States have taken different approaches to surveys in schools. Student journalists therefore would be wise to check their state’s statutes before school officials use them to justify restricting a survey.
The following states have statutes on their books relating to surveys. They are grouped by states with laws that appear to be more restrictive than the federal Protection of Pupils’ Rights Amendment, those with laws that are comparable, and those that have statutes that are less restrictive that the federal statute.
More restrictive than the PPRA:
Alaska. Alaska states that public school administrators or teachers “may not administer or permit to be administered in a school a questionnaire or survey, whether anonymous or not, that inquires into personal or private family affairs of the student not a matter or public record[1] This suggests that voluntary and anonymous survey would be impermissible. The language “may not administer” appears to state that school officials themselves cannot administer the survey, while the language “or permit to be administered” could rule out student-distributed surveys. Additionally, notice must be given at least two weeks prior to administration of a survey.[2] Parents also are given the opportunity to review the survey, and districts “shall” give parents written notice regarding how the survey will be administered, how the survey will be used and who will have access to the survey.[3] Students can refuse to take a survey conducted by a publicschool.[4] A survey is defined as “a list of questions to, or information collected from, a class or group of students.”[5] The constitutionality of the Alaskan law has yet to be tested.
Arkansas. Under a law passed in 2003, a public school “shall not administer or permit to be administered” a questionnaire or survey that requests “personal identifying information” unless parents give their written permission before the questionnaire or survey is taken.[6] The definition of”personal identifying information” includes the student’s or family’s name; their address, telephone and e-mail address; or “any information, the disclosure of which is regulated, or prohibited by any other state or federal law or regulation.”[7] This language appears to make Arkansas’ law more restrictive than the PPRA. Moreover, the state defines questionnaire or survey as “a list or group of questions, responses to which are provided to a person or entity other than a public school, a public school district, the Department of Education, or any other branch of the federal government.”[8] The definition appears to cover student-initiated surveys. Because Arkansas has ananti-Hazelwood statute, it is unclear which law would prevail if a student conducted the survey.
California. State law requires that notice andprior written parental consent be given before any survey-type instrument is given to students (K-12 inclusive) if the survey inquires about the student’s or student’s family’s beliefs on sex, family life, morality, and religion.[9] The law does not make clear if it applies to a student-distributed survey or a school-distributed survey; the law only states that no such survey “shall be administered.”[10] Although the list of protected topics is smaller than the PPRA’s list and does not include topics such as political beliefs, a court could give “morality” and “family life” a broad interpretation. California is also an anti-Hazelwood state, so it is unclear which law would prevail if a student conducted the survey.
Utah. Utah prohibits the administration of surveys that reveal the student’s or a family member’s psychological problem, sexual behavior/orientation, religious belief/affiliation, political affiliation, illegal/anti-social/demeaning behavior, critical appraisals of family members, legally recognized relationships, or income without prior written parental consent.[11] Consent is valid only if the parent has been given notice at least two weeks prior to the survey’s administration.[12] The law does not have language indicating that it applies only to school-distributed surveys; it only refers to “the administration to a student.”[13] The law, therefore, may apply to surveys administered by student media. Although the law does not prohibit a student from “spontaneously” conveying any protected information,[14] a school official is unlikely to give the law a broad reading because it also provides for “disciplinary action for violations of this section.”[15] The constitutionality of the Utah law has not yet been tested.
Comparable to or incorporating the PPRA:
Nevada. Nevada’s law states that if a public school administers a program that includes a survey that is designed to elicit information described in the PPRA, it must comply with that section.[16] If the court agrees the PPRA does not cover student-initiated surveys, then a student reporter should be able to conduct a survey.
Less Restrictive than the PPRA:
Colorado. The statute instructs state schools to follow the PPRA.[17] However, the law includes a special journalistic exemption, providing student journalists explicit protection.[18] Specifically, the law does not cover students “working under the supervision of a journalism teacher or sponsor.”[19] This places Colorado at the forefront of permitting student conducted surveys. The SPLC may want to mention Colorado’s law as a model for other states to use.
