Student media guide to surveying classmates

Last updated: 08/09/2018

The Arrow newspaper staff knew from experience that surveying fellow students at Norte Vista High School in Riverside, California, was popular with readers. After all, more than 400 classmates answered a nine-question survey on ethics earlier in the year.

"We found surveys really interest people because it brings the big issues home," said Patrick Monnig, The Arrow's co-editor in chief.

The student journalists were surprised, therefore, when school officials refused to let them distribute an anonymous and voluntary seven-question survey on sexual attitudes. The reason: administrators said California state law requires prior parental approval because of the survey's topic. The students offered a compromise in which they would distribute surveys during non-classroom time (prior surveys were distributed in class), but administrators held firm.

The question of whether high school officials are required to prohibit student journalists from distributing a voluntary, anonymous survey at a public school campus is an increasingly contested issue. The federal government and twenty-two states have laws addressing surveys in public schools, although few courts have considered whether these laws are constitutionally permissible and so far, none have addressed specifically whether the laws are applicable to student media, although case law supports the media's First Amendment right to conduct surveys and the students' rights to express themselves on campus, especially when the speech is student-initiated and voluntary.

FEDERAL LAW AND THE PPRA

The Protection of Pupils' Rights Amendment (PPRA), 20 U.S.C. § 1232(h), is the federal law regulating surveys in schools. Passed in 1974 and amended in 1994 and 2001, the PPRA applies to public primary and secondary schools. The law requires schools to notify parents before requiring students to participate in surveys that would reveal information about:

* political affiliation or beliefs of the student or their parent

* Mental or psychological problems of the student or their family

* Sexual behavior or attitudes

* Illegal, anti-social, self-incriminating, or demeaning behavior

* Critical appraisals of other individuals with whom the student has a close family relationship

* Legally privileged or analogous relationships (such as those with lawyers, doctors, ministers, etc.)

* Religious practices, affiliations or beliefs of the student or their parent, or

* Income (other than that required by law to determine eligibility to participate in a program or receive financial assistance).

The law requires that schools must notify parents of such surveys, obtain parental consent, and make the surveys available for inspection.

The language of the PPRA does not address student-distributed surveys, and since Congressional committee reports also never mention student-initiated surveys, school officials will have a much tougher time arguing that the same restrictions apply to legitimate news surveys created and distributed by student media, even if the publication is school-sponsored.

The PPRA has three basic sections, labeled (a), (b) and (c) in the law. This analysis will start with Section (c) because it is the section most likely to affect student reporters.

Section (c)

This section was added under the No Child Left Behind Act of 2001, and includes two sections that are particularly relevant to student journalists: subsections (c)(1) and (c)(2).

Subsection (c)(1)

This section requires school districts to develop policies on parental access to information, student privacy, and physical exams.

  1. The first required policy gives parents (or students 18 or older) the right to inspect a survey "before the survey is administered or distributed by a school to a student,” as well know any procedures needed to make the request.

Note that the law refers to a survey "distributed by a school," and does not address a survey distributed by a student. This is an important distinction because federal courts recognize that there is a difference between an action taken by a student and an action taken by school officials.

For instance, in Owasso Independent School District v. Flavo,[1] the U.S. Supreme Court held that the act of students grading each other's papers in class did not automatically make the student an agent of the school. Similarly, in Yeo v. Town of Lexington,[2] a federal appeals court held that the actions of editors of a student newspaper who made their own content decisions were not attributable to the school. These cases, and others discussed below, have recognized the legal distinction between acts taken by school or government officials and those taken by students. Thus, laws that may restrict the actions of school officials, courts have noted, do not necessarily apply to students.

The issue is less clear when student reporters ask teachers to distribute surveys in class. Because teachers are school officials, the law might apply in these situations. It would be to a student journalist's advantage to avoid asking teachers to distribute or play any substantive role in the creation or tabulation of the surveys.

(B) The next policy requires schools to make arrangements to protect student privacy if a survey is distributed that covers one of the eight protected topics.

The subsection does not clearly say whether the rule applies only to surveys "administered or distributed by a school," but because it is closely related to the prior subsection and the language is similar, it can be argued that this section applies only to a school-distributed survey rather than a student-distributed survey.

Even if this subsection does apply to a student survey, it merely requires a district to have a policy for protecting student privacy. An anonymous survey should satisfy a policy aimed at protecting student privacy because the survey would not reveal information that identifies an individual student.

(C) The third required policy prohibits collecting or using personal information gathered from students for the purpose of marketing or selling that information.

