by their elected representatives. And it‟s 15

concerning to them that we would have a hearing 16

and yet I can‟t address or ask questions of these 17

people that are getting this information from my 18

students, I can‟t ask them about their privacy 19

policy, so how can I assure my parents, which I 20

said I would come here and ask their questions, I 21

have e-mails, I said write me e-mails and they 22

had questions about Special Ed. and 504 23

accommodations and where would it be stored and 24

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how could they be guaranteed it‟s not on college 2

transcripts and things like that when they apply 3

for college. So how can I be sure, if I can‟t 4

ask the questions to this not-for-profit Agency 5

that is storing our student‟s data? 6

COMMISSIONER KING: The policies that 7

govern the, any of the vendors, any of the third 8

party vendors with which the State works, are all 9

transparent. We are very transparent about our 10

data privacy agreements, our data security 11

policies. It is the State that has that 12

responsibility and the vendors are responsible to 13

us. 14

ASSEMBLY MEMBER NOLAN: Commissioner, I 15

hate to be disrespectful and interrupt but the 16

State hasn‟t completed the Privacy Impact 17

Statement yet, I thought. You just said to him 18

that the State has policies but maybe I was 19

misinformed, but I thought the policy, the 20

Privacy Impact Statement, and I apologize Ken, 21

but I thought it wasn‟t completed yet. 22

DEPUTY COMMISSIONER WAGNER: What‟s the, 23

I‟m not following the question. 24

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ASSEMBLY MEMBER NOLAN: There‟s a 2

Privacy Impact Statement that‟s required as part 3

of this inBloom agreement under some Federal 4

Regulation, maybe I have been misinformed or I 5

don‟t understand but… 6

DEPUTY COMMISSIONER WAGNER: Yeah, I 7

don‟t, I‟m not sure what you‟re referencing. We 8

did get a question recently about, from an, a 9

party that was looking for additional information 10

about the privacy policies that were in place and 11

what we shared is that the privacy protections 12

that are in place that are integrated in to the 13

contract are already posted. Our agreement with 14

inBloom is posted, inBloom‟s privacy and security 15

policy is posted but that what we mentioned is 16

that in addition, as part of the project, there 17

will be additional security plans that we will be 18

implemented and those security plans are, have 19

not yet been fully accepted, prior to the launch 20

of the service. 21

ASSEMBLY MEMBER NOLAN: So that, then 22

it‟s not, you see there is a distinction. 23

ASSEMBLY MEMBER ZEBROWSKI: I guess 24

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there‟s a distinction, I guess, that the concern 2

of my constituents would be, and this-- 3

ASSEMBLY MEMBER NOLAN: It‟s a concern 4

for us too. 5

ASSEMBLY MEMBER ZEBROWSKI: just is an 6

overall for, yeah. And being up on this panel is 7

that we can‟t ask these questions to this private 8

not-for-profit company, they may be private but 9

they„re getting public information. 10

COMMISSIONER KING: Again, they are one 11

of many third party providers with which the 12

State works and with which districts work, as Ken 13

has described. In the typical district there may 14

be five to ten different third party providers 15

who have some degree of access to student 16

information. There‟s no question that there‟s a 17

need for continued public discourse about the 18

right data security and data privacy policies but 19

inBloom is one of many third party providers that 20

must adhere to those policies that are set at the 21

Federal level, at the State level or in many, 22

many cases at the local level. 23

ASSEMBLY MEMBER ZEBROWSKI: One more 24

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thing, before you leave Commissioner, I think one 2

of the nice things about having local school 3

districts, in a lot of parts of the State is 4

that, you know, they can go to their School Board 5

Meetings, they can have a public participation, 6

they can ask these questions. I would guess that 7

in the majority of circumstances, that if a group 8

of parents got together and had concerns and went 9

to their local school district, they would make 10

that third party vendor available for them to ask 11

questions and have that answered and we, as 12

Legislators, aren‟t given that opportunity to ask 13

it for our constituents. 14

COMMISSIONER KING: Yeah-- 15

ASSEMBLY MEMBER NOLAN: It‟s a problem, 16

we, we‟re going to, we‟ll look, Ken, you know, 17

you‟re an Attorney, you know this, we‟re going to 18

look at whether we, what, the tools we have in 19

our Legislative toolbox to comply these companies 20

to come. We‟re very upset that they turned down 21

our request. And I‟m disappointed, frankly, that 22

the Department wasn‟t to, to bring them here, but 23

we understand you feel you have to accept a 24

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relationship but we‟re very upset about it and I, 2

I appreciate you bringing it forward. 3

ASSEMBLY MEMBER ZEBROWSKI: Okay. 4

ASSEMBLY MEMBER NOLAN: I do. 5

ASSEMBLY MEMBER ZEBROWSKI: Thank you. 6

ASSEMBLY MEMBER NOLAN: Mr. Abinanti, 7

just real quick. I know the Commissioner has to 8

go. 9

ASSSEMBLY MEMBER THOMAS ABINANTI: Thank 10

you, yes. Commissioner-- 11

ASSEMBLY MEMBER NOLAN: But we saved the 12

best for last. 13

ASSSEMBLY MEMBER ABINANTI: Thank you. 14

I just-- 15

ASSEMBLY MEMBER NOLAN: Mr. Abinanti is 16

representing West Chester. 17

ASSSEMBLY MEMBER ABINANTI: a couple of 18

quick questions. I won‟t make any comments on 19

your performance, you‟re a master at avoiding 20

questions. Commissioner, do you have any idea 21

what the laws of the State of Washington with 22

respect to the issues we‟re discussing. 23

COMMISSIONER KING: I‟m not familiar 24

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with the State Laws of Washington. 2

ASSSEMBLY MEMBER ABINANTI: Can I ask 3

you the, why you agreed to an agreement with 4

inBloom that reads as follows: The validity 5

construction and interpretation of this agreement 6

and the rights and duties of the parties there 7

too, shall be governed by the internal laws of 8

the State of Washington excluding the principles 9

of conflicts of loss. So our agreement with 10

inBloom in now governed by the Legislature of the 11

State of Washington, is that correct? 12

COMMISSIONER KING: No, our agreement 13

with inBloom is governed by our agreement with 14

inBloom. 15

ASSSEMBLY MEMBER ABINANTI: Doesn‟t this 16

mean, we‟re going to have to enforce this in the 17

State of Washington? 18

COMMISSIONER KING: Many of the rules 19

that apply to inBloom are in State Law in New 20

York or in Federal Law. 21

ASSSEMBLY MEMBER ABINANTI: But this 22

agreement says it‟s subject to the laws of the 23

State of Washington, not the State of New York. 24

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COMMISSIONER KING: Our agreement with 2

any third party provider is subject to the Laws 3

of the State of New York and the Federal Laws 4

that govern student security and privacy. 5

ASSSEMBLY MEMBER ABINANTI: You‟re an 6

Attorney, aren‟t you? You went to law school, 7

didn‟t you? 8

COMMISSIONER KING: I did. 9

ASSSEMBLY MEMBER ABINANTI: And you‟re 10

telling me that if you have an agreement that 11

makes it so that the agreement‟s subject to the 12

State of Washington, it is subject to the State 13

of New York‟s laws? 14

COMMISSIONER KING: InBloom‟s, inBloom‟s 15

services provided to New York State are governed 16

by our agreements with inBloom and by the New 17

York State Laws and-- 18

ASSEMBLY MEMBER ABINANTI: Where does it 19

say that in the agreement? 20

COMMISSIONER KING: Federal Laws that 21

apply-- 22

ASSSEMBLY MEMBER ABINANTI: Where does 23

it say-- 24

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ASSSEMBLY MEMBER NOLAN: Tom, Tom. 2

ASSSEMBLY MEMBER ABINANTI: New York 3

State Law in the agreement? 4


ASSSEMBLY MEMBER NOLAN: We want to let 6

him finish the, I get the frustration level and I 7

think Ken also, we all expressed it, just, let‟s, 8

and I know the Commissioner has to go so let‟s 9

let him finish. 10

ASSSEMBLY MEMBER ABINANTI: Alright, so 11

it‟s your belief that the Government, the Laws of 12

the State of New York override the agreement 13

which says they are subject to the State of 14

Washington? Thank you. That gives me a lot of 15

confidence in the rest of the stuff you‟ve said 16

today. 17

COMMISSIONER KING: The distinction I 18

would make is that the activities of inBloom, in 19

service to New York, are governed by the policies 20

and-- 21

ASSSEMBLY MEMBER ABINANTI: And where 22

does it say that? 23

COMMISSIONER KING: governed data in New 24

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York State. We‟ll have our Counsel‟s office 2

follow up with you. 3

ASSSEMBLY MEMBER ABINANTI: Secondly 4

sir, you‟re talking that, you‟re saying that the 5

schools, once they are part of this system can 6

easily drop out and go off and do what they were 7

doing before they got in to the, this data 8

dashboard. Are you suggesting that our schools 9

now keep two sets of books, that they keep two 10

sets of data? Because this agreement says that 11

when somebody drops out or if they‟re terminated, 12

maybe by bankruptcy or something like that, they 13

are to destroy the data, not give it back. 14

COMMISSIONER KING: The data-- 15

ASSSEMBLY MEMBER ABINANTI: So, what is 16

the school district that‟s now invested 17

everything in to one of these dashboards, how do 18

they get it back? 19

DEPUTY COMMISSIONER WAGNER: So the 20

agreement that you‟re referencing is written and 21

if you look at inBloom‟s-- 22

ASSSEMBLY MEMBER ABINANTI: I have it in 23

front of me, please point to the section. 24

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DEPUTY COMMISSIONER WAGNER: Yeah, so 2

the agreement that you‟re referencing is written 3

from the perspective of the party to the 4

agreement. So a State could be a party to the 5

agreement or a district could be a party to the 6

agreement. 7

ASSSEMBLY MEMBER ABINANTI: Right. 8

DEPUTY COMMISSIONER WAGNER: 9

[Unintelligible] [1:58:17.7]-- 10

ASSEMBLY MEMBER ABINANTI: But it 11

doesn‟t say they can get their back if they drop 12

out. It just says that the data has to be 13

destroyed. So now what you‟re suggesting is two 14

years from now, or a year from now, if a school 15

district decides they don‟t love this portal, so 16

they have to maintain two systems just in case 17

they don‟t love the portal, so that‟s doubling 18

their cost, correct? 19

DEPUTY COMMISSIONER WAGNER: No. School 20

districts, even when they report data to the 21

State, school districts report data from their 22

systems. So every school district in the State, 23

regardless of whether they provide data to the 24

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State or if they provide-- 2

ASSEMBLY MEMBER ABINANTI: But you were 3

just telling us that they need to have an outside 4

provider today to manage the data. So they‟re 5

going to have to keep that outside manager to 6

keep their data current, in case they don‟t like 7

this one. 8

DEPUTY COMMISSIONER WAGNER: No, they 9

would need to keep, however a school district is 10

managing their [unintelligible] [1:59:01.5]-- 11

ASSEMBLY MEMBER ABINANTI: No let, when 12

I say need to, I mean practically speaking, 13

otherwise they‟re a captive. I‟ve seen this 14

happen over and over again-- 15

DEPUTY COMMISSIONER WAGNER: Exactly. 16

We do not want-- 17

ASSEMBLY MEMBER ABINANTI: where you put 18

all of your data in a private company. The 19

private company now is in charge because they‟ve 20

got the data and you don‟t have it. You have to 21

recreate it again. 22

DEPUTY COMMISSIONER WAGNER: So your-- 23

ASSEMBLY MEMBER ABINANTI: So how do you 24

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solve that problem. It doesn‟t say in there 2

they‟re going to give the data back in a usable 3

form. It says destroy it. 4

DEPUTY COMMISSIONER WAGNER: So, we are 5

not trying to ask school districts to stop using 6

their student management systems, which are 7

they‟re systems of record of their data. 8

ASSEMBLY MEMBER ABINANTI: But if 9

they‟re using an outside company, they‟re going 10

to have to continue to pay that outside company. 11

DEPUTY COMMISSIONER WAGNER: That is 12

correct. 13

ASSEMBLY MEMBER ABINANTI: So they‟re 14

going to have a double cost for the next two 15

years. 16

COMMISSIONER KING: No, the data portal 17

is a way for parents or teachers to access data-- 18

ASSEMBLY MEMBER ABINANTI: Okay. 19

COMMISSIONER KING: that would be stored 20

as student [unintelligible] [1:59:45.1] 21


Putting the data in, if you have all the data 23

today, why do they have to input it? Why do they 24

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have to lay off teachers and hire input people to 2

put the data in to their system. You‟ve got it, 3

why you just take it and put them in yourself. 4

COMMISSIONER KING: That, that‟s exactly 5

what we‟re doing. 6

DEPUTY COMMISSIONER WAGNER: That‟s 7

exactly what we‟re doing. 8

ASSEMBLY MEMBER ABINANTI: That‟s what 9

you‟re going to do? 10

DEPUTY COMMISSIONER WAGNER: Yes. 11

ASSEMBLY MEMBER ABINANTI: Okay, so you 12

don‟t need-- 13

COMMISSIONER KING: That‟s how this 14

works. 15

ASSEMBLY MEMBER ABINANTI: them to do 16

anything. 17

DEPUTY COMMISSIONER WAGNER: We don‟t 18

need them to do anything other than continue as 19

they-- 20

ASSEMBLY MEMBER ABINANTI: That‟s not 21

what my Superintendent‟s tell me. They tell me 22

they‟re going to need additional people to 23

collect the data you want because they don‟t now 24

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collect it. 2

DEPUTY COMMISSIONER WAGNER: There, 3

that‟s incorrect. They do not have to do 4

anything other than they would have to do for the 5

past ten years. All they have to do is report 6

the data to the State and then they-- 7

ASSEMBLY MEMBER ABINANTI: They‟re 8

telling me this is additional data. 9

DEPUTY COMMISSIONER WAGNER: No. That‟s 10

incorrect. 11

ASSEMBLY MEMBER ABINANTI: That right 12

now they only have to report, let‟s say truancy. 13

You‟re asking for specifics on the truancy. So a 14

child with a disability, who happens to get 15

arrested at school because of some incident, 16

while his criminal records will be sealed under 17

YO Procedures of the Criminal Procedure Law will 18

now be reported to your data bank, correct? 19

DEPUTY COMMISSIONER WAGNER: It is. We 20

are asking school districts separate from the 21

Engage New York Portal Project to provide student 22

level attendance and suspension information. 23

That requirement is part of State requirements 24

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independent of whether or not those data are used 2


ASSEMBLY MEMBER ABINANTI: But the 4

present data requirements don‟t require you to 5

give you the name of the kid and the charge. 6

Here it‟s going to be in under that kid‟s name, 7

correct? 8

DEPUTY COMMISSIONER WAGNER: That 9

requirement is independent of Race to the Top, 10

that requirement is independent of Engage New 11

York Portal Project-- 12

ASSEMBLY MEMBER ABINANTI: But that‟s 13

not required today. 14

DEPUTY COMMISSIONER WAGNER: that 15

requirement is independent of inBloom. 16

ASSEMBLY MEMBER ABINANTI: Okay, but 17

that‟s not today‟s requirement-- 18

ASSSEMBLY MEMBER NOLAN: Could we just, 19

could we just-- 20

DEPUTY COMMISSIONER WAGNER: It is 21

today. 22

ASSSEMBLY MEMBER ABINANTI: that‟s 23

something you‟re adding, correct? 24

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ASSEMBLY MEMBER NOLAN: We just want to, 2

just want to-- 3

DEPUTY COMMISSIONER WAGNER: We provided 4

that guidance in June two thousand-- 5

ASSEMBLY MEMBER ABINANTI: Please answer 6

my question. Is that something new? 7

DEPUTY COMMISSIONER WAGNER: In June, 8

that requirement has been in place since June 9

2010. We laid out a timeline for school 10

districts needing to report data-- 11

ASSEMBLY MEMBER ABINANTI: As part of 12

this whole program you are now invading-- 13

ASSEMBLY MEMBER NOLAN: Tom, let me 14

just-- 15

ASSEMBLY MEMBER ABINANTI: the rights of 16

these kids. 17

ASSSEMBLY MEMBER NOLAN: Mr., Mr. 18

Abinanti, let‟s take, just take a step back so I 19

can understand it and I appreciate because you‟re 20

very, very, very knowledgeable about these things 21

so just work with me a minute. Mr. Abinanti 22

asked a question that I think is a profound one 23

which is that if a child is arrested with 24

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juvenile offender status that‟s sealed. We know, 2

we had it happen in the State of New York, a man 3

was arrested, [unintelligible] [2:01:49.5] 4

decided to break that, breach that-- 5

ASSEMBLY MEMBER O‟DONNELL: That he did, 6

yes. 7

ASSSEMBLY MEMBER NOLAN: and, and then 8

put it, it was terrible, big scandal, so we know 9

these things happen, right? But theoretically 10

if, God forbid, you‟re arrested as a youngster, 11

the record is sealed. Now Mr. Abinanti said, his 12

local Superintendents are telling him, his local 13

School Boards are telling him, that under this 14

new system, if a child in a Special Ed. setting 15

or any setting is arrested and suspended. The 16

information is now available in a way that 17

breaches what the Court sealed. So in other 18

words, if I want to do an inquiry on you or me, I 19

go to the Court, I can‟t find anything out, but 20

if I can get it through inBloom, I can get it, so 21

that‟s a serious thing and I didn‟t know that you 22

quite answered it. So if you could just-- 23

COMMISSIONER KING: We don‟t collect-- 24

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ASSEMBLY MEMBER NOLAN: elaborate that, 2

sometimes with we have to scenario out-- 3


ASSSEMBLY MEMBER NOLAN: you know we 5

work by anecdote, I tell people all the time, the 6

Legislature works by anecdote and, you know, 7

informal things so we can understand the 8

brilliance that you guys, you know, so just walk 9

me through that. 10

COMMISSIONER KING: I will have to go 11

after this, I want to make clear, the question 12

about data elements is separate from inBloom, 13

separate from the data portal, separate from Race 14

to the Top, unrelated. We don‟t collect arrest 15

information but I, we will, happy to look in to 16

the question that your Superintendents‟ have 17

raised to try and identify why they have that 18

impression. What the issue is behind that. 19

ASSSEMBLY MEMBER NOLAN: So your answer 20

is no-- 21

DEPUTY COMMISSIONER WAGNER: We do not. 22

ASSSEMBLY MEMBER NOLAN: If a child is 23

arrested in an 853 school or a regular public 24

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school and suspended, they are arrested in the 2

school building, which incredibly enough in my 3

district, happened to a five year old, so we know 4

again, that these awful things do happen. That 5

information is not currently disclosed because 6

the Court record is sealed and you believe that 7

it is not-- 8

COMMISSIONER KING: We, we‟d have to 9

look at this specific question. 10

ASSSEMBLY MEMBER NOLAN: Well, okay. 11

COMMISSIONER KING: There‟s a, there are 12

a set of-- 13

ASSEMBLY MEMBER ABINANTI: Okay, let, 14

let me, Chair, if I can-- 15

COMMISSIONER KING: [Unintelligible] 16

[2:03:33.2] requirements [unintelligible] 17

[2:03:34.6]-- 18

ASSEMBLY MEMBER ABINANTI: I believe the 19

answer was, that starting in 2010, they imposed 20

certain additional requirements as part of this 21

“reform”. One of the requirements is that you 22

give specifics of the activities of the children 23

when they get in trouble. That was not required 24

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before 2010, that‟s what I‟m understanding. 2

ASSEMBLY MEMBER NOLAN: And so then the 3

question is-- 4

ASSEMBLY MEMBER ABINANTI: Is that true? 5

ASSEMBLY MEMBER NOLAN: is that, is that 6

true and does that information get transferred to 7

inBloom. 8

DEPUTY COMMISSIONER WAGNER: There is no 9

requirement to report student level information 10

related to arrest or criminal records. The only 11

requirement related to student level information 12

is the date of a suspension. We have a separate 13

collection that is aggregate only, consistent 14

with the VADIR, the Violent and Disruptis- 15

Disruptive Incident Reporting, that does require 16

what the report of incidents that lead to 17

behavioral interventions. So it is quite 18

possible that a crime would have to be reported 19

but VADIR does not require details of any student 20

names. VADIR is incident based, whereas this 21

information that we‟re talking about today, is 22

student based but its only that the student was 23

suspended and what date of the suspension. 24

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ASSEMBLY MEMBER ABINANTI: But why 2

should the suspension be list? 3

DEPUTY COMMISSIONER WAGNER: So as the 4

Commissioner explained, there are a number of 5

reasons of including student level information 6

for suspension but one of the pieces of why 7

that‟s important is if you have three pieces of 8

information, the student‟s attendance-- 9

ASSEMBLY MEMBER NOLAN: Mr., Deputy, let 10

me just interrupt. I want to thank Commissioner 11

King, I know that you had a very intense day and 12

you made the time to come and what we‟ll do is 13

we‟ll finish this, we‟ll take a little, I have to 14

take a five second break to go to the ladies room 15

and then we‟ll call our parents down and we will 16

keep the Deputy Commissioner here and maybe have 17

you come up a little bit later if that‟s okay for 18

some follow up. Alight? Yes, and thank you 19

Commissioner. Mr. Abinanti-- 20

ASSEMBLY MEMBER ABINANTI: I think we 21

made the point. I think we‟re going to have to 22

further discuss this Madam Chair. I think there 23

are certain issues that have to be further 24

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discussed and I think we‟ve put the issues on the 2

table and we need to have some answers-- 3


ASSEMBLY MEMBER ABINANTI: follow up. 5

ASSEMBLY MEMBER NOLAN: I think I didn‟t 6

even understand, Article 6, [unintelligible] 7

[2:05:40.5] just do this last follow up and then 8

we‟re going to take a break because it ties in to 9

what you said. 10

ASSEMBLY MEMBER O‟DONNELL: So this was 11

in referenced earlier by Ms. Nolan that Article 12

6A of the Public Officers Law requires an Agency 13

to complete a Privacy Impact Statement when 14

establishing a new data set. That was what she 15

was referring to and so the question would be 16

asked have you complied with Article 6A of the 17

Public Officers Law, which requires you as an 18

Agency to complete a Privacy Impact Statement 19

when establishing this data set. If you don‟t 20

have the answer, that fine and I accept, but I 21

would like to get the answer and I would really 22

hope that your answer is not, it‟s not new. 23

ASSEMBLY MEMBER NOLAN: Because that, 24

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because that gets in to what Mr. Abinanti asked 2

as well, so what is the answer to that? 3


have an answer to the question. 5

ASSEMBLY MEMBER O‟DONNELL: Okay. 6

ASSEMBLY MEMBER NOLAN: Alright, so 7

we‟re going to get that. 8


ASSEMBLY MEMBER GLICK: When you said 10

that-- 11


ASSEMBLY MEMBER GLICK: there‟s a 13

separation between obviously a criminal charge, a 14

child getting arrested, which happens 15

unfortunately for stupid stuff, you know, 16

sometimes in New York City. When there‟s a 17

suspension is it just an indication there was a 18

suspension or is there any indication on why a 19

student was suspended. 20

DEPUTY COMMISSIONER WAGNER: It‟s 21

actually part of the attendance code. So there‟s 22

different reasons why a student could be absent 23

and suspension just serves the function as being 24

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one of those reasons. So there‟s no information 2

whatsoever that for the part of this project, why 3

the student was suspended. It‟s just Ken Wagner 4

was suspended on November 20th, yes or no. 5

ASSEMBLY MEMBER GLICK: Alright, well, 6

I, there is someone, I, won‟t breach anybody‟s 7

confidentiality but there was a very well placed 8

person who was a student at a really good, you 9

know, elite, New York City public school who was 10

suspended because of a challenge to, he was 11

suspended based on the, his editorship of the 12

school newspaper that was critical of the 13

administration and so on the basis of having been 14

informed and bright young person, this, the 15

school administration was irritated by his, and 16

then, but he was suspended. In that instance, 17

what shows up as a suspension, not the purpose, 18

not the reason, which was of course then 19

challenged by the New York Civil Liberties 20

because it was a free speech issue. So would his 21

suspension have turned up as a suspension without 22

any explanation? 23

DEPUTY COMMISSIONER WAGNER: Correct 24

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and then if it was overturned it could be 2

expunged at a later point in time. 3

ASSEBMLY MEMBER O‟DONNELL: Good luck 4

with expungement. 5

ASSEMBLY MEMBER ABINANTI: Yeah, good 6

luck with expungement. Just a comment if I may 7

on that, please. I understand sometimes that the 8

things you guys are doing are motivated by good 9

purp- good thoughts but when you‟re dealing in 10

the real world, they don‟t always work out that 11

way. Those of us who practice law, I got a call 12

recently from somebody who, who got, whose 13

records were sealed after she [unintelligible] 14

[2:08:54.0] or something twenty years ago, okay. 15

She was just fired from a bank job for lying 16

because somehow they came across the fact that 17

she was arrested and they asked her when she, 18

they asked her the impermissible question of, 19

were you arrested and she said no because there 20

was nothing else she could say because if she 21

said yes, she now gets in to this whole thing of 22

it being sealed so she said no. So now they 23

fired her because she lied to a question they 24

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weren‟t supposed to ask her in the first place on 2

the basis of information they weren‟t‟ supposed 3

to have in the first place. So we don‟t want to 4

get kids in trouble just because we need 5

information or we want information. So there‟s a 6

great fear out there by those of us who have 7

lived in the real world, not just the academic 8

world, that every time we do something like this, 9

we are endangering the very purposes for which 10

we‟ve set up and educational system. 11

ASSEMBLY MEMBER NOLAN: Okay. I want to 12

thank everyone really for their patience. I know 13

it‟s a lengthy presentation by the Department. I 14

think, Mr. Abinanti, that‟s the perfect note in 15

this segment. 16

ASSEMBLY MEMBER ABINANIT: Thank you. 17

ASSEMBLY MEMBER NOLAN: This is a very 18

real world concern so I thank you and all my 19

colleagues who are very special. We also were 20

joined by Mr. Peter Lopez and he‟s going to be 21

very graceful and witty because he just got here 22

so we told him, and we‟re, we‟re going to take, 23

it‟s not a break. I am just going to take two 24

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seconds. What we‟re going to do is ask our next 2

series of witnesses and I want to thank Deputy 3

Commissioner Wagner, this is the first time I‟ve 4

had the opportunity to hear you. This is very 5

informative, I hope that you‟re going to stay, I 6

think that was our understanding, for a little 7

bit. We have a very good person, I believe next, 8

Leonie Haimson, my friend and person from Class 9

Size Matters come down and Karen Sprowal, a 10

parent and then we have, the second panel after 11

that will be Jane Barker from Pitta & Giblin, 12

she‟s a partner in a lawsuit and Corinne Carey 13

from the New York Civil Liberties Union so if 14

they could kind of come down and be on deck 15

circle and Leonie and the parent Sprowal, is she 16

here? Okay. [Unintelligible] [2:10:42.9]. 17

ASSEMBLY MEMBER O‟DONNEL: She‟ll be 18

back in just a brief second. Thank you very much 19

for coming and listening to the first 20

presentation. Please, you‟re on. 21

LEONIE HAIMSON, PARENT, EXECUTIVE 22

DIRECTOR, CLASS SIZE MATTERS: Okay. Thank you 23

so much for having these hearings today. It‟s an 24

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important issue to parents, as you know, and many 2

educators and Superintendent‟s as well. I‟m not 3

going to read from my testimony, but I, this, my 4

name is Leonie Haimson, I‟m the Executive, Class 5

Size Matters and I‟ve been working very intensely 6

on this issue for the last two years and before I 7

get to my testimony, I‟d just like to respond to 8

some of the points made by the State Education 9

Department, just now. They said that they need 10

to share this data with inBloom because schools 11

need to compare their results based on 12

demographic information. There is no reason 13

anyone needs personalized data to do that. These 14

kinds of comparisons are done all the time by 15

researchers, by school districts, you don‟t need 16

any names, you don‟t need addresses, you don‟t 17

need phone numbers. All you need is aggregated 18

demographic and academic information. Number 19

two, he said we need this in order to facilitate 20

the transfer of transcripts when kids move from 21

one district to another. Not only is that done, 22

is all the time now, but I can tell you that 23

district officials, principals, and 24

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superintendents are very concerned because right 2

now students disabilities and disciplinary data 3

and health data does not go in their transcripts 4

and in fact is seen by nobody without parental 5

consent so this is huge change in policy. Third 6

of all, it says the State needs access to this 7

data for their programmatic purposes, well the 8

State can get the data but there‟s no reason by 9

inBloom needs the data for the State‟s 10

programmatic purposes. Fourth of all, they said 11

we need this to provide more options to parents 12

and districts. Well, I can tell you there are 13

millions of parents out there who want the option 14

to opt-out and are not being given it. More and 15

more districts want the option to opt-out and 16

they‟re not being given it. They are being told, 17

that no matter whether they take Race to the Top 18

money or not, no matter whether they sign up for 19

the data dashboards or not, their student data is 20

being updated in to inBloom anyway and we are the 21

only State in the country that has ever 22

contemplating not letting districts opt-out. And 23

in fact, even Cynthia Stevenson, who recently 24

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resigned from Jefferson County, before her School 2