Kentucky. Kentucky allows schools to distribute personal identifying information of students to people or organizations “conducting legitimate studies, surveys, and data collection” as long as each student cannot be identified.[20] A school district may survey students to determine if the student “desires moral instruction” as long as the parent consents.[21] An anonymous survey, therefore, should fall outside the Kentucky law’s prohibitions.
Indiana. Indiana’s law states that “a student shall not be required,” without parental consent, to participate “in a personal analysis, an evaluation, or a survey that is not directly related to academic instruction and that reveals or attempts to affect the student’s attitudes, habits, traits, opinions, believes, or feelings” regarding the student’s political affiliation, religious beliefs/affiliation, psychological conditions (potentially embarrassing to the student and/or their family), sexual behavior/attitudes, illegal or demeaning behavior, criticisms of close family members, legally recognized privileged/confidential relationships, andincome.[22] A voluntary survey should not require parental notification.
Michigan. The law states that a school district shall not disclose directory information for the purpose of surveys, marketing or solicitation, unless the agency determines the use is consistent with “the educational mission of the public body and beneficial to the affected students.”[23]Michigan uses the federal government’s definition of direction information under 20 U.S.C. 1232g, which is “the student’s name, address, telephone listing, date and place of birth, major field of study, participation in officially recognized activities and sports, weight and height of members of athletic teams, dates of attendance, degrees and awards received, and the most recent previous educational agency or institution attended by the student.”[24] An anonymous,student-initiated survey that does not gather this information should be permissible under Michigan law.
Nebraska. In Nebraska, state law requires school districts to have a policy on how the district participates in surveys of students, and the rights of parents to remove their children from such surveys.[25] The law does not provide any details about what the policy should say.
New Jersey. State law provides that “a school district shall not administer to a student” without parental permission a survey regarding politicalaffiliations, mental and psychological problems of the student or the student’s parents, sexual behavior and attitudes, illegal, anti-social, self incriminating and demeaning behavior, critical appraisals of those with whom the student has a close family relationship, legally recognized relationships, income and social securitynumber.[26] Because the language specifies surveys administered by a school district, it does not appear to cover a survey administered by a student.
Oklahoma. State law requires prior written parental consent before a student is “required” to participate in a psychiatric or psychological exam. In the same run-on sentence, it also states that “any teacher or staff personnel” may not survey students regarding religious beliefs, mental or psychological problems embarrassing to the student or his family, sexual behavior or attitudes, critical appraisals and legally recognized privileged communications, without parental consent.[27] Because the law specifically requires permission if a teacher or staff member conducts the survey, the law does not seem to preclude a student from conducting the survey.
Ohio. Parents in Ohio have the right, upon request, to inspect any survey or questionnaire before its administration to their children.[28] The law does not specify who is administering the survey.
Tennessee. State law mandates that every school district develop a policy on the rights of parents and students, as well as guidelines for teachers and principals, regarding the administration of surveys, analyses and evaluations ofstudents.[29]
1 Alaska Stat. §14.03.110(a)(2001).
2 Id.
3 Id. at (d).
4 Id. at (e).
5 Id. at (f).
6 2003 Ark. ALS 1100.
7 Id.
8 Id. at (4)(A).
9 Cal. Educ. Code 51513 (Deering 2001).
10 Id.
11 Utah Code Ann. §3A-13-302(1)(2001).
12 Id. at (4).
13 Id.
14 Id. at (6)(a).
15 Id. at (8).
16 Nev. Rev. Stat §92.029(4)(2001).
17 Colo. Rev. Stat 22-1-123(5)(a)(2001)
18 See id. at (e).
19 Id.
20 Ky.Rev.Stat. Ann. §60.720(1)(e)(2001)
21 Ky.Rev. Stat. Ann §58.210(2001)
22 Id. at (b).
23 Mich. Comp. Laws §15.243 (2003).
24 20 U.S.C. 1232g(a)(5)(A).
25 Neb. Rev. State. §79-532 (2002).
26 N.J. Rev. Stat. §8A:36-34(1)(a) (2003).
27 Okla. Stat. Ann tit. 70§10-107(West 2000).
28 See Ohio Rev. Code Ann. §3313.60(G)(Anderson 2001)
29 Tenn. Code Ann. §49-2-211 (2002).