Protecting Pupil Rights
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Author(s): Carolyn Stone, Ed.D.
March 1, 2021
Scenario: An increasing number of your students appear to have more mental health concerns since the start of the pandemic. You want to require all students to complete a survey about any mental health problems, suicidal ideation, counseling needs, psychological problems and family mental health issues they may have. Are there any legal and ethical considerations in conducting this survey?
In 1978, Sen. Orrin Hatch sponsored the Protection of Pupil Rights Amendment (PPRA), commonly referred to as the parental consent amendment. If a school district wants to require students to reveal personal information about themselves or their family, the school must first obtain written parental consent. PPRA expressly requires schools receiving federal funding to obtain written consent from parents/guardians and non-federally funded schools to give notice before requiring minor students to participate in any “survey, analysis or evaluation that reveals information concerning the following areas:
To reiterate, compliance differs based on funding streams. If the survey involves information from any of the eight protected categories and is from a school receiving federal funds, then written parental consent of the survey is required. If the school doesn’t receive federal funds but the survey still deals with highly sensitive information, the parents must still be notified in advance and given the opportunity to opt their child out of participating.
Recently a number of school counselors who have become more aware of PPRA are asking some important questions:
Can a school counselor who has been placed on notice that a student might be suicidal ask a student about suicide under protected category #2? PPRA clearly recognizes health or safety emergencies create exceptions. If a health and safety emergency involving a specific student has come to your attention, then you may ask the student about any suicidal thoughts. The purpose of the questions must be to get the student the appropriate services and to inform the parents/guardian of the need to seek help for their child.
These conversations are limited to individual situations in which you’ve learned a particular student might be suicidal. Parents must be notified of any information obtained unless the parent is the reason for the suicide ideation, and then you call child protective services. This questioning is appropriate to accomplish the goal of trying to keep the student safe, giving parents a chance to exercise custody and control over their child’s safety, while still complying with PPRA. When feasible, it’s appropriate to obtain written permission from parents in advance of asking their child about suicidal ideation.
Can I ask students if they are a first-generation college student? I want to help them with special scholarships and other opportunities available to them. This seems appropriate and outside the intent of protected category #5: critical appraisals of other individuals with whom respondents have close family relationships. Yes, parents might take offense that their education level (or lack thereof) was identified, but this seems far afield of the intent to protect families from having information revealed about them that is “negative.” Consult your district legal department or the district person appointed to approve asking these questions.
What parental permission, if any, is needed if we ask questions protected under PPRA, but the survey is anonymous? The anonymous gathering of information appears to be research, perhaps to determine needed programs and interventions, rather than identifying individual students who may need help. Research in schools carries considerable legal safety nets for students and has its own unique and extensive set of rules. For more information, refer to the (HHS).
However, you should consider personally identifiable information. Even if you think the survey is anonymous if there is enough personally identifiable information gathered, the combination of which can be used to trace an individual’s identity (parent name, student number, date of birth, address, telephone number), then the survey is not anonymous and carries the same PPRA rules as ones in which students reveal their name. Passive consent may be appropriate, but if the survey is actually research, follow HHS requirements.
Can the district use screening instruments that ask questions about mental health? Yes, if the screening is voluntary and not required. If the screening is required, you must obtain permission as outlined in PPRA.
School counselors must also know the laws governing privacy since much of what they do is about confidentiality and privacy. Some of the more salient laws affecting school counselors’ work are:
Family Educational Rights and Privacy Act (FERPA) regulates the release of personally identifiable information, including parental rights regarding notification of the release of records.
The Elementary and Secondary Education Act of 1965 requires local educational agencies receiving assistance under the act to provide military recruiters with student directory information (specifically names, addresses and telephone listings) unless parents have opted out.
Protection of Pupil Rights Amendment, as addressed above, establishes requirements related to parental notification and an opt-out option when collecting information from students that may be used for marketing purposes or when administering surveys or physical exams/screenings.
Children’s Internet Protection Act (CIPA) requires Internet safety policies, such as technology to block certain access, monitoring of access and programs to educate students on appropriate online behavior.
Children’s Online Privacy Protection Act (COPPA) ensures that children younger than 13 don’t share personal information on the Internet without their parents’ express approval.
CIPA and COPPA became school counselors’ concern when COVID-19 led to virtual school counseling. It’s not your job, however, to make sure the platforms, technology and communication you’re using are CIPA- or COPPA-compliant. Rather, you must only use the platforms and equipment approved by your district, as these have been vetted by the district to meet federal standards.
