Opting Out or Opting In for Student Privacy
LB 1399 needs some polishing.
by Sue Greenwald M.D.
Disclaimer: I am not a lawyer. If any of my conclusions are wrong please speak up. Link for lawyers.
What Is PPRA?
Every parent, teacher and administrator needs to print a copy of the Protection of Pupil Rights Amendment and keep it handy. Print your copy HERE. This is a 1970’s era privacy law which states that parental consent MUST be obtained before students are subjected to surveys touching any of the following protected areas:
1. Political affiliations or beliefs of the student or student’s parent;
2. Mental or psychological problems of the student or student’s family;
3. Sex behavior or attitudes;
4. Illegal, anti-social, self-incriminating, or demeaning behavior;
5. Critical appraisals of others with whom respondents have close family relationships;
6. Legally recognized privileged or analogous relationships, such as with lawyers, doctors, or ministers;
7. Religious practices, affiliations, or beliefs of the student or student’s parent; or
8. Income, other than as required by law to determine program eligibility.
Students’ privacy rights have been trampled in recent years, and it’s unclear if today’s administrators are even aware of this law. Perhaps we all need a refresher.
How Are Parents Notified?
The PPRA specifies federally protected private topics that schools cannot compel students to answer without parental notification. The rules for the method of notification are where things get confusing.
IF the survey has funding from the US Dept. of Education, which means it is being given by the Nebraska Dept. of Education or the school district, the schools must have CONSENT. This would be a required signature to OPT IN, and minus that signature from the parent, the survey cannot be given without violating the law.
However, IF the survey is being given by an entity outside of the federally funded school system, for instance by a mental health contractor or a Social Emotional Learning Contractor, or even the Dept of Health and Human Services (DHHS), then the law allows for OPTING OUT.
Opting In looks like this: a note is sent home or an email sent to the parent. The parent MUST sign the form before any further surveys or questions may take place at school.
Opting Out looks like this: a note is sent home in the student backpack, which every parent knows has a 10% or less chance of actually being shown to the parent in a timely manner. The note says “sign here” if you don’t want your student to participate in this survey. If you don’t return the note by the deadline, it is implied that you gave consent.
Here is an example: The Youth Risk Behavior Survey is given each year by the Nebraska Dept of Education in conjunction with DHHS. Last year Protect Nebraska Children did a little exercise of asking parents to screenshot their consent forms for this survey. With our very unofficial tally, The Opt Out forms outweighed the Opt In forms. It’s possible they are both legal, since DHHS provides cover as an outside contractor and therefore activates the Opt Out loophole.
If the Nebraska Dept. of Education took full custody of the survey, it would require an Opt In Consent from parents according to the PPRA law, since that entity receives federal education funds.
As I read through the recently released 2024 LB 1399, I see no language requiring an Opt In from parents. The language is about how the survey information must be shared with parents. While we applaud the transparency, the bill gives no guidance as to how consent will be obtained. I read this as a de facto Opt Out situation.
This is a problem because under some circumstances, federal law dictates that Opt In Consent must be obtained. Therefore, if the Nebraska law supercedes federal law, the consent requirement would be weaker than it already is.
Under the Cornell lawyer link, I found this in the PPRA information:
“The provisions of this subsection shall not be construed to preempt applicable provisions of State law that require parental notification;”
My conclusion is— this bill needs to be amended. At the very least the amendment should say that parental notification must follow the PPRA guidelines.
If Nebraska were really serious about protecting student privacy, we would amend the law to say that “Opt In Written Consent” must be obtained from the parent before a student is given a survey asking them about their federally protected private thoughts.
What is a “Survey?”
I see one more significant issue with LB 1399, which I will demonstrate with an example.
A required online health test forced a Lincoln, Nebraska pre-teen student to answer a question about her sexuality. It was not possible to skip the question. It had to be answered to get a grade. Since the test was part of the required curriculum of the school, I would argue that the district violated the PPRA, as they lacked parental notification before the student was surveyed about a protected topic. There should have been an Opt In Consent for that question.
The school district could argue that the curriculum belonged to the vendor who sold it to them, and not the school. In that case, according to the law, they should have sent an Opt Out letter to the parent prior to the test. Neither of those things happened.
Not all “surveys” are separate from the curriculum. In fact, more often than not, privacy protected topics are intertwined into the curriculum.
This is the current language of LB 1399
The reference to “schoolwide or classwide” should be removed. Pupil privacy rights don’t cease to exist because you are the only student taking the health test.
If school personnel perceive they have the ability to present invasive questions to an individual or even a group of students, it allows the targeting of those students. If it is being done without parental oversight, it directly violates PPRA. Nebraska students are being groomed for sexual abuse and “secret transitions,” among other things. I fear the “schoolwide or classwide” phrase in the bill might weaken the meager protection that currently exists for those families.
The rest of the first sentence, (lines 8 and 9) above, may be too vague to be enforceable.
Section 1 (b) should be amended to read: Survey means any class, in-school assembly, curriculum or questionaire which compels a student to identify personal and private characteristics which are specifically prohibited by the Protection of Pupil Rights Amendment. (Then those 8 protected areas could be listed.)
Please contact your Nebraska State Senator about these three proposed amendments to LB 1399. Without these changes or something similar, the value of this bill to improve student privacy will be quite limited, and possibly even detrimental. The Education Committee consists of these esteemed Senators:
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