District Obligations under the Protection of Pupil Rights Amendment (PPRA)

DUFF, WHITE & TURNER, L.L.C.
Attorneys and Counselors at Law

Post Office Box 1486 Columbia, South Carolina 29202           Telephone 803/790-0603 Facsimile 803/790-0605

SCHOOL LAW
"ISSUE OF THE MONTH"
February 2009

The Protection of Pupil Rights Amendment ("PPRA") to the federal General Education Provision Act was enacted to afford rights to parents of minor students with regard to surveys or activities that ask questions of a personal nature. As readers may be aware, the No Child Left Behind Act of 2001 ("NCLB") recently amended certain aspects of the PPRA and, in the Fall of 2008, the Family Policy Compliance Office of the U.S. Department of Education ("DOE") issued a notice regarding districts' obligations under the PPRA, as amended by NCLB. The following is a synopsis of the DOE's guidance and of the PPRA amendments.

The PPRA, as amended by Section 1061 of NCLB, gives parents more rights with regard to the surveying of minor students, the collection of information from students for marketing purposes, and certain non-emergency medical examinations. According to the new guidance, districts are required to provide parents and students a general notice of their rights under the PPRA at least annually, at the beginning of the school year, as well as after any change in district policies regarding PPRA-related matters. That general notice must include an explanation of which surveys/activities require parents' actual consent and which allow for the student or parent to "opt-out" of participation. The notice also must advise parents that they have the right to inspect, prior to administration or use, upon request, any protected information surveys, instructional material, and instruments used to collect personal information for marketing, sales or distribution purposes. A model PPRA general notice of parental rights can be found at the Family Policy Compliance Office website at http://www.ed.gov/policy/gen/guid/fpco/doc/ppranotice.doc.

The PPRA also now requires districts to provide specific notice to parents of students who are actually scheduled to participate in certain covered surveys/activities. As to those covered surveys/activities, parents must be given the opportunity to either consent to or "opt-out" of participation. Further, actual consent must be obtained prior to the administration of any survey/activity funded in whole or in part by the DOE that concerns one or more of following eight information areas:

1. Political affiliations or beliefs of the student or the student's parent;

2. Mental or psychological problems of the student or the student's family;

3. Sexual behavior or attitudes;

4. Illegal, anti-social, self-incriminating, or demeaning behavior;

5. Critical appraisals of other individuals with whom respondents have close family relationships;

6. Legally recognized privileged or analogous relationships, such as those of lawyers, physicians, and ministers;

7. Religious practices, affiliations, or beliefs of the student or student's parent; or

8. Income (other than that required by law to determine eligibility for participation in a program or for receiving financial assistance under such program).

Additionally, the PPRA requires that districts give parents the opportunity to opt out of their child's participation in the following:

1. Activities involving collection, disclosure or use of personal information collected for the purpose of marketing that information[1];

2. Non-emergency, invasive physical examination or screening that is required for attendance, administered by the school, and not necessary to protect immediate health and safety; and

3. Any other protected information survey not funded in whole or in part by the DOE.

A model PPRA specific notice for requesting actual consent, or notifying of the right to "opt-out," can be found at the Family Policy Compliance Office website at http://www.ed.gov/policy/gen/guid/fpco/doc/ppraconsent.doc.

The PPRA does not apply to surveys administered to students in accordance with the Individuals with Disabilities Education Act (IDEA), nor does it negate any applicable parental notification requirements under the IDEA. All rights provided to parents under PPRA transfer from the parent to the student when the student turns 18 years old or is an emancipated minor.

Districts also are now required to develop and adopt policies - in conjunction with parents - regarding:

1. Parental rights to inspect surveys created by a third party before it is administered or distributed;

2. The district's arrangements to protect student privacy if a survey is administered containing one of the protected subjects;

3. Parental rights to inspect related instructional material and the procedure for doing so;

4. Administration of physical examinations or screenings for students;

5. Collection, disclosure, or use of personal information including name, address, telephone number, or social security number collected for the purpose of marketing or selling by the district or others; and

6. Parental rights to review any document used to collect information described in (5) above before it is administered to students.

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