Case law has illuminated some of the concerns of PPRA. In C.N. v. Ridgewood Board of Education, District Court, 2001, the school system prevailed. The survey was voluntary and anonymous, but some parents sued under PPRA claiming they hadn’t received adequate warning, despite letters from the school board to the parents stressing that the survey was voluntary and anonymous.
In Fields v. Palmdale School District, Ninth Circuit, 2005, the school system also prevailed. The school had informed parents of a voluntary and anonymous survey but failed to disclose the sexual nature of some of the questions. Some parents of elementary-age children sued under both federal and state claims because their children were asked about sexual topics such as the frequency of “thinking about having sex” and “thinking about touching other people’s private parts.” The court found the district actions were related to the state’s purpose of educating their citizenry.
In C.N. v. Ridgewood, Third Circuit, 2005, the school system again prevailed. A parent and her three children claimed a survey was involuntary and not anonymous but could not prove the claim.
The Survey Says
In a January 2021 survey of school counselors, Ï㽶ÊÓƵmembers who identified themselves as being in a federally funded school were asked, “In the last 10 years, have you given students the expectation or requirement to respond to a survey or needs assessment without written parental permission?”
Of the 121 respondents, 75% had given a survey without parental permission.
Conducting surveys without parental permission is not a problem in and of itself except for when the surveys ask about protected categories. Of the survey respondents:
29% violated PPRA by asking questions under protected category #2 (mental and psychological problems potentially embarrassing to the student and his/her family)
3% asked about protected category #3 (sex behavior and attitudes)
4% asked about protected category
#5 (critical appraisals of other indi-
viduals with whom respondents have close family relationships)
10% asked about protected category #4 (illegal, anti-social, self-incriminating and demeaning behavior)
Mistakes are easy to make when well-intentioned school counselors are trying to support students’ mental health concerns. It is rare when a parent raises objections under PPRA, but parents are increasingly becoming educated about FERPA and PPRA. A recent case in point happened when a highly effective and well-respected school counselor was horrified to learn she had been violating federal law for a decade by gathering category #2 protected information each year while doing her classroom lessons. It is probably somewhat by chance that we haven’t heard more over the years about PPRA violations.
Carolyn Stone, Ed.D., is a professor at the University of North Florida and the chair of ASCA’s Ethics Committee. Send your ethical questions to ethics@schoolcounselor.org.
Obtaining Informed Parental Consent
A school must have in place clearly written procedures that comply with a state’s legal requirements for requesting consent and notifying legal guardians or students of the results of screening activities. These procedures should identify specific circumstances in which the information will be shared with other service providers. Schools should consider the following factors when implementing key steps of the screening process.
The school needs to:
Know the Law
To stay PPRA compliant, here is a list of considerations:
The U.S. Department of Education Substance Abuse and Mental Health Services (SAMSHA) provides the following “Principles Guiding Screening for Early Identification of Mental Health Problems in Children and Adolescents.”
In 1978, Sen. Orrin Hatch sponsored the Protection of Pupil Rights Amendment (PPRA), commonly referred to as the parental consent amendment. If a school district wants to require students to reveal personal information about themselves or their family, the school must first obtain written parental consent. PPRA expressly requires schools receiving federal funding to obtain written consent from parents/guardians and non-federally funded schools to give notice before requiring minor students to participate in any “survey, analysis or evaluation that reveals information concerning the following areas:
- Political affiliations;
- Mental and psychological problems potentially embarrassing to the student and the student’s family;
- Sex behavior and attitudes;
- Illegal, anti-social, self-incriminating and demeaning behavior;
- Critical appraisals of other individuals with whom respondents have close family relationships;
- Legally recognized privileged or analogous relationships, such as those of lawyers, physicians and ministers;
- Religious practices, affiliations or beliefs of the student or student’s parent;
- Income (other than that required by law to determine eligibility for participation in a program or for receiving financial assistance under such program” (United States Department of Education, 2020).
To reiterate, compliance differs based on funding streams. If the survey involves information from any of the eight protected categories and is from a school receiving federal funds, then written parental consent of the survey is required. If the school doesn’t receive federal funds but the survey still deals with highly sensitive information, the parents must still be notified in advance and given the opportunity to opt their child out of participating.