Board turned over and she was made to resign, 3

allowed parents to opt-out of inBloom. So the 4

idea that schools can‟t function without this is 5

ridiculous and we are the least protective of 6

privacy in New York State than in the entire 7

country and the least respectful of parent rights 8

and I just wanted to make that clear and none of 9

the States rationales for this, hold any water, 10

so I‟m not going to go through, my testimony is 11

very lengthy, as I said, I‟ve been working on 12

this issue for two years and hopefully other 13

people will deal with some of this information as 14

well but I wanted to hit on some key points. 15

First of all, despite the State‟s repeated claims 16

that there is nothing new or different about 17

their data sharing plans and the State and 18

districts have shared this sort of information 19

with vendors for years, this is completely 20

untrue, because inBloom is a nonprofit 21

corporation funded with a hundred million dollars 22

of Gate‟s money but inBloom, the whole purpose 23

and design of this company was to aggregate as 24

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many data points as possible, from as many 2

students in as many States, put this highly 3

valuable data on a Cloud to create a data store 4

and commercialize the data by providing it to as 5

many vendors as possible so they could data mine 6

and produce their software tools which then would 7

be marketed back to school districts. None of 8

this, as far as I know, has ever been done before 9

and as I said the data is being stored on a Cloud 10

by Amazon.com with an operating system built by 11

Wireless Generation, which is a subsidiary of the 12

News Corporation. Now, when in 2011, the State 13

Education Department wanted to have Wireless 14

build their internal State data system, the 15

Controller rejected that contract because he 16

said, not just because of conflict of interest 17

with Joe Klein‟s involvement but mainly because 18

of the privacy issue because News Corporation had 19

been involved and is still involved in privacy 20

violations in the United Kingdom but also in this 21

country but primarily in the United Kingdom and 22

in fact their trial is going on right now about 23

this. But, so, DiNapoli, the Comptroller 24

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rejected the contract on the basis of this, of 2

not trusting Wireless Generation and then less 3

than six months later they went back, they 4

decided to give them, the data to inBloom, a 5

private company with an operatizing system built 6

by Wireless Generation and my understanding is 7

that it bypassed the Comptroller‟s office both at 8

the city and the State level because no money, at 9

that point changed hands, but it is going to 10

change hands very soon and one of the questions 11

we have is once that happens is going it to then 12

go in to the Comptroller‟s office again. So I 13

became very alarmed about this when the Board of 14

Regents approved this in December 2011 and we 15

wrote a letter to the State Education Department 16

demanding the contract, demanding that they hold 17

public hearings, demanding that they tell parents 18

exactly what was happening with this data and why 19

they thought it was so important to share with 20

inBloom and their response, a year ago, in 21

October 2012, was there is no reason for any 22

public notification or hearings because it was in 23

the public record and public knowledge already at 24

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that point. And I can tell you, I went to every 2

single elected official I know, I went to the 3

public advocate, I went to the City Comptroller, 4

I went to the City Council, I spoke to several of 5

you about this and not a single elected official 6

that I spoke to had ever been told and most of 7

them didn‟t even believe it was possible and said 8

that I must be misunderstanding, that they 9

wouldn‟t be giving away personal information to 10

third parties like inBloom and that that was 11

illegal. I started talking to School Board 12

Members and Superintendents throughout the State, 13

none of them knew that it was happening either. 14

The State Education Department has created a 15

brick wall for the last two years about this and 16

has denied parents even the most minimal 17

information, while at the same time, giving away 18

their students data to this company, which is 19

kind of ironic. And parents, by the way, have 20

been sending letters, notified letters to the 21

State saying under the Personal Privacy 22

Protection Law is their right to know exactly 23

what data is being shared with whom and guess 24

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what, the State is denying them that information 2

as well. So there multiple levels of privacy 3

violation involved here. So, I will go quickly 4

one by one after protests-- 5

ASSEMBLY MEMBER NOLAN: Leonie, just 6

want to, I hate to interrupt, I know I did it to 7

the Commissioner, if you have letters and you 8

can, you know, I [unintelligible] [2:18:31.9]-- 9

MS. HAIMSON: I have many letters-- 10

ASSEMBLY MEMBER NOLAN: Wait, wait, 11

wait-- 12

MS. HAIMSON: certified letters-- 13

ASSEMBLY MEMBER NOLAN: Let me, let me 14

make my request. 15

MS. HAIMSON: Yeah. Sure. 16

ASSEMBLY MEMBER NOLAN: If someone who 17

received a letter like that from State Ed. would 18

like to share it with the Committee, if they want 19

to blackout their identifying information, that‟s 20

fine, but I would like to see the letter from the 21

parent and the answer from State Ed. that said no 22

can do. 23

MS. HAIMSON: I will send it to you 24

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right away. 2

ASSEMBLY MEMBER NOLAN: No rush. Just a 3

request, that‟s all. 4

MS. HAIMSON: Yes. 5


MS. HAIMSON: So, one after another, 7

starting in April, there have been, you know, as 8

a result of huge protests by parents and elected 9

officials around the country, seven out of the 10

nine States that originally belonged to inBloom 11

or were partners were, with inBloom have pulled 12

out. The first one was in April, when 13

Superintendent, John White, who used to be Deputy 14

Chancellor in New York City, pulled out. Then in 15

May the school Superintendent of Georgia pulled 16

out. In end of May, Delaware and Kentucky said 17

they had no plans to share any data with inBloom. 18

In August, Gilford County, the one pilot district 19

in North Carolina, canceled its agreement and 20

then as Assembly Member O‟Donnell has pointed out 21

there was a School Board election in Jefferson 22

County, and entire anti-inBloom slate was 23

elected. The next School Board Meeting the 24

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Superintendent resigned and the existing School 2

Board pulled out and then the State 3

Superintendent, which had no particular plans to 4

share this data, announced that they were 5

severing all contracts with inBloom so even if 6

there was any district that wanted to do it, they 7

could not do it. But even before that point, 8

Jefferson County said that parents would be 9

allowed to opt-out of inBloom and that didn‟t 10

stop the furor. And again, we are the only State 11

in the country that ever even contemplated making 12

districts do this against their will. So 13

Illinois is going ahead, this winter, with two 14

small districts. They plan to share this and 15

expand the program to 35 districts but they are 16

allowing districts to opt-out completely and they 17

are saying they will not allow any districts and 18

will not share, themselves, any disciplinary or 19

health data with inBloom because they realize how 20

incredibly dangerous that is, even if districts 21

want to do it. So, New York is different in many 22

ways. We are sharing disciplinary data as the 23

State Education Department just said. We are 24

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also sharing health data because 504 conditions 2

relates to a variety of health conditions that 3

children may have, anything from epilepsy to 4

hearing problems, to allergies, all that is in 5

your child‟s file and by the way, if that exact 6

same information was in your child‟s medical 7

files, it would be completely illegal to share it 8

with any third parties without parental consent 9

and people would go to jail for that. 10

ASSEMBLY MEMBER NOLAN: Leonie, this is 11

a mic. issue so just let him do his— 12

MS. HAIMSON: Sorry. 13

ASSEMBLY MEMBER NOLAN: That‟s alright, 14

let him do, we have wonderful people here that 15

work hard to. 16

UNKNOWN MALE: Not so close. 17

MS. HAIMSON: Okay, sorry about that. 18

ASSEMBLY MEMBER NOLAN: That‟s okay, 19

that‟s alright, that‟s why they‟re here to help 20

us. 21

MS. HAIMSON: Okay, so they have been 22

also obfuscating and confusing and stonewalling 23

about what exact data has been shared and they 24

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only put up their latest Data Dictionary a few 2

weeks ago. But now, assuming that that‟s 3

correct, we know exactly what is being shared 4

with inBloom. They said they‟re sharing student 5

and parent names, home addresses, e-mails, phone 6

numbers, student grades, their test scores and 7

proficiency levels, their ethnicity and race, 8

their economic status including free lunch status 9

and whether parents are on any kind of economic 10

assistance program, detailed suspension and 11

attendance records, the disability diagnosis that 12

child may receive, any special services that the 13

child receives in school and I said even their 14

health conditions as revealed by the 504 status. 15

For high school students, the data store, which 16

is what inBloom calls it, a data store, will 17

include up to twelve years of data and the New 18

York State Education Department has refused to 19

answer even its own employees, the head of the 20

BOC‟s in Nassau County about when, if ever the 21

data will be destroyed. So they have told very 22

clearly, that even after 2015, if districts 23

decide to not have their data dashboards, they 24

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will never have the right to pull their data out 2

of inBloom. There‟s only one person in the 3

universe that will have the right to decide when 4

and if any State student data is pulled out of 5

inBloom, even for students that have graduated 6

and that‟s John King. Maybe the Regents if they 7

choose to intervene. So there‟s no, not only 8

that, New York State Education Department has put 9

no limits on what districts may add to the data. 10

So as I told you, other States have put strict 11

limits on it, State Ed. has encouraging districts 12

to put even more personal information up and 13

share with even more private vendors because as I 14

said the long term goal of this is to, is to 15

allow for data mining and allow for these 16

personalized learning tools, will be sold back to 17

schools and districts and will be based, they 18

call them personalized learning tools but I call 19

them impersonalized learning tools because what 20

it basically means, there are kids sitting at 21

computers reacting to software programs without 22

any interchange with teachers. So what happens 23

after 2015, I think they said today, that they‟re 24

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going to continue paying for inBloom through 2

Federal Funds. I can tell you the Federal Funds 3

are supposed to run out. Now maybe they can get 4

special accommodations from the Federal 5

Government to have those Federal Funds continue 6

to pay for inBloom services but right now, 7

districts are very upset because as they point 8

out, they, if they want to continue the data 9

dashboards or sign up for the data dashboards, 10

they are going to be paying for the data that 11

they gave for free to inBloom, they‟re paying 12

inBloom to get it back which makes absolutely no 13

sense at all. So they say they‟ve, and at the 14

start of the data dashboards, the timeline has 15

moved over the years, it was supposed to be fall 16

twenty-thir- first before fall 2013, it‟s not 17

going to be fall 2013, we‟re also almost past 18

that, the DOE just extended their contract with 19

ARIS, which is our data dashboard through 20

December 2014. God knows whether the dashboards 21

will even be operable by the time we have to 22

start paying for them. So, as I said, 23

Superintendents, not only parent, for many, many 24

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years the State has said parents are just 2

confused, they don‟t understand how districts do 3

this all the time, there is nothing new that‟s 4

happening. The good thing is happening that 5

Superintendents are starting to write the State 6

Ed. and saying we don‟t do it all the time. Not 7

only do we not do it all the time, we don‟t want 8

to do it any, all the time and they are writing 9

letters to inBloom citing a clause in the 10

contract saying they should have the right to 11

opt-out but inBloom is not respecting that clause 12

and neither is State Ed. Okay, so I‟ll go 13

through, FERPA has been rewritten, which means 14

nothing, it, it‟s totally been eviscerated so 15

there‟s no protection rights left in FERPA, 16

pretty much at all and there are lawsuits against 17

that in Federal Court. Their Federal collection 18

of data, which is increasing as well as State 19

data increasing that‟s very, very disturbing. We 20

held a town hall meeting in Brooklyn, the State 21

refused to answer our questions and inBloom 22

refused to come. InBloom also refused to come 23

to the City Council when they asked them to 24

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testify. And at the City Council district of 2

Tier and Ken Wagner said that the only data that 3

had gone up is de-identified data, so names are 4

not attached, but now we believe that a lot more 5

data has gone out with personally identification 6

information. But we‟d really like you to ask 7

specifically, if Ken Wagner‟s still around, 8

exactly what data points have been shared inBloom 9

so far, which they said they needed to do to help 10

inBloom with its infrastructure development, 11

which is another outrageous point, I think, 12

because we are essentially giving our student 13

data to help them develop their product. So, 14

what, is the data safe, that‟s a huge concern to 15

parents. First of all, they, NYSUT says that, 16

you know, the security protections in place 17

currently exceed what most States and school 18

districts do. This is completely untrue. Most 19

school districts keep this information on local 20

servers or even in paper files which are not 21

easily hacked in to. A recent survey found that 22

86% of technology professionals say they do not 23

trust data Clouds for their more sensitive data 24

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and the more data‟s aggregated on a Cloud, the 2

more attractive it becomes to hackers and the 3

more it‟s transmitted to vendors, the more likely 4

it is to be breached. As I said before, 5

inBloom‟s whole goal was to aggregate millions 6

and millions of data points of millions of 7

students and provide it to as many vendors as 8

possible and all that essentially multiplies the 9

possibilities of breaches. Now inBloom, itself, 10

has said in a Security Agreement, it cannot 11

guarantee the security of the information stored 12

or that the information will not be intercepted 13

when it‟s transmitted. Recently, living socials 14

information, 50 million customers of living 15

social were hacked in to and that‟s a company 16

partly owned by Amazon.com on an Amazon.com, the 17

Way-Cloud, the way that inBloom will be and then 18

there‟s one final point about this, there are 19

considerable risks to students even if the data 20

is not breached or abused. The whole notion of 21

data dashboards are that teachers will be able to 22

look way back in your child‟s career and see what 23

trouble they‟ve gotten in to in Kindergarten or 24

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first grade or what academic struggles they may 2

have had and as a parent I was always very glad 3

to get a new teacher every year, a new start, a 4

new fresh start. There is very robust research 5

in the educational research community that a 6

teacher‟s preconceptions of a child can 7

ultimately become self-fulfilling and undermine 8

that child‟s future success. There was a 9

experiment done, a researcher randomly chose a 10

collection of students in a teacher‟s class and 11

told them that they had been tested and that test 12

had shown that they were going to make a big jump 13

in I.Q. that year and guess what, when they 14

tested the I.Q. of those students a year later, 15

guess whose kids actually jumped an I.Q., the 16

kids who‟d been randomly chosen by the researcher 17

so you can see that all this, even if it‟s kept 18

within the school boundaries is very dangerous in 19

terms of what it means for kids to be 20

stereotyped, to be stigmatized and to restrict 21

their future success. So, it may be that some 22

districts are engaged in risky practices already 23

when it comes to the use of sharing personal data 24

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and I really hope that this Committee looks in to 2

this a little bit more and asks districts what 3

their current data practices are. I can tell you 4

that I did get information from the New York City 5

Department of Education that is very disturbing 6

to me about some of their data practices. I am 7

happy to say that our new Mayor has said that, 8

not only will he pull the data out of inBloom as 9

soon as possible if he is given the right to do, 10

but that he will refuse to share any personal 11

data with vendors without parental consent going 12

forward. So we‟re very happy about that and 13

there‟s been testimony before the Senate 14

Committee by Data Specialists and BOC‟s heads, 15

that they are very disturbed about this as well 16

and I‟ll, I won‟t read their testimony, but it‟s 17

in there, that this is a major shift in practice, 18

this has never been done before and they do not 19

think that a private company like inBloom, which 20

has not under public governance but under private 21

governance and most of the people on that Board, 22

by the way, are people that get money from the 23

Gates Foundation who are inherently have conflict 24

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of interest, should not be able to access this 2

data at all. The costs are considerable. 3

Starting in 2015, that‟s one year from now, 4

inBloom is going to charge two to five dollars 5

per student, that‟s what they said starting out. 6

You could see that, Ken Wagner today said, three 7

to five dollars per student because what they, 8

inBloom originally said, is as more States and 9

districts join in, the cost will go down. Well, 10

guess what, they‟re not joining, they‟re pulling 11

out so that cost is going to go up and then the 12

data dashboard again, is an additional one to 13

three dollars per student starting out. And, but 14

none of this is comparable to the costs if 15

there‟s a data breach. Because inBloom has tried 16

to insulate itself from liability, I‟m not a 17

Lawyer so I can‟t say for sure, but I can say 18

that I think the cost to the State are immense in 19

case there‟s a breach. It could go, run to the 20

hundreds and hundreds of millions of dollars. 21

The City Comptroller testified about this already 22

before the City Council. They said settlements 23

for data security threats in the health sector 24

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are reaching seven billion dollars a year. And 2

then finally, there‟s the question of selling the 3

data. I have never said publically or written 4

that inBloom intends to sell the data, in fact, 5

at every possible opportunity they say they‟re 6

not going to sell the data, however what they 7

have said, in the public record, is that they, in 8

order for inBloom to be financially sustainable, 9

they are exploring cost recovery partnerships 10

with select vendors for the services it provides. 11

Now, if that‟s not comparable to selling the 12

data, it seems very similar to renting out the 13

data. So I think I talked a little bit about the 14

data mining and I have the quotes in here from 15

the CEO of inBloom that they‟re, what they‟re 16

there for is to facilitate private companies, a 17

private marketplace in these tools, for them to 18

come in, data mine, analyze the data, make 19

recommendations, all of that goes way beyond 20

what‟s happened in the past and there‟s been no 21

online system of instruction or even data 22

analysis that‟s been shown to improve student 23

outcomes. It‟s very experimental right now, it‟s 24

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just beginning. There‟s really no proven benefit 2

to it at all. All the, you know, I think if you 3

ask any parent and even most educators, they say 4

the risks of these projects totally outweigh the 5

benefits at this point. And I want to thank the 6

Assembly for passing two bills last term to 7

protect student data and to respect parental 8

rights in this degree. I hope that you will 9

resubmit the bills and if there is, you know, 10

secure Legislation passed, I hope that the State 11

Education Department respects it because I don‟t 12

think they respect a lot of the laws that are 13

passed right now but I hope that they do. I hope 14

there‟s enough attention given to this and I hope 15

that someday soon, New York State will no longer 16

be the worst State in the country when it comes 17

to student privacy. Thank you very much. 18

ASSEMBLY MEMBER NOLAN: Thank you 19

Leonie. And we have the two people with you 20

speaking and then we‟re going to go to Mr. Lopez 21

because he didn‟t‟ get a chance to ask in the 22

first round and I know Mr. Abinanti, and I felt I 23

cut Ms. Jaffee so I want to just, and I know Mr. 24

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Zebrowski may have something too. So I want to 2

let the other two ladies give [unintelligible] 3

[2:33:31.96]— 4

MS. HAIMSON: Yeah, I just want to 5

introduce Karen Sprowal. She‟s been with us, me, 6

in this fight from the very beginning. She is 7

one of the Plaintiff‟s in the lawsuit that was 8

filed last week and she‟s very eloquent about 9

this whole situation so… 10

ASSEMBLY MEMBER NOLAN: I just want to 11

make sure if you‟re a Plaintiff in a lawsuit that 12

we can listen to you today, so, Mr. O‟Donnell is 13

our Counsel in these matters so, I‟ll let you and 14

the other, yes, please if you would like to add 15

anything-- 16

ASSEMBLY MEMBER O‟DONNELL: I said yes. 17

ASSEMBLY MEMBER NOLAN: he said yes. 18

[Unintelligible] [2:33:59.7] want to-- 19

KAREN SPROWAL, PARENT: Yes, yes I am. 20

ASSEMBLY MEMBER NOLAN: add anything 21

[unintelligible] [2:33:59.7] please. 22

MS. SPROWAL: Yes I am the Plaintiff, 23

one of the Plaintiff‟s. 24

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ASSEMBLY MEMBER NOLAN: Is there 2

anything else either of you would like to add to 3

the testimony? 4

MS. SPROWAL: Yeah, absolutely. 5


MS. SPROWAL: First of all, my name is 7

Karen Sprowal, thank you so much for having this 8

hearing. I could, like Leonie said, I found out 9

about this around the time she did so I‟ve been 10

involved with this for some time. I was one of 11

the parents that were [unintelligible] 12

[2:34:24.4] behind Leonie when we went to the 13

Governor, when we went to Carnegie, we went 14

around to different places trying to find out 15

information about this and we eventually winded 16

up on the door of Daniel O‟Donnell, Assemblyman 17

Daniel O‟Donnell and I got to tell you when we 18

did our little spiel about this and what our 19

concerns were, as public school parents, and you 20

listened to us very quietly, you didn‟t say 21

anything and then we said, well will you help us, 22

you know, will you at least listen to us because 23

no one is even listening to us and you said yeah, 24

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I, my, I cried inside with joy. I was so happy 2

because through this whole process I kind of feel 3

like we just have, we have no voice, we have no 4

voice at all. 5

ASSEMBLY MEMBER O‟DONNELL: My 6

colleagues refuse to believe you that I was quiet 7

but thank you for that. 8

MS. SPROWAL: Well, once you got in to 9

your response your response, you wasn‟t so quiet 10

but the fact that you sat there and listened to 11

us intently and agreed to do what you can to 12

explore this with us was, it was like, it felt 13

like okay, alright, we‟re not doing this for 14

nothing, we do have a voice. There is a process 15

where we can go to and everyone up here, I‟m 16

really nervous because I‟m a fan of a lot of you, 17

so thank you so much, so much. But, I‟m going to 18

keep this real brief as possible, I didn‟t write, 19

I didn‟t do a testimony because this is so 20

personal and I just can‟t think how I could 21

script this so I‟m just going to speak from the 22

heart, try to do this really fast. My son, 23

Matthew, oh, I didn‟t want to speak about him in 24

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an abstract way, because I want you to see who 2

we‟re talking about here. This is my son, 3

Matthew. Thank you very much. And he‟s fifth 4

grader in a public school in district three and 5

he, he‟s a child with a lot of special needs. He 6

receives services inside the school and outside 7

of the school. His records, school records 8

essentially, are his medical records. There are 9

a lot, there are so many moving parts to my son 10

in terms of all of the different Agencies and 11

people that are involved with each other. In 12

order for him to thrive and to do well and for me 13

to provide supports to the people who are working 14

with him, we all got to be on the same page, and 15

for that happen a tremendous amount of sensitive 16

information has to be exchanged and released but 17

I decide what gets released to whom, I decide 18

what gets released, what, when, how much, what is 19

pertinent to this person, what the principal 20

needs, what the guidance counselor needs, the 21

social worker needs, what the teacher needs, what 22

the aide needs, what the parent needs, what the 23

psychologist needs, what the nurse needs, all of 24

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that, I, I‟m very, very much aware of who gets 2

what and why. In addition to that it just drives 3

me insane when I just heard the presentation and 4

spoke about in this really sterile way about, 5

about how information is shared in schools. 6

Information is shared in schools to us seeing 7

every day, us dealing with each other every day. 8

Teachers, when Matthew has a good day, let me 9

tell you how awesome our public school is, and 10

many of them by the way, when Matthew is having a 11

good day, everyone from the Custodian to the 12

Principal knows and they‟re high-fiving him in 13

the hallway and they‟re letting me know when I 14

walk in that block that Matthew‟s having a good 15

day and that‟s how we communicate with each 16

other. We don‟t need to go to a dashboard to 17

communicate with each other about what‟s going on 18

with our children. This is how we do it, you 19

know, you know, there might be a building with 20

bricks and mortar and all that stuff but the 21

communication is very human it happens and a lot 22

stuff gets, and you know when you‟re texting and 23

e-mailing, a lot of stuff gets lost in 24

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translation. So this became very personal for me 2

and let me just share this real quickly. When I 3

thought about this today, when I thought about 4

this hearing today, one of the stories that 5

popped in my head is that, this is something that 6

I started before Matthew was even born. In my 7

family we have this tradition where with my 8

generation and the generation before me is that 9

all of the children were named after famous 10

people, like Malcom X, Jomo Kenyatta, Nikki 11

Giovanni, all of these type of people and I 12

remember not saying anything to any of my 13

siblings or anybody in the family because I 14

didn‟t want to offend anybody but I remember 15

secretly saying to myself, my last name is 16

Polish, I remember saying that I knew I was going 17

to have a son, that I wanted to give him a name 18

so no one could discriminate against him before 19

meeting and knowing how fabulous he was, you 20

know, by his name. I didn‟t want someone to read 21

his name and say okay, this is a black boy, you 22

know, I, so I named him Matthew and I figure with 23

a Polish last name, this will help him, so this 24

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will give him more of a chance to at least maybe 2

get in the door if Harvard or some place and 3

they, it wouldn‟t stop before they even met him 4

or even looked at his records. So this is 5

something that we do as parents very early on. 6

So I did this before he was born. So to hear now 7

just by virtue of letting my child go to a public 8

school that I have no control over this at all 9

and they don‟t even have to tell me that they‟re 10

doing this, I mean, it‟s outrageous and the fact 11

that, speaks volumes is that they‟re not even 12

here. These people who we‟re giving all of this 13

information to, basically took their finger and 14

did like this to us. That, this what they did, 15

you know, and it‟s, it further insults and it‟s 16

like can you, it‟s outrageous, where‟s their, and 17

they talk about accountability, they talk about 18

accountability all the time, where‟s their 19

accountability, what are you saying, so if 20

something gets breached or if I have some 21

questions or there are security concerns, you 22

don‟t have to answer us, you‟re not liable and 23

this is someone we‟re going to business with, 24

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this is someone we‟re going to put all of our 2

information in one place that we have to go to 3

access. And they say it‟s for parents and 4

teachers and they‟ve been talking about it for 5

four years but we know nothing about it. To this 6

day still, most parents, if you ask them about 7

inBloom, a lot of them, not, unless they‟re 8

people who are involved, really know everything 9

about it. The Principal at my school knew 10

nothing about it. People don‟t know about this 11

but they‟ve been discussing it for four years and 12

it‟s supposed to be for us. I‟ve spoken to 13

teachers, I‟ve spoken to principals, I‟ve spoken 14

to a lot of people, people are outraged. I don‟t 15

know what loopholes they, they created to justify 16

this stuff, but I‟m telling you, I‟m not a 17

scholar, I‟m not a tech person, this, this is 18

crap. That no private schools are signing up for 19

this stuff, this is crap. They‟re experimenting 20

on our children. There‟s got to be, and I 21

understand, I‟m not being naive to the fact that 22

we need to keep in step with technology and there 23

has to be better ways that we can streamline 24

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information in a unified way. And one in, by the 2

way, one of the things that they kept saying to 3

justify the cost is that the school‟s already 4

spending this money, they‟re already spending 5

this money all different sources. You know what 6

my Principal said, he said using all those 7

different dash, different sources or however they 8

do independently is what keeps it safe. That‟s 9

what keeps it safe. A door is far more safer 10

with three locks on it than one lock and that 11

makes sense to me, that I can understand, that 12

makes sense to me so this thing about storing all 13

of our children‟s very sensitive information in 14

one place and two people that won‟t even send a 15

representative, is like insane. This is 16

ridiculous. It‟s insane, you know, and I for 17

one, you know, as a parent, like I said, I‟m not 18

a scholar, I‟m not, you know, I‟m no IT person, 19

I‟m just Matthew‟s mom and you know, and just 20

want to protect my kid. I want my kid to have a 21

fair shot, that‟s all. I just want him to have a 22

fair shot, you know. I don‟t want a fight that 23

he had with Alex the other day to be in his 24

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records when these two are inseparable and 2

absolutely adore each other but they‟ve given 3

each other black eyes, you know what I mean. 4

That‟s not going to be in those incident reports, 5

what‟s going to be in there is there was an 6

incident report, this child was aggressive, 7

that‟s what‟s going to be in there. But the 8

teachers in the school and everyone in that 9

school knows that these two are inseparable, they 10

are like siblings, you know, that story is not 11

going to be in there. So there‟s just so many 12

things about this that‟s just very, very 13

disturbing. Security wise, the fact that we‟re 14

not, parents weren‟t involved in the process, the 15

fact that there‟s no way to opt-out of it, 16

there‟s no, it‟s just so, districts are being 17

forced to sign up with a dashboard. People who 18

are sitting on these Boards were some of the same 19

people with ARIS that was a major failure. If 20

you could ask a parent today about ARIS, most of 21

them don‟t even know what it is so I, I‟m not 22

going to go on and on and on and on, I‟m going to 23

close it up. 24

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ASSEMBLY MEMBER NOLAN: No, no. It‟s 2

