IRB is No Substitute for Shield Law

Education Week reports that researchers are dismayed by the release of data about teachers and students.

[Sarah D. Sparks, L.A. and Ariz.: Will Data Conflicts Spur a Chill Effect?," Education Week, 3 September 2010.]

The article discusses the decision by the University of Arizona to release some data in response to a subpoena. It claims that "The Code of Federal Regulations for the Protection of Human Subjects delegates confidentiality decisions to university institutional review boards, or IRBs, but in Arizona, the IRBs released the full data over the researchers' opposition." I believe this is incorrect on three counts:

1. The Common Rule gives power to IRBs to review and approve research. Once the research was complete, it was up to the universities to decide whether to comply with the subpoenas, not the IRBs. Indeed, the open letter from the researchers states that "lawyers at the University of Arizona," not the IRB, turned over information. (The letter does complain that "researchers have received little or no support from their campus IRB, lawyers, or administration," but that's a different thing.)



2. The use of the plural "IRBs" suggests that more than one university released data. As Education Week itself made clear, Arizona State did not release any data, and the Arizona State professor involved withdrew as an expert witness.



3. Also as reported Education Week, the University of Arizona did not hand over "full data," but rather only the names of schools and school districts, not individuals.

That said, Gary Orfield, one of the researchers in the Arizona case, hits on a larger truth when he complains of the University of Arizona's behavior:

"I think it's tragic and very dangerous," Mr. Orfield said. "I was shocked at the way the [State of] Arizona people went after this data and that the universities just went along with it. It really calls into question not just the access to schools but the integrity of the IRB process." Mr. Orfield, Ms. Hannaway, and other researchers suggested researchers may need a federal shield law similar to state laws that protect reporters from being compelled to name sources. "We thought the IRBs served that purpose for us, but we were wrong," Mr. Orfield said.

Indeed, since the 1970s, social scientists have argued that shield laws make more sense for protecting the participants in social science research than do IRBs. [James D. Carroll and Charles R. Knerr, Jr., "A Report of the APSA Confidentiality in Social Science Research Data Project," PS 8 (Summer 1975): 258-261 and James D. Carroll and Charles R. Knerr, Jr., "The APSA Confidentiality in Social Science Research Project: A Final Report," PS 9 (Autumn 1976): 416-419.]

I haven't figured out how a shield law would apply to expert witness testimony. (Anybody looking for a good law review topic?) And even without such a law, Judge Collins's order seems to strike a good balance between the rights of research participants and those of parties to the lawsuit.

Still, it seems that in this case the IRB process left Orfield with a dangerously false sense of security.

NOTE:

The Education Week article also mentions an analysis of teacher effectiveness published by the Los Angeles Times based on 1.5 million test scores.. It quotes Felice Levine, the executive director of the American Educational Research Association, on the L. A. Times study: " think it would really have a crippling effect on all social science, education, and health enquiry if public employees in the sector couldn't be guaranteed the same confidentiality as any other research participant . . . In this economy, people are feeling pressed in a number of ways, and being a participant in a voluntary study is probably lower on one's list of priorities than is providing for oneself and one's children."

But the newspaper analysis was not based on a voluntary study, but rather on scores obtained under the California Public Records Act. Making the scores public in this manner may have been bad policy or bad journalism for other reasons, but I don't see what it has to do with voluntary participation in research.