Recently a number of school counselors who have become more aware of PPRA are asking some important questions:
Can a school counselor who has been placed on notice that a student might be suicidal ask a student about suicide under protected category #2? PPRA clearly recognizes health or safety emergencies create exceptions. If a health and safety emergency involving a specific student has come to your attention, then you may ask the student about any suicidal thoughts. The purpose of the questions must be to get the student the appropriate services and to inform the parents/guardian of the need to seek help for their child.
These conversations are limited to individual situations in which you’ve learned a particular student might be suicidal. Parents must be notified of any information obtained unless the parent is the reason for the suicide ideation, and then you call child protective services. This questioning is appropriate to accomplish the goal of trying to keep the student safe, giving parents a chance to exercise custody and control over their child’s safety, while still complying with PPRA. When feasible, it’s appropriate to obtain written permission from parents in advance of asking their child about suicidal ideation.
Can I ask students if they are a first-generation college student? I want to help them with special scholarships and other opportunities available to them. This seems appropriate and outside the intent of protected category #5: critical appraisals of other individuals with whom respondents have close family relationships. Yes, parents might take offense that their education level (or lack thereof) was identified, but this seems far afield of the intent to protect families from having information revealed about them that is “negative.” Consult your district legal department or the district person appointed to approve asking these questions.
What parental permission, if any, is needed if we ask questions protected under PPRA, but the survey is anonymous? The anonymous gathering of information appears to be research, perhaps to determine needed programs and interventions, rather than identifying individual students who may need help. Research in schools carries considerable legal safety nets for students and has its own unique and extensive set of rules. For more information, refer to the (HHS).
However, you should consider personally identifiable information. Even if you think the survey is anonymous if there is enough personally identifiable information gathered, the combination of which can be used to trace an individual’s identity (parent name, student number, date of birth, address, telephone number), then the survey is not anonymous and carries the same PPRA rules as ones in which students reveal their name. Passive consent may be appropriate, but if the survey is actually research, follow HHS requirements.
Can the district use screening instruments that ask questions about mental health? Yes, if the screening is voluntary and not required. If the screening is required, you must obtain permission as outlined in PPRA.
School counselors must also know the laws governing privacy since much of what they do is about confidentiality and privacy. Some of the more salient laws affecting school counselors’ work are:
Family Educational Rights and Privacy Act (FERPA) regulates the release of personally identifiable information, including parental rights regarding notification of the release of records.
The Elementary and Secondary Education Act of 1965 requires local educational agencies receiving assistance under the act to provide military recruiters with student directory information (specifically names, addresses and telephone listings) unless parents have opted out.
Protection of Pupil Rights Amendment, as addressed above, establishes requirements related to parental notification and an opt-out option when collecting information from students that may be used for marketing purposes or when administering surveys or physical exams/screenings.
Children’s Internet Protection Act (CIPA) requires Internet safety policies, such as technology to block certain access, monitoring of access and programs to educate students on appropriate online behavior.
Children’s Online Privacy Protection Act (COPPA) ensures that children younger than 13 don’t share personal information on the Internet without their parents’ express approval.
CIPA and COPPA became school counselors’ concern when COVID-19 led to virtual school counseling. It’s not your job, however, to make sure the platforms, technology and communication you’re using are CIPA- or COPPA-compliant. Rather, you must only use the platforms and equipment approved by your district, as these have been vetted by the district to meet federal standards.
Case law has illuminated some of the concerns of PPRA. In C.N. v. Ridgewood Board of Education, District Court, 2001, the school system prevailed. The survey was voluntary and anonymous, but some parents sued under PPRA claiming they hadn’t received adequate warning, despite letters from the school board to the parents stressing that the survey was voluntary and anonymous.
In Fields v. Palmdale School District, Ninth Circuit, 2005, the school system also prevailed. The school had informed parents of a voluntary and anonymous survey but failed to disclose the sexual nature of some of the questions. Some parents of elementary-age children sued under both federal and state claims because their children were asked about sexual topics such as the frequency of “thinking about having sex” and “thinking about touching other people’s private parts.” The court found the district actions were related to the state’s purpose of educating their citizenry.
In C.N. v. Ridgewood, Third Circuit, 2005, the school system again prevailed. A parent and her three children claimed a survey was involuntary and not anonymous but could not prove the claim.
The Survey Says
In a January 2021 survey of school counselors, Ï㽶ÊÓƵmembers who identified themselves as being in a federally funded school were asked, “In the last 10 years, have you given students the expectation or requirement to respond to a survey or needs assessment without written parental permission?”
Of the 121 respondents, 75% had given a survey without parental permission.