fine. 3

MS. SPROWAL: But once again, I thank 4

you so much and just know that there‟s a lot of 5

parents like me that‟s out there that say hell 6

no. The risk far outweighs any benefits. It 7

doesn‟t make sense to me. Thank you. 8

ASSEMBLY MEMBER NOLAN: Well, we‟re, 9

we‟re certainly going to make sure that the 10

Commissioner has, the Deputy Commissioner is 11

still here, that people hear the dialogue of 12

parents and I know Mr. O‟Donnell is really 13

thrilled that constituents of his are here. I 14

want to just [unintelligible] [2:43:10.4]-- 15

UNKNOWN MALE: So am I. 16

ASSEMBLY MEMBER NOLAN: I want to let 17

the third lady, Mr. Lopez definitely wants to get 18

that question out, so why don‟t you just 19

introduce yourself and add brief testimony. 20

Normally we do require people to submit written 21

testimony so we‟re, we‟re kind of, we always 22

respect-- 23

MS. SPROWAL: I do have one written and 24

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I will send it. 2

ASSEMBLY MEMBER NOLAN: We always 3

respect parents but if you could just make a 4

little brief and then we‟ll take some questions. 5

Thank you. 6

VALERIE WILLIAMS, 2ND VICE PRESIDENT, NEW 7

YORK CITYWIDE DISTRICT 75 COUNCIL COMMITTEE: 8

Thank you for allowing me to be here. My name is 9

Valerie Williams, I am District 75 CEC 2nd Vice 10

President. I represent 23 thousand children with 11

autism or any other disability. I think it‟s a 12

travesty, first of all, to have this implemented 13

in to the school system because now you‟re 14

talking about identify theft that easily happen 15

if this breach does or ever, does not take place. 16

Where are we doing our contractual obligation and 17

responsibility to our children to make sure that 18

they are protected at all costs, not only from 19

the data and the issues that they may have, 20

physical or mental, but also the security of the, 21

of them. When you allow telephone, address, 22

parents information, parents income, you‟re 23

talking about opening up a plethora of different 24

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things and identify theft is the major as well as 2

a prey. These children can also become prey. I 3

hate to mention Avanti [phonetic] Apprendo 4

[phonetic], I hate to mention him but there are 5

so many other children that are nonverbal that do 6

not have the ability, less on their parents 7

turning around and having to now react instead of 8

have the body of the Department of Education as 9

well as you, I urge you, to pull out of this 10

inBloom because how dare, I would never do 11

business with inBloom. You‟re not here, you‟re 12

not showing any accountability, you‟re not here 13

to answer any questions. Mr. King just 14

gracefully walked away therefore I‟m sitting here 15

saying to myself, what are we going to say to 16

those 23 thousand children as well as maybe 56 17

thousand parents for New York CDOE as far as 18

District 75 is concerned. How are we going to 19

address those questions to them if the breach 20

does happen? That‟s my first concern. My second 21

concern is where was the parent involvement. I 22

was elected to the CEC. I never knew about 23

inBloom and if I had known, I‟d have urged every 24

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last one of my people to say no, we‟re not going 2

to participate in that. But according to what I 3

heard, the testimony here today, we don‟t have 4

that option. Why do we not have that option and 5

what, in case the breach happens, and we know it 6

can easily happen, if you‟re not a techy, become 7

one. Seriously, because your children‟s, under 8

the DOE, your children‟s‟ life is at stake at 9

this point. And to be able to go back twelve 10

years, I‟m a graduate of Columbia, you can only 11

go back to my sixth grade education, there‟s no 12

way in the world you can go from the beginning 13

all the way to the end and then decide, oh by the 14

way, because of what happened in seventh grade, 15

you can‟t get in. That is unacceptable. That is 16

not something that we‟re supposed to allow our 17

children to be in a situation like that. So I, 18

again, I will keep this short because I do have 19

to go and get my child at three o‟clock. 20

ASSEMBLY MEMBER NOLAN: Yes, we 21

appreciate that. 22

MS. WILLIAMS: So, I urge you, please, 23

to pull out of this. It is not something that we 24

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have to do. We already have a data system. It‟s 2

not something that we have to give Gates, 3

Microsoft, ICloud, Amazon. Are they already 4

billionaires? And they‟re going to make more 5

money off of our children and the data and their 6

parents, seriously? Thank you very much for the 7

opportunity. 8

ASSEMBLY MEMBER NOLAN: No, thank you 9

very much. You know, I just want to make sure 10

that it is on the record. The Assembly, frankly 11

in a bipartisan manner, has passed two different 12

proposals to give parents opt-in, opt-out and 13

have a little bit more flexibility for parental 14

involvement and certainly we share as, you know, 15

the Assembly is responsible for the creation of 16

the Special District 75 CEC, so we want that 17

involvement, we want your involvement, we‟re 18

really glad you came. It‟s very difficult, I 19

know to schlep up to Albany, I do it too, so I 20

get that and I appreciate your coming. I, if I 21

don‟t let Mr. Lopez ask that question, I know, 22

because he was very gracious about his time, so 23

go ahead and then we‟ll, any others. 24

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ASSEMBLY MEMBER PETER LOPEZ: Well, 2

thank you Madam Chairwoman and I, and I do 3

commend the Chairwoman for being right on point 4

with this and I‟m glad our colleagues are here 5

from across the State. Folks, what you‟re 6

talking about, we‟re hearing, in the seven 7

counties that I service, Mid-Hudson, Northern 8

Catskill, Southern Tier, we‟re rural, we‟re poor 9

and folks are furious about this and they are 10

beside themselves thinking that a State Agency 11

can just walk in and just do this. And my 12

question for Leonie and this would also be for 13

State Ed., are we aware of any statutory 14

authority given to the Department to collect this 15

personal information and to release it in this 16

fashion? 17

MS. HEIMSON: Well, I‟m not a Lawyer and 18

we have a Lawyer here, I‟m, I do believe that the 19

State is supposed to collect data. I know the 20

districts say they are collecting more and more 21

personal data every year. I don‟t how much is 22

mandated by the Federal Government but when he 23

says, and we believe that it violates the 24

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personal Privacy Protection Law but again, I‟m 2

not a Lawyer, but when he says there is no 3

provision in FERPA allowing opt-out, that is a 4

lie. What he means is, he is not going to 5

require or allow opt-out. FERPA allows the State 6

to do anything they like, allows parental 7

consent, allows opt-out, as I said, Jefferson 8

County was going to allow parental opt-out. It 9

is a policy decision that the State is making. 10

It is not either a legal decision as far as I 11

know, it‟s certainly not an ethical decision. 12

ASSEMBLY MEMBER LOPEZ: And do you 13

believe that that decision is fully supported by 14

the Regents or is this the Commissioner acting on 15

his own. 16

MS. HAIMSON: Well I am not personally 17

acquainted with all the Regent‟s but I can say I 18

spoke to one Regent who is very upset because 19

after she voted for this Shared Learning 20

Collaborative, which is what it was called before 21

it was inBloom, she said she had no idea that 22

they had any relationship with Wireless 23

Generation, that she would have never voted for 24

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it if she‟d known it had a relationship with 2

Wireless Generation and guess what, the State 3

didn‟t tell them that there was any relationship 4

with Wireless Generation and what the State told 5

them and has told other people repeatedly is that 6

this is compliant with FERPA without telling them 7

that FERPA has been rewritten by the Federal 8

Government, twice in recent years, to allow and 9

to encourage the sharing of personal private 10

student information without parental consent, so 11

much so, that there are many legal experts that 12

believe the legal experts that believe the 13

regulations, as written and rewritten by the 14

Federal Government violate the language and the 15

intent of the original law. 16

ASSEMBLY MEMBER LOPEZ: Thank you. 17

Thanks so much. 18


Thank you. Anybody else or, because I know I 20

want to try to keep us going but, Mr. Abinanti, 21

and I know Mr. [unintelligible] [2:50:53.7]-- 22

ASSEMBLY MEMBER ABINANTI: First of all-23

- 24

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UNKNOWN MALE: [unintelligible] 2

[2:50:53.8]. 3

ASSEMBLY MEMBER NOLAN: Yes it was good. 4

ASSEMBLY MEMBER ABINANTI: Thank you, 5

first of all to the three of you. Thank you for 6

reminding us that this about kids. This is not 7

just about numbers and the convenience of some 8

people at the top who would like to look and 9

numbers and make some big grandiose policy 10

decisions on the base of number that they‟re 11

looking at, that this is about kids. Secondly, 12

particularly for highlighting the 13

[unintelligible] [2:51:17.8] impact on people 14

with special needs who, those, you highlighted 15

kids who can‟t talk, you‟re right. If that kind 16

of information is there they do become the 17

targets or possible targets, and in ways that 18

people just don‟t understand, you have to be 19

living that to understand it. I agree with you 20

that the way education is supposed to work, is 21

supposed to be interpersonal relationships, not 22

supposed to be through a computer or whatever. 23

As a parent of a child with special needs, my 24

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wife is talking all of the time to my kid‟s 2

teachers every day and there‟s a report, when you 3

pick the kid up at the end of the day, you know 4

if it was a good day or a bad day and you get the 5

details. We‟re not going to go to a portal to go 6

see what, how he did that day. Who‟s got time 7

for that and who wants it. We don‟t want that. 8

That‟s not what we want, we want to be able to 9

talk to the teacher, not have something put in 10

the way. And there‟s something that should be 11

noted Madam Chair, that, and didn‟t have a chance 12

to discuss this with the Commissioner, but-- 13

ASSEMBLY MEMBER NOLAN: Deputy‟s still 14

here. 15

ASSEMBLY MEMBER ABINANTI: but there are 16

those of us who have been through this-- 17

ASSEMBLY MEMBER NOLAN: Is the Deputy 18

Commissioner still here? There he is, so we have 19

people listening Tom, so that we know. 20

ASSEMBLY MEMBER ABINANTI: that you 21

know, it, just from personal experience, when the 22

IEP‟s went online and this was supposedly done to 23

make easier, well if you don‟t follow the process 24

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exactly the way it‟s done, if somebody doesn‟t 2

put theirs in before somebody else does, well 3

then, it gets, she‟s shaking her head, it‟s a 4

mess and that‟s a perfect example of where the 5

Education Department is probably saying this 6

working, we‟ve done it here. Well, from the 7

parent‟s point of view, it doesn‟t work like it‟s 8

supposed to be. Okay, maybe there are benefits 9

to it, maybe it can be shared easier, whatever, 10

but none of these things are a [unintelligible] 11

[2:53:04.6] and so I appreciate your highlighting 12

this for us in an area that‟s so important. I 13

just want to ask Leonie a question, you said 14

something about conflict of interest among the 15

Regent‟s, was the information available for you 16

to be able to check that out? 17

MS. HAIMSON: What was the question, 18

sorry. 19

ASSEMBLY MEMBER ABINANTI: Well, you 20

highlighted some, some conflict of interest among 21

the Regents who voted on these policies. 22

MS. HAIMSON: No, I think what I said, 23

there was a conflict of interest on the Board of 24

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inBloom. 2


MS. HAIMSON: I would not say that 4

there‟s necessarily a conflict of interest among 5

the Regents though many of the State Education 6

employees and the Regents fellows have salaries 7

that are partly paid for by the Gates Foundation 8

and that‟s an interesting issue that you guys 9

might look in to. In fact, one of the Regents 10

fellows who is in charge of this project for SED, 11

was actively recruiting other States to inBloom, 12

and we only know that because someone in 13

Louisiana foiled the communications between John 14

White and other education officials in Louisiana 15

and that mentioned inBloom and the Gates 16

Foundation. We did a similar foil a while ago, 17

we‟ve got no response from State Ed. on the foil. 18

In fact, they first told us that they would take 19

a year to even tell us if they would respond to 20

the foil and then we narrowed it down and we 21

still haven‟t gotten any response from the foils 22

so, when it comes to freedom of information of 23

things the public should know about the 24

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communications of public officials with private 2

companies, the State Education is very private, 3

but when it comes to our kids data, they‟re 4

willing to share that information with other 5

companies. 6

ASSEMBLY MEMBER ABINANTI: I only ask, 7

and I appreciate your raising the issue because I 8

have been concerned for quite some time, that we 9

Legislators now, are required to share all of our 10

personal information online and yet it, the same 11

requirements don‟t seem to apply to some of the 12

decision makers in the Executive Branch and I 13

would hope that somewhere along the way we could 14

look in to some of this and apply the same 15

requirements that are put on us to the decision 16

makers like the Department of Ed. and all of 17

those people that you‟re talking about, I would 18

hope would be forced, if they‟re not voluntarily 19

filling out a questionnaire like we fill out. So 20

that the public can understand where they‟re 21

coming from. You shouldn‟t have to do all of 22

that background research to ascertain what 23

appears to be a conflict of interest. But thank 24

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you for your efforts. 2

ASSEMBLY MEMBER NOLAN: Thank you. Yes, 3

go, and I just want to let Ellen in and then 4

we‟ll sum up if that‟s okay. [Unintelligible] 5

[2:55:43.2]. 6

ASSEMBLY MEMBER JAFFEE: I just want to, 7

I‟m sorry. 8

ASSEMBLY MEMBER NOLAN: Did you want to 9

respond real quick? 10

MS. WILLIAMS: I didn‟t want to respond, 11

I wanted to also you to please make sure that 12

there is some true recourse in reference to this 13

because when I speak in reference to 23 thousand 14

children, most of them being autistic, and 30% of 15

them being nonverbal, just imagine, not being 16

able to defend yourself in case you have identify 17

theft. And your parents not knowing which way to 18

begin. What kind of recourse if inBloom going to 19

do for that? I need to know that, that‟s the 20

question. 21

ASSEMBLY MEMBER NOLAN: We are going to 22

work very hard to get the answer to that 23

question. I want you to understand that. We 24

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believe in getting the answer to that. 2

MS. WILLIAMS: Okay. 3

ASSEMBLY MEMBER NOLAN: And I appreciate 4

your framing it like that because that‟s been 5

what‟s really guided all our, of our efforts. 6

Ellen, Assemblywoman Jaffee from Rockland and 7

then we-- 8

ASSEMBLY MEMBER JAFFEE: I just-- 9

ASSEMBLY MEMBER NOLAN: we‟re going to 10

go to our next group after this. 11

ASSEMBLY MEMBER JAFFEE: Yes, I‟m just 12

going to, I just want to thank you for a very 13

comprehensive presentation and as a former 14

educator, especially the point where this data 15

will provide information to assist educators, in 16

responding to the needs and target instruction, I 17

mean, that in itself is absolutely an outrageous 18

suggestion. The, as a teacher I can tell you, I 19

can read the documents, interact with parents, 20

students, their teachers and you know, read 21

documents in terms of their previous experiences 22

in school and share the comments and insight with 23

other educators and then make a decision about 24

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how I move forward with that student and the kind 2

of instruction that would be appropriate. 3

Reading a data file, is not going to provide me 4

with the inspiration or the information that 5

would be able to assist that child. 6

MS. HAIMSON: Well the base and claims 7

were made in New York City when we signed up for 8

the ARIS Project, it cost 80 million dollars just 9

to start that project and more money since and 10

they claim the teachers would use this and it 11

would be an invaluable tool for instruction and 12

several reports have been done including one from 13

the City Comptroller‟s office and he testified 14

about this recently, it is almost never used. 15

Thank you. 16

ASSEMBLY MEMBER NOLAN: Thank you. I 17

want to thank you very, very much, all three of 18

you, really, it makes a difference for me, we 19

always like to put parents on right at the 20

beginning of the hearing and I appreciate some of 21

the other stakeholder‟s who are being so patient 22

but it‟s very important to hear parent voices. 23

Thank you. 24

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LEONIE HAIMSON: And we appreciate your 2

interest. 3

ASSEMBLY MEMBER JAFFEE: And I want to 4

thank you, especially you Leonie, who is a 5

constituent for making the time and always doing 6

incredible research. It‟s very important to all 7

of us, thank you. 8

KAREN SPROWAL: Thank you all very much. 9


Thank you. Would Jane Lauer Barker from Pitta & 11

Giblin, who‟s a Lawyer but also a concerned 12

parent in this matter and Corinne Carey from the 13

New York Civil Liberties Union. Thank you for 14

your patience. And again Leonie, thank you, I 15

know it‟s a long trip for everybody. I make it 16

too often so I understand. Thank you very much, 17

nice to see you again and I appreciate everybody 18

and we‟re try to move things along and I 19

appreciate the great response we‟ve had. You 20

know, it‟s also a new experience for me, a few 21

people e-mailed us, I, you know, when I started 22

these hearings, we were not on the internet so 23

you just had them with the group that was here 24

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but I gather there are others watching on their, 2

maybe even on their phones, it‟s a scary thought 3

but it is part of a new world where data is 4

easily accessible to people in many, many forms, 5

many, many platforms and how we weed through that 6

to come up with something that gives parents 7

confidence that their children, their treasure, 8

their children are protected is very, very 9

important to our Committee, so we really value 10

your insights and we‟d love to hear a little bit 11

about what you have to say. 12

JANE LAUER BARKER, PARTNER, PITTA & 13

GIBLIN: Thank you very much. 14

ASSEMBLY MEMBER NOLAN: And just 15

reintroduce yourself for the record. 16

MS. BARKER: Yes. Thank you Madam 17

Chairwoman and other Members of the Committee. 18

Thank you for the opportunity to speak to you 19

today. My name is Jane Lauer Barker-- 20

ASSEMBLY MEMBER NOLAN: Yeah, I think we 21

have to jut, like Leonie was, is a very 22

experienced-- 23

MS. BARKER: A little closer? 24

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ASSEMBLY MEMBER NOLAN: speaker at 2

hearings so she had the mic. very close. I 3

think-- 4

MS. BARKER: How‟s that? 5

ASSEMBLY MEMBER NOLAN: you need to just 6

pull it a little closer. Yeah. 7

MS. BARKER: Is that better? 8

ASSEMBLY MEMBER NOLAN: That‟s fine. 9

Thank you. 10

MS. BARKER: My name is Jane Lauer 11

Barker and I‟m a partner in the Law Firm of Pitta 12

& Giblin, LLP. I‟m also the Attorney who is 13

representing a group of parents who have filed a 14

lawsuit that was filed last week, I guess the 15

State Education Department and the Board of 16

Regents to seek to enjoin the mass discloser of 17

the student personal information to inBloom. 18

The, we are also seeking to invalidate the 19

Service Agreement with, of which there‟s been 20

many questions, today, obviously and of which we 21

have serious concerns as well. My Firm is also 22

Counsel to local 372 of the New York City Board 23

of Education Employees who are the hardworking 24

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nonteaching staff of the New York City Public 2

Schools. Those, some of those members are also 3

Petitioner‟s in our lawsuit. They are very, very 4

concerned about many of the issues that you‟ve 5

already heard about from the parents and from 6

Leonie who‟s been a fabulous resource to me. 7

They‟re very concerned about the mass disclosure 8

of the personal information of their student‟s 9

data to inBloom and so they‟ve really brought 10

this issue to the front and we‟ve filed this 11

lawsuit. Now, our lawsuit is filed under the New 12

York State Public Offices Law, Article 6A, which 13

is called the Personal Privacy Protection Law. 14

That law protects private individuals from the 15

disclosure of information that is collected by 16

the State Government or by any Public Agency. It 17

generally requires the consent of the subject of 18

that data to authorize the disclosure of the 19

information. The State Education Department, as 20

you know, has expressly withheld from the parents 21

of New York Public and Charter School children, 22

the right to consent to the transfer of their 23

data to inBloom. The, we don‟t yet know what the 24

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State Education‟s Department‟s position is going 2

to be in the lawsuit. We assume, because there 3

are certain enumerated exceptions in Article 6A 4

to the consent requirement, that they will rely 5

on one of these. The one that appears to 6

seemingly apply here would be, it‟s acceptable to 7

release information without the consent of the 8

data subject if it‟s necessary to the operation 9

of the program specifically authorized by law. 10

Now the State has, in its public announcements, 11

relied on the fact that they do have received 12

substantial money from the Federal Government for 13

Race to the Top, a grant program. They seem to 14

be relying on the, that program as the 15

authorization for the transfer of this, these 16

data to inBloom, but there‟s nothing in the 17

State‟s application to the Federal Government for 18

this Race to the Top money and there‟s nothing in 19

the Race to the Top Law or the Race to the Top 20

Regulations or any of the other Federal Laws that 21

apply to the requirement that the State report 22

things to the Federal Government that, in any 23

way, make it necessary for the State to release 24

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this data to a third party private contractor. 2

The current data system as I, I‟m sure you‟re 3

well aware of, is a data system that, is made use 4

of with in-house expertise. It‟s the local 5

school districts do collect data on their 6

students as they have as they need to, in order 7

to provide a quality education. They provide 8

that data to the State for reporting purposes and 9

for some analysis purposes. The main reporting 10

purposes are required by No Child Left Behind 11

Legislation but that‟s very minimal personal data 12

that is required to be transferred from local 13

school districts to the State. But all of that 14

is kept in-house, it‟s under the control of 15

systems and servers that are owned by the State 16

or by the local governments. It does not pass 17

through to a private contractor and it is not 18

maintained on a Cloud as this data will be 19

maintained under the agreement with inBloom. So, 20

they‟ve made a, they understand, I believe, that 21

they‟ve made a dramatic departure from the 22

current system and there‟s no necessity for this 23

transfer of the data to inBloom under any of the 24

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laws that the State is currently relying on. 2

They appear, as I basically concluded from what I 3

heard today, to be saying that well, as long as 4

we collect the data and have the data available 5

we can use any third party provider to store the 6

data, to process the data, to manage the data, 7

but that‟s not anything that based upon a Federal 8

legal requirement or a State legal requirement 9

and so we believe that we have a strong argument 10

under the Personal Privacy Protection Law to 11

obtain an injunction but we don‟t know, because 12

when you‟re in Court, you don‟t know how this 13

language is going to be interpreted, there‟s very 14

little case law that has interpreted this 15

language. There‟s nothing similar at all. We 16

just know that the reasons for this law, when it 17

was enacted by the Legislature in 1983, are in 18

fact to protect against the use of computerized 19

data systems to result in the disclosure of 20

personal information and here you have personal 21

information that is coming from the most 22

vulnerable of our population that is going to be 23

at risk. So, we have yet to hear from the State 24

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in terms of a response to our lawsuit but our 2

analysis is that this is a decision that the 3

State Education Department has made for purposes 4

of convenience of analysis by its own people. 5

It‟s not something that‟s required or necessary 6

to the operation of any program. We have several 7

concerns about it and I have reviewed the bills 8

that the Assembly previously passed. One major 9

concern is the inadequacies in the service 10

agreement, which I think the Members of the 11

Assembly have, of this Committee have touched 12

upon. Just in terms, focusing on the 13

Chairwoman‟s questions about where are the 14

penalties, what happens? This is a very one-15

sided Service Agreement. It‟s not a Service 16

Agreement that would ever have been drafted by an 17

Attorney for this particular client because it 18

really puts the onus and the burden on the State 19

Education Department to protect the data, not on 20

inBloom. I would refer the Committee to section 21

7.1 of the Service Agreement, the customer is 22

responsible, the customer being the State 23

Education Department, is responsible for 24

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compliance with data privacy by all authorized 2

users and authorized users does mean third party 3

authorized users. So that‟s third party. So the 4

State, the inBloom agreement has made the State 5

Education Department to ensure compliance with 6

data privacy laws. In section 10.6, the 7

customer, meaning the State Education Department, 8

remains responsible for processing the data in 9

accordance with all privacy laws and it‟s up to 10

the customer to ensure that the agreement that it 11

signed with inBloom is sufficiently protective to 12

comply with our privacy laws. So again, the 13

burden is on the State Education Department. In 14

11.2 of the agreement, inBloom makes no warranty 15

of compliance with data privacy and security laws 16

at all. It does not even warrant that its 17

systems are not susceptible to intrusion or 18

hacking. If there is a breach, the only 19

obligation of inBloom is to notify the customer. 20

There‟s no requirement of notifying the parents 21

or anyone else but the State Education 22

Department. The local school districts aren‟t 23

even a party to this agreement so they don‟t have 24

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to be notified. There is no liability for 2

consequential damages that result as a result of 3

a breach of the security system or the breach of 4

the Cloud that inBloom is monitoring or hosting. 5

So this agreement, the State Education Department 6

has spoken about penalties, they‟ve mentioned 7

penalties on their website and their public 8

announcements but as far as I can tell, from 9

reading this agreement and Attorneys in my office 10

can tell from reading this agreement, there are 11

no penalties and in fact the onus and the burden 12

for protecting the privacy of the student data is 13

totally on the State Education Department. I‟d 14

just like to make a few comments about the bills-15

- 16

ASSEMBLY MEMBER NOLAN: Well, alright, 17

I-- 18

MS. BARKER: I will-- 19

ASSEMBLY MEMBER NOLAN: we‟re starting 20

to really-- 21

MS. BARKER: stop here for questions, 22

okay. 23

ASSEMBLY MEMBER NOLAN: run a little bit 24

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late so what we might want to do on that, is 2

we‟re certainly going to be relooking at those, 3

is have a separate conversation, our Counsel, 4

Deborah Nussbaum [phonetic] and Greg Burke 5

[phonetic] are here. If that would be alright, 6

if you could conclude and then have your 7

colleague, because we-- 8

MS. BAUER: Sure. 9

ASSEMBLY MEMBER NOLAN: I‟m starting to 10

feel that pressure, you know, I got a lot of 11

colleagues up here so, if you don‟t mind. 12

MS. BAUER: No problem. No problem at 13

all. 14

ASSEMBLY MEMBER NOLAN: Alight. 15

MS. BAUER: Thank you very much. 16

ASSEMBLY MEMBER NOLAN: Okay, good. 17

Thank you, thank you. From the Civil Liberties 18

Union, Ms. Carey. 19

CORINNE CAREY, NEW YORK CIVIL LIBERTIES 20

UNION: Alright. 21


MS. CAREY: Good afternoon. My name is 23

Corinne Carey and I‟m the Assistant Legislative 24

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Director at the New York Civil Liberties Union. 2

