Horne v. Flores: Statement by CRP Co-Director on Why the Protective Order Does Not Provide Enough Protection to Researchers and Schools

In this decision on the protective order request made by the plaintiff’s attorney, the court clearly recognized important protections for individual respondents while still creating serious problems for researchers. There are two problems in the protective order related to disclosing names of the schools and the districts participating in the research.  The first is that the researchers gave guarantees to both the districts and schools.  Not only was their participation guaranteed to be confidential, but also that the researchers would not disclose them as participants.  This confidentiality is commonly promised by researchers in order to gain the participation of research subjects without subjecting the districts to negative publicity on very sensitive issues.  There are laws about what must be done in Arizona schools, and very intense politics over these and related issues. Gaining access for research would be vastly more difficult -- if not impossible -- if research studies were seen as investigations of districts and schools that could be used against them.

The second problem is that from a professional standpoint, researchers may be faced with making choices between breaking their promises to research participants (which are approved by the IRB human subjects offices on their campuses), or withdrawing their testimony in court cases.  Such testimony may be very important for defining the rights and programs offered to the children they hope their research will help.  Researchers were given this choice by the AZ lawyers in this case.  From the perspective of the court and the ultimate justice of its decision, the court may lose evidence that is far superior to what is otherwise available.  I see this as an intimidation tactic designed to block evidence the state lawyers consider threatening to the status quo in Arizona's approach. In terms of listening to the researchers’ tapes of interviews at Arizona schools, there is the obvious possibility that teachers may be identified and negative action taken against them.

In terms of broader impacts, this decision could limit access to schools and districts elsewhere since it gravely undermines some of the guarantees of confidentiality, especially if the researcher were to be called as an expert witness based on what he or she had learned in his research.  Since it is already very difficult to gain access to schools on sensitive issues, especially to obtain information on issues of racial and ethnic equity, this makes the job of researchers even harder.  What’s more, it risks reducing the already limited information we have on many critical education and civil rights issues.  It is important that researchers across the country work to try to clarify and strengthen protections.

-Gary Orfield