Dear Legal Mailbag:
A parent called me recently asking under the Freedom of Information Act to see a copy of an anonymous survey that a teacher asked students to complete during class. According to the parent, she has the right to be notified in advance of participation in any type of survey. Not knowing anything about this, I asked the teacher before calling the parent back. It turns out the teacher is pursuing an advanced degree, and he wanted to use the survey as part of a research project. I looked at the survey and had some immediate concerns. First, the survey content is far outside of the teacher’s teaching assignment (he teaches math). Second, and more concerning, the questions were about race, gender, police brutality, the 2020 election and other current event topics.
I am surveying you, Legal Mailbag, for help to do the right thing for the parent and for my teacher.
This teacher may have stepped into a mud puddle here. Under federal law, parents have certain rights as to surveys administered to students in schools receiving federal funds. This federal law, the Protection of Pupil Rights Amendment, or PPRA (also known as the “Hatch Amendment”), imposes a number of obligations as to (1) surveys funded in whole or in part by the U.S. Department of Education, (2) third party surveys, and (3) surveys that contain questions on “confidential topics,” as defined by the law. Moreover, school districts are required to inform parents annually of their rights under the law.
A comprehensive review of the PPRA is beyond the scope of this column. However, the United States Department of Education has provided a good summary of the law online, which is available here: Family Policy Compliance Office Hot Topics. In addition, the Model Parent Notification published by the United States Department of Education is a succinct summary of school district obligations under the law, and it is available at this link: http://www.lawadmin.com/sg/gendocs/PPRAGeneralNotice.pdf.
For your purposes, we will focus on the PPRA obligations as to surveys that invite students to answer questions on “confidential topics.” Such topics are defined by the PPRA as follows:
i) political affiliations or beliefs of the student or the student’s parent,
ii) mental or psychological problems of the student or the student’s parent,
iii) sex behavior or attitudes,
iv) illegal, anti-social, self-incriminating, or demeaning behavior,
v) critical appraisals of other individuals with whom respondents have close family relationships,
vi) legally recognized privileged or analogous relationships, such as those of lawyers, physicians, and ministers,
vii) religious practices, affiliations, or beliefs of the student or of the student’s parent,
viii) income (other than that required by law to determine eligibility in a program or for receiving financial assistance under such program).
As to student surveys administered by school officials that elicit such information, parents have the following rights:
• The right to notification before the school officials administer the survey.
• The right to opt out of the survey.
• The right to inspect any such survey on request.
Legal Mailbag would have to see the survey to determine which, if any, questions would fall under one of the categories of “confidential topics.” Without such a review, Legal Mailbag cannot say for sure that the parent is correct in claiming that she had the right to prior notification before the teacher administered the survey. However, Legal Mailbag can say with certainty that this teacher is subject to a good talking to (or worse) for taking time from his assigned math class to administer a survey as part of a research project related to his graduate studies.