As many of you know the NYCLU is a nonpartisan, 3

not-for-profit organization with approximately 50 4

thousand members from across the State in the 5

foremost defender of civil rights 6


ASSEMBLY MEMBER NOLAN: You‟re going to 8

have to talk a little bit louder also. 9

MS. CAREY: Okay. 10

ASSEMBLY MEMBER NOLAN: You just need to 11

pull the mic a little bit closer. It‟s a 12

judgment. 13

MS. CAREY: Sure. 14


MS. CAREY: I‟d like to thank you for 16

giving me the opportunity to speak today. We‟ve 17

heard a lot about the recent reports in the news 18

about inBloom, but perhaps the most startling 19

aspect of the controversy to us at the NYCLU is 20

how long it‟s taken for public attention to focus 21

on student privacy rights. Over the last several 22

years, the amount of information about students 23

that schools have collected and stored for an 24

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indefinite period of time has grown 2

significantly. New York‟s partnership with 3

inBloom continues, centralizes, and perhaps 4

accelerates this trend. This new partnership 5

adds a new dimension. Until now, the student 6

data that the State collects has been stored in 7

Government operated, regional information 8

centers. Now it will be uploaded and stored by a 9

private computing services. This partnership 10

creates new opportunities but also a significant 11

new risks for New York students. The NYCLU is 12

deeply committed to defending students‟ rights to 13

privacy including their data privacy. In the 14

school context, data privacy means that students 15

and their parents must have, to the extent 16

possible, control over their own information 17

including the right to decide when and whether to 18

share personal information, how much to share and 19

the circumstances under which that information 20

can be shared. The ACLU, of which the NYCLU is 21

the New York State Affiliate, had a long history 22

with student privacy laws including playing a 23

major role in passing FERPA. In the years 24

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leading to FERPA‟s enactment, the ACLU 2

demonstrated that student records were freely 3

shared with Government Agencies including the 4

FBI, the Courts and Health Departments around the 5

country. Students and their parents had no 6

control over this disclosure nor an affirmative 7

right to review and correct their own records. 8

FERPA created that right and limited third party 9

disclosure of student information to cases where 10

the student could not personally be identified or 11

where she had granted the school permission to 12

share. Under changes to FERPA now, third party 13

vendors including Cloud service providers, can be 14

granted the same access to records as the school 15

itself. The NYCLU respects that school districts 16

have legitimate reasons for sharing certain 17

student information and vendors may help plan 18

school schedules, use enrollment data to order 19

food for the cafeteria, track incidents of 20

bullying and fighting, use test scores to develop 21

teaching tools that are targeted to student‟s 22

particular needs. And these vendors couldn‟t 23

provide these services without access to these 24

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kinds of records but we face a new challenge 2

today because unimaginable when law makers passed 3

FERPA in 1974, Cloud computing technology enables 4

a single company to collect data about students 5

in every grade, at every school, store it in a 6

single online service and create interfaces to 7

allow many different parties, including students, 8

parents, teachers, administrators, and other 9

vendors to access a broad range of information. 10

The technology can allow users to access 11

information in aggregated data sets as we‟ve 12

heard or at the individual level and the 13

potential of data sharing made possible is 14

unprecedented. This offers benefits but it also 15

offers, but it also poses many risks. We‟ve 16

heard a lot about the benefits here, adding to 17

that, I would say that centralizing student data 18

also presents possibility for transparency and 19

informed public policy that we‟ve never seen 20

before. Aggregate longitudinal student 21

discipline data can enable public oversight of 22

disciplinary practices across the State, for 23

example. New York State lags behind other States 24

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when it comes to disclosure of aggregate student 2

discipline data and information, this information 3

can help policy makers interrupt the so-called 4

school to prison pipeline. Other uses of 5

aggregate student data include the analysis of 6

the achievement gap, tracking incidents of 7

bullying and harassment in schools, close 8

examination of dropout rates and cross 9

tabulations of student poverty and student 10

achievement. The large data set created with 11

information from all students in all districts 12

allows for sophisticated statistical analysis 13

that can‟t be done at the local level. Where 14

student data is de-identified, aggregated and 15

made publically available, the policy benefits of 16

centralization are invaluable. However, 17

centralizing student by storing it through the 18

Cloud also creates a host of new risks for 19

students and their families. It creates 20

vulnerabilities for the security and as we‟ve 21

heard, if a malicious actor broke through the 22

security protecting the shared data store, the 23

actor would have access to all of the data inside 24

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including contact information, Special Education 2

history and more. And I would pause here to say 3

that encryption, while it‟s important and should 4

be required, is not a failsafe. Centralizing 5

data increasing the likelihood that the systems 6

administrators might authorize greater data 7

sharing than necessary. When access to private 8

information only depends on selecting or 9

deselecting user permissions, administrators can 10

easily expose private information to individuals 11

or companies beyond what is necessary, useful, or 12

permissible. Centralizing the data also makes it 13

much easier for schools to add new data points to 14

the shared data store capturing and ever-15

expanding array of details of student‟s lives. 16

SED‟s memorandum of understanding with the shared 17

learning collaborative identifies 400 granular 18

elements and the flexibility to add more as the 19

needs evolve and that‟s a quote from the 20

agreement. Like granting excessive permission to 21

users, adding one more data point to a central 22

repository is likely to be so simple that it 23

would be easy to skip a thoughtful analysis of 24

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whether collecting the information is necessary, 2

to support students education. A central record 3

of information about students may put them in to 4

categories from which the data base code may 5

never let them escape. For example, The New York 6

Times reported that inBloom‟s database allow 7

students to be labeled “victims, perpetrators, or 8

on the Principal watch list”. Loaded terms such 9

as these can lead future educators to make bias 10

judgments about students based on the report only 11

in the data dashboard. Additional privacy risks 12

arise when private companies store and provide 13

access to centralized student data instead of the 14

State Government. Private entities like inBloom 15

or Amazon web services may have incentives to 16

grant access to other companies or mine student 17

data themselves if State policy makers don‟t 18

clearly define how these private companies may 19

use the data. But these risks don‟t mean that 20

New York should never take advantage of the 21

benefits of creating a centralized repository. 22

The right policy framework can empower shared 23

learning infrastructure with robust protections 24

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of student privacy. We have a number of 2

recommendations, which I won‟t read here, you 3

have it in your written testimony from me. They 4

include creating tiers of information with 5

different kinds of permission available to 6

different, to get different kinds of information, 7

periodic hearing at the school district level, 8

retention and destruction policies for the data 9

and most importantly I would add, incorporating a 10

private right of action in to New York‟s data 11

privacy laws of the students who are aggrieved 12

had some level of recourse. And I can tell you, 13

if you‟re concerned about student data and the 14

use of third party vendors, I can just tell you 15

that the way that the State is moving forward 16

with health information technology should concern 17

you as well because many of these issues overlap 18

and I hope that the Health Committee will hold a 19

similar hearing to look in to these issues as 20

well. Thank you so much for your attention. 21


Thank you. We, fortunately health is not in our 23

portfolio, so that‟ll be someone else‟s headache. 24

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I want to thank you. We have a lot of questions 2

but we‟re going to keep moving and we know that 3

you‟ll be available. I also, I had asked the 4

Deputy Commissioner to stay but I think Deputy 5

Commissioner, it would be easier, you know, it‟s 6

not really fair for me to ask him to respond to 7

all the things that were said. So what I‟d like 8

to do is ask our friends, you guys are finished, 9

we‟re going to have the NYSUT people, the 10

stakeholder‟s from NYSUT come down and also from 11

the School Boards because Julie Marlette‟s here 12

with a sprained ankle and she‟s really 13

uncomfortable, I feel really bad. So, if NYSUT 14

doesn‟t mind sharing the table with the School 15

Boards, just for today, we‟ll have you both come 16

and, you know, then we‟ll take some questions for 17

them. Is that okay? Was there any, I think we 18

have to, if there‟s a quick question for this, 19

the first panel, it‟s okay, but because we‟re 20

starting to run a little late. I also want to 21

say, Deputy Commissioner, I wanted to bring you 22

back down, is there any, is there a quick follow 23

up for him that anybody had or can we just, Ken? 24

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You know what, could we just, before we have the, 2

because we‟re getting, just come down so 3

Assemblyman Zebrowski can get that little wrinkle 4

that we didn‟t get a chance to get the 5

Commissioner and then we‟ll be finished. I 6

apologize to the, we‟re trying to a lot of things 7

at once and now one of them is make the Committee 8

move forward so, thank you Commissioner, thank 9

you Ken. I don‟t know, Ellen will, you know, if 10

there‟s another, brief, brief, yes go ahead. 11

DEPUTY COMMISSIONER WAGNER: And then 12

will this be-- 13

ASSEMBLY MEMBER NOLAN: Mr. Zebrowski 14

and then if there‟s anybody else. 15

DEPUTY COMMISSIONER WAGNER: and then 16

will this be the end of my time before you? 17

ASSEMBLY MEMBER NOLAN: Yes, yes. I 18

know that you have a lot, I know you have a lot 19

to do. We understand that-- 20

DEPUTY COMMISSIONER WAGNER: Sure. 21

ASSEMBLY MEMBER NOLAN: and we 22

appreciate that. But I do want to say, I hope, 23

one of the reasons we asked that you stay is 24

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that, you know, we‟ve had-- 2

DEPUTY COMMISSIONER WAGNER: Yes. 3

ASSEMBLY MEMBER NOLAN: two panels that 4

made very serious concerns expressed and, very, 5

very serious and we want to be able to have 6

dialogue with you guys to answer that and 7

obviously we‟re not going to put you on the spot 8

to do that today, but I think that there‟s some 9

real, the more I sit here, the more anxious I get 10

about it. 11


ASSEMBLY MEMBER NOLAN: If you want to 13

know the truth, so… 14

DEPUTY COMMISSIONER WAGNER: And there 15

are actually are, if I, after the questions, I 16

can respond to a few points if that would be 17

helpful. 18

ASSEMBLY MEMBER NOLAN: Oh, okay. 19

DEPUTY COMMISSIONER WAGNER: It‟s up to 20

you. 21

ASSEMBLY MEMBER NOLAN: Ken, go ahead, 22

yes. 23

ASSEMBLY MEMBER ZEBROWSKI: Sure. Thank 24

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you Deputy Commissioner, I just have a few 2

specific questions and, you know, I know we‟ve 3

been talking a lot about additional data and 4

prior data and so, you know, what specifically or 5

how much specifically is different now with what 6

inBloom will collect as opposed to what was 7

collected prior by, you know, the school 8

districts individually or the State Education 9

Department in an aggregate. Is there more 10

individualized information collected under the 11

new proposed model? 12


State is, continues to modify its data collection 14

reporting requirements. One reason, for example, 15

we currently collect the same data in different 16

systems. So one of the things that we‟re trying 17

to do is eliminate redundancy and so on, so there 18

are some data elements that we‟re stopping to 19

collecting in one system and starting to collect 20

in this system, not inBloom, but for our data 21

collection purposes. We also have started to 22

collect new data elements, not for inBloom, but 23

for our own policy purposes specifically related 24

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to attendance and related to suspension because 2

as the Commissioner mentioned there is a vast 3

body of research that suggests that if we can 4

understand how students, when students are absent 5

and when they‟re suspended, if you take three 6

pieces of information, attendance information, 7

suspension information and student performance in 8

courses, you can help students because that 9

information tells you a lot about whether or not 10

they‟re meaningfully engaged in their schools and 11

whether or not they need additional assistance. 12

Now, of course, there‟s exceptions where student 13

absences don‟t mean what we think it might mean, 14

but that‟s important information. So we have 15

collected new data elements over the last couple 16

of years. Student level attendance started last 17

year and student level suspension started this 18

year. But those data elements are things that we 19

would collect independent of whether or not we 20

had proceeded with the inBloom project. 21

ASSEMBLY MEMBER ZEBROWSKI: But now 22

those pieces of information, will they be shared 23

with inBloom? 24

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those, it‟s important to keep in mind that we‟re 3

not doing anything with inBloom to benefit 4

inBloom, nor are we doing anything with inBloom 5

to benefit vendors. We‟re trying to help two 6

parties. The first party we‟re trying to help is 7

the State Education Department because we have a 8

Federal requirement to monitor school programs 9

and to assist with the improvement of school 10

programs. So one of the things that we‟re 11

choosing to do, to do our business, is to use the 12

data dashboards for our staff to access for our 13

FERPA compliant purposes. So we‟re very much 14

trying to use this project to assist our required 15

purposes. The other is, we‟re trying to assist 16

school districts. We‟re not asking school 17

districts to spend money on educational software, 18

if they choose to spend money on educational 19

software, we believe that this project can help 20

make it more efficient, more cost effective and 21

more secure for school districts to do what 22

they‟ve already been doing. So the data elements 23

that you mentioned, yes, they are part of the 24

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Engage New York Portal Project, but precisely 2

because it helps the State Education Department 3

do its job and it can help school districts help 4

kids. It‟s not at all included to benefit 5

vendors or to benefit inBloom. 6

ASSEMBLY MEMBER ZEBROWSKI: No, I 7

understand that and that‟s the concern of 8

parents, though, is as you‟re sort of ramping up 9

the information, you‟re collecting at the same 10

time for what parents perceive to be the first 11

time in New York State history. It‟s not just 12

being collected by their local school district or 13

by you as State Ed. They would probably have 14

concerns anyway-- 15


ASSEMBLY MEMBER ZEBROWSKI: as to 17

security and stuff like that. But now they see a 18

private company, not-for-profit company, but 19

private. They‟re not, you know, it‟s not a State 20

Agency and that‟s what they concerned about that 21

as your ramping up, you know, and that now you‟re 22

using this company and the safeguards and the 23

penalties or that lack thereof that we‟re talking 24

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about, you know, perpetuates the problem. I, 2

specifically, and then I‟ll turn it over to any 3

of my other colleagues. So, right now, has the 4

Department established a process for which 5

parents are notified of their ability to decline 6

disclosure of information to third party 7

providers? 8

DEPUTY COMMISSIONER WAGNER: So, I‟m 9

going to try to answer the question in a way that 10

doesn‟t, that responds and people don‟t think 11

that I‟m not being responsive parent concerns. 12

FERPA has two different provisions. My 13

understanding, and I‟m not an Attorney, but my 14

understanding is FERPA has two different 15

provisions for access to data for data systems. 16

One is, the provision where if this is something 17

that you need, if you need this partnership to 18

carry out your core mission, so you need this 19

partnership with a vendor because you can‟t build 20

a schedule otherwise and therefore you can‟t open 21

your building, that does not require parental 22

consent because if you had to get a, if you have 23

700 students in your school, if you had to get 24

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consent from all 700 students, you could never 2

build your school schedule. But then there are 3

other things that are nonessential, that FERPA 4

does require that school districts have data 5

security and privacy policies, that school 6

districts post those policies on at least an 7

annual basis and set up policies for whether 8

parents, how parents can opt-out, whether that be 9

a passive opt-out or an active opt-out. And two 10

examples that I will give for how data may be 11

exchanged with third parties but not for core 12

services would be things like your yearbook. For 13

example school districts often provide student 14

information to yearbook companies and they have 15

to have policies for students to opt-out. We all 16

have pictures of students that were not included 17

in the yearbook because that‟s not a core 18

district, no matter what a high school senior may 19

say, that‟s not a core district service. 20

Similarly things like class rings, those are the 21

kinds of things that FERPA says absolutely, you 22

have to have policies for parents to opt-in or 23

opt-out unless it‟s part of your core district 24

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mission and you really could not run your schools 2

unless you had the ability to operate independent 3

of each of the decisions of each of your parents. 4

ASSEMBLY MEMBER ZEBROWSKI: Okay, but in 5

terms of this sort of new program, you know, what 6

my parents are doing in my district, is they‟re 7

going first and foremost to inBloom.org and 8

they‟re reading the information there and trying 9

to digest it. So, when they get to the part B of 10

that, of the access to inBloom, it says school 11

district and State Educational Agency customers 12

are responsible for determining and notifying 13

parents of policies regarding to the extent to 14

which parents can opt-out, I‟m just going to 15

paraphrase the rest of it. So then, they‟re 16

asking these questions and it seems like we don‟t 17

have answers. So it says school districts and 18

State Educational Agency customers are 19

responsible. So as a State, we‟re going in to 20

this program, have we yet set up these policies 21

for which parents will be able to opt-out with 22

this new system so that school districts and 23

parents can have an ability to know. I mean, 24

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this is supposed to help out school districts so 2

that they have the ability to know what they 3

should do, what they can do. 4


my understanding is that every school district in 6

the State has, as part of their policy book which 7

is subject to continual review by their Board of 8

Education as well as by their Superintendent, has 9

policies around security and privacy of student 10

information. Every school district in the State 11

has to have a policy, for example, around 12

directory information. What information is 13

considered directory information, which therefore 14

can be shared without parental consent. So there 15

should be a mechanism and I don‟t want to 16

minimize that this project is complicated and 17

it‟s hard to explain in a way that makes sense to 18

parents and a point was raised before, we‟ve not 19

done a good enough job engaging parents and I 20

want to acknowledge that yes this is complicated. 21

I have been talking to people in public space for 22

two years and it‟s still, I still feel like 23

people don‟t necessarily understand because we 24

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haven‟t provided anything yet. The dashboards 2

aren‟t there yet so people want to say, just like 3

was mentioned before, people like anecdotes so 4

they want to say yes, this is worth it because I 5

can do something useful with it but there should 6

be a mechanism for a parent to ask a school 7

district, what is your policy on student data 8

security and privacy and school districts should 9

have policies related to that. When the question 10

has been asked of us, at the State level, is 11

there a provision or is there a mechanism for 12

parents to opt-out of the State‟s use of its data 13

for, what we‟ve determined to be a State 14

consistent and FERPA consistent policy and 15

purpose, we have put in print on our website that 16

there is not a way for parents to opt-out of 17

State provided data. If a school district 18

elected to provide additional data to inBloom, 19

and it doesn‟t sound like many school districts 20

want to do that at this point, but if they did, 21

then they would have to determine at a local 22

level, whether, for example, if they said State 23

assessment scores are just not as useful to 24

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teachers as local achievement scores because 2

local achievement scores can be much more 3

relevant to classroom practice so a school 4

district may elect that they wish to put local 5

achievement scores in to the data dashboard to 6

supplement State assessment scores. If a school 7

district came to that determination, they would 8

then have to decide whether or not the provision 9

of local achievement scores was for a core 10

district service so therefore part of FERPA that 11

would not require parental consent or whether it 12

was not part of a core district service and 13

therefore would require parental consent. So 14

that would be a local decision that they would 15

have to do if they wanted to supplement the 16

State‟s data. But the State has been very clear. 17

The response has not been, parents have not been 18

happy with the response, but we‟ve been very 19

clear that we do not have a process for parents 20

to opt-out of a State system that‟s meeting State 21

needs and is meeting our needs to help meet 22

school district needs. 23

ASSEMBLY MEMBER ZEBROWSKI: Now that‟s 24

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clear and I‟ll conclude with this, Chairwoman. 2

But considering that this is a State initiated 3

program, I would think that it would behoove the 4

State to have sort of State processes for the 5

school districts to follow in terms of opting-out 6

for whatever it is they can opt-out for, so 7

you‟re sort of telling me that the school 8

districts can set up their own set up their own 9

sort of models. This is just sort of being 10

foisted down upon them. Parents are going to 11

them saying opt-out of it all, you‟re saying you 12

can‟t opt-out of it all. Obviously that‟s 13

something we may or may not take up as a 14

Legislature, as a policy making body, but when 15

they go on the site there is talk of opt-out, 16

there‟s talk of non-opt-out for third party 17

vendors and I think that‟s incumbent upon the 18

State, since this is your program, to clear all 19

those things up. Even if, you know, you‟re 20

talking about, you know, you‟ve give a clear, 21

about parents not being able opt-out of the 22

program as a whole but there is some opt-out 23

provisions for the third party vendors. This is 24

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a new program, this isn‟t the yearbook that‟s 2

been going on for decades, this is a new program 3

and parents are looking for that type of 4

assurance and they‟re looking for that type of 5

assurance as to what‟s happening with specific 6

things. I mentioned before, Special Ed., 504, 7

bus stop information, no word about security with 8

bus stop information, I mean, you know, school 9

lunch, disciplinary procedures, where, where‟s 10

all that information going? Obviously it‟s not 11

all what I‟m talking about right now, but it just 12

goes to show that this program, I think even by 13

inBloom‟s, go to inBloom.org, and read about it, 14

they tell parents but then it‟s still not clear 15

and the State hasn‟t provided that mechanism to 16

make it clear. 17

ASSEMBLY MEMBER NOLAN: And I think, you 18

know, I really am really thrilled Assemblyman 19

Zebrowski, that you came today because I think 20

you put a really good cap on it, you know, and I 21

think Rockland‟s in the house. It‟s interesting 22

to me, you and Ellen, really the whole 23

delegation, you‟re both here so, you know, I 24

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think it‟s a sense of how concerned parents are. 2

I know Assemblywoman Lifton had a quick question 3

but if you, I, if you‟d like to respond to his 4

point quickly but we go to-- 5

DEPUTY COMMISSIONER WAGNER: No, no-- 6

ASSEMBLY MEMBER NOLAN: got to start 7

moving now. 8

DEPUTY COMMISSIONER NOLAN: that‟s fine. 9

ASSEMBLY MEMBER NOLAN: It‟s almost two 10

o‟clock [unintelligible] [3:32:45.2]. 11

ASSEMBLY MEMBER BARBARA LIFTON: Just a 12

quick question, I apologize, you know, I had to 13

be out for a little while-- 14

ASSEMBLY MEMBER NOLAN: I‟m sorry. 15

ASSEMBLY MEMBER LIFTON: so I apologize 16

if this is at all redundant. It was mentioned 17

earlier that philanthropic money was funding this 18

data collection, inBloom. Where‟s the 19

philanthropy in this and then, yeah, just a quick 20

and then maybe a follow up quick. 21


philanthropic funds that were mentioned before 23

are to support inBloom‟s initial two or three 24

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years of operation-- 2

ASSEMBLY MEMBER LIFTON: Okay. 3

DEPUTY COMMISSIONER WAGNER: to provide 4

those services. 5

ASSEMBLY MEMBER LIFTON: So, Ken, you, 6

there was some mention, I think of Gates 7

Foundation-- 8

DEPUTY COMMISSIONER WAGNER: The-- 9

ASSEMBLY MEMBER LIFTON: And other 10

philanthropies. Do we have a full, can I, can we 11

get a [unintelligible] [3:33:25.7]? 12

DEPUTY COMMISSIONER WAGNER: There just, 13

there‟s two, two primary funders of inBloom in 14

its initial years, Gates Foundation and Carnegie 15

Foundation. 16

ASSEMBLY MEMBER LIFTON: And Carnegie. 17

DEPUTY COMMISSIONER WAGNER: Carnegie. 18

ASSEMBLY MEMBER NOLAN: Is that-- 19

ASSEMBLY MEMBER LIFTON: I-- 20


DEPUTY COMMISSIONER WAGNER: 22

ASSEMBLY MEMBER LIFTON: You know, just, 23

you know I always get a little nervous about, you 24

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know, usually philanthropies do aids in Africa 2

and funding the local hospital and usually they 3

don‟t do data collection of student data. So it 4

kind of makes me start thinking about what that‟s 5

all about and what possible agendas there might 6

be and sort of follow the money kind of thinking-7

- 8


ASSEMBLY MEMBER LIFTON: about. Not 10

sort of the usual philanthropic work. You know, 11

helping poor children, although they may see it 12

as helping poor children in this case, but you 13

know, I‟d love a little more information, what‟s 14

the total amount of dollars that come in and how 15

much it would cost, for instance, SED, to just 16

being doing all of this stuff in-house rather 17

than having sort of contracted out with such 18

sensitive information and all the worries around 19

that and how much money‟s involved and what, you 20

know what, I have, I have some questions about 21

kinds of agendas might be at work. I think Gates 22

has been very involved in issues around education 23

policy and it makes me a little nervous frankly. 24

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DEPUTY COMMISSIONER WAGNER: So we have 2

contracted out for, not the same service, the 3

inBloom service is designed to give data access 4

to tens of thousands of teachers and parents 5

across the State where as we‟ve contracted out 6

for this, really this, a larger Statewide data 7

set than we‟re providing to inBloom. We have 8

contracted out for different purposes. Just to 9

give context for the work, the Data Quality 10

Campaign issues a report yesterday, I believe, 11

where for years, they were, they‟re and advocacy 12

group around the idea that more accurate evidence 13

data can help shine a light on outcomes for 14

students and also can shine a light on the 15

ability to improve instructional services. And 16

for years, the Data Quality Campaign just focused 17

on, did you collect these ten data elements and 18

that led to some Federal Legislation including 19

the America Competes Act which required States 20

across the country to collect ten different types 21

of data elements including the ability to link 22

students to teachers as well as college readiness 23

information and also connections between the K-12 24

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system and the higher education system, not a 2

student level, but to see whether or not the 3

schools are helping kids graduate college ready. 4

Data Quality Campaign changed their approach, now 5

they‟re talking about ten effective actions. 6

It‟s not just enough to warehouse data. The only 7

purpose of collecting data is to use it for 8

important purposes. And New York did fairly well 9

on that annual survey, we scored about seven out 10

of ten but one of the ways that we did not score 11

well, and other States, I think about 30, 14 12

States are already doing it, is specifically the 13

action to give data back to parents and to give 14

data back to students. So here‟s a national 15

organization that‟s holding a standard up, are 16

you able to give data back to parents and the 17

students and in New York, our current answer is 18

no, other States are able to say yes. And after 19

this project, we will be able to say yes, we‟re 20

able to give data back to parents. I don‟t want 21

to pretend that‟s the be all, end all, the 22

previous speakers were absolutely right, that 23

real interaction comes between real teachers and 24

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real parents and real classrooms but evidence and 2

data is just part of that process. 3

ASSEMBLY MEMBER LIFTON: Okay, you just 4

said that there were other States that did better 5

on the sharing between teachers-- 6

DEPUTY COMMISSIONER WAGNER: And 7

parents. 8

ASSEMBLY MEMBER LIFTON: and parents. 9

But they‟re not part of inBloom, so how do you 10

account for that? 11

DEPUTY COMMISSIONER WAGNER: Great 12

question. Great question. So, my recollection 13

is there are 14 providers, 14 States that scored 14

on that element and each of those States found 15

out a different way to try to provide information 16

to parents. So for example, we provide 17

information to parents but it‟s a PDF report. 18

It‟s a PDF report of, I‟m sorry, it‟s a document 19

format. We provide something that can be printed 20

out and backpacked home through the students when 21

students score reports come back. I don‟t know 22

the details of how other States have reached out 23

to their parents but when New York-- 24

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ASSEMBLY MEMBER LIFTON: Maybe we should 2

find out. 3

DEPUTY COMMISSIONER WAGNER: when New 4

York, and the report is publically available, 5

when New York contemplated the prospect of 6

reaching out the parents and families of 2.6 7

million students, the ability to do that without 8

a service like inBloom, we‟re not, it doesn‟t 9

have to be inBloom, but we need help to perform 10

that function for our own required purposes and 11

to help reach out to parents and with New York, 12

with 2.6 million students, inBloom was a solution 13

that looked very promising for us and we very 14

much hope that other solutions show themselves in 15

the near future. 16

ASSEMBLY MEMBER LIFTON: Thank you. 17

ASSEMBLY MEMBER NOLAN: Thank you. If 18

there‟s anything else you would like to add, I 19

don‟t want to, I‟ll certainly give you that 20

opportunity but we‟re really running very, very 21

late now, so I want to try to, Mr. Abinanti, 22

okay, alright. 23

ASSEMBLY MEMBER ABINANTI: You just said 24

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that each school district has the right, if not 2

the obligation, to promulgate a policy with 3

respect to privacy. What happens if they‟re 4

privacy policy prohibits them from sharing the 5

information, you‟re going to share, are they now 6

liable? 7

DEPUTY COMMISSIONER WAGNER: They, 8

they‟re, I would doubt that their privacy policy 9

prohibits them from providing data to the State 10

to meet State and Federal compliance. 11

ASSEMBLY MEMBER ABINANTI: No, but if it 12

prohibits them from releasing this? 13

ASSEMBLY MEMBER NOLAN: I‟m sorry, can 14

you just make sure you talk in to the mic.-- 15

DEPUTY COMMISSIONER WAGNER: Oh, I‟m 16

sorry. 17

ASSEMBLY MEMBER NOLAN: Yeah, we‟re very 18

[unintelligible] 3:39:02.5]. 19

ASSEMBLY MEMBER ABINANTI: Or prohibits 20

from collecting certain types of data. 21



ASSEMBLY MEMBER ABINANTI: So the State 24

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has written their right? 2

DEPUTY COMMISSIONER WAGNER: For 3

inBloom, school districts, unless they opt to 4

provide supplemental data, school districts are 5

not [unintelligible] [3:39:17.3]-- 6

ASSEMBLY MEMBER ABINANTI: I‟m not 7

talking supplemental data. 8


ASSEMBLY MEMBER ABINANTI: A school 10

district today says, we are going to collect 30 11

points, nothing more, that‟s our policy, we‟re 12

not going to share with anybody period. Where in 13

the law do you have the right override that 14

policy and require them to give you information 15

their privacy policy does not provide for? 16

DEPUTY COMMISSIONER WAGNER: So if a 17

school district‟s local policy was in conflict 18

with State requirements, then that‟s something 19

the school district would have to contact us. 20

We‟ve been requiring the collection and reporting 21

of data for again, over ten years. 22

ASSEMBLY MEMBER ABINANTI: I understand 23

that but now you‟re requiring more data than 24

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they, you‟ve required before previously, before 2

2010, so it‟s reasonable to believe that school 3

districts with sharp School Board Members and 4

sharp Lawyers have drafted policies to fit what 5

they were doing before. Now you‟re asking them 6

to do more. Is there a requirement somewhere in 7

the law that they change their policies? 8

DEPUTY COMMISSIONER WAGNER: There is, 9

my understanding is there are ongoing 10

requirements for school districts to review their 11

policy books on an ongoing-- 12

ASSEMBLY MEMBER ABINANTI: Okay and 13

where in the law do you have the power to 14

override their privacy policy? 15

DEPUTY COMMISSIONER WAGNER: What I was 16

saying is if there is an instance where a, the 17

State Education Department is issuing a 18

requirement for data reporting to meet Federal or 19

State purposes including title fund purposes, a 20

lot funds are tied to the accurate reporting of 21

data, if there is an instance where that 22

requirement is in conflict with a longstanding 23

district policy then that‟s very much something 24

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we‟d like to talk to the district about and 2

figure out how we can move forward. 3

ASSEMBLY MEMBER ABINANTI: That goes to 4

my next question. How many times have you met 5

with the Superintendents of schools from the 6

State of New York regarding these policies. 7

DEPUTY COMMISSIONER WAGNER: So I just 8

met, I just had a phone call last Wednesday, I‟ll 9

be down in the Westchester area this coming 10

Monday, I go to regional meetings when I‟m 11

invited for regional meetings. 12

ASSEMBLY MEMBER ABINANTI: So I can, I 13

can take it that the policy of the State 14

Education Department, which applied to Common 15

Core, is applicable here as well, that you‟ve 16

totally ignored the input of the Superintendents 17

of schools who are our local experts and get paid 18

a lot of money to be experts, is that correct? 19


believe that‟s correct. I have weekly, I talk to 21

representatives from the field every-- 22

ASSEMBLY MEMBER ABINANTI: School Boards 23

Associations, the Superintendent‟s associations 24

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have been trying to have input. 2

