On July 29th, the U.S. Department of Education’s Student Privacy Policy Office (“SPPO”) found that a Massachusetts district violated the Protection of Pupil Rights Amendment (“PPRA”) by administering a survey to middle school students whose parents opted out of the survey’s alleged “sensitive and explicit content.” The SPPO concluded that the district ignored valid parental opt-out requests and emphasized the importance of enforcing parental rights.
The PPRA requires educational institutions receiving federal funds to provide parents with notice and the opportunity to opt their children out of surveys, evaluations, or questionnaires that seek information concerning protected categories, including sexual orientation and other sensitive information. School districts are required to honor opt-out requests from parents before requiring students to complete surveys containing protected content.
The SPPO found that the school district received opt-out requests from parents but ignored them and administered its Youth Risk Behavior Survey to those students. The survey included questions regarding students’ gender identity, sexual encounters, and drug and alcohol use. The SPPO concluded that the school district violated the PPRA by failing to honor the parent opt-out requests.
The SPPO’s findings (and threat of federal fund withholding) highlight the recent emphasis on parental opt-out rights in the educational setting. As we reported last year, the Supreme Court ruled in Mahmoud v. Taylor that parents also have a right to opt their children out of certain educational content based on their religious beliefs.
The SPPO has proposed a resolution agreement to the school district in lieu of enforcement action. The agreement requires the district to issue copies of the survey questions to parents, issue apology letters, ensure compliance with federal law, and submit all future similar surveys to the Department of Education for review.
In addition to the PPRA on the federal level and Mahmoud, the Illinois School Code provides for a variety of opt out provisions. See, PRESS Policy 6:60, AP-1, E-1.
The SPPO’s finding is a reminder of obligations districts have regarding both federal, constitutional and state opt out requirements. Contact any of our Student/Special Education practice group attorneys with your inquiries.
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