Personal information is defined as "individually identifiable information" such as a student or parent's first and last names, a home address and phone number, or a social security number.[3] If a student-initiated survey does not collect this information or the student media does not sell it, the survey would not be limited under this subsection.

Subsection (c)(2)

This section deals with parental notification. It has three parts that requires school districts to:

  • notify parents about its student privacy policies and offer parents the opportunity to opt their children out of participating in an activity that "requires" notification (see the third bulleted item below);

  • notify parents at the start of each school year of specific or approximate dates when an activity that "requires" notification will be conducted;

  • Provide a list of activities that "require" notification. The list refers to the eight topics discussed earlier. Surveys that disclose personal information for the purposes of marketing or selling that information also require notification.

Again, a student journalist can point out that this subsection appears to apply only to school-distributed surveys rather than student-distributed surveys, so schools should not have to notify parents about a student-distributed survey.

The Department of Education has offered some guidance on how the law applies to school districts on its website, but does not distinguish between school-distributed surveys and student-distributed surveys, which is likely to add to the confusion. For example, the site includes a sample form for notification of rights and a sample consent/opt-out form. The forms say parents have the right to "consent" before students take a survey, although "consent" takes the PPRA a step further than the law itself, which merely gives parents the right to opt out. A district that uses these letters will likely lead parents to believe that they must actively "consent" to a survey for their student to participate.

Sections (a) and (b)

Section (b) provides that no student shall be required "as part of any applicable program" to take a survey, analysis, or evaluation that reveals information concerning the same eight topics mentioned in the law. Section (a) gives parents the right to inspect all materials used in these surveys.

It is important to note that the federal statute only applies to “applicable programs,” which are generally defined as “federal programs administered or funded by the United States Department of Education.”[4] For student journalist programs that are not directly funded by the Department of Education (i.e. they raise money for their own publications), their surveys would not count as “applicable programs” under the federal law.

However, the definition of what counts as an “applicable program” has fluctuated over time. For example, the General Education Provisions Act defines "applicable program" as "any program for which the Secretary or Department has administrative responsibility.”[5] A 1993 case, Newkirk v. East Lansing Public Schools,[6] further expanded this definition to include any "program for which an administrative head of an education agency has administrative responsibility"[7]—a much broader definition that could potentially encompass school journalism programs that have any oversight from an administrator.

However, in C.N. v. Ridgewood Board of Education,[8] the DOE concluded that to count as an “applicable program,”  a survey must satisfy a four-part test:[9]

  • Whether the development and/or administration of a survey is funded, in whole or in part, with federal education money;

  • Whether students are "required" to participate in the survey

  • Whether the survey asks questions regarding one of the protected topics, and

  • Whether the school obtained written consent from the parent or before administering the survey, if the answers to all three prior questions is "yes."[10]

In reviewing the case, the DOE found that even an anonymous survey conducted using money from a federally-funded program to buy the surveys was an “applicable program” under the PPRA. Furthermore, because some students were not told they could refuse to participate, the survey was not considered entirely voluntary, so was subject to the law.

In Newkirk v. East Lansing Public Schools,[11] the parents of an elementary school student in East Lansing, Michigan, sued the district after the school began psychological evaluation and counseling of their son despite their express refusal. The parents brought a variety of federal and state claims, including a PPRA claim. The court held that the law applies to "programs," not schools or school districts in general, so there must be a direct connection between federal funds and the survey or evaluation in question for the district to violate the PPRA.[12] Because the evidence failed to make that connection, the court dismissed the parents' lawsuit.

Other courts have followed this interpretation. In Herbert v. Reinstein,[13] for instance, the district court held that the PPRA only applies to programs administered by the DOE and funded to some degree by the federal government.

The key issues in sections (a) and (b) of the PPRA are whether a survey is required and whether DOE funds helped pay for it. A truly voluntary survey or a survey that does not receive federal money would not be limited under these sections. Thus, a typical survey distributed by high school journalists would appear not to be affected by these provisions.

STATE LAWS THAT REGULATE SURVEYS

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 enacted laws specifically related to surveys. They are grouped by states with laws that appear to be more restrictive than the federal PPRA, those with laws that are comparable, and those that have statutes that are less restrictive that the federal statute. States not mentioned below do not have specific laws relating to surveys, but are subject to the federal PPRA.

MORE RESTRICTIVE THAN THE PPRA:

Laws in these states are so general that they could be interpreted to cover surveys administered by anyone. They do not appear to distinguish between a survey conducted by a student versus a school. Many also require consent before students can participate.