ASSEMBLY MEMBER NOLAN: We can, we have, 3

all those-- 4

ASSEMBLY MEMBER ABINANTI: I think I 5

made the point. Thank you. 6

ASSEMBLY MEMBER NOLAN: stakeholder‟s 7

want to testify-- 8

ASSEMBLY MEMBER ABINANTI: Thank you. 9

ASSEMBLY MEMBER NOLAN: to tell us. I 10

don‟t want to be, but-- 11

ASSEMBLY MEMBER ABINANTI: I understand. 12

ASSEMBLY MEMBER NOLAN: he gave his 13

answer and I understand we feel some of these 14

answers are not as satisfactory as we‟d like but 15

we do have other people. Sorry, I apologize. 16

ASSEMBLY MEMBER ABINANTI: I made the 17

point, thank you. 18

ASSEMBLY MEMBER NOLAN: Deputy I want to 19

thank you for staying as well. I want you to 20

understand that, since I haven‟t had the 21

opportunity to meet with you or hear you speak, 22

we have a lot of questions, we want to follow up 23

with you on and I hope that the Department, and I 24

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want to say this very publically-- 2


ASSEMBLY MEMBER NOLAN: one of the 4

concerns that many of us have is, it‟s wonderful 5

to, you know, expansive and extensive listening 6

tool or whatever it is the Commissioner is doing 7

at these meetings but you really have to start to 8

respond, you know, this has reached a critical 9

mass. You know, we did initiate, I was very 10

receptive, I always to give the Agency the 11

benefit of the doubt, perhaps that naive on my 12

part, but [unintelligible] [3:42:25.6] for a long 13

time. I am very, very concerned that by allowing 14

this to move forward, we may have already 15

comprised students privacy and not gotten the 16

benefits that you guys have said that we‟re going 17

to get and I really think, you know the fact that 18

so many thousands of parents as Kenneth and 19

others have said, have shown up. I guess I‟m in 20

trouble with the mic. but that have shown up to 21

be, express their anxieties and their concerns. 22

It‟s not about you guys, you know, having not 23

explained it properly. They listened to you, 24

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they have real concerns and the Department must 2

respond, the Department must respond to them and 3

the response cannot be we‟re going to have five 4

more listening tours, where you‟re going to meet 5

with five more people and explain it again. The 6

Department must respond to the concerns of the 7

people, that‟s my takeaway and I would hope that 8

you would accept that and understand that. Thank 9

you very much. 10

DEPUTY COMMISSIONER WAGNER: Thank you. 11

Thank you for your time. 12


Okay, I want to thank all the others who have 14

been so patient. I want to thank, first of all 15

publically Michael Borges [phonetic] from the 16

Association [unintelligible] [3:43:30.4] had to 17

leave, so I want to apologize to him because we 18

will have his written testimony but Andrew 19

Pallotta, Executive Vice President of the New 20

York State United Teachers, Steve Allinger and 21

Catalina Fortino. Steve and many who go back a 22

long way. My mic. is still not working, it‟s my 23

own fault, and you know what, if I‟m not, if my 24

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voice wasn‟t on TV, it‟s probably a good thing, 2

but I really appreciate your coming and then our 3

School Board friends Julie, you want to come 4

right down? Julie Marlette from the School 5

Board‟s is here with someone else or, David, oh 6

you‟re here. Alright. Well, at least get in the 7

on deck circle 8

ANDREW PALLOTTA, EXECUTIVE VICE 9

PRESIDENT NYSUT: School Board said they have 10

requested to go after us. 11

ASSEMBLY MEMBER NOLAN: Right, they‟re 12

going to go on the on deck circle then, thank 13

you. Okay. Thank you and we welcome you and 14

appreciate everyone‟s patience. I know that the 15

clock is ticking so, go right ahead. 16

ANDREW PALLOTTA: Thank you Chairwoman 17

Nolan and Members of the Assembly Committee. I 18

just want to thank you for the opportunity to be 19

here today. I‟m joined by Catalina Fortino from 20

the UFT, their Vice President of Education and 21

Steve Allinger, the Director of Legislation. My 22

name is Andy Pallotta. I represent the school 23

district throughout the State. What we have 24

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today is a very brief statement that I‟ll be 2

making. I was listening to all the testimony 3

throughout so I‟ve cut down on what I‟ll say but 4

you have my testimony. When New York was awarded 5

the 700 million dollars in Race to the Top 6

funding, part of their framework of this 7

education initiative required New York to build a 8

data system that can measure student success and 9

inform teachers and principals on how they can 10

improve. NYSUT believes that we can use data 11

effectively to improve teaching and learning 12

while insuring privacy, security and 13

confidentiality of students and educators. NYSUT 14

supports the leadership that Chairwoman Nolan and 15

Assemblyman O‟Donnell have shown on this issue 16

and we thank you for what the Assembly did last 17

year during session. Very much appreciated the 18

leadership role you took on this. Data and data 19

driven instruction have been used by school 20

districts for years. Districts frequently 21

contract with vendors to assist them in the 22

complex system needed to operate, including 23

transportation, school lunch, college entrance 24

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programs, scheduling, IEP‟s, electronic student 2

record retention. What is different in this 3

transition is that for the first time ever, vast 4

amounts of student data will be stored in a 5

centralized location with a vendor that is 6

contracted by the State Ed. Department. Further, 7

the districts themselves will not be directly 8

contracting with a vendor for data storage and it 9

seems that there is a lot of loss of local 10

control here. It will also be the first time 11

that a nongovernmental organization will have a 12

monopoly on all of this State data. Almost every 13

school district in the State uses some form of 14

student management system or data portal. As 15

previously noted by many others, vendors and 16

third parties currently have access to varied and 17

complex student and educator information. 18

Because these systems already remain in place, 19

there is a concern among educators that a new 20

data portal system may be a duplication. 21

Districts will now have to decide whether to 22

return their, retain their current systems 23

alongside the data portal systems, that have been 24

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developed and tuned over the years through local 2

decision making or abandon their current systems. 3

It is our understanding that most student 4

management systems and other systems the school 5

deploys will be kept in most districts as these 6

locally developed systems will still be necessary 7

for a district to operate efficiently. There was 8

a lot of testimony today about inBloom, I will 9

not repeat, but we have heard from the parents 10

and we agree that there are many, many issues 11

that have to be resolved. In their disclaimer, 12

inBloom says we cannot guarantee the security of 13

the information stored in inBloom or that the 14

information will not be intercepted when it is 15

being transmitted. The sensitivity of student 16

and educator data that could be collected is of 17

great concern. We must protect the privacy and 18

confidentiality of students and educators. As 19

you are aware, there is an increasing number of 20

school districts that are foregoing future Race 21

to the Top dollars so they can opt-out of the 22

data portal system. We expect this to continue. 23

The concern is so great that districts are 24

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actually foregoing educational funding from the 2

Federal Government to opt-out of data portal 3

systems and that is an increasing trend. To 4

date, we have listed, and we‟ve heard about 5

Louisiana, Georgia, North Carolina, Kentucky, 6

Delaware, Massachusetts and Colorado. I‟m going 7

to finish by just stating that there are certain 8

things as a teacher, I was a teacher for 24 years 9

and I also was a public school student and I know 10

that my data, my information is stored in a tin 11

box in the basement of Abraham Lincoln High 12

School on Ocean Parkway in Brooklyn. I feel 13

secure with that but many of the, in our field 14

feel that there is too much change going on, too 15

soon and there are so many other distractions 16

that we‟re already dealing with the poorly 17

implemented and problematic role out at the 18

Common Core, increased testing of our students 19

and new evaluation system and decreased funding. 20

Now we have to deal with an implementation of a 21

new data system. Some think this more than we 22

should have to find time to do. We‟re committed 23

to working with you to ensure that this data is 24

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protected. As a teacher I used to have a word 2

wall, on my wall, we would refer the students to 3

and I‟ll finish with this. Some of the words 4

that I would discuss with my students if we were 5

discussing this data system, I would talk about 6

budget, I would talk about trust, confidence, 7

exploitation, monopoly, local control, parents‟ 8

rights, students‟ rights. Thank you. 9

ASSEMBLY MEMBER NOLAN: Thank you very 10

much. Thank you. I really appreciated the 11

reference to the inBloom website as well, which 12

Mr. Zebrowski and some other members mentioned so 13

we will do more follow up on that as well. Thank 14

you. Did anyone else want to add anything from 15

the panel? Yes. 16

CATALINA FORTINO, VICE PRESIDENT FOR 17

ECDUCATION, UFT: Yes I do. Thank you. So good 18

afternoon Chairwoman Nolan and Members of the 19

Committee. As it was stated, my name is Catalina 20

Fortino and I‟m the Vice President for Education 21

for the United Federation of Teachers. So on 22

behalf of our 200 thousand members, I really do 23

appreciate the opportunity to address to you 24

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about the New York State Education Department‟s 2

plans to transfer all of the student information 3

collected by the New York City Department of 4

Education and School Systems across the State to 5

inBloom, Inc. and express our serious concerns we 6

share with parents and advocates about 7

jeopardizing the private student information. We 8

fear that student‟s privacy will be breached by 9

the data integration and Cloud storage plans 10

spearheaded by the New York State Education 11

Department and implemented by its Contractor, 12

inBloom. So in the interest of protecting our 13

students we ask you that you bring pressure to 14

bear to halt these plans. Our Union opposes 15

releasing sensitive student data unless parents, 16

themselves want that information released. So 17

the UFT is not opposed to gathering the data on 18

public schools students, in fact, this is the 19

work that we do every day in our schools. We do 20

it on a classroom level, teachers look at student 21

data, they even discuss the student data with 22

students themselves as they set student goals. 23

They also engage with parents in setting goals as 24

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we heard from the parent of the Special Education 2

youngster. And I, as a classroom teacher, use 3

data all the time with my parents and the, and 4

Principals. We know that aggregation of student 5

data is important or LEA‟s to look at in terms of 6

looking at their policy and making sound 7

judgments on their budgets. But the proposed 8

initiative that we‟re talking about today, as 9

you‟ve heard from other witnesses, is something 10

completely, completely different. Instead of 11

giving a student‟s teacher some information to 12

help shape instruction for that particular 13

student, this proposal is about releasing 14

sensitive, student identifying data points in 15

those 400 categories to inBloom and ultimately to 16

share some or all of that information with 17

private companies developing education software 18

and that is the potential that we have here so 19

the list of the data categories is staggering and 20

you‟ve heard from the parent groups and the 21

advocates. So student identifying data 22

regardless of the safeguards in place will always 23

be less safe when more organizations have greater 24

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access to it. So public institutions need to be 2

guardians for our chidden and in fact, we believe 3

that is one of, most important roles, so this 4

risky proposition does the very opposite. So we 5

are in record with this Committee and the New 6

York City Council with respect to our concerns 7

with increasing role of private interest and 8

public education and money. Parent groups and 9

community advocates including the Class Size 10

Matters, The Alliance for Quality Education, The 11

New York Disability Alliance and the Coalition 12

for Educational Justice have brought to light 13

questionable details about the broad and deep 14

level of student data involved. So in so doing, 15

they‟ve again demonstrated how critical the 16

parent and community voice is to this process. 17

We commend these advocates, really for prompting 18

the greater scrutiny of the mass storage of 19

sensitive student information and for really 20

shining a spotlight on how private interest could 21

exploit this data for profit. So we know that 22

our concerns with big money in our school systems 23

really are threefold. They are for-profit 24

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companies, they‟re reaping financial windfalls in 2

the names of educational reform. They have high 3

net worth foundations and corporate entities are 4

acting as self-appointed crusaders without 5

respect for parent, educator or community voice 6

and are often patently anti-teacher union and 7

this kind of data collection only feeds the 8

beast, that is of high stake testing, since these 9

private interest, they are the be all and end all 10

of data as its relationship to test, test, test 11

and more tests. I was really struck with the 12

Department talking about sharing data with 13

teachers because I know that at the end of every 14

June, teachers wait and wait and wait for the 15

results of standardized tests and you know, it 16

doesn‟t happen that timely and that‟s really 17

important. I know that also the access to the 18

computer is very, very limited in our schools, 19

never mind the bandwidth that is not there for 20

teachers to get on computers and get, have access 21

to the data points, the data information that the 22

State Education is talking about. So we ask that 23

you tell New York State Education Commissioner 24

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John King and the New York State Board of Regents 2

not to implement the inBloom Contractor. Listen 3

to the parents that testified today and the 4

community advocates that will follow. Listen to 5

the school Superintendents. Look at the 6

districts that have chosen to forego Race to the 7

Top funds in order to take a principle stand for 8

student privacy. We owe it to our students and 9

their families in New York State for bring all 10

the stakeholders in to the process and figure out 11

a better way to share data that will boost 12

student achievement without placing our children 13

in harm‟s way. Thank you. 14

ASSEMBLY MEMBER NOLAN: Thank you. I 15

have like, so many questions I could ask about 16

the role of teachers in this but I want to let 17

Assemblywoman Jaffee, as she toured, if she has a 18

question, be the lead on this and just say this 19

to you, do you anticipate a future where a 20

teacher could be disciplined for choosing to 21

protect a child‟s privacy in a situation where 22

they were told, you know, every time X happens, 23

you know, zero tolerance, it has to be disclosed 24

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but the parents who were here before the, I think 2

the moms are still up there, you know, said well, 3

gee if my son and his friend they fight, I don‟t 4

want that in the data system because my judgment, 5

my discretion, right, we want Police Officers to 6

have judgment and discretion, we want doctors to 7

have judgment and discretion, my judgment and 8

discretion as a professional teacher, is this 9

does not meet that test, I don‟t want to make a 10

big deal out of it and then all of the sudden a 11

private company is telling you, you didn‟t fill 12

out data portal X about the fight in cafeteria B 13

and I wondered how you felt about that for, but 14

not just evaluation, but disciplinary purposes 15

under the contract. 16

STEVE ALLINGER, LEGISLATIVE DIRECTOR, 17

NYSUT: Could I tackle it as a policy matter? 18

Teachers can be brought up, can be brought up on 19

charges for insubordination. So the question 20

would be what was the, what‟s the districts 21

disposition, what‟s the leadership of that school 22

and that districts disposition on the matter. If 23

a teacher was exercising their conscience and it 24

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was, and they were right on the merits, but it 2

was contrary to policy of that district, they 3

would, they could be at risk. 4


[Unintelligible] [3:57:28.2] thank you and thank 6

you [unintelligible] [3:57:29.8]. Yes? 7

ASSEMBLY MEMBER JAFFEE: Thank you for 8

your testimony. Thank you for your comments and 9

your testimony. I think you raised some very 10

real issues and, that I think, that I believe 11

will have a very negative impact on school 12

districts. The fiscal issue alone, at the 13

beginning of the costs in terms of having two 14

different sets of data systems, then the question 15

of what happens in several years when the Race to 16

the Top funding diminishes and the school 17

districts have to pick that up. Taking that kind 18

of cost and what that would mean in terms of the 19

other needs in the school district in terms of 20

the class sizes and the programs that can be 21

provided in academic as well as a variety of 22

other areas, music and art. Can you just expand 23

a little bit on that in terms of your concern as 24

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well as that other piece regarding student 2

privacy, what that could lead to in terms of the 3

ability of teachers to be honest about what‟s 4

happening in that classroom, parents being 5

forthcoming in terms of what is happening in the 6

home, what the child‟s needs are. I have great 7

fear that a parent might not be so eager to 8

request a 504 if they know that‟s going to 9

suddenly become public knowledge so, I just 10

covered some of those areas. 11

ASSEMBLY MEMBER NOLAN: You taught, we 12

like your view. 13

ANDREW PALLOTTA: Right, well-- 14

ASSEMBLY MEMBER NOLAN: Your opinion, 15

this will be an opinion. 16

ANDREW PALLOTTA: Alright, here‟s an 17

opinion. 18

ASSEMBLY MEMBER NOLAN: An official 19

opinion just between us [unintelligible] 20

[3:59:18.0]. 21

ANDREW PALLOTTA: This is a free, free 22

opinion. This is, we‟ve seen from parents and 23

educators around the State at all of the hearings 24

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that I don‟t think we would need more hearings to 2

say that they want quality education for their 3

children. They would rather have music and art 4

and services that the kids needs rather than data 5

sent to a, an inBloom company or some other 6

company. So I think that the verdict is out as 7

far as what parents want and as far at the big 8

brother idea here, where all of the private 9

information of what is said at the table, where 10

maybe it shouldn‟t be something that is now sent 11

to the State and sent to a private company. I 12

think the parents would agree with most of us in 13

this room that this is headed in a very scary 14

ridiculous direction. 15

ASSMEBLY MEMBER JAFFEE: I share those 16

concerns. Thank you. 17

ANDREW PALLOTTA: Thank you. 18

ASSEMBLY MEMBER O‟DONNELL: I have a 19

quick question. I got permission from the Chair 20

before she walked away to be the next speaker. 21

You know, we in the Assembly often do a lot of 22

good things and we work really hard and sometimes 23

it takes four or five years for the body to wake 24

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up and realize the smart thing that we had come 2

up with. In the particular year, we passed two 3

different versions of a student privacy bill, one 4

of which was mine and one of which was Ms. 5

Nolan‟s and mine has a Republican sponsor in the 6

Senate and so the request I make of you is that 7

you could alleviate a lot of stress in this room 8

and a lot of work on our behalf if when they come 9

back, which they usually do, because they have 10

confirm people and things, that you folks put 11

pressure on the Republican Senate to take up this 12

issue because in my 12 years of being a Liberal 13

Democratic Assembly Member from the upper left 14

side of Manhattan, I have never had as many 15

Republican Conservative cosponsors of a bill. 16

Okay, I introduced the bill, I didn‟t even 17

circulate the bill and I, and people from the 18

other isle were walking up to me and saying would 19

you please co-spo-, I‟m like really? And so the 20

point is that this is not a Liberal Conservative 21

issue, it‟s not a Democrat versus Republican 22

issue. It‟s generally an issue that arises a 23

great level of concern and I don‟t think either 24

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one of our approaches is the be all and end all 2

in the solution but it would go a long way if 3

between now and December 31st when those bills are 4

live in the Senate, that you put pressure on the 5

Senate to take them up. That‟s my request for 6

you. Happy Thanksgiving. 7


ASSEMBLY MEMBER O‟DONNELL: Okay. 9

CATALINA FORTINO: Thank you. 10

ANDREW PALLOTTA: And we will, in answer 11

to your question. 12

ASSEMBLY MEMBER O‟DONNELL: Thank you. 13

ASSEMBLY MEMBER NOLAN: Alright, thank 14

you. 15


CATALINA FORTINO: Thank you. 17

ASSEMBLY MEMBER NOLAN: Okay, thank you 18

for the [unintelligible] [4:01:59.7]. I know you 19

had a very, thank you, unless something else. 20

Pat, did you have a question? I saw her just 21

come in and Mr. Abinanti? Okay, good. And we, 22

everyone will be available for follow up. First 23

I do want to thank NYSUT because you waited all 24

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day and you were here on time and I thank you 2

very much for that and I want to thank the School 3

Boards also because they weren‟t, they were 4

coming and they had another very pressing 5

engagement and we asked them to come anyway so 6

thank you very much. Yeah, we asked Bob Lowry, 7

where are you Bob, we know, yes, we know Bob is 8

here and he is going to testify for the 9

Superintendents but we‟ll get to them next. He 10

has some Superintendents with him. Yes, we‟re 11

going to do them too. Alright, thank you very 12

much. We, we‟re working it as we go Tom, a 13

little bit, just to accommodate everybody‟s issue 14

and I‟m sorry you have a sprained ankle and now 15

we‟re glad that you‟re here so yes, go ahead. 16

DAVID LITTLE, DIRECTOR OF GOVERNMENTAL 17

RELATIONS, NYS SCHOOL BOARDS ASSOCIATION: Thank 18

you Chairwoman and Members of the Assembly, as I 19

was sitting back-- 20

ASSEMBLY MEMBER NOLAN: Because you‟re 21

the front lines, our School Boards are the front 22

line here on this issue so… 23

MR. LITTLE: I appreciate it. As I was 24

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sitting back in the audience listening during the 2

hearing I got a notice on my iPad that said that 3

my data service connection had been disconnected 4

and I just didn‟t know whether that was a happy 5

irony or whether you were taking immediate action 6

today. 7

ASSEMBLY MEMBER NOLAN: That‟s very 8

funny. 9

MR. LITTLE: But I will tell you, 10

because of our Association representing five 11

thousand locally elected volunteer officials that 12

in this particular instance they have two goals 13

here and the first obviously is to protect the 14

interest of students and the second is to run an 15

efficient and effective operational system for 16

the betterment of those students for their 17

education and so, you know, I think the fact that 18

they carry that as a fundamental responsibility 19

and duty makes it incumbent upon the rest of us 20

to make sure that they have good information, 21

good guidance so that they‟re able to make good 22

local decisions. I think we, I would be remiss 23

if I didn‟t take note of the fact that we have 24

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millions of students, we have thousands of 2

schools and hundreds of school districts and yet 3

the incidents of misused data and student 4

information that is intended to be kept private, 5

the fact that we have so few instances of that is 6

evidence of the fact that they are in fact 7

vigilant and in a rapidly changing technological 8

environment it takes great dedication and 9

vigilance to make sure that that information is 10

protected in an appropriate way. I got a great 11

piece of advice when I worked in this building 12

from Chris Grimaldi [phonetic], who was fellow 13

Senate staff member and in reference to a 14

question that I had asked him, he looked at me 15

like the RCA dog down on the, at the building in 16

Menands with his head cocked and he said, do the 17

right thing and then do it right. Like I‟d had 18

three heads for asking. You know, and I really 19

think that that can guide us on this particular 20

issue. Let‟s find the right thing and then let‟s 21

figure out how to do right. School districts 22

always attempt to comply obviously with the 23

Federal privacy statutes that exist. They have 24

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their own policies, I, I‟ve brought a copy of it. 2

Our sample policy, we as an Association, provide 3

samples policies to our districts to make sure 4

that they have available information that can 5

inform those decisions and that particular policy 6

is about 30 pages long. And so there are volumes 7

out there on how to deal with it, but again, it‟s 8

a rapidly changing environment. They also take 9

great care in their existing contracts with third 10

party vendors and I think this has been discussed 11

here today. Many of those third party student 12

identifying pieces of information are necessary 13

for the efficient operation of school districts, 14

not the least of which, is emergency information 15

that‟s sent out when there needs to be a school 16

lockdown or some other emergency in the school 17

district. If you don‟t have student information 18

and contact information out to parents, school 19

districts don‟t have 30 or 50 different phone 20

lines to be able to make those emergency calls 21

immediately and so they contract with somebody 22

who can provide that service but they are always 23

very vigilant about making sure that there are 24

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appropriate restrictions on the use of that 2

information specific to that individual purpose. 3

I believe that the reason we need to get this 4

right is because we‟re at a point in the 5

operation of our schools where we need data and 6

we need data information systems and whether or 7

not they‟re operated locally or whether they‟re 8

operated at a larger and conglomerate level, I 9

think that schools have already put great trust 10

in those who manage data systems but, 11

specifically the BOC‟s, the RIC‟s, the Regional 12

Information Centers and other private providers 13

just to make sure that they‟ve done this 14

efficiently and appropriately so far. I think 15

that the bills that have been advanced to date, 16

would be operationally problematic for a school 17

district. Trying to get affirmative consent to 18

use student information for very basic things 19

would be problematic from an operational 20

standpoint but we do have, we do have other 21

suggestions for what might be appropriate for you 22

as you go forward. The first would be, and the 23

Commissioner mentioned this, but the first would 24

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be for you to require that there be a method of 2

obtaining and distributing information about best 3

practices and the sound way of using this type of 4

information for school districts so that they can 5

base their decisions about that. The second, I 6

would suggest that we have either civil or 7

criminal penalties for the inappropriate release 8

of student information by third party providers. 9

I think rather than restrain school districts who 10

have already evidenced good intent and good 11

practice in this area that we focus on what we‟re 12

truly afraid of which is the third party vendors 13

who don‟t have those type of public restrictions 14

and laws and guidelines that they would use it 15

inappropriately. And then I would suggest that 16

we require those third party providers to 17

immediately tell school districts whenever 18

there‟s been a breach of information so that they 19

can mitigate and minimize any injury to the 20

interest of their students. And fourth I would 21

suggest that there be an oversight and review 22

board, either a State oversight and review board 23

or from this body, I‟m not suggesting that you 24

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have a temporary commission on this but form some 2

appropriate body that would have the ability to 3

form oversight on that. And then finally I would 4

require State Education Department transparency 5

by requiring them to post the data being 6

collected and being sent to inBloom or whatever 7

other provider is selected. Oklahoma has 8

recently passed Legislation to require this. I 9

don‟t have as many personal concerns as many 10

people have expressed here today about whether or 11

not there are inappropriate motivations involved 12

in this or whether or not there is the potential 13

as we sit to day for inappropriate use of that 14

student data but I know enough to know that what 15

we create today is not how it will be used 16

tomorrow. No one would have envisioned before 9-17

11 that we would have given up our privacy rights 18

under the Patriot Act but we had an intervening 19

event. I‟m sure that there are people who never 20

would have envisioned that they would be giving 21

up Second Amendment rights in New York State 22

until New Town happened and that was immediate so 23

events that happen in the future may very well 24

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color how we deal with this and I can tell you, 2

especially with Assembly Member Abinanti‟s 3

suggestions about a lawyerly approach to this. I 4

can tell you that as a Lawyer, if I had a client 5

who had been injured by a former student and I 6

had the idea that that could have been prevented 7

had the appropriate people been informed about 8

the propensities of this individual, that the 9

first thing that I would do would be to go back 10

to a database to try and prove that they should 11

have known that that was a propensity of that 12

student and so I would expect that in the future 13

we‟d have issues about whether or not this would 14

be subject to subpoena and at least other Court 15

action. The final thing that I would think just 16

envisioning how this might be used in the future, 17

if I were postsecondary education, if I were an 18

institution of higher education, one of the most 19

efficient means of my evaluating students in 20

addition to grades and then the SAT or ACT scores 21

would be if I had a numeric score, based on their 22

entire history of discipline and individual 23

grades and individual scores over the years and I 24

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could numerically assess that and say, they got 2

this on the ACT, this is their grade point 3

average and this is their inBloom score, that 4

would, that would be tremendously efficient for 5

those people and so I think that as we go forward 6

with this, I think it‟s incumbent upon all of us 7

to make sure that we take the time and energy to 8

make sure that we‟re not only doing the right 9

thing but we‟re going it right. 10

ASSEMBLY MEMBER NOLAN: No, I really 11

appreciate it and I always appreciate, you know, 12

the thoughtful dialogue we have with the School 13

Boards and a , you know, the critiques back and 14

forth and we would even welcome, you know, we 15

work regularly with you as we do with all the 16

stakeholder‟s, your thoughts as we move forward, 17

if Legislation does go in the Senate and how, and 18

it always is a moving feast here, you know, the 19

process is always moving forward, things are 20

always changing and so I appreciate very much. I 21

know it was not easy for you to schedule to come 22

and I appreciate the thoughtful critique. I know 23

Assemblyman O‟Donnell is saying, do you mind if 24

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we take a question or two but we‟ll get you out 2

of here quick. They really did have something 3

else so I just want Members to understand that, 4

they‟ve been very [unintelligible] [4:12:120]. 5

ASSEMBLY MEMBER O‟DONNELL: I really do 6

appreciate you coming here today and offering a 7

different, somewhat different point of view on 8

some of the Legislation that we passed. I 9

actually enjoy hearing that, believe it or not. 10

But one of the frustrations that I have, as being 11

an elected Member from the City of New York, is 12

that the people who generally, you folks 13

represent, have a lot more power than my people 14

do, okay, because right now in Chappaqua they‟re 15

teaching Mandarin to second graders, okay, 16

because they go a lot of money and they have a 17

lot of access to their School Board and they have 18

a vote. We don‟t have that anymore. We have a 19

billionaire Mayor who came here and said you have 20

to take away the right of School Boards so 21

there‟s a disconnect between my voters, my 22

people-- 23

MR. LITTLE: And a solution by that. 24

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ASSEMBLY MEMBER O‟DONNELL: Well, I 2

imagine you do, but the point I‟m making to you 3

is that the current system allows for a very 4

dispirit amount of power based on where people 5

live. So you said that you didn‟t support my 6

bill that would allow for an, a permission slip 7

from parents, would you support a bill that would 8

allow School Boards to opt-out of transferring 9

their data to inBloom? 10

MR. LITTLE: We certainly believe in 11

local decision making based on locally elected 12

officials, sure. 13

ASSEMBLY MEMBER O‟DONNELL: Alright, so 14

I enjoy your answer. I‟m not sure that I find it 15

intellectually consistent but I enjoy it 16

nonetheless. Now, the other thing that you 17

mentioned which I found interesting had to do 18

with penalties for releasing of information 19

because I had a bill about sealing criminal 20

records that created a crime to intentionally 21

disclose this information. I had a lovely two 22

and a half hour meeting with the General Counsel 23

for The New York Times, The New Yorker magazine, 24

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the Bloomberg, Inc., you would not believe the 2

people around the room who spend a lot of time 3

bashing me and telling me what an idiot I was 4

that I didn‟t respect the first amendment because 5

how dare I write a bill that made it a crime for 6

them to release information that they deemed to 7

be important so the question of creating 8

penalties often ends up in a particular quagmire 9

around other issues and since you did invoke the 10

Constitution in your little speech there, I 11

wanted to make sure that I raise an issue. I 12

regularly, when we debate bills on the floor, 13

when we‟re trying to allegedly correct public 14

safety, I believe that our Nation has Post 15

Traumatic Stress Disorder since 9-11 and that we 16

used to feel safe in our house, in our cars, in 17

our offices and we don‟t and so we‟re grasping at 18

straws to find ways to make people safer. In 19

this particular problem, I would humbly suggest 20

to you that the real issue is what kind of 21

information we now have. There was nobody who 22

was dyslexic at Rolling Hills Elementary School 23

in 1970, sir. Okay, there were people who had a 24

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hard time learning and I‟m sure that they were 2

dyslexic but there was no one who was diagnosed 3

with any of those things. That information 4

wasn‟t on Delaney Cards, wherever they may now 5

be, because it didn‟t exist. What we now keep as 6

information for children, what we now regularly 7

rely upon is a much broader set of information 8

and you know, we, in America, have always prided 9

ourselves on our educational system that unlike 10

the British system which determines at the age of 11

three or four, are you going toward the trades or 12

are you going to become a lawyer, we don‟t do 13

that. We‟re supposed to let children get to 14

where they get to whenever they get to it and 15

even if they don‟t get to it just out of high 16

school, you can get a GED and still become a 17

lawyer. That is not the mechanism of education 18

that comes from other parts of the Western World 19

and so because there‟s so much data there and so 20

much that data may in fact have negative 21

associative positions, we need to make sure that 22

people have the right to not have that 23

information released and if the School Boards 24

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Association wants that power to do in the 2

suburbs, I‟m happy about that, but I would humbly 3

suggest that if you get the right to do that on 4

behalf of the kids in Chappaqua who are currently 5

learning Mandarin that my parents have the right 6

to do it on behalf of their own child because 7

they don‟t have the ability to vote in a School 8

Board that‟s going to fire their Superintendent 9

for signing them up for inBloom. Thank you. 10

ASSEMBLY MEMBER NOLAN: Mr. Abinanti, I 11

didn‟t know if you want to respond? We want to 12

keep, get going. 13

ASSEMBLY MEMBER ABINANTI: I‟ll be very 14

brief. Thank you. 15

ASSEMBLY MEMBER NOLAN: It‟s always to 16

have these colloquies, I appreciate it. 17

ASSEMBLY MEMBER ABINANTI: You raised an 18

issue that we, that we really haven‟t explored 19

before and I‟d like to put on the record very 20

quickly and that was the breadth and the use of 21

this data base, you know, the inBloom score. And 22

it‟s interesting because somebody sent me an e-23

mail, this is participation at home, somebody 24

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sent me an e-mail and it includes the State 2

