Equity in Civic Technology, Privacy & Data
Improving Data Sharing and Privacy Protection for Incarcerated Students
Students incarcerated within the U.S. juvenile justice system are often overlooked in discussions of responsible technology use, but this population has much at stake in how their data is used and protected. In 2019, juvenile courts placed about 55,000 youths into juvenile residential facilities, which are responsible for providing educational functions to students incarcerated there. Though incarcerated, these students have a right to educational opportunities as well as appropriate privacy protections, but both of these needs often go severely underserved within today’s juvenile justice system. By improving data governance processes within the juvenile justice system, students can be better prepared for a return to traditional education institutions and eventually a successful transition to adult life.
This post focuses on key decisions around data sharing and privacy protection at two points:
- When students enter the juvenile justice education system from a traditional school, and
- When they exit the juvenile justice system’s custody, potentially to return to a traditional school.
Considerations for Students Entering the Juvenile Justice Education System
Upon entering the custody of a juvenile justice-managed residential facility, incarcerated students begin receiving instruction overseen by the juvenile justice system. The nature of these incarceration facilities, and the format of the educational services they provide, vary widely by state, but the quality of education available to incarcerated students is on average very poor and starkly inferior to the quality of traditional schools. Part of the shortcoming lies in poor data governance practices and a failure to make use of relevant data from students’ prior educational records, either at schools or other incarceration centers. This data can include information about prior coursework and academic standing, learning disabilities or special education needs, and physical needs (such as hearing or vision support).
Incarcerated students can be better served by thoughtfully sharing limited education data from their prior educational experiences. The sharing of educational records from traditional schools to serve students in the juvenile justice system is permitted under federal law, provided that it is done so in accordance with specific criteria set forth in the Family Educational Rights and Privacy Act (FERPA) and in conjunction with relevant state laws. Ordinarily, FERPA requires parental consent to share students’ personal information. One exception, however, permits schools to share students’ information with state and local officials, so long as the sharing is authorized by state law, concerns the juvenile justice system’s ability to serve the student “prior to adjudication,” and the receiving officials certify they will not further share the information. Similarly, under FERPA’s “school enrollment exception,” records can be shared without prior parental consent to schools in the juvenile justice system, but a “reasonable attempt” must be made to notify parents.
However, these are not blanket exceptions, and school officials must understand specific requirements in federal and state laws. The aim of this legal regime is to allow for timely sharing of education data to those seeking to provide educational opportunities to students, while still protecting their privacy. School staff seeking to share data should understand what data is or is not appropriate to share, how long this data can be retained, who will have access to it, and what it can be used for. When evaluating a data sharing plan, schools should keep in mind the principle of only sharing data that is relevant to meeting students’ educational needs. This privacy-forward approach is particularly important for incarcerated students: many individuals who care for these students have intersecting duties to report on their behavior in courts, increasing the risk that certain kinds of data (such as past disciplinary records), if shared, could be used in ways that original school staff did not intend or anticipate.
On the other side of this equation, agencies within the juvenile justice system should employ a data governance plan to ensure the data is used to improve educational programming for incarcerated students, but is not used or shared for inappropriate purposes. Far too often, juvenile justice institutions lack sufficiently robust data governance mechanisms to act on data shared from schools to provide appropriate learning support. This issue is compounded by the fact that incarcerated student education often involves many different agencies coordinating to provide services. A failure to integrate data governance frameworks can mean that key educational data is not available to those who need it, or alternatively, that students’ data is shared with more people than is appropriate or used for non-educational purposes. In both cases, juvenile justice systems would better serve students’ needs with an established data governance plan.
Considerations for Students Transitioning Back to Traditional Schools
Data sharing and privacy protection also play key roles in promoting student success when transitioning out of a juvenile justice-operated school back into a traditional school. Different state laws may apply to this scenario than to its reverse, but the same critical questions must be addressed: what data is relevant for serving students’ educational needs, who should have access to that data, what can it be used for, and how long should it be retained? Schools should bear in mind that this data is particularly sensitive, given that it can include details on students’ experiences within the juvenile justice system. Inappropriate use or sharing of this data can create serious challenges for students seeking to move past their interactions with the juvenile justice system and re-enter traditional educational environments. These include stigmatization from peers, biased treatment from school staff, poor coordination of instructional supports, and long-term perpetuation of records that adversely impact employment opportunities.
Appropriate and inappropriate use cases for previously incarcerated students’ data should be carefully delineated by school data governance policies, to ensure that students’ opportunities are not further harmed through an improper disclosure of sensitive information. Because of the risks listed above, knowledge of a student’s prior incarceration at a juvenile justice institution should be limited strictly to school staff with a concrete need to know. The amount of mandated information shared by the juvenile justice institution varies by state law, but even in cases where the law requires disclosure of extensive juvenile detention records, districts should limit access to different aspects of these records as appropriate for various staff roles (e.g. teachers need access to education records but likely do not need to access in-depth details on disciplinary records).
One frequent shortcoming of data sharing practices between juvenile justice institutions and traditional schools is a failure to receive transfer credit for coursework completed within a juvenile justice institution. Failure to receive full or partial credit for this coursework creates a serious barrier for youths seeking to re-enter traditional schools. The root cause of the issue often relates to poor data governance within the juvenile justice system: poor record-keeping, lack of sharing mechanisms across juvenile justice agencies, inconsistent standards, and frequent change in instructional settings have all been cited. State laws requiring the acceptance of juvenile justice transfer credits in traditional schools can mitigate this problem, but more work remains to improve juvenile justice data sharing infrastructure.
Conclusion and Recommendations
A lack of robust data sharing and privacy protection creates serious problems for incarcerated students, which often exacerbate existing barriers to receiving quality education. These challenges can be mitigated by much-needed improvements in data governance processes between and within juvenile justice institutions and traditional schools.
One aspect of this includes creating data governance plans for both senders and recipients of student data, which address questions of what data will be shared, with whom, and to what purpose. In particular, these plans should seek to limit secondary uses of student juvenile justice data and prevent unnecessary access from other individuals. Another aspect includes minimizing shared data to only what is needed to deliver instruction and support learning needs for incarcerated students, and to make informed placement and service provision decisions when students are returning to a traditional school.
Finally, juvenile justice staff should be trained on how to appropriately use education information they receive from students’ previous educational experiences, such as learning needs or special education considerations. Conversely, school staff should be trained on how to use and interpret information received from students’ previous records from within the juvenile justice system, including appropriate use of behavior data and strategies to handle credit transfer issues. All of these considerations should be undergirded with a firm understanding of relevant federal and state legal requirements regarding the disclosure and retention of juvenile justice-related information. These steps are critical to helping students within the juvenile justice system access future educational opportunities.