To gain access to nonpublic education data in the Golden State, which has the largest school-age population in the country, researchers agree to protect potentially identifiable student information. But they also agreed not to "testify, advise, or consult" for anyone except the state board of education or education department without advance permission — nor to release "any aggregation, compilation or derivative of the data, even if de-identified."
In practical terms, that meant the state could threaten to revoke a researcher's access to education data and sue them for up to $50,000 in damages if they provided testimony or analysis against the state — even if they did so based on data from other sources.
Now those stipulations are themselves on trial as part of a separate education equity lawsuit.
Plaintiffs in Cayla J. v. California, an education equity lawsuit filed in 2020 against the state, sought testimony from two high-profile Stanford University education researchers, Thomas Dee and Sean Reardon, who have both analyzed data obtained under the state stipulations.
Both researchers have studied disproportionate effects of remote schooling in California during the pandemic on low-income, Black, and Latino students. In response, the California education department sought to block Dee's expert testimony against it and in June and July threatened both researchers with breach of contract and fines.
The ongoing dispute has raised national concerns over both researchers' First Amendment rights and, more broadly, how states control access to data that might show state policies in a negative light.
In an Aug. 21 hearing to determine whether the CDE could prevent Dee from testifying, Alameda County Superior Court Judge Brad Seligman said the state's threats amounted to a "sword of Damocles" over the researchers' heads, and the judge demanded the state promise in writing not to punish Dee financially or professionally for his expert report.
Dee is an education professor at Stanford and faculty director of the John W. Gardner Center for Youth and Their Communities, which has a data-sharing agreement with the state for its research on student engagement and other issues. That agreement did not provide the data used in Dee's report about remote schooling.
The letter, submitted Tuesday afternoon by the state education department's attorney Len Garfinkel, confirms that the state amended Dee's data agreement and would not take any other action against the researcher for testifying in the suit. The letter to the court makes no mention of other researchers.
Education department spokesman Scott Roark said the department has notified all researchers who have similar data agreements, called memoranda of understanding, that they will be allowed to testify against the department — but only using publicly available data.
"All researchers who have MOUs with [the California Department of Education] will remain precluded from testifying in legal proceedings to the extent they rely on or use proprietary CDE data," Roark said.
That appears to mean that researchers using California's tailored data will continue to be limited in how they discuss their findings.
"My sense is the state is still trying to preserve a claim to restrict the speech of researchers who are using their data," Dee said.
Dee still plans to submit his testimony in the lawsuit, which analyzed student disengagement in the state following pandemic school disruptions and remote learning. Among other findings, Dee reported that chronic absenteeism spiked during the pandemic to 14 percent in the 2020-21 school year and then more than doubled to 30 percent in 2021-22. None of the research discussed in Dee's testimony was based on data collected under the Gardner Center's data agreement with the state.
Reardon, a professor of poverty and inequality in education at Stanford, withdrew his agreement to testify on the plaintiff's behalf because of the CDE's warning in June. He said he has not received any letter from CDE relaxing his own restrictions on testimony, and is not sure whether the judge's decision in Dee's case would also apply to him.
A 'DANGEROUS PRECEDENT'
Even if Dee and Reardon ultimately testify, California's attempt to block them sets "a dangerous precedent," said Paige Kowalski, executive vice president for the Data Quality Campaign, which works with states and education groups to make education data more available.
"A policy like this will definitely have a chilling effect on our ability to understand what's happening in our schools — what policies and strategies are working and for whom — and really sets up a situation where an individual has to basically agree with state politics, and state policy in general, before they can have access to information," Kowalski said.
"It may sound innocuous to some people when state actors are by and large doing good things, but turn this on its head and think of some states out there right now supporting banning books or other kinds of laws that have a lot of harmful effects on young people, families, and communities," she continued.
The premier education research association shares those concerns.
"I am broadly troubled about memoranda of understanding that limit how one can report on the findings and results, that aren't issues related to protection of information when one has access to administrative records and data," said Felice Levine, the executive director of the American Educational Research Association.
While all states have data use agreements, Levine said none are as restrictive as California's. She said researchers need more training in how to enter agreements with states and districts.
"These agreements need to be drafted very judiciously in a way that allows for advancing findings, particularly now in this era of evidence-based policy," Levine said.
The last decade has seen a massive expansion nationwide in the collection and use of longitudinal student and school data in education research, from student testing, discipline, and course-taking transcripts to teacher licensure and financial records. According to its most recent records, the CDE archived more than 1,000 requests for access to nonpublic data as of March 2023, from researchers both in and out of state, and including both universities and independent research and evaluation groups like WestEd, the RAND Corp., and the American Institutes for Research.
Policy research from researchers like these frequently shows up in education-related lawsuits like the current one.
Mark Rosenbaum, an attorney for Public Counsel representing the plaintiffs in the equity lawsuit against California, said outside research analysis like Dee's and Reardon's are crucial to efforts to show that low-income Black and Latino students were disproportionately hurt by pandemic remote learning, and that the state needs to provide more resources to support their recovery.
"The pandemic is March 2020, so we're talking three plus years down the road. Kids who were in elementary school, many of them will be in middle school. Kids who are in middle school will now be in high school, and they have lost precious years," he said. "They lost a sixth of their educational career."
The suit calls for California to address digital disparities in remote learning, provide mental and behavioral supports for teachers and students, and create and implement a plan to help students recover academically. Rosenbaum said the trial date for Cayla J. v. California has been set for November as the sides continue to work out data issues and potential settlements in the larger suit.
©2023 Education Week (Bethesda, Md.). Distributed by Tribune Content Agency, LLC.