Education Department response to a question, my 3

colleagues may be familiar with this. I wasn‟t 4

until I just read this. Posed by the Federal 5

Department of Education, and they said the State 6

envisions a fully developed P20, that‟s pre-K, 7

post-secondary workforce Longitudinal Data System 8

to be the key resource upon which all other 9

educational reform proposals rely. And they say 10

the vision of the New York State Education 11

Department‟s P20 Longitudinal Data System is to 12

link data across five State agencies. The goal, 13

with the goal of following students from merely 14

childhood through postsecondary education and 15

employment. Very similar to what you were 16

saying, that basically this is the big brother 17

wanting to watch somebody from being a little 18

kid, through their lives and this is the first 19

step. I frankly, have yet to hear an educational 20

reason that makes any sense to me for doing this 21

but, and New York SED‟s own words give me reasons 22

to say we should not be doing this and your idea 23

of the eBloom score just brings it right to 24

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something that people can understand so thank you 2

for your comments. 3

MR. LITTLE: Yeah, the only thing that I 4

would say is that, for me personally, I‟m 5

speaking personally now, up until now we‟ve heard 6

a great deal about why this won‟t be harmful. I 7

have yet to hear a great deal about why it should 8

be done because it will be helpful to us. That, 9

that‟s the key. It‟s obviously a tradeoff. 10

Everything we do is a financial and programmatic 11

tradeoff and at least to this point, I would 12

personally appreciate a greater justification for 13

its educational benefit moving forward if we‟re 14

going to take the type of risks that have been 15

described today. 16

ASSEMBLY MEMBER NOLAN: No, thank you. 17

I think we‟re all grappling with it. As I said 18

to the Deputy Commissioner, we have to come back, 19

with I think some responses to these things and I 20

appreciate the School Boards input and I hope 21

that you‟ll be a stakeholder with the Department 22

in developing your response and you have, as you 23

said five thousand volunteers who serve on these 24

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School Boards and they‟re going to have to be 2

brought up to speed very, you know, we all have 3

to get more educated about data and how it 4

effects our lives. I thank you, thank you very 5

much for coming. We have number of people who 6

are Superintendents, Bob Lowry from the Council 7

of School Superintendents and then I think we‟ll 8

be with Mary Fox Alter from Pleasantville and 9

Karen Zevin from Croton Harmon from the 10

Westchester School Boards. I guess we should 11

have linked that all differently but that‟s who 12

we have next. Yes? Bob, did you want to go? I, 13

maybe I, I‟m getting direction here. However we 14

want to work it out. The remaining people I have 15

here are Julie Bigger and Bianca Tanis 16

[phonetic], parents, Lisa Rudley, a parent, 17

Timothy Farley and, I think a parent, Kimberly 18

Friedman from Cortland Cares, which I know has 19

[unintelligible] [4:20:15.8] and I think had 20

spoken to and Sheila Kaplan and then a Valerie 21

Williams so, I think we heard from Valerie, we 22

heard from Valerie already so that‟s the 23

remaining list. If there‟s someone I did not 24

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call, you better make sure you see a staff person 2

if you still want to testify and maybe the two of 3

you could start and introduce yourselves. I‟m 4

just trying to clarify it so we can move forward. 5

Go ahead. 6

MARY FOX ALTER, SUPERINTENDENT OF 7

SCHOOLS, PLEASANTVILLE UFSD: Hi. Good afternoon 8

and I thank you so much for this opportunity. My 9

name is Mary Fox Alter, I‟m the Superintendent of 10

Schools for Pleasantville, I‟m also the Present 11

of the Chief School Association for Westchester 12

County and I sit on the Executive Board of the 13

Lower Hudson Council of School Superintendents. 14

On a personal level, I‟m a mom, I‟m a daughter of 15

two Irish immigrants who didn‟t get beyond an 16

eighth grade education, I have six siblings, two 17

that live in Manhattan, two that live in Queens, 18

one that lives in Long Island and my Mother, God 19

bless her, a tough Irish woman who worked in the 20

kitchens of the city schools. When I told her 21

that I was going to be testifying in front of 22

you, she said with a thick brogue, I can‟t 23

believe one of us is there Mary, so you have no 24

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idea how exciting this is. I also do want to 2

reach out to Ken Wagner, I went up to Ken and I 3

asked him to stay for my testimony. 4

ASSEMBLY MEMBER NOLAN: Yep, he is still 5

here. 6

MARY FOX ALTER: So, Ken I really do 7

appreciate that. It‟ll save you a meeting, Ken, 8

alright and you will hear part of what I‟m 9

saying. You‟ll have primer ahead of time. And I 10

also will say, Ms. Nolan, your comment about how 11

the Commissioner and the Deputy Commissioner‟s, 12

there‟s this constant conversation out there and 13

they‟re getting the same answer. You know, I‟m a 14

lead evaluator, I evaluate teachers. My lesson 15

plan, observation of these people would be, you 16

know what, you‟re teaching the quadratic equation 17

and you‟re using the exact same language and the 18

kids keep messing it up on the test, you got to 19

differentiate instruction. You have to figure 20

out different language because none of us are 21

hearing it. Regardless of whether or not you 22

like the answer or not, give us an answer that we 23

understand because the answers aren‟t there. 24

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Just a quick correction, Ken Wagner testified 2

that the contracts with the data dashboard 3

vendors are in place, specifically what is not in 4

place is SED approval of the data security 5

policies of the data dashboard vendors. That‟s 6

an integral part of the contractual relationship 7

and must be finalized through the enforceable 8

contracts agreements and also another 9

clarification, in another life, I used to teach 10

AP computer science, I taught many computer 11

courses, I was a Technology Director, I get 12

technology. Let me be perfectly clear, we use 13

three third party vendors but we use them in 14

separate servers, inside of our firewalls, in 15

side of an intranet, if you will, not an 16

internet, there‟s a distinct difference on how we 17

go about using them. I know many people have 18

said, and you have my written testimony there, I 19

forgot to put my coversheet on it so, my name is 20

Mary. Last month the Pleasantville Board of 21

Education joined many other Boards of Education 22

when we passed a resolution to withdraw from Race 23

to the Top in order to protect our children‟s 24

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privacy. I‟m sure you are aware that we heard 2

very loudly and clearly, we had strong public 3

support for this action. We also heard loudly 4

and clearly from other districts who felt they 5

had no choice. They could not opt-out of Race to 6

the Top to protect student privacy because doing 7

so would bring financial distress to those 8

districts. They must select a data dashboard. 9

And when the State Education Department says 10

we‟re close to 70% compliance on this issue, 11

please be assured that it was done because many 12

felt they had no other choice but to select one. 13

The privacy and security assurances by inBloom 14

and New York State Education Department do 15

nothing to assuage the fear and allay the anxiety 16

over this issue. SED and inBloom responses to 17

these concerns include Statements like, they 18

already do this, school districts already share 19

information with third party vendors, these 20

responsive are simplistic at best and distracting 21

at worst. All public school districts in New 22

York State use our intranet with State Ed. 23

servers and firewalls, we all know that, the 24

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concern over inBloom and its massive upload in to 2

an internet Cloud cannot be poo-pooed away with 3

comments that are, we already do it, you‟re data 4

is better, it has super encryption. They‟re 5

disrespectful and meant to be distractors which 6

is, away from the real issue which is the use of 7

our children‟s data elements as [unintelligible] 8

[4:25:02.5] centers and data mining. State Ed. 9

and inBloom State the intention of inBloom is to 10

create individual and personalized learning 11

environments for students, their families and to 12

provide tech driven solutions to teachers. At 13

first blush they seem innocuous enough, and I 14

like, so many speakers did a much better job of 15

capturing this language to this-- 16

ASSEMBLY MEMBER NOLAN: Oh, you‟re doing 17

a great job. We‟re loving everything you have to 18

say, as a matter of fact, I got to, I want to 19

make sure the hearings, I got to add, I, this is 20

a, I feel like I‟m, go, responding to class. 21

Please, we got a really great speaker here, I got 22

to ask for some, from, okay, thanks, go ahead. 23

MARY FOX ALTER: At first blush, these 24

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claims seem innocuous-- 2

ASSEMBLY MEMBER NOLAN: Sorry. 3

MARY FOX ALTER: enough. They invoke 4

things, why not, great use of 21st century 5

technology, however they don‟t address and 6

accomplish the goals and will violate privacy 7

rights and profile students in their attempt to 8

do. If you look closely at the information State 9

Ed. shares on the Common Core indicators, you 10

will see that the contact does not closely link 11

individual sturdy, student learning needs with 12

learning strategies, information or standards. 13

The indicators are broad and at best they allow 14

for generic instruction solutions. In order for 15

real learning to take place, there has to be 16

great interaction between teacher and child and 17

real knowledge of a child and how that child 18

learns. They must be imbedded in to the learning 19

environment so therefore if the current 20

information from New York State Education 21

Department lacks the quality of meaningful 22

instruction, why should I trust that the next 23

level, through their data dashboards, will render 24

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anything that will have strong pedagogical 2

impact. It‟s also important for the Members of 3

our Elected to body to know that there is one 4

very important, extremely important piece of data 5

that New York State will not allow us to see, 6

that will not be part of the 400 elements, will 7

not be something parents, students and teachers 8

can see and it is probably the most important 9

data element for data driven instructions. We 10

are not allowed to see the three through eight 11

ELA math test. We‟re not allowed to see the test 12

themselves. The tests that are going to generate 13

all this information for this data driven 14

instruction, we can‟t see them. The data for the 15

personalized learning environment, it is data 16

dark. The analogy I‟ll make to you is this, can 17

you imagine you‟re being given the results of a 18

pond study and you‟re allowed to see the pH of 19

the water, the chlorination, you‟re told the 20

water is green. You‟re reading all these and 21

then asked to make a conclusion. A smart person 22

would say, I‟d like to go down and test the water 23

and I‟d like to actually see the instruments 24

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we‟re testing. Well State Ed. has told us we 2

can‟t do that and they were told that because 3

it‟s too expensive for them to do that. That 4

answer is absolutely ludicrous and the fact that 5

the tests themselves are not part of the data 6

that is being shared with kids, parents and 7

teachers. I cannot tell a child why that child 8

got a three on the exam. I‟m not allowed to even 9

see it. At a recent hearing at the State Senate, 10

Education Committee Mark Schneiderman, who 11

represents the Software and Information Industry 12

Association stated that student data should be 13

made available so that technology companies can 14

meet the personalized learning needs of students 15

through digital products. He also stated that he 16

did not believe parents should be given 17

permission for student data to be release because 18

then some students would miss the opportunity for 19

personalized learning. Many of you have already 20

heard about how we feel and I know this Committee 21

understands that learning is a personalized 22

environment and the use of data can inform it but 23

it cannot replace it. It cannot replace the 24

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human interaction whether it‟s a software app, a 2

computer game and if you look at the State Ed.‟s 3

PowerPoint presentation about the shared learning 4

instruction, you will see right off on the side, 5

little bubble that says a place for computer 6

apps, so again, we know where this is going. The 7

course, the point about data mining is mentioned 8

in last weeks, I don‟t know if any of you saw it 9

in Education Week, where Mackenzie and Company 10

were quoted that creating more open and 11

transparent data in education, from both public 12

and private sources could unlock between 900 13

billion and 1.2 trillion dollars in annual 14

economic value worldwide, about a third of it in 15

the United States. And again, I repeat our kids 16

and their data elements are not profit centers 17

for corporate America. My concern that all of 18

this will lead to student profiling predicting 19

how a kid will do before you even got to see 20

them. We believe that the complete educational 21

record of every student should be confidential 22

and protected and we‟re asking for this body‟s 23

endorsement of that belief. Individual student 24

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identified data should not leave the public 2

school system, it should not be transferred 3

electricity, electronically outside of our 4

intere, net and it should be on our own servers 5

to keep there. Personalized learning in the 6

digital world can lead to an oversimplification 7

of the learning process and it can direct 8

parents, teachers and students to activities that 9

are not matched to their interests and needs. I 10

caution Stated Ed. and this elected body to be 11

keenly aware of educational research that informs 12

technology integration, the UCLA study and there 13

are many others out there. As I try to process 14

to State Ed.‟s position on this issue I find 15

myself reflecting upon a quote from Jeff Wilson, 16

the Massachusetts Deputy Commissioner of 17

Education when discussing student data inBloom, 18

he said, this is still in the research and 19

development stage, it‟s not ready for primetime. 20

What does Massachusetts know that we don‟t. I 21

have nine suggestions that I think are solutions 22

to our current situation. First, I think we need 23

a midcourse correction. State Ed. needs to apply 24

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for a waiver from the Federal Government, many 2

others have done so and I have no idea why State 3

Ed. has not. It‟s the right thing to do right 4

now. When officials apply for the waiver, the 5

Legislature needs to adopt certain changes to 30-6

12C to help organizations with that waiver. My 7

Superintendent‟s group has vowed our support in 8

procurement of that. In the true science of data 9

driven instruction, all tests and assessments 10

used to measure student performance must be made 11

public and protected by the freedom of 12

information act. We need to be able to tell a 13

child, his or her family and his or her teacher 14

why they obtained the score they did. New York 15

State Education Department needs to send all 16

contracts on inBloom, the data dashboard 17

initiative to Robert Freeman [phonetic], the 18

Executive Director of the Committee on Open 19

Education. State Ed. should also vet the 20

decision to hold confidential all the grade 21

assessments through his office. As a public 22

branch of our State Government, State Ed. needs 23

to ensure that engaging the Committee on Open 24

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Government is part of the process. New York 2

State Legislature should pass stronger student 3

protection privacy options. They need to ensure 4

that the protections that were eroded in the 2008 5

Federal change to FERPA are brought back. These 6

changes allow parties with a legitimate 7

educational interest to have access to data. We 8

should pass legislation that requires a parental 9

opt-out. New York State Education Department‟s 10

implementation document should clearly outline 11

that no Race to the Top districts will not have 12

personally identification information uploaded. 13

As without a data dashboard there is no 14

technology infrastructure for the release of this 15

information, and this was asked earlier by one of 16

the Assembly People but it wasn‟t answered by the 17

Commissioner. On page nine, item 3.8 of the New 18

York State Education Service Agreement signed on 19

September 27, 2012, it States that if a school 20

district decides they no longer wish to use the 21

shared learning infrastructure, they may request 22

that the district student data be deleted from 23

the data store. We know now that the SLI is 24

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inBloom and we want clear guidance from New York 2

State Ed. for public schools to enact this 3

provision. State Ed. should seek information 4

from New York State public school districts 5

regarding the levels of data driven instruction 6

each district has. State Ed. to ensure whether 7

or not an individual district has already met the 8

New York State requirements under this 9

initiative. If a district already had a parent 10

portal and early warning tracking system and 11

gives the parents all the information they need, 12

if it already monitors students without, with 13

disabilities and attendance, the inBloom and the 14

data dashboard is a waste of taxpayer money. 15

Districts that meet the intent of the law should 16

be exempt and funds for this redundancy in 17

systems should be sent on districts in need and 18

on children of poverty. InBloom should be 19

restructured to thwart any data mining 20

activities. This can be accomplished by 21

abolishing the vendors and then giving funds to 22

districts to set up their own parent portals. 23

InBloom should also state they will not collect 24

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information through web tracking tools or other 2

web tools that is found on the inBloom website. 3

Items number two and three on inBloom‟s privacy 4

Statement must be rewritten so that data mining 5

activities do not take place. It is there that 6

they can. If State Ed. is truly interested in 7

protecting student privacy, this should not be an 8

issue. A firewall needs to be established 9

between student‟s data and the vendors. And 10

lastly State Ed. needs to the give the system and 11

process full scrutiny and not on their own. They 12

must appeal to the United States Federal 13

Government over these issues to slow this down 14

and it should set up a public oversight board. 15

Thank you. 16


much. I very much want to hear your colleague, I 18

just would say very quickly, one, I hope that 19

Arne Duncan will listen to you the next time he 20

makes a comment about suburban moms and two, if 21

you‟d like to apply to be Chancellor of the New 22

York City School System, I wasn‟t with Deblaggio 23

[phonetic] I was with Quinn because the Irish 24

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girls stick together but I‟d be happy to put your 2

name forward if you wanted to take, probably a 3

big pay cut and run the city system. 4

MARY FOX ALTER: Thank you. 5

ASSEMBLY MEMBER NOLAN: But obviously, 6

you have you‟re, a road map. 7

ASSEMBLY MEMBER O‟DONNELL: But Ms. 8

Nolan, clearly she knows something about 9

education so she‟s not qualified for the last 10

twelve years to run our [unintelligible] 11

[4:35:29.4]. 12

ASSEMBLY MEMBER ABINANTI: Wait a 13

minute, before you give away my Superintendent, 14

we like her at Pleasantville. 15

ASSEMBLY MEMBER NOLAN: Very dynamic in 16

presen-, and thank you so much and please send 17

regards to that mother of yours. If she‟s still 18

working in New York City school systems. 19

MARY FOX ALTER: She‟s 83, she worked 20

until she was 72. 21

ASSEMBLY MEMBER NOLAN: All my aunts did 22

that. 23

MARY FOX ALTER: Okay. All my aunts did 24

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that, all my aunts did that so thank you too. 2


Thank you very much. Thank you. 4

KAREN ZEVIN, CROTON HARMON, SCHOOL BOARD 5

MEMBER AND TREASURER WESTCHESTER SCHOOL BOARD 6

ASSOCIATION: Okay, so just like Superintendent 7

of Pleasantville, I am excited and delighted to 8

be here but for full disclosure and-- 9

ASSEMBLY MEMBER NOLAN: And just say 10

your name again too. 11

KAREN ZEVIN: Oh, I will get to that but 12

I just want to say under full transparent 13

disclosure, Ken Wagner mentioned the Data Quality 14

Foundation and that is also funded by Gates 15

Foundation. My name is Karen Zevin and I‟m here 16

representing the Croton Harmon School Board and 17

the Westchester Putnam School Board Association. 18

I‟m a Market Researcher and Data Analyst with 19

considerable experience in quantitative and 20

qualitative research in forecasting. I believe 21

strongly that data analysis plays an important 22

role in sound decision making however my set of 23

skills and experiences enables me to see clearly 24

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a lack of accountability and diligence to protect 2

our student‟s rights to privacy. The many 3

pitfalls in the usage and storage of the student 4

data, problems with the integrity of the data 5

being collected and how the costs of collecting 6

the data are being shifted to our local districts 7

and taxpayers. We believe that we are a critical 8

juncture and that we must do more to protect our 9

children now and for their future. We are 10

encouraged that there are bills in the Assembly 11

and Senate that deal with the parents‟ rights to 12

opt-out their children and the ability to control 13

third party usage of student data. First, as 14

you‟ve already heard, data storage and security 15

needs to be considered much more carefully and 16

districts deserve real proof that the data are 17

secure. This inability to ensure that the data 18

are secure has us concerned. We cannot in good 19

confidence rely on parental opt-out and opt-in 20

measures alone to secure data. We are opening 21

our student data at a level at which we have not 22

done so previously and we do not have control. 23

We do not want to find out that a third graders 24

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identity was stolen when that student becomes a 2

young adult or used in a way that is a disservice 3

to student‟s or results in student profiling. We 4

believe that the State must fully consider the 5

wide sweeping consequences of improper use of 6

student data, student profiling and identify 7

theft which not only includes stealing someone‟s 8

money or assets but their good name and 9

reputation. To date, school districts don‟t know 10

exactly what security measures are being taken to 11

protect student data or what, if any, 12

accountability the SED or inBloom would have in 13

case of a breach. Another area of concern is the 14

reliability and validity of the data to be 15

analyzed and mined. In the world of research 16

validity and reliability are key criteria of the 17

accuracy of data. Researchers checked again and 18

again to ensure accuracy. Data are revised, 19

mistakes corrected and old data thrown out. One 20

has to question, okay sorry. One of the, one has 21

to question the reliability and accuracy of test 22

data that are based on students being asked one 23

or two questions about a given topic once a year 24

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that makes limited allowances for illness, 2

language barriers, disability or poverty and uses 3

different grading resources. We worry about the 4

quality of the information we send on student 5

health, attendance and violent and disruptive 6

incidences. Not only because this information is 7

now being disaggregated to the individual 8

students but because the methodology for taking 9

attendance, for VADIR and health reports can vary 10

by district. In truth, not only does the quality 11

and reliability of the data come in to question 12

but more importantly so does the public policy 13

and decision making it informs, such as how the 14

State determines it‟s APPR teacher scores and the 15

need for the mandated new Common Core curriculum. 16

We also worry that the data entered today will 17

haunt our student‟s for years to come. We hope 18

that your pending Legislation will protect these 19

student‟s. Third and perhaps my next comments 20

are the most astonishing points I will make. We 21

are also concerned about the intellectual 22

property and about the for-profit corporations 23

taking advantage of children and the education 24

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system. In the market research world, we pay 2

individuals for their opinions and to test 3

products yet in education, we allow corporations 4

to test their products on our children for free. 5

If the State wants and income source to help fund 6

education they should be charging these companies 7

for every pilot test and test question on the per 8

student basis, instead we are giving away this 9

incredible asset. We also third party companies 10

to use this student data to develop product that 11

they then sell to us. We are allowing business 12

to benefit from a precious resource, our 13

students. No company would allow this. In the 14

business world, not only do companies have data 15

privacy and security policies or are limited by 16

law as to how they can share data but they guard 17

their proprietary assets and data carefully. 18

Furthermore in addition to allowing our student‟s 19

to take test for the benefit of corporations and 20

sharing student data for free, districts and 21

thwarted in their efforts to improve instruction 22

based on test results. Test questions are not 23

being shared with districts after tests are 24

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administered. Ironically the company supplying 2

the tests consider the questions to be a 3

proprietary asset. Ultimately students who take 4

these tests don‟t really benefit. They get 5

results after the data is old with insufficient 6

context making any chance to learn from their 7

mistakes minimum. A student‟s test data should 8

be considered his or her intellectually property. 9

If student takes a test, they should be able to 10

see the complete results including test 11

questions. So I ask you, why are we allowing 12

pilot testing on our children‟s instructional 13

time and why are we giving this information to 14

third parties. We must fully think through the 15

consequences of what can be construed and I quote 16

your Legislation. “Proper performance of duties, 17

under the law, that is relevant and necessary for 18

delivery of services”. Finally, let‟s not forget 19

that the process of providing data has 20

substantial impact on school district budgets. 21

It is not just the cost of getting the data to 22

inBloom or the Race to the Top initiative plans 23

that, and the eventual shift to dashboards, 24

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providing data that has integrity requires a 2

carefully coordinated process. In Croton, when 3

we add in all the additional costs such as 4

professional time to take, administer and grade 5

the tests, days out of classroom, days in 6

classroom spent administering the test, 7

substitutes and all the other steps involved in 8

capturing and providing 400 variables of data. 9

We estimate that this cost to the district is 10

more than 30% of the prop- of our property tax 11

cap or two hundred thousand dollars. But the 12

cost is much larger than the financial burden. 13

All the literature on education says that we 14

should spend more time teaching and that the 15

children would benefit from more instructional 16

time. It would take weeks out of the school year 17

to administer State tests, SLO‟s, Regents and 18

other exams. Even when students are not directly 19

involved in testing, there‟s additional 20

instructional time lost when teachers are out of 21

class due to test taking, professional 22

development or scoring. Giving rising pressures 23

on schools to do more with less, all expenditures 24

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should be examined for their cost effectiveness. 2

As I said earlier, I believe these costs would 3

represent a substantial portion of the property 4

tax cap allowance for Croton Harmon district this 5

year. Like most districts in the State between 6

TRS and ERS pension hits and all the 7

uncontrollable new unfunded mandates, we will 8

have to cut educational programs and teachers to 9

be able to afford our, to teach our kids under 10

our capped budget. In a district like Croton, 11

where more than 90% of the student‟s go on to 12

four year colleges and were just rated a top 13

rated district in this country. Having to change 14

how we educate students and bare the financial 15

burden for excessive testing is demoralizing and 16

aggravating distraction and perhaps unnecessary. 17

While we, like many other districts, have a long 18

track record of providing excellent education and 19

successfully preparing our students for college 20

and careers it seems that everyone knows better. 21

So here are with student data that is not 22

necessarily secure, for which there is little 23

accountability, that has questionable reliability 24

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and which has been and will be accessed in a way 2

that is not necessarily helpful to our children, 3

now is definitely the time the rethink how local 4

districts are sharing student information and for 5

us to set appropriate and stronger boundaries. 6

Thank you. 7


much. If you don‟t want to be the Chancellor, 9

maybe you would want to, Ms. Zevin, because you 10

were great. You were both great. Very 11

heartening for me, you know, in the political 12

life for a long time and I resay this, when I 13

started I didn‟t have a female principal in my 14

district more or less a Superintendent so, to see 15

both of you as women professionals in these 16

demanding districts, is very exciting for me and 17

I appreciate the expertise that you bring. I 18

hope that you heard Leonie Haimson and the 19

parents groups over there because one of the 20

things I would just say to you, is what I know 21

how to do, and it‟s very antithetical to busy 22

people who are running school districts, you have 23

to organize. This is a big issue, a complicated 24

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issue, we were able to pass bills in the 2