Conducting surveys without parental permission is not a problem in and of itself except for when the surveys ask about protected categories. Of the survey respondents:
29% violated PPRA by asking questions under protected category #2 (mental and psychological problems potentially embarrassing to the student and his/her family)
3% asked about protected category #3 (sex behavior and attitudes)
4% asked about protected category
#5 (critical appraisals of other indi-
viduals with whom respondents have close family relationships)
10% asked about protected category #4 (illegal, anti-social, self-incriminating and demeaning behavior)
Mistakes are easy to make when well-intentioned school counselors are trying to support students’ mental health concerns. It is rare when a parent raises objections under PPRA, but parents are increasingly becoming educated about FERPA and PPRA. A recent case in point happened when a highly effective and well-respected school counselor was horrified to learn she had been violating federal law for a decade by gathering category #2 protected information each year while doing her classroom lessons. It is probably somewhat by chance that we haven’t heard more over the years about PPRA violations.
Carolyn Stone, Ed.D., is a professor at the University of North Florida and the chair of ASCA’s Ethics Committee. Send your ethical questions to ethics@schoolcounselor.org.
Obtaining Informed Parental Consent
A school must have in place clearly written procedures that comply with a state’s legal requirements for requesting consent and notifying legal guardians or students of the results of screening activities. These procedures should identify specific circumstances in which the information will be shared with other service providers. Schools should consider the following factors when implementing key steps of the screening process.
The school needs to:
- Explain that the tool can help identify if the student has a social or emotional challenge
- Inform the parents/guardians that if such a challenge is identified, they will receive help following up on the information
- Explain confidentiality
- Let parents/guardians know they and their students aren’t required to complete the tool or answer any question they find objectionable
- Encourage parents/guardians to ask questions and express concerns about their student’s social/emotional development.
- Provide information about the tool, the process and follow-up assistance
- Provide a contact name for someone who can answer questions
- Make a copy of the screening tool available to the legal guardians
Know the Law
To stay PPRA compliant, here is a list of considerations:
- Avoid requiring students to respond to any surveys that include the eight protected categories because obtaining written parental permission will be problematic and time-consuming, and it’s unlikely you’ll get a critical mass. If you do require such a survey, then you must follow the PPRA law.
- Conduct only district-developed or district-provided surveys, and even then, check to be sure they avoid questions in the eight protected categories. ​
- If you need to distribute your own survey or needs assessment that infringes on any of the eight protected categories, have it vetted by the district appointee who approves such surveys, and obtain the authorization in writing. Then follow PPRA requirements for parental permission.
- Be transparent with parents/guardians about any protected information that is to be collected from their child.
- Be aware of relevant laws and raise concerns when you think they are being violated. If you see something going out that might be a violation, speak up.
- Don’t berate yourself if you were the one who violated PPRA. We learn, and we correct.
The U.S. Department of Education Substance Abuse and Mental Health Services (SAMSHA) provides the following “Principles Guiding Screening for Early Identification of Mental Health Problems in Children and Adolescents.”
- First, do no harm.
- Obtain informed consent.
- Informed consent for screening a student should be obtained from parents, guardians or the entity with legal custody of the student. Informed assent from students should be obtained.Screening should be a voluntary process, except in emergency situations precluding obtaining consent prior to screening. In these circumstances, consent should be obtained as soon as possible during or after screening.
- Clear, written procedures for requesting consent and notifying parents/guardians and students of the results of early identification activities should be available.
- Use a scientifically sound screening process.
- All screening instruments should be shown to be valid and reliable in identifying students in need of further assessment.
- Screening must be developmentally, age-, gender- and racially/ethnically/culturally appropriate for the student to the greatest degree possible, and use of results should be informed by potential limits to validity as indicated.
- Early identification procedures and approaches should respect and take into consideration the norms, languages and cultures of communities and families.
- Any person conducting screening and involved with the screening process should be qualified and appropriately trained.
- Safeguard the screening information, and ensure its appropriate use.
- Screening identifies only the possibility of a problem and should never be used to make a diagnosis or to label the student.
- Confidentiality must be appropriately ensured, and limits to confidentiality must be clearly shared within the scope of obtaining informed consent/assent (e.g., when immediate steps must be taken to protect life in an emergency situation).
- Link to assessment and treatment services.
- If problems are detected, screening must be followed by: notifying parents, students, guardians or the entity with legal custody; explaining the results; and offering referral for an appropriate, in-depth assessment conducted by trained personnel with linkages to appropriate services and supports.