Aaron Saiger – Toward Information Regulation in Virtual K-12 Schools

CITP Luncheon Series

Date: Thursday, May 1, 2014
Location: 306 Sherrerd Hall
Streaming Live:
Food and discussion begins at 12:30 pm. Everyone invited.

K–12 education is inexorably shifting in the direction of online, virtual settings. Amidst relatively high-profile debates about online higher education and MOOCs, this parallel development has been quieter but perhaps more momentous. Cyber-charter schools, whose students pursue their studies mostly or entirely online, have been transformed in the past few years from a fringe phenomenon into a quotidian aspect of state-funded education in a third of the fifty states. Several big states have established state virtual schools or school districts. Approximately 275,000 primary and secondary students attended a full time online school in 2011–2012, and well over half a million took an online course. Numerous schools have rolled out “digital teaching platforms” and platforms for “blended” learning, which combine face-to-face and remote instruction, assessment, and administration.

Information regulation is one of the central pedagogical, policy, and political puzzles that virtual K–12 poses. Data fuel the technological potential of virtuality to customize education for diverse student needs, to embed machine learning in teaching and grading software, and to monitor and manage teachers in cyberspace. Simultaneously, however, a virtual school is a nearly paradigmatic panopticon. It is able to collect, preserve, and analyze not just a student’s test scores but her every essay, homework problem, and stray classroom comment. And these are data about students whose institutional participation, like that of Bentham’s prisoners, is compelled by the state.

Aaron’s talk will illustrate the regulatory problems posed by this tension and point to some possible ways forward. Surely these cannot include the wholesale adoption of any existing regulatory framework. No Child Left Behind and state accountability regimes are in love with data but unmoved by privacy. The FERPA regime of educational data protection, as generally implemented, has the opposite commitments. Virtuality is likely to accelerate a neoliberal privatization in K–12 education, so many of its participants will be both students and consumers, and many of its data custodians will be private firms. But regimes for consumer privacy, with their focus on notice and consent, also seem inapposite to children, to compulsory schooling, and to the educational enterprise. Some integration of these approaches, or some approach different entirely, will be required.


Aaron Saiger is Professor of Law at Fordham Law School, where he has taught since 2003. He writes and teachers in the areas of administrative law and regulation, legislation, education law, and property. Saiger has been a Spencer Foundation/National Academy of Education Postdoctoral Fellow (2006-07) and Research Fellow at Columbia Law School (2002-03). He received his J.D. from Columbia University and his Ph.D. from the Woodrow Wilson School of Public and International Affairs, Princeton University. He was law clerk to the Honorable Ruth Bader Ginsburg of the United States Supreme Court and the Honorable Douglas H. Ginsburg of the United States Court of Appeals for the District of Columbia Circuit. His current book project, on the legal implications of the virtualization of primary and secondary education, will be published by Oxford University Press.