Assembly. There‟s an old expression, it takes 3

three to dance in Albany. You‟re from 4

Westchester, you must speak to the Executive, you 5

must get the Governor onboard. He is a resident 6

of Westchester, we must alert his Administration, 7

we must get our Senate colleagues onboard or we 8

are not, this train is kind of out of the station 9

but I think that changes can be made. You know, 10

one of the frustrations for us, is we passed this 11

bill last year, we passed two versions. That‟s 12

very unusual, Speaker [intelligible] [4:46:16.0] 13

was like, you know what, we‟ll throw a couple 14

things out there, let‟s get the dialogue going, 15

let‟s get the conversation. We had a big 16

conference so that‟s actually quite unusual for 17

us to do that, we usually sort of put all our 18

chips on one version, you know. But we came and 19

we had two or three others out there, we, you 20

know, floated different ideas. We got, you know, 21

we just got us. So we really appreciate you 22

coming and I would just say to you to please 23

think this not, don‟t think this is last 24

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conversation, this has to be the first 2

conversation and we have to move going forward to 3

get our other partners in government to see these 4

concerns as vividly as you both expressed them. 5

And I can‟t thank you enough for coming, really, 6

I-- 7

KAREN ZEVIN: Thank you. 8

ASSEMBLY MEMBER NOLAN: think nothing 9

but the best of both of you. 10

MARY FOX ALTER: Thank you. We did 11

have, just, our Lower Hudson Council of School 12

Superintendents did, within the past two weeks, 13

meet with four of the Regents and we have 14

scheduled a work session. 15

ASSEMBLY MEMBER NOLAN: Yes, that‟s 16

critical also, by the way. 17

MARY FOX ALTER: Yeah, we have a work 18

session with many of our local Elected Officials 19

and we have just updated our website. We‟ve been 20

doing this on a regular basis now with all kinds 21

of information to get the word out, so-- 22

ASSEMBLY MEMBER NOLAN: I have not had-- 23

MARY FOX ALTER: we so appreciate this. 24

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ASSEMBLY MEMBER NOLAN: the opportunity, 2

no I have not had the opportunity really to meet 3

with, like a subset of, like the Westchester 4

Superintendents, you know, there‟s 700 school 5

districts, I, we do the best we can and then we 6

have the one big one in the City where we don‟t 7

get to vote on the Chancellor, so I, but I really 8

like that opportunity perhaps even if I can‟t go, 9

we have a wonderful staff. I mean, we‟d love to 10

be able to do more of a dialogue. I don‟t just 11

expect you to organize, I want you to know you 12

have a partner here in us and we‟d like to work 13

further with you very much so. Thank you both. 14

MARY FOX ALTER: Thank you. 15


ASSEMBLY MEMBER NOLAN: Yes, Mr. 17

Abinanti, yes. 18


ASSEMBLY MEMBER NOLAN: Yes, yes, yes. 20

ASSEMBLY MEMBER ABINANTI: Thank you 21

once again for letting me-- 22

ASSEMBLY MEMBER NOLAN: That‟s alright. 23

ASSEMBLY MEMBER ABINANTI: participate 24

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here. I want to thank both of you for raising 2

issues that I don‟t think have been raised before 3

and I do hope that the State Education Department 4

would carefully listen to what I think are some 5

serious liabilities that they have. You‟ve 6

raised some very interesting legal issues about 7

who owns what. 8

KAREN ZEVIN: Yes. 9

ASSEMBLY MEMBER ABINANTI: And there‟s 10

one lawsuit already, there may very well be a lot 11

more, but even not going that far, you‟ve both 12

raised some procedural issues and I think the 13

State Education Department, frankly, is moving 14

way too fast without any real understanding of 15

what it is that they‟re doing. The analysis that 16

you both gave, gives us another look at what they 17

really should be doing. I‟d also like to just 18

come in to the Chair of the Committee, that I 19

would be, I‟ll take her up on that offer of 20

having the staff come because I think we do have 21

a meeting either this week or next with, I know, 22

I‟m, I believe, I and some of the other 23

Westchester Delegation Members are supposed to be 24

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meeting-- 2

ASSEMBLY MEMBER NOLAN: I‟m sorry Tom 3

[unintelligible] [4:49:00.1]. 4

ASSEMBLY MEMBER ABINANTI: No, I was 5

just going to say, I think we‟ll take you up on 6

that offer of either you or the staff coming. As 7

you can see this is an example of the advice we 8

get day in and day out in Westchester County and 9

we do have a meeting scheduled, [unintelligible] 10

[4:49:13.1]-- 11

ASSEMBLY MEMBER NOLAN: Well, we‟re 12

certainly going to be working on this. 13

ASSEMBLY MEMBER ABINANTI: I think it‟s 14

in two weeks or so to meet with the 15

Superintendents and have this very discussion so-16

- 17

ASSEMBLY MEMBER NOLAN: If we can work 18

it out, we‟ll do it, I mean, it starts to-- 19

ASSEMBLY MEMBER ABINANTI: you or staff 20

to come down and-- 21

ASSEMBLY MEMBER NOLAN: get in to, you 22

know, easier once session [unintelligible] 23

[4:49:25.1]. 24

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MARY FOX ALTER: Right, right. 2

ASSEMBLY MEMBER NOLAN: I don‟t do 3

anything Thanksgiving day, but-- 4

ASSEMBLY MEMBER ABINANTI: But I think 5

the point should be emphasized that State Ed. did 6

not even reach out and have discussions with the 7

people who have to do this. You can see the 8

quality of the people that we have, throughout 9

the whole State, very good Superintendents, 10

School Boards, but the Superintendents are paid 11

to do this stuff. They‟re supposed to be the 12

local education experts and it‟s really 13

disappointing that State Ed. has ignored them all 14

the way through-- 15


ASSEMBLY MEMBER ABINANTI: on all of 17

their policies. 18



ASSEMBLY MEMBER NOLAN: I think that 21

they maintained that they have but I appreciate 22

the dialogue. 23

MARY FOX ALTER: No one asked us. 24

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ASSEMBLY MEMBER NOLAN: Yes, yeah I see 2

that. 3

KAREN ZEVIN: Certainly nobody asked 4

local School Boards. 5

ASSEMBLY MEMBER NOLAN: But you‟re 6

making your voices heard now and we appreciate 7

that. 8

MARY FOX ALTER: Thank you very much. 9


ASSEMBLY MEMBER NOLAN: Thank you Tom, 11

if we can manage it, we‟ll manage it. Alright, 12

thank you. We have Bob Lowry here from the 13

Council of School Superintendents. Bob, I think 14

you‟re next and then the parents I mentioned, 15

we‟d like to try to wrap up so Bob come down and 16

then I hope the remaining witnesses, Julie 17

Bigger, Bianca Tanis [phonetic], Lisa Rudley, 18

Timothy Farley, Kimberly Friedman and Sheila 19

Kaplan. If you‟re still here and I really 20

apologize, I know sometimes people have to leave 21

their testimony. Just kind of cluster in the on 22

deck circle, as I always call it, and we‟ll, 23

alight, thank you. You know, I want to drive 24

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home too tonight so I‟m hoping we can wrap up. 2

Thank you. 3

BOB LOWRY, COUNCIL OF SUPERINTENDENTS: 4

Good afternoon and thank you for have-- 5

ASSEMBLY MEMBER NOLAN: Bob, I know you 6

represent dynamic people but I didn‟t really get 7

the full sense of it until today. You had two 8

very dynamic Superintendent‟s here so thank you. 9

BOB LOWRY: Chairwoman Nolan and other 10

Members of the Assembly, thank you for having me 11

and inviting our testimony. I won‟t read our 12

testimony, frankly, as an organization, we‟re 13

wrestling with some of the same questions that 14

you‟ve heard about today and trying to think them 15

through. I will say that I‟m continually struck, 16

and I‟m not a former Superintendent, I haven‟t, 17

never worked in a school except as a student and 18

that‟s now a surprisingly a long time ago, but 19

I‟m continually struck my conversations with 20

Superintendents by the sense of obligation they 21

have to parents. You know, meeting their trust, 22

fulfilling their trust. That comes up in the 23

most dramatic ways about, you know, questions of 24

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personal physical safety but we also see it 2

arising in how they talk about issues of data 3

privacy. A few weeks ago, The Buffalo News 4

reported on school districts opting-out of Race 5

to the Top to avoid having to pick a data 6

dashboard and Superintendents there talked about 7

how the trust that parents have put in them is 8

sacrosanct and that, you know, because they felt 9

they couldn‟t give satisfactory answers to 10

parents, they couldn‟t sign-off on this for 11

their district. I find that often the impulse 12

seems to be that we should support any piece of 13

Legislation advertised as protecting student 14

privacy and I have to say, stop and think about 15

all the different data systems that your district 16

relies on, you know, systems to plan bus routes, 17

to construct class schedules, to manage Special 18

Education cases and other student services to 19

maintain academic records and school cafeteria 20

billing accounts and they use these systems to 21

comply with State mandates, to better analyze and 22

improve instruction, to comply with reporting 23

requirements, to meet timelines mandated in law 24

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for Special Education placeman decisions and to 2

intervene on a more timely basis with struggling 3

students and finally to avoid a lot of 4

administrative expenses that they might face. 5

I‟d add that, you know, with all these systems, 6

we‟ve had very few reported incidents of 7

controversy with these systems, but you know, 8

changing circumstances may create new threats 9

that require changes in laws, regulations and 10

local practices. You‟re considering two bills, 11

you passed two bills, I will tell you frankly, we 12

opposed the Chairwoman‟s bill last year because 13

we felt it just would make some aspects of 14

running a school much, much harder perhaps 15

impossible. How do you construct a bus, bus 16

routes or class schedules if some of the students 17

are in a data system and others aren‟t. Other 18

pieces would increase workload demands on 19

teachers completing paperwork, that sort of 20

thing. Mr. O‟Donnell‟s bill, we have a lot of 21

technical questions about, for example, where do 22

BOC‟s Regional Information Centers fit in to the 23

process? I‟d also say, generally about this, a 24

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few things, one is very precise requirements may 2

become out of date very quickly in this field as 3

technology changes and new types of threats 4

emerge. Also, we would really hope that schools 5

could have one clear set of rules to abide by 6

rather than potentially contradictory sets of 7

requirements across different parts of State Law. 8

Finally, I‟d say that focusing on opting-in or 9

opting-out is a primary vehicle for protecting 10

student privacy. It doesn‟t‟ do anything for the 11

families who don‟t exercise the option. I was 12

impressed by the testimony of the Civil Liberties 13

Union, I thought they touched on some of the 14

potential benefits of new data tools but they 15

also offered a lot of thoughtful recommendations 16

about how to strengthen privacy protections going 17

forward. In recent weeks there, and you‟ve heard 18

about it, there have been reports of districts 19

opting-out of Race to the Top to avoid picking a 20

data dashboard, having, and being part of that 21

whole process. We hear a variety of reasons for 22

that. Sometimes it seems to be primarily cost 23

concerns, what happens at the end of two years 24

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when the Federal Funding runs out. Sometimes it 2

is districts are simply satisfied with the 3

existing data systems they have and don‟t see the 4

potential benefit of this. And I would take a 5

step back here and say, you know, how did we get 6

here? With the Federal Stimulus Legislation, 7

Washington dangled five billion dollars in front 8

of the States for Race to the Top and said you 9

have to do four things, you know, strengthen 10

teaching and leadership, adopt college and career 11

ready standards and assessments, have procedures 12

for intervening in persistently low achieving 13

schools and finally build student data systems. 14

The tools that the State Education Department is 15

building may be fabulous but school districts 16

haven‟t had real experience with this and there‟s 17

a sense in which, you know, they‟re building 18

fabulous tools that districts didn‟t ask for. I 19

will say that it‟s not just school districts that 20

rely on these systems, families do as well and I 21

myself, as a parent, the online data portal that 22

my district operates was hugely helpful to my 23

second son in managing all the details of, you 24

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know, his daily academic life, completing 2

assignments, keeping up on assignments, 3

interacting with teachers and allowing us to 4

support him in that so, the initiative may 5

provide opportunities for districts that 6

currently can‟t afford them but you‟ve heard 7

about the privacy concerns and that‟s the third 8

set of concerns that we hear about and again, the 9

sense that districts don‟t, many Superintendents 10

and Boards and other district leaders don‟t feel 11

they have satisfactory answers to all the 12

questions that they need to answer in order to 13

satisfy their parents. Again, I thought the 14

recommendations that the Civil Liberties Union 15

put forward were very thoughtful and point in the 16

right direction of analyzing, reviewing existing 17

State and local privacy protections, requiring 18

districts to go through an exercise of evaluating 19

their procedures and making sure that the 20

requirements that districts operate with have 21

evolved to meet emerging potential threats to 22

student privacy. Thank you. 23

ASSEMBLY MEMBER NOLAN: I would say to 24

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you what we said to the School Boards and to 2

NYSUT, we would really welcome your input. We 3

appreciate the critique of the bills but we need 4

some support to, from stakeholder‟s and some 5

thoughts about how they can be improved so that 6

we can get a two, you know, a three, you know, as 7

I said to the other Superintends just now, we 8

need this, the Executive, we need the Senate. I 9

think there is a realization that the Agency 10

needs some oversight from the Legislature and the 11

Executive in from the communities, you know, as 12

we represent them to try to craft something 13

that‟s going to be more effective. So you know, 14

we, your always, our door‟s always open to you 15

and you know that and we appreciate your 16

suggestions. Alright. Thank you. Yes, go 17

ahead. 18

ASSEMBLY MEMBER O‟DONNELL: I thank you 19

for your thoughtful suggestions about the bills 20

we drafted. You know, the funny thing about our 21

job here is drafting bills, when we send them to 22

State Ed. for them to draft regulations, well 23

that‟s where the real comedy actually begins 24

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because whatever we write, they seem to find a 2

way to write regulations that suggest we didn‟t 3

write or think or say what we wrote in the actual 4

bill. So, I will admit to you that the bills may 5

be inartful in certain ways but to me there is a 6

very big difference between the school, the local 7

school district itself, collecting important data 8

that‟s necessary for driving kids around to 9

school and blah, blah, blah and the requirement 10

that school districts transfer that information 11

to the State Education Department so the State 12

Education Department can make certain that you 13

are doing your jobs correctly. Those are 14

different than transferring it to a third party 15

that is nongovernmental that has questionable 16

motives, that has questionable finances, that‟s a 17

different kind of thing and so clearly in the, 18

you know, inartfulness of it, if the bills as I 19

wrote them, the one that I was involved in 20

writing and took way too many hours learning 21

about things I knew nothing about, if in fact, we 22

threw out the baby with the bathwater and we‟re 23

suggesting or could be reading that as saying a 24

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local school district cannot use this information 2

to schedule bus pickups then we obviously need to 3

fix that. On the other hand, we could spend from 4

now until December 31st fixing it, write the 5

perfect bill and then we‟d have to send it over 6

to the bozo‟s over at State Ed. to say now write 7

regulations and I can guarantee you, the 8

regulations they write out of the bill that we 9

draft, will make it look much worse than we ever 10

intended. So, obviously we‟re trying to fix a 11

problem and one of the easiest parts of this is 12

problem identification, right, we know that. On 13

this particular subject without problem 14

identification we don‟t have a hearing, we don‟t 15

have publicity, we don‟t have a conversation so I 16

would welcome any of your suggestions on how to 17

make what I drafted better. 18

BOB LOWRY: Yeah. I appreciate that 19

your Legislation does provide for an exception 20

subject to additional conditions being met for 21

functions that would otherwise be provided, 22

administered by school district personnel. I 23

think that‟s an attempt to address some of the 24

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systematic issues and I would say, in our written 2

testimony, we stressed that point that, you know, 3

think about how inBloom, the Education Data 4

Portal, the way that is set up is different from 5

what school officials are accustomed to and 6

that‟s part of what we hear continually from 7

Superintendents is, you know, because this is no 8

longer an arrangement between us and a vendor, 9

that‟s creating questions that Superintendents 10

are uneasy dealing with without better answers 11

from the State. Thank you. 12

ASSEMBLY MEMBER NOLAN: Thank you. We 13

thank you Bob. I apologize, always to cut people 14

off but we have to get going here. Julie Bigger 15

and Bianca Tanis, Lisa Rudley, maybe we could do 16

two or three. I don‟t know if they‟re all here 17

and then Timothy Farley‟s still here? 18

TIMOTHY FARLEY: Yeah, I‟m here. I can 19

come down. 20

ASSEMBLY MEMBER NOLAN: Okay, why don‟t 21

we say this, Julie Bigger are you here? 22

JULIE BIGGER, PARENT: Yes, that‟s me. 23

ASSEMBLY MEMBER NOLAN: Yes, nice. 24

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Thank you very much. Bianca Tanis? 2

UNKNOWN FEMALE: She‟s not here. 3

ASSEMBLY MEMBER NOLAN: Okay, alright, 4

we can, they can submit testimony. Lisa Rudley? 5

LISA RUDLEY, PARENT AND EDUCATION POLICY 6

DIRECTOR, AUTISM ACTION NETWORK/NYS ALLIES FOR 7

PUBLIC EDUCATION: Yeah. 8

ASSEMBLY MEMBER NOLAN: Okay, now 9

Timothy Farley why don‟t you come sit down and 10

then Kimberly Friedman? Cortland, why don‟t you 11

come and kind of get, well you‟re right there and 12

you‟ve been there all day, I apologize for the 13

[unintelligible] [5:02:37.7]. Sheila Kaplan? 14

Okay, so if you could just be a little bit 15

patient, you‟re right there. Is there anybody 16

else, some of the other people that I‟ve, there 17

were two people here in the front who‟ve been 18

here since the beginning. Are either of you 19

testifying? Okay, fine. I just, thank you. 20

Okay. Okay. And I hate to ask but if you could 21

just briefly summarize the testimony. We were 22

supposed to be out of here a little earlier today 23

and we‟re kind of taking advantage of the people 24

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who run the building. Yeah, go ahead. 2

JULIE BIGGER: I‟m just going to be 3

brief. I went to a hearing with some of your 4

colleagues the other night in Baldwinsville and I 5

was honored to be able to speak in front of them 6

and be part of the process but what I‟m learning 7

is that is very long. Next time I‟m going to 8

bring my own water. My name is Julie Bigger, I 9

am blessed to be the parent of, excuse me, the 10

mother of two sets of twins. My girls are in 11

second grade and my boys are in UPK. As I sit 12

here today I have more and more and more and more 13

questions. My biggest question with the PII is, 14

why is all of this necessary to educate my kids? 15

Why is New York State the only State left 16

standing that has a signed contract with inBloom? 17

I want my rights back as stated under the FERPA 18

law and I am not happy that with one swoop of the 19

pen my rights were stolen under the ruse of, if 20

it is for educational purposes only. I want my 21

voice to be heard in my kids‟ education. I want 22

the right to know who is seeing this information. 23

I want the right to know if that person is not a 24

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felon. I want to know how these companies are 2

vetted. I want the right to say no, you may not 3

see this information. I want my kids education 4

to remain personal and in local hands. I want my 5

teachers to have the ability to teach my kids to 6

their specific abilities and needs. We already 7

talked about the inBloom privacy, we all know 8

about that, but this is supposed to be the be 9

all, end all in, you know, in an analysis. So 10

let‟s collect all this information, more and more 11

and more and more tests and lets test the kids to 12

death so we can have as much assessment and test 13

scores as possible then let‟s have some person 14

that lives halfway across the country or world 15

analyze it and sell it back to us, so businesses 16

can create new products for schools, teachers and 17

parents to purchase so they can best educate our 18

kids. After I had my teacher conferences with my 19

children‟s teachers on Monday, will all of them, 20

mind you in the same day, I am further convinced 21

that above and beyond, they know my children the 22

best and therefore they are the most qualified to 23

analyze them and give them the tools they need to 24

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succeed, not some person sitting across the 2

ocean. They see things and know things about my 3

kids that will not and cannot or cannot and will 4

not ever be measure by any test. Human beings are 5

not meant to be quantified. Before I got in to 6

this process, no I did not know that New York 7

State was uploading my information to anywhere 8

and so I‟d like that, you know, to kind of stop. 9

ACT, recently in Iowa, just sued for selling 10

student‟s personal information to third party 11

vendors. The Sachem school district website was 12

just hacked. How is this information going to be 13

used in the future? Who are these other third 14

party providers that Dr. King kept referring to 15

this morning that we can used as opposed to 16

inBloom? They never did say a name of another 17

company. Who are the teachers that keep asking 18

for more information and more information? Who 19

decided that we needed to participate in this 20

program? Most importantly, and I keep coming 21

back to this, how is this going to improve my 22

kids‟ education? I recently started a group 23

where we live, I don‟t know if I said it, in the 24

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Sherburne-Earlville school district. We are a 2

very poor, rural community and we have just been 3

trying to help educate parents around our 4

district about the truth about what‟s going on 5

with the Common Core Initiative. We have gone to 6

several Board Meetings. We have appealed to them 7

in trying to help with, you know, getting our, 8

some of our parental rights back but we are 9

encountering significant resistance. They will 10

not return the Race to the money back because 11

they are tied to the money. Everybody‟s tied to 12

the money. This is all about money. It‟s not 13

about the kids anymore. So, we, as parents, we 14

really have no recourse. We have no rights 15

anymore and I‟m quite upset that our rights have 16

been taken away. And to be honest, I don‟t 17

really care how many data fields or what 18

information is being uploaded and who needs it 19

for what or if one of their products could turn 20

my kids in to geniuses overnight as that is not 21

how I view them, view their worth as a human 22

being. My position is they simply do not have 23

the right to this information without my consent. 24

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Change in the FERPA Law by Executive order which 2

stole our rights is just unacceptable to me. So, 3

I‟m sick of the Government, with one swoop of the 4

pen, rewriting an existing law through Executive 5

order and Policy making. Laws matter and in a 6

Democracy the process matters. Another question 7

I have, is if we are not going to use inBloom in 8

the future, why do we need to upload our 9

information in the first place. I live, again, 10

we live in a very poor rural community, art and 11

recess, music, they‟ve all been shorted already 12

to, by ten minutes apiece all for the sake of two 13

subjects, ELA and math. And I just heard the 14

other day that first grade students are eating 15

their snacks while they‟re still doing their 16

work. So, everything has still been shortened 17

for two subjects, you know, how is this going to 18

affect my kid‟s classes in the future? What‟s 19

going to be cut next? I‟m just very concerned 20

about what‟s going to happen in the classroom, 21

will their class sizes go up, what else is going 22

to be cut? Why can‟t this information stay 23

local? Only 2% of the population really moves 24

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from school to school. The State, what I kept 2

hearing this morning, is the State keeps telling 3

us, we want help, we want help or we want to 4

help, we want to help, well I want them to get 5

out of the way of my teachers teaching my kids as 6

an individual. Thank you. Again, being the 7

mother of two sets of twins, I could be the 8

poster child for this. 9

ASSEMBLY MEMBER NOLAN: I give you 10

credit for being here and I hate to ask you to 11

wrap up but it‟s-- 12

JULIE BIGGER: Oh. 13

ASSEMBLY MEMBER NOLAN: nice to end on a 14

note-- 15

JULIE BIGGERS: Okay. 16

ASSEMBLY MEMBER NOLAN: of applause, as 17

it‟s been a very-- 18

JULIE BIGGERS: Well, I-- 19

ASSEMBLY MEMBER NOLAN: good Committee 20

group like that. 21

JULIE BIGGERS: but my, I guess my 22

endpoint is that human beings are not to be 23

quantified-- 24

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ASSEMBLY MEMBER NOLAN: Oh, of course 2


JULLIE BIGGERS: I want my kids to be 4

taught as an individual and it just keeps going 5

back to the money. It‟s all about the money and 6

we know that. 7

ASSEMBLY MEMBER NOLAN: I, you know, I 8

know these formats are very kind of 19th century, 9

hearing format and kind of old school but I 10

appreciate people coming and giving us their 11

views and we‟ll be following up with you and with 12

everyone. I don‟t think we had a written copy of 13

that so-- 14

JULIE BIGGERS: I did, I kind of 15

scrapped it because-- 16

ASSEMBLY MEMBER NOLAN: No, that‟s 17

alright, that‟s okay. 18

JULIE BIGGERS: as I sat here this 19

morning, I just [unintelligible] [5:09:15.4]-- 20

ASSEMBLY MEMBER NOLAN: And I appreciate 21

it but you can continue to send us something. I 22

see you have it all-- 23

JULIE BIGGERS: Okay, well-- 24

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ASSEMBLY MEMBER NOLAN: on an iPad 2

yourself, so you‟re-- 3

JULIE BIGGERS: again, I, as I was-- 4

ASSEMBLY MEMBER NOLAN: more 5

technological than me, I don‟t own one. 6

JULIE BIGGERS: As I was sitting there I 7

just wrote more and more and kind of just-- 8


JULIE BIGGERS: didn‟t really want to 10

talk about, again I‟m new to this process, so-- 11

ASSEMBLY MEMBER NOLAN: No, I‟m glad 12

you‟re here. 13

JULIE BIGGERS: Why thanks. 14

ASSEMBLY MEMBER NOLAN: I‟m glad you‟re 15

here. We‟re very happy to open to-- 16

JULIE BIGGERS: I‟m happy to be here. 17

ASSEMBLY MEMBER NOLAN: open it but 18

nothing makes me happier than having people who 19

have never testified or come for the first time 20

and feel that we can be together working towards 21

things. Not always a perfect system. 22

JULIE BIGGERS: Right, well, we‟re 23

trying, we‟re trying to do the best we can. 24

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Thank you very much. Ms. Rudley? 3

