Protecting Pupil Rights

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?

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 U.S. Department of Health and Human Services (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, ASCA members 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.