Importantly, the constitutionality of these laws has yet to be tested. A court could rule that the First Amendment does not allow such restrictions when the questions are being asked by other students. Moreover, three of these states — Arkansas, California, and Kansas — have statutes supporting the rights of students to express themselves, which would likely conflict with a statute that restricts student-initiated surveys.


Alaska

A.S. § 14.03.110 (1979, amended 2015)

The Alaska law defines a survey as "a list of questions to, or information collected from, a class or group of students." The law 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.” This language explicitly rules out anonymous surveys and suggests that even voluntary surveys would be impermissible without proper notice. The language "may not administer" suggests that school officials themselves cannot administer the survey, while the language "or permit to be administered" could rule out student-distributed surveys.

Parents must be given the opportunity to review the survey, and districts must 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. The notice must be given at least two weeks prior to administration of a survey, however permission to conduct anonymous surveys is valid until the start of the next school year or consent is revoked. Students can refuse to take a survey conducted by a public school.

The constitutionality of the Alaskan law as applied to student media has yet to be tested, however the Office of the Attorney General has offered some advisory opinions on the statute, noting that the phrase “the private affairs of the student” applies to the student’s home and family activities, not a student’s own individual activities.[14]


Arizona

A.R.S. § 15-117 (2016)

The Arizona state law is much more restrictive than the PPRA. The law requires each school district and charter school to annually “obtain written informed consent from the parent of a [student] before administering any survey” that is kept by the school for more than a year and asks about information from fourteen different categories. The categories mirror the eight listed under the PPRA, but also includes: gun or ammunition ownership, medical history or information, pupil biometric information, the quality of home interpersonal relationships, self-sufficiency as it pertains to emergency and disaster planning, and voting history. The law provides exceptions for a few types of specific surveys including mental health screenings, curriculum exams, and surveys in private schools.

The law notes that teachers must obtain written permission from the school to administer any survey and cannot be punished or rewarded based on student participation. However, the law does not distinguish between staff-initiated and student-initiated surveys, so it is unclear whether this law applies to student journalists.

The law broadly defines “survey” as “an instrument that investigates the attitudes, behaviors, beliefs, experiences, opinions or thoughts of a pupil or group of pupils.” Because the language of the law only mentions surveys administered by school districts themselves or teachers, a student journalist could argue that it does not apply to voluntary student-distributed surveys, especially if the survey results are kept for less than a year. However, because the law says it applies to any survey that falls into one of the fourteen categories, any survey information that has been archived by a student publication could potentially be covered under this law. That said, the constitutionality of this law as applied to student media has yet to be tested and would raise some significant legal issues. 


Arkansas

A.C.A. § 6-18-1302 to 1303 (2003)

The Arkansas law provides that a public school "shall not administer or permit to be administered" a questionnaire or survey that requests "personal identifying information" from a student unless parents give their written permission before the questionnaire or survey is taken. 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.” 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." This definition appears to cover student-initiated surveys. However, because Arkansas has an anti-Hazelwood statute, it is unclear which law would prevail if a student conducted the survey. Arkansas courts have not yet decided any cases interpreting the statute as it pertains to student journalists.


California

Cal. Educ. Code § 51513 (1995)

The law requires that notice and prior 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 their family's beliefs on sex, family life, morality, or religion. The law does not make it 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." 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.

In 2016, the state passed California Education Code §51938, which states that anonymous, voluntary, and confidential surveys “containing age-appropriate questions about the pupil’s attitudes concerning or practices relating to sex,” can be administered to students in grades 7 through 12 as long as parents have notice of the survey and have a chance to opt out. However, California Education Code §60614 also provides that no survey that is part of a statewide assessment program can ask a student to disclose their or their parent’s “beliefs or practices in sex, family life, morality, or religion” or behavioral characteristics. The combination of these laws suggests that voluntary, confidential surveys distributed by students might be permissible for some subjects, but surveys related to sex might need permission. All that said, the constitutionality of this law as applied to student media has yet to be tested and any California student journalist who wishes to do so is urged to contact the Student Press Law Center.


Kansas

K.S.A. 72-6316 (2014)

The Kansas law is more restrictive than the PPRA and provides that “[n]o test, questionnaire, survey or examination containing any question about the student’s [or their parent’s] personal beliefs or practices on issues such as sex, family life, morality or religion . . . shall be administered to any student enrolled in kindergarten or grades one through 12, unless the parent or guardian of the student is notified in writing . . . [and] gives written permission . . .”