LISA RUDLEY: Great. Thank you. Thank 4

you Assemblywoman-- 5

ASSEMBLY MEMBER NOLAN: I just want to, 6

tell me the name of your school district again. 7

JULIE BIGGER: I live in Sherburne-8

Earlville. It is very small, it‟s in the-- 9

ASSEMBLY MEMBER NOLAN: Where? 10

JULIE BIGGER: middle of nowhere. It‟s 11

over near Colgate University. It‟s south of 12

Utica, north of Binghamton. 13

ASSEMBLY MEMBER NOLAN: Okay, I, okay. 14

JULIE BIGGER: Very obscure place. 15

ASSEMBLY MEMBER NOLAN: Not at all. 16

JULIE BIGGER: [Unintelligible] 17

[5:09:59.2]. 18

ASSEMBLY MEMBER NOLAN: I‟m sure a very 19

beautiful place. We went to Letchworth State 20

Park this summer, which, you know, and we did 21

some of the Finger Lake area, so we, it‟s 22

wonderful to be [unintelligible] [5:10:08.3]. 23

And I was born in Syracuse. 24

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JULIE BIGGER: Oh, yeah. 2

ASSEMBLY MEMBER NOLAN: Which I always 3

say, can‟t people tell from my accent? But we 4

came to Queens when I was six months, so that‟s 5

why. Okay, thank you. Thank you very much. I 6

hope to visit that district one day. Thanks. 7

LISA RUDLEY: Thank you. Thank you for 8

being here. I testified at the Senate Hearing on 9

the Regents Reform Agenda and I was one of the 10

last speakers and I really appreciate and I will 11

wrap it up and your testimony, I agree Julie, it 12

does change when you‟ve been sitting here an you 13

hear the responses, so, first I want to say, I‟m 14

a mother, I‟m first a mother and I‟m a mother to 15

three children who live in the Ossining school 16

district, a national award winning school 17

district that also is very diverse. We‟re a very 18

diverse group of parents and students and 19

community members and I‟m very proud to be here 20

today to represent, not only my children, but to 21

represent New York State Allies for Education, a 22

newly formed group that represents over 45 23

organizations throughout the State. Also proud 24

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to be here to represent Autism Action Network, 2

which is a dynamic autism group that protects the 3

rights of people with autism throughout the State 4

and nationally. And you know, I was thinking 5

about all the things that have been said about 6

the groups of people that are concerned, you 7

know, we heard Commissioner King say that we‟re 8

Special Interest, we heard recently U.S. 9

Secretary of Education Arne Duncan, say that we 10

are white suburban moms worried about our 11

children that are not brilliant anymore or not 12

smart enough, well-- 13

ASSEMBLY MEMBER NOLAN: I‟m going to 14

have him speak with Superintendent Fox Alter, 15

just personal, I want to be there for that, but 16

yeah, no that‟s alright. I‟m sorry. 17

LISA RUDLEY: and it‟s very divisive and 18

we, you know, we all know that-- 19

ASSEMBLY MEMBER NOLAN: I was extremely 20

upset by that. 21

LISA RUDLEY: and-- 22

ASSEMBLY MEMBER NOLAN: And I share that 23

very much so. 24

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LISA RUDLEY: Thank you. And it‟s a way 2

to distract from the real problems and the real 3

issues that are going on with reform. I echo all 4

the words that were said by Leonie, Karen, Mary 5

Fox, you know, Andrew and Julie and Karen and I 6

wanted to point one thing out and we talked 7

about, a little bit about FERPA and the issues 8

that are certainly being violated. I put in my 9

testimony, I don‟t know if you have it, but there 10

is a snapshot, I don‟t know if you can see it on 11

camera, this was from a Pearson [phonetic] video, 12

okay, and this is a snapshot of a child and a 13

parent, it‟s a dashboard, and the parents able to 14

go in and see this child‟s career path to, a 15

middle school child, to see that this child and 16

it says, career projection for Anthony‟s skills 17

are appropriate for these careers, Mechanical 18

Engineer is tagged. It even recommends the 19

schools that he should go to and Anthony is on 20

track to achieve his career goals of becoming a 21

Mechanical Engineer but he happens to actually 22

excel in Language Arts and History but struggles 23

in Science. So this data, we‟ve said it today. 24

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We don‟t want to be profiled, where we‟re, we 2

don‟t want our children to be profiled. This is, 3

you know, and I‟ve said it and a lot of people 4

have said it, what‟s happening in New York State 5

and across the country, it‟s not an educational 6

plan, it‟s a marketing plan and we understand 7

what‟s going on. We don‟t need to be explained 8

anymore what‟s going on with inBloom, what‟s 9

going on with excessive testing, we are smart, we 10

are informed and we‟re here to protect our kids. 11


LISA RUDLEY: And I want to say thank 13

you to both Assemblyman O‟Donnell and 14

Assemblywoman Nolan for protecting the rights of 15

our children from going out there and doing and 16

putting Legislation out there, for Tom Abinanti 17

for sticking up for parents rights, you know and 18

autism rights all the time and I want to say 19

thank you because you‟re right, we, it‟s sad that 20

I have to sit here, we all have to sit here and 21

ask for a Legislation, Legislative solution when 22

New York State Department of Education should be 23

doing what we‟ve been asking them to do and they 24

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should be hearing our concerns. And I want to 2

say the fact that we have to also look to legal 3

solutions, it‟s egregious and I thank you for 4

heeding our warning and-- 5

ASSEMBLY MEMBER NOLAN: We‟ve worked 6

with our group before is I think our Committee 7

staff-- 8

LISA RUDLEY: New York-- 9

ASSEMBLY MEMBER NOLAN: if they don‟t, 10

we‟ll make sure that we know your group. 11

LISA RUDLEY: Okay. New York State 12

Allies for public education is a group that newly 13

formed in-- 14

ASSEMBLY MEMBER NOLAN: Mm-hmm. 15

LISA RUDLEY: July and we represent 45 16

organizations that have all come together, we‟re 17

allies, it‟s like World War II again and we‟re 18

all here together and we‟re trying to fight it 19

every way we can because we know it‟s wrong and 20

we want to the protect the people of New York 21

and-- 22


LISA RUDLEY: lastly I‟ll say, we are 24

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advocating, we are centralizing, we are 2

organized, Westchester, Long Island, Upstate, 3

Downstate, New York City, we have come together. 4

We are, we‟ve working very hard trying to 5

convince the Senate to pass through the 6

Legislation the Companion bills and we will 7

continue to work and we will not sleep, we 8

haven‟t eaten all day, we will not sleep until we 9

make sure that education is back in the hands of 10

the people that matter. 11

ASSEMBLY MEMBER NOLAN: Thank you very, 12

very much. Thank you. Mr. Farley. 13

TIMOTHY FARLEY: Good afternoon. It 14

almost feels like I should be saying good 15

evening. My name is Tim Farley and my wife, 16

Jessica and I are the proud parents of Owen 17

[phonetic], Aiden [phonetic], Katherine 18

[phonetic]and John Paul [phonetic], all of school 19

age children respectively. They‟re in 7th grade, 20

5th grade, 3

rd grade and Kindergarten. I also 21

happened to be the very proud Principal of 22

Ichabod Crane Elementary and Middle School so I 23

have a unique perspective-- 24

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ASSEMBLY MEMBER NOLAN: And you probably 2

have to constantly explain now that there‟s a 3

television show about the character that has 4

nothing to do with the reality of the character. 5

TIMOTHY FARLEY: Yeah, that‟s very true. 6

ASSEMBLY MEMBER NOLAN: I‟d imagine, 7

yeah. 8

TIMOTHY FARLEY: Yeah. 9

ASSEMBLY MEMBER NOLAN: The blurring of 10

lines continues. 11

TIMOTHY FARLEY: [Unintelligible] 12

[5:16:06.8] I have a bumper sticker on my 13

minivan and the bumper sticker reads, if you 14

aren‟t outraged, you aren‟t paying attention. 15

Finally for the first time in a really long, long 16

time because I‟ve been battling this for a long 17

time. I see, well, most of you have left, but 18

there are three of you still here, thank you. I 19

see people who are outraged because you‟re 20

finally seeing what we‟ve been seeing for a long, 21

long time. Before I get to a very brief summary 22

of my written testimony, which you do have, I 23

would like to talk a little bit about one of the 24

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remarks Dr. King had made and he talked about the 2

options of the local student information systems 3

not being ideal or optimal. I don‟t know who 4

he‟s referring to because our student information 5

system is actually quite good. No one ever asks 6

me, said, hey Mr. Farley, what do you think of 7

your student information system, would you like a 8

really good one? And so far today, I kept track, 9

I took a couple of bathroom breaks but according 10

to my notes, I didn‟t see one single person that 11

came up here and said thank God you‟re taking my 12

kids data. Thank God. Thank you so much. Here 13

have some more. Not one. I‟d like to also 14

remark on a couple of Statements that Deputy 15

Commissioner Wagner had said. He said that the 16

only source, school district has control, the 17

school district has the control of the data. 18

Well, according to inBloom‟s website and I quote 19

you give, you the district, give inBloom a 20

worldwide perpetual irrevocable sub licensable 21

and transferrable license to use, host, store, 22

reproduce, modify, create derivative works, 23

publish, publically perform, publically display 24

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and distribute such content. It‟s in section 5D 2

of the terms of use. I‟m not a Lawyer, it 3

doesn‟t sound too good to me. It sounds like 4

you‟re a Lawyer, sir? 5

ASSEMBLY MEMBER ABINANTI: I wouldn‟t 6

let one of my clients sign that. 7

ASSEMBLY MEMBER NOLAN: No. Well, 8

unfortunately my four kids are being, they‟re 9

stuck in this little system. I‟m the Principal 10

of a school and I can‟t get my kids information 11

out of it. So, my question is, one of the other 12

things that Deputy Commissioner Wagner had said, 13

he said, why do schools, or someone had asked, 14

why do schools have to upload the data even if 15

they are not part of it, they did not receive 16

Race to the Top funds and he said, it‟s a Federal 17

requirement. But it‟s not a Federal requirement 18

to include the student‟s names. I just wanted 19

that clarified. I also testified last week‟s 20

Senate Hearing with Senator Flannigan [phonetic] 21

and a lot of people testified to the disastrous 22

implementation and roll out of Common Core, high 23

stakes testing, APPR and some people even talked 24

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about, a little bit about data mining. These 2

four things all have one thing in common and in 3

its and Bill and Melina Gates. He‟s funding all 4

of it and you can‟t separate one from the others, 5

they‟re all part and parcel. But as disastrous 6

as the roll out of those three initiatives have 7

been, nothing compares to this because it really 8

harms our kids. There is a local district, 9

happened to be mine, they had a Board of Ed. 10

meeting last night and they adopted the following 11

resolution. Whereas the Superintendent of 12

schools in the Board of Education of the Ichabod 13

Crane Central School District believe it to be in 14

the best interest of the school district and the 15

members of the school community to not 16

participate in the selection or implementation of 17

a data dashboard solution. Now, be it, resolve 18

the Board of Education of the Ichabod Crane 19

Central School District on the recommendation of 20

the Superintendent of schools hereby determines 21

not to participate in the selection or 22

implementation of a data dashboard solution and 23

the Superintendent of school is hereby authorized 24

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to take all necessary steps to implement this 2

decision in order to protect the privacy of our 3

students and families. That vote, and I‟m very 4

proud to say, passed seven to nothing, unanimous. 5

So, you‟ve heard from several Superintendents. 6

The lady from Pleasantville, that was absolutely 7

outstanding, asking, and a lot of Superintendents 8

from around the State asking inBloom to remove 9

their student‟s data and when people ask inBloom, 10

they say, ask the State Ed. Department. So, we 11

have a situation where, and this is the most 12

critical part, the data dashboard, if you haven‟t 13

already chosen one, one was selected for you. 14

There were many districts that decided not to do 15

that. Here‟s the part that‟s very critical and 16

I, and has not been testified on yet, my 17

understanding and I may be wrong, but my 18

understanding is they‟re uploading the 19

information that they have in the system in two 20

weeks, in to inBloom, if I‟m wrong, I‟ll 21

apologize publically if need be. But in two 22

weeks, it‟s my understanding that all that data 23

is going to up to inBloom. Once inBloom has it, 24

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it‟s too late, they already have the information. 2

I‟m asking that a Court injunction be put in 3

place to stop them from doing it until we can get 4

a better idea of, and take in to consideration, 5

everybody‟s concerns. I would like to just close 6

with a, with the following. There‟s a passage in 7

the Bible, Matthew chapter 18, verse 6, Jesus 8

talks about the special care given to children 9

and it says, woe to those who would harm one hair 10

on their heads. There is nothing more sacred 11

than the children in our care. It is our moral 12

and ethical obligation to protect them. If SED 13

refuses to listen to the concerns of parents, 14

educators and apparently the Legislature, then 15

exactly who are they accountable to? Their full 16

speed approach to get the data dashboards 17

populated with the data should give you all great 18

pause. My understanding is that the next 19

Legislative session isn‟t until next January, 20

frankly, that‟s too late. They will have already 21

uploaded the data and once they have it, they 22

will always have it. So for the sake of our 23

children, please do your jobs and stop them from 24

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doing irreparable harm to our children. 2


TIMOTHY FARLEY: Thank you. 4


Okay. Okay. 6

ASSEMBLY MEMBER O‟DONNELL: Mr. Farley, 7

who is your State Senator? Do you know? 8

TIMOTHY FARLEY: Kathy Marchione 9

[phonetic]. 10

ASSEMBLY MEMBER O‟DONNELL: So-- 11

TIMOTHY FARLEY: I‟ve already, I‟ve 12

already contact-- 13

ASSEMBLY MEMBER O‟DONNELL: I presume 14

that your passion hasn‟t, has, is not contained 15

to this room, right? 16

TIMOTHY FARLEY: No. 17

ASSEMBLY MEMBER O‟DONNELL: So we have 18

two different bills that would, that would-- 19

TIMOTHY FARLEY: I‟ve already reached 20

out. 21

ASSEMBLY MEMBER O‟DONNELL: try to stop 22

that-- 23


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ASSEMBLY MEMBER O‟DONNELL: but we just 2

don‟t have a Senator helping us over there so-- 3

TIMOTHY FARLEY: I‟ve reached out to her 4

more than once. 5

ASSEMBLY MEMBER O‟DONNELL: Bang the 6

drum, thank you. 7

ASSEMBLY MEMBER NOLAN: Right, we need 8

you. We need you. Thank you. 9

TIMOTHY FARLEY: I‟m working. 10


much. Kimberly Friedman and Sheila Kaplan, I 12

apologize, you were here early and we put you on 13

late, I‟m sorry. And these will be our final two 14

witnesses and I want to say, I have to have my 15

staff tell me if I can do this but normally we 16

conclude a hearing, I would prefer to call this 17

hearing maybe adjourn, not, what‟s the right word 18

Deborah so that we can-- 19

ASSEMBLY MEMBER ABINANTI: Recess, 20

recess. 21

ASSEMBLY MEMBER NOLAN: Recess, thank 22

you Tom. I‟m so tired, I‟m not saying the right, 23

I‟d rather say that the hearing has gone in to 24

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recess so that if at some future time, we can 2

have inBloom or some of these other people back 3

or perhaps have State Ed. have them come or have 4

State Ed. come back, we can do it, so if it‟s, is 5

it permissible to recess a hearing? I think it 6

is. After you finish we‟re going to recess, 7

[unintelligible] [5:23:50.5], I think they call 8

it, right, to the call of the Chair so that if we 9

can get these additional people in, we can 10

reconvene. Thank you very much. Thank you. Go 11

right ahead, go ahead. 12

KIMBERLY FRIEDMAN, CORTLAND COUNTY CARES 13

(CARING ADVOCATES FOR A RESPONSIBLE EDUCATION 14

SYSTEM): Madam Chairwoman and Members of the 15

Education Committee who are still here, thank you 16

for the opportunity to testify here today. My 17

name is Kimberly McCray [phonetic] Friedman and 18

I‟m from Cortland County which is located in the 19

Central Region of New York State Assemblywoman 20

Lifton‟s Legislative District-- 21

ASSEMBLY MEMBER NOLAN: And she talks 22

about it all the time and visited with her this 23

summer too so, we were through your county so we 24

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know where it is. 2

KIMBERY FRIEDMAN: It‟s a nice area. I 3

have to say that this is, I wasn‟t sure what I 4

was walking in to, this is my first time 5

testifying so, it‟s nice to feel supported. This 6

is one of the first times, outside of my Core 7

Group that I have felt supported by a Legislative 8

body so thank you for that. I‟m here today as a 9

mother, a friend and a colleague and most 10

importantly as an advocate. To tell you that 11

sharing my families private information, without 12

consent, is completely unacceptable. I‟m 13

representing nearly 500 individuals and families 14

from our community on behalf of an organization 15

called Cortland County Cares, Caring Advocates 16

for a Responsible Education System. This group 17

was organized just a couple of months ago and 18

we‟ve already impacted great change within our 19

local community and our county. We‟ve met 20

Commissioner King, we‟ve attended forums and 21

we‟ve researched ad nauseum. College and career 22

readiness, Race to the Top, APPR, high stakes 23

testing, Common Core learning standards, Engage 24

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New York modules and most disturbingly the data 2

storage dashboard system inBloom, formerly Shared 3

Learning Collaborative, LLC. When we began 4

Cortland County Cares, our primary goal was 5

really to get school districts to stop using 6

scripted modules and lessons and if Engage New 7

York modules were going to be used, to allow the 8

teachers to adapt them appropriately. We quickly 9

realized through our interactions with local 10

districts, teachers, parents, that we had a far 11

more critical problem on our hands and that was a 12

complete and utter violation of our privacy. The 13

fact that confidential information can be shared 14

with a variety of groups outside of our school 15

district without explicit parental consent is 16

absolutely unacceptable. This information should 17

be held in the same confidential manner as 18

medical records. How could privacy laws change 19

without parents and citizens really knowing about 20

that. What about the privacy law of 1974 and the 21

Personal Privacy Protection law. An Attorney 22

must get a judicial subpoena in order to obtain 23

records and I even have to sign a release for my 24

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child‟s picture to be in the school newsletter. 2

So for me, I have a child with autism and I have 3

two other children, so it‟s okay for my child 4

disability record to be sent to a vendor who only 5

wants to sell me a product? I don‟t see how 6

that‟s possible. These things make no sense to 7

me and I simply cannot accept that this is just 8

the way that it is. Sadly what I‟ve come realize 9

is that the New York State citizens have been 10

sold out. It no longer feels like a Democracy to 11

me. We, the people, seem to have no choice, no 12

voice and no say in what matters most, the safety 13

of our children so I‟m here to ask you to help me 14

change that and I know that you‟re on the right 15

path because I‟ve been sitting here today and 16

hearing you and hearing your questions so I thank 17

you for that. One only needs to begin following 18

the tangled web of lucrative associations, 19

friendships and inappropriate relationships to 20

see a money trail that I find deeply disturbing. 21

You‟ve heard a little bit about that today. The 22

Commissioner actually eluded to it but failed to 23

mention a lot of the details so I‟ll give you a 24

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few of the details. The Gates Foundation funded 2

the creation of the Common Core standards as the 3

Federal Government was not legally able to do so. 4

Data collection is a requirement of Race to the 5

Top funding although we heard that maybe that‟s 6

not entirely true here today and is being handled 7

by the operating system inBloom through Amplify. 8

Amplify happens to be owned by Rupert Murdock 9

[phonetic] and is a subsidiary of News Core, with 10

the CEO, Joel Klein being the former Chancellor 11

of New York City schools. InBloom was 12

established through a generous 100 million dollar 13

donation through, none other than the Gates 14

Foundation, to share data across nine States 15

including New York. Fortunately for the other 16

seven States, they‟ve all backed out and Illinois 17

has even decided to not do quite as much as they 18

had originally anticipated so why hasn‟t New York 19

pulled out of this contract? It‟s not just the 20

issue of inBloom. We‟ve heard a lot about that 21

today. It‟s not just that that‟s concerning. 22

Aggregate data has been sent to third parties 23

from school districts for years using ID and 24

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codes. Why, suddenly, is there a need for the 2

use of a child‟s name and hundreds of other 3

identifiers? Why are corporations being allowed 4

to be in charge of our children‟s education and 5

their data privacy? Where are the educators in 6

all this? Where are the experts, the child 7

development experts? I think you‟re hearing this 8

uproar from parents because you may not be 9

listening, although I think after hearing you 10

today, I think you are listening but the New York 11

State Education Department certainly is not 12

listening and I‟ve attended their forums and 13

they‟re not listening there either. 14

ASSEMBLY MEMBER NOLAN: You know, it‟s 15

going to be our job to work together to try to 16

change that. [Unintelligible] [5:29:49.3] that‟s 17

the reason I appreciate, you know, that‟s the 18

goal now that I think that we have to, you know, 19

[unintelligible] [5:29:54.8] the City Deputy 20

Commissioner and feel very strongly that there 21

has to be a more targeted response from the 22

Department, a more responsive response than, you 23

know, we‟re working, you know, there has to be 24

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some response to the concerns that people have 2

addressed and we will do everything we can 3

Legislatively but I would urge you as Dan and I 4

have been saying to the last few witnesses, to 5

reach out to your Senate members who ever 6

represents you in the Senate. We did pass, as we 7

said, two bills that dealt with this, perhaps 8

imperfectly, but you know, they could have come 9

back to us with a change and State Ed. could have 10

weighed in, you know, that‟s kind of how things 11

work here but they just chose to block it and so 12

one reason we‟re having this hearing is to hope 13

that we unblock that and get it, a real dialogue 14

going and get something passed and signed in to 15

law that will be a higher standard for our 16

children of personal privacy. 17

KIMBERLY FRIEDMAN: Sure and we will 18

definitely talk to Senator Seward about that as 19

well. So, thank you for reminding me of that. I 20

just wanted to let you know that although the 21

hearing is about data collection, we simply 22

cannot tease out just data collection as a 23

separate conversation from all of this. Common 24

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Core, Engage New York Modules, they‟re all 2

interconnected in a disturbing way so my job is 3

just to plant the seed today and I think by the 4

end of the day I didn‟t even really need to do 5

that but I appreciate you hearing me out. 6

ASSEMBLY MEMBER NOLAN: No, very much 7

so. 8

KIMBERLY FRIEDMAN: So lastly, I‟ll 9

close with the fact that today I‟m here as that 10

parent. I‟m the voice of the voiceless. I 11

respectfully ask that you hear us and I think you 12

already have so thank you for that and I just 13

want to let you know that this is not easy, 14

sitting before you, coming here, taking time away 15

from family and work and being courageous and 16

being here and so, I am the voice of teachers who 17

are afraid to speak up because they‟re afraid of 18

losing their job. I‟m the voice of parents who 19

choke back the tears every time that they‟re 20

working on homework with their kids because they 21

can‟t believe that all this is happening. So I 22

am that parent. And I‟m the parent of a child 23

with disabilities and all children with 24

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disabilities who try every day to fit in but this 2

system further defines their differences. So 3

thank you. 4


Thank you very much. Thank you. Yes, please, 6

please, yes. 7

SHEILA KAPLAN, EDUCATION NEW YORK: 8

Thank you very much. I‟ve waited a long time to 9

have this opportunity. 10

ASSEMBLY MEMBER NOLAN: Say your name 11

again, nice and clear. 12

MS. KAPLAN: My name is Sheila Kaplan 13

and I happened to have started to look at the 14

longitudinal databases in 2004, when I was in 15

graduate school getting my Masters in Information 16

Policy and Records Management and I was fortunate 17

to have a Professor who actually worked for a 18

State Education Department on the State 19

Longitudinal Database, who said to me Sheila, 20

don‟t forget about the mountain men. Now that 21

meant, don‟t forget about the mountain men, and 22

it meant nothing, mount, don‟t forget about the 23

mountain men. It meant nothing to me until years 24

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later when I realized gee, there‟s a lot of 2

people who don‟t want their information 3

collected. They don‟t want to be part of that. 4

I find it interesting that Assemblyman O‟Donnell 5

mentioned attendance because during that time 6

period when I was looking at the State 7

Longitudinal Databases, I don‟t even think it was 8

State, it wasn‟t interoperable at that time, I 9

spoke to the people who were in the attendance 10

area and they said, we‟re going to have a problem 11

because we have to do yes or no and there won‟t 12

be any of that subjective comment that Daniel was 13

not in school because of this, so I‟ve been, my 14

awareness has been very heightened to this for a 15

very long time. I am also the mother of three 16

children. I have the distinction of having my 17

had my child‟s education records breached, not 18

just his education records, his behavior records, 19

so I know, you know, a little bit about what it 20

feels like but none of that bothered me until I 21

got a phone call, when I lived in Manhattan, 22

telling me at 4:30 in the afternoon that my child 23

was absent from PS something and I hung up the 24

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phone and I said this is really bad. I don‟t 2

have any children in the New York City public 3

schools, we didn‟t live in New York City then, 4

but I know the name of the family that had this 5

phone number before I did. If I wanted to find 6

this, I kept getting the wrong the phone numbers, 7

if I wanted to find this child, I could harm this 8

child, find them and harm this child, there must 9

be a law against this. So in 2006 I started 10

looking at what ended up being, I thought was 11

outsourcing of the attendance information which 12

led me down the road of directory information. So 13

then through, from 2006 until maybe like ten or 14

eleven, I did work on a directory information 15

bill and it did pass the Senate twice and it did 16

have, it‟s interesting the opposition it had, is 17

now contradictory to what we‟re hearing so that‟s 18

over and done with, okay, I still believe that 19

there‟s no reason in the world to be giving 20

strangers children‟s name, their address, their 21

contact information. At one time I wasn‟t even 22

looking at clubs, but recently in Forbes there 23

was an article about a gay list for sale and that 24

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student decided to give that information through 2

to Scholastic.com, but I started thinking, gee, 3

if you don‟t opt-out of directory information and 4

you‟re a member of an LGBT Club, that information 5

is for sale. So, I did write the Student Privacy 6

Protections Acts which was A8474 and S2357. I 7

took it back, it‟s improved. I encourage you to 8

look at it, I really do. Too many kids have been 9

going in the seven and a half years, too many 10

kids have entered our schools and the parents 11

will never again know who has that information. 12

The bill says you may not give out the contact 13

information without parent‟s consent and it 14

leaves the opt-out part of the pictures and the 15

height and weight for rosters, so there shouldn‟t 16

be any opposition to that. Now, Assemblyman 17

O‟Donnell where this differs from your bill is, 18

is your bill allows you to opt-in but it doesn‟t 19

say anything about restricting the sale or the 20

use of the information for profiling so, you 21

know, that little bit of information inserted in 22

your bill. Assemblywoman Nolan, I wanted to like 23

your bill a lot better because it talked about 24

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opt-out and I was talking about opt-out and you 2

were talking about opt-in and it just seemed so 3

inconsistent and if you spent hours over that 4

bill, I spent hours over that same bill with the 5

same people who you spent hours over that bill 6

with an my comments in the package about the two 7

bills are not my comments, I know a little bit 8

about this, but I would not consider myself 9

having the level of knowledge of the people who 10

reviewed that bill. Now the student privacy 11

protection act that did start as a directory 12

information, over the years, they always say it‟s 13

all about timing, well everyone is now hearing 14

about facial recognition, they‟re hearing all the 15

nightmares that could possibly happen and that 16

has now become the student, this has become, I‟m 17

sorry, the Chief Privacy Officer for Education 18

Act and I think it does address much of what 19

we‟re hearing in here. I was very, very pleased 20

to hear to the Superintendents speak of such and 21

the same thing with the School Boards and I hope 22

that you will take a look at it and I hope you do 23

invite me back to discuss it. InBloom is going-- 24

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MS. KAPLAN: to come and go but we‟re 3

still going to have the problems, these, I know 4

you want to say something. 5

ASSEMBLY MEMBER NOLAN: We would 6

welcome, you know, you know, we have a lot of 7

staff here and we would certainly be able to, we 8

take the information of the people who testify 9

anyway, phone numbers of the people who testify 10

and e-mails, you know, we‟ll be in touch with you 11

and you know, get back to you. We welcome 12

people, can also submit to us a letter if they 13

want to e-mail of their written comments about 14

any bill that‟s introduced and you know, we 15

certainly welcome everyone‟s suggestions. 16

Sometimes we can‟t-- 17

MS. KAPLAN: I have, I have. 18

ASSEMBLY MEMBER NOLAN: but I think, but 19

we try to keep moving forward you know, which is 20

the important thing. 21

MS. KAPLAN: Absolutely. And, but the 22

other part of the Chief Privacy Officer Bill is, 23

is we‟re just talking about the data collection, 24

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but there are other parts. There‟s social media, 2

there‟s school safety-- 3

ASSEMBLY MEMBER NOLAN: Right, if you 4

have a sample or a model bill or something we‟re 5

very happy-- 6

MS. KAPLAN: I have [unintelligible] 7

[5:38:45.1]-- 8

ASSEMBLY MEMBER NOLAN: Sure, I think we 9

got it in the package so-- 10

MS. KAPLAN: It‟s all in there, I 11

submitted it yesterday. 12

ASSEMBLY MEMBER NOLAN: Alright, good. 13

Thank you. 14

MS. KAPLAN: So, let me just finish up 15

with three points if you allow me. Okay, I 16

talked about the directory information, I talked 17

about the Chief Privacy Officer, narrowing it to 18

inBloom is just not the right thing to be doing. 19

It‟s, there‟s going to be something after inBloom 20

and if we don‟t get on top of this right now, 21

this is going to be the next CFE. So I would 22

suggest, you know, you didn‟t ask me, but my best 23

suggestion would be, take a look at the Chief 24

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Privacy Officer bill and have professionals work 2

with you. 3


MS. KAPLAN: Thank you. 5


much. A great way to end it. I want to thank my 7

colleagues for being here. Let‟s see if I have 8

this thing finally working right. Let me say 9

again, I want to thank my colleagues who 10

participated in the hearing, particularly 11

Assemblyman O‟Donnell who, and Assemblyman 12

Abinanti who have been here for the whole hearing 13

but we had tremendous turnout from both sides of 14

isle I think indicating the interest that the 15

public has in this. I also want to thank, we had 16

far more witnesses than we originally thought and 17

we really did try to accommodate everyone so the 18

hearing did run a little later. I think we had a 19

really good dialogue and I look forward to, as I 20

said, perhaps we‟ll call this a recessed hearing 21

so that we can, at a future time, have the State 22

Education Department back and perhaps the 23

provider of these services, inBloom and the 24

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others that were mentioned. I don‟t think it was 2

Powerball, Danny, but power something-- 3

ASSEMBLY MEMBER O‟DONNELL: 4

[Unintelligible] [5:40:10.8]. 5

ASSEMBLY MEMBER NOLAN: you know come in 6

and educate us. I really do have a lot of, I 7

have more concerns at the close of this hearing 8

about the privacy of students and families than I 9

did at the beginning and I had a lot at the 10

beginning so, and usually hearings sort of, kind 11

of answer your questions, not raise more, but I 12

know I have quite a few more raised so I want to 13

thank the witnesses for that and I want to thank 14

you wonderful and hardworking staff which puts up 15

with me all the time, which is right off the bat, 16

you know, a challenge and I really want to thank 17

them for the work that they put in to the hearing 18

and including the Assembly‟s technical staff, 19

which I‟m impossible with the microphone, so I 20

want to thank them for putting up with me. Thank 21

you very much. This hearing, we‟ll call it 22

recessed until we meet again and we welcome you 23

to the State Education Committee, the Assembly‟s 24

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Education Committee any time. Thank you. 2

(The public hearing concluded.) 3

Documents

new york state assembly - Granicus