Ethical College Admissions: Sharknado

Last week Court TV missed an opportunity for its own version of the Discovery Channel’s Shark Week, the weeklong summer extravaganza featuring shark-themed programming. Last week could easily have been billed as College Admissions Week for the network devoted to live courtroom drama, as there were multiple admission-related issues that ended up in front of a judge during the week.

For this column, three of the issues were “reruns,” topics already covered. On Tuesday a number of advocacy groups filed suit against the University of California claiming that the university’s requirement that applicants submit SAT or ACT scores constitutes illegal discrimination. On Thursday the Department of Justice simultaneously sued the National Association for College Admission Counseling for violating antitrust rules and announced that the suit had been settled via a consent decree tied to NACAC’s removing several sections of its Code of Ethics and Professional Practices. And there’s bound to have been sentencing or other legal fallout from the Operation Varsity Blues scandal.

The new entrant on the admissions legal front was a class action suit filed in U.S. District Court in Illinois against the College Board over its collection and selling of student personal data through its Student Search program. Out of all of last week’s legal news, this case has the greatest potential to become the college admission version of Sharknado.

The case was filed on behalf of an unnamed parent whose daughter, also unnamed, is a minor and a student in the Chicago public schools. The suit alleges that the College Board obtained personal information from students taking its tests ranging from the three different versions of the PSAT to the SAT to Advanced Placement exams through the use of “unfair and deceptive” practices. Those practices include:

• Misrepresentations that the College Board does not sell student information.
• False claims that the purpose of the personal information was to “guide your counselors in helping you plan your future.”
• Leading students to believe that providing the information would assist their chances of receiving admission and financial aid to college and that not providing the information would be detrimental.

The court filing also makes several claims that the College Board has caused harm to the state of Illinois and its residents as a result of the data collection employed through Student Search. Here’s the argument: by selling the personal information of non-Illinois residents to colleges and universities located in Illinois, the College Board has enabled those institutions to expand their nationwide recruiting efforts.

How does that hurt Illinois? The expanded recruiting pool makes it more difficult for Illinois residents to gain admission. As a result they leave Illinois for postsecondary education. That migration has the impact of a decreased population and workforce, less tax revenue and loss of a seat in the U.S. House of Representatives. Now that’s a creative, if not particularly convincing, argument.

The lawsuit didn’t come out of the blue, given the societal discussion about data mining by tech giants and the huge amount of personal information being collected. It was only a matter of time until the issue of gathering information on students who are still minors would arise.

In August three U.S. senators -- Dick Durbin of Illinois, Ed Markey of Massachusetts and Richard Blumenthal of Connecticut -- sent letters to a number of education technology companies and data brokers inquiring about data-collection practices regarding American students. In October nine Democratic statewide lawmakers asked Illinois attorney general Kwame Raoul to investigate the College Board’s business practices. The College Board has a $29 million contract with the Illinois Board of Education to provide PSAT and SAT testing to state students.

The Student Search Service has been around since 1972. Students who take College Board tests are asked to complete a student data questionnaire, providing personal data about name, birth date, expected date of high school graduation, address (including zip code), planned major, self-reported GPA, gender and ethnicity. The questions are optional, but it is not always clear that they are optional, and the CB uses words like “strongly recommend” to encourage students to complete the questions. I could write a column devoted entirely to the philosophical question of what “strongly recommend” means in a college admission context.

The estimates I’ve seen indicate that 75 to 80 percent of students provide the requested information. What does the College Board do with it? According to the College Board website, “By opting in to Student Search Service, you’re allowing the College Board to share information with colleges and universities.” The College Board also says that approximately 1,900 colleges and scholarship programs, all nonprofits, use Student Search to look for students who are a good match.

What the College Board doesn’t say is that it provides that information at a cost of 47 cents per name. We all know there is no such thing as a free lunch, and with the College Board there is a charge even for the napkins. But what is fascinating is that the College Board maintains that it doesn’t sell student data.

How can that be? It revolves around an interesting definition of “sell.” The College Board argues that it doesn’t sell user data, but it has licensing agreements, so the colleges and scholarships that purchase names aren’t buying the information -- they are merely leasing it. But is selling access to data any different than selling data? Last week’s court case makes an interesting observation about that contention. It points out that a student who decides to opt out later will still receive solicitations from those who have purchased the student’s name, “a tacit acknowledgement of College Board’s data sales.”

It is certainly easy to pick on the College Board, but let’s stipulate that Student Search has through its history served students and institutions well. The College Board has tried to maintain quality control over who has access to student information, and Student Search in no way resembles some of the “scholarships” that are thinly disguised attempts to collect student data for resale. But the growth in data mining and the subsequent invasion of privacy mean that the ethical landscape on this issue is changing.

Is the lawsuit correct that the College Board is misleading about what it uses the information it collects from students for? Maybe. I’m not ready to claim that the College Board is deliberately being deceptive, but it’s also not transparent.

The larger issue is whether the College Board has a legitimate right to sell -- or license -- the data it collects. Tech giants like Facebook and Google certainly have done so with impunity, but the issue for the College Board is that the individuals whose data is being collected and sold are minors. If a student opts in and completes the survey, whether voluntarily or because it is strongly recommended, does a minor have the capacity to provide informed consent?

Even if a student opts in, does that make the personal data the College Board’s to sell? In a previous column, I argued that students own their test scores. Isn’t that just as true for personal data? The court filing last week includes a claim that individuals selling their personal data online can earn up to $2,000. Perhaps the College Board should establish a licensing agreement with students, paying royalties for any revenue received through use of personal data.