Not only does the law require both parental notice and written consent, but because the language of law says that no survey “shall be administered to any student,” the law seems to apply equally to student-distributed surveys and school-distributed surveys alike. The vague wording of the law also does not mention anonymous surveys, but the language “shall be administered” could arguably mean that voluntary surveys are not covered by this law. However, a court could easily interpret that language to include voluntary surveys as well. It should be noted that Kansas is also home to a student free expression law that would appear to be in direct conflict with the state’s survey law.[15] To date, the constitutionality of the survey law as applied to student media has not been tested.


New Hampshire

N.H. Rev. Stat. Ann. § 186:11 (IX-d) (2017)

New Hampshire has one of the most restrictive laws on student surveys. The law requires school districts to adopt a policy that “no student shall be required to volunteer for or submit to a non-academic survey or questionnaire . . . without the written consent of a parent or legal guardian . . .” The law defines “survey” as a questionnaire “designed to elicit information about a student’s social behavior, family life, religion, politics, sexual orientation, sexual activity, drug use, or any other information not related to a student’s academics.”

Because the law specifically covers voluntary surveys and does not include any language suggesting that the survey has to be distributed by the school, student-distributed surveys are probably covered by this law. The language suggests that even anonymous surveys conducted by student journalists require express parental consent. Importantly, the constitutionality of this law as applied to student media has not been tested. 


Utah

U.C.A. § 53E-9-203 (2001)

Utah prohibits the administration of surveys that reveal a student's or their family member's psychological problems, sexual behavior/orientation, religious beliefs or affiliation, political affiliation, illegal or anti-social or demeaning behavior, critical appraisals of family members, legally recognized relationships, or income without prior written parental consent. Consent is valid only if the parent has been given written notice of the survey and an opportunity to inspect it. The law does not have language indicating that it applies only to school-distributed surveys; it only refers to "the administration to a student.” 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, a school official is unlikely to give the law a broad reading because it also provides for "disciplinary action for violations of this section." The constitutionality of the Utah law as applied to student media has not yet been tested.


Virginia

VA Code Ann. § 22.1-79.3 (2015)

The Virginia law requires schools to create policies that accomplish a number of things. First, “public school students are not required to convey or deliver any materials” that advocate for political candidates or referendums, but the school cannot prohibit the discussion of politics or use of such materials for teaching. This provision does not explicitly mention surveys, but could be interpreted to mean that students cannot be required to reveal their political preferences, although a voluntary survey would probably be allowed.

Second, schools must have policies prohibiting the administration of surveys to gather student personal information for commercial purposes without parental consent. Student-distributed surveys administered for journalistic purposes would not be covered under this provision.

Finally, parents must have at least 30 days notice of any survey that requests students to provide information on their sexual behavior, mental health, medical history, or use of controlled substances, as well as “any other information that the school board deems to be sensitive in nature.” Additionally, no survey regarding sexual information can be administered to a student in kindergarten through sixth grade. The language of this part of the law does not distinguish who would be distributing the survey, so it could potentially cover student-distributed surveys. The broad inclusion of “any other information” also gives schools greater authority to determine what student-distributed surveys might be “sensitive in nature.” The constitutionality of the Virginia law as applied to student media has not yet been tested.

COMPARABLE TO OR INCORPORATING THE PPRA:

Nevada

Nev.Rev.Stat. § 392.029(4) (2001)

Nevada's law is comparable to the PPRA. 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. If a court agrees that the PPRA does not cover student-initiated surveys, then a student reporter should be able to conduct a student-initiated survey.


North Carolina

N.C.G.S.A. § 115C-402.15 (2014)

North Carolina’s law ensures that school districts annually provide parents an opportunity to opt out of surveys covered by the PPRA. Because the law specifically refers to the PPRA, it does not add any additional state protections beyond the federal law.

LESS RESTRICTIVE THAN THE PPRA:

The laws in these states are either clearly aimed at surveys conducted by schools or the state law merely requires districts to have a policy allowing parents to review the surveys. Some laws also are aimed at "required" surveys or surveys that reveal personally identifiable information, such as a name. Thus, a voluntary and anonymous survey conducted by students should be permissible in these states.

Colorado's law is noteworthy because it includes a special student journalist exemption. This places Colorado at the forefront of states permitting student-conducted surveys.


Colorado

C.S.R.A. §22-1-123(5)(e) (2001)

The statute instructs state schools to follow the PPRA. However, section 5(3) of the law provides student journalists with explicit protection. Specifically, the law allows students "working under the supervision of a journalism teacher or sponsor" to prepare or participate in surveys without obtaining written parental consent (so long as the survey isn’t otherwise prohibited by federal law). This places Colorado at the forefront of permitting student-conducted surveys and is a good model for other states to use.

The Colorado Office of the Attorney General also released an advisory opinion in 2015, noting that the statute is not triggered by voluntary surveys.[16] 


Indiana

IC 20-30-5-17 (2013)

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, beliefs, or feelings" regarding the student's political affiliation, religious beliefs, embarrassing mental or psychological conditions, sexual behavior or attitudes, illegal or demeaning behavior, criticisms of close family members, legally privileged and confidential relationships, or income. A voluntary survey should not require parental notification.


Kentucky

K.R.S. § 160.720(2)(e) (1994)

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. A school district may survey students to determine if the student "desires moral instruction" as long as the parent consents. An anonymous survey, therefore, should fall outside the Kentucky law's prohibitions.


Louisiana

LSA-R.S. 17:355 (2014)

The Louisiana law provides that parents “shall be entitled to . . . [r]eview any survey before the survey is administered or distributed by a school to a student.” The law broadly defines “survey” as “any . . . questionnaire that is not an assessment of academic knowledge, skills, or abilities, administered as part of a state, national, or international assessment or by itself.” This vague wording could arguably mean the law applies to even anonymous or voluntary surveys. However, because the law says that it only applies to surveys administered by a school, student journalists could argue that it does not apply to student-distributed surveys.  


Michigan

M.C.L.A. 15.243(2) (2002)

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." Michigan uses the federal government's definition of directory information under 20 U.S.C. 1232g: "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."[17] An anonymous, student-initiated survey that does not gather this information should be permissible under Michigan law.


Minnesota

M.S.A. § 121A.065 (2016)

The law requires Minnesota school districts and charter schools to develop policies on conducting student surveys and distributing the personal information collected from them. The law requires schools to notify parents of substantive changes to the policy at the beginning of each school year, let them know the approximate dates that the school plans to administer the surveys, and give parents the opportunity to review and opt their students out of the surveys.

Although broadly worded, the language of the law suggests that it only applies to planned, school-distributed surveys. Therefore, a student-distributed survey should not violate this law, especially if it is voluntary. 


Nebraska

Neb.Rev.St. § 79-532 (2002)

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. The law does not provide any details about what the policy should say. 


New Jersey

N.J.S.A. 18A:36-34 (2002)

State law provides that "a school district shall not administer to a student," without written parental permission, a survey regarding political affiliations, mental or psychological problems of the student or the student's parents, sexual behavior and attitudes, illegal or anti-social or self incriminating behavior, critical appraisals of those with whom the student has a close family relationship, legally recognized relationships, income, or the student’s social security number. Because the language specifies surveys administered by a school district, it does not appear to cover a survey administered by a student.


Oklahoma

70 Okl.St.Ann. § 11-107 (1981) and § 11-105.1 (1995)

Oklahoma has two laws pertaining to specific types of surveys.

§ 11-107 requires the written parental consent before a student is required to “submit to psychiatric or psychological examination, testing or treatment” as part of any program. The law also states that no “teacher or staff” can administer surveys that elicit personal student information about: religious beliefs, embarrassing mental or psychological problems, sexual behavior and attitudes, critical appraisals of individuals that the student is close with, and legally privileged relationships. Because this law specifies that a “teacher or staff” must be the one to give the survey, it should not apply to student-distributed surveys.

§ 11-105.1 requires parental notice before a school requires students to take a survey that would reveal their sexual behavior or attitudes in relation to a sex education class. Again, because this law references only surveys given by the school, student-distributed surveys are likely not covered by this law.


Ohio

R.C. § 3313.60(G) (2001)

Parents in Ohio have the right, upon request, to inspect any survey or questionnaire before its administration to their children. The law does not specify whether it applies only to school-administered surveys, or whether voluntary or anonymous surveys are covered. Therefore, a student journalist could argue that a student-administered survey is not expressly covered by the law.


South Dakota

SDCL § 13-3-51.2 (2014)

The South Dakota law states that “no elementary school or secondary school student shall be required to submit to a survey,” without written parental consent, that reveals information about the same eight categories covered by the PPRA (political affiliations, mental problems, sex behavior, illegal behavior, critical appraisals, legal privileges, religious views, and income), as well as information about “[p]ersonal or family gun ownership.” The law mentions that the list is not exhaustive and can be expanