The U.S. Education and Justice Departments sent a joint letter on Oct. 5 to every state Attorney General saying that schools need prior written parental consent before giving students mental health screenings. Letting parents opt out isn’t enough, the departments say.
The letter states that schools continue to violate the federal Protection of Pupil Rights Amendment (PPRA) with their administration of “mental health screenings.”
If any school expects students to complete “mental health screenings” or any other similar evaluation or coursework, they must FIRST effectively notify the parent and obtain written consent to administer such screenings. When schools ask parents to opt out instead of obtaining prior written parental consent, they violate PPRA.
Under PPRA, there are eight areas of protected information. Schools cannot require students to reveal information in these eight areas in a survey, analysis, or evaluation without parental consent:
- Political affiliations or beliefs of the student or the student’s parent
- Mental or psychological problems of the student or the student’s family
- Sex behavior or attitudes
- Illegal, anti-social, self-incriminating, or 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 what is required by law to determine eligibility for a program or for financial assistance)
PPRA covers surveys that are part of programs the Education Department administers. In an August letter, the U.S. Department of Education’s Student Privacy Policy Office (SPPO) said that because nearly every public school receives some department funding, the consent requirement applies to a school’s surveys whether or not that particular survey was paid for with federal money. The department also said the statute’s opt-out provisions can’t substitute for consent when a survey touches one of the eight protected areas.
As the August letter explains, the department will treat any survey administered by a teacher, counselor, or other school official as “required”:
Because an authority figure is on the other side of the survey, evaluation, or analysis, students also rarely feel the need to ask a parent to review or approve it beforehand. As a result, administering such surveys, evaluations, or analyses effectively places students in the position of deciding on their own whether they feel compelled to participate. A student’s decision can be shaped by peer pressure, fear of repercussions for not participating, a desire to please a favored teacher, or simply the authority a teacher or school official holds. Accordingly, any survey, evaluation, or analysis administered that addresses one or more of the eight protected areas listed above will be considered by this Office as “required,” and therefore subject to PPRA’s advance parental notification and written parental consent requirements.
The October letter reiterates this, stating that the “plain language of the statute is clear” and that screenings or surveys that could be used to evaluate a student’s mental health need written consent first.
[A]ny situation involving a student filling out a form, a screening, a survey, or anything that can be used to evaluate the student’s mental health requires prior written parental consent. There is no excuse for a school that offers, or otherwise facilitates, mental health screenings or the like without prior written parental consent. Opt-outs
are not sufficient in this regard.
The two departments also call the conditions of federal funding under PPRA “nonnegotiable” and say “schools, districts, and states must be held accountable for violating the law.” Under the statute, the Secretary can only terminate funding after finding a violation and concluding that compliance can’t be secured voluntarily. In July, the two agencies announced PPRA investigations into Bethel School District in Washington and Denver Public Schools.
The October letter asks the AGs to “read SPPO’s letters and notices closely to ensure educators and leadership in your state understand the importance of these obligations.”
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If you believe your child’s school has violated PPRA, you can file a complaint here with the U.S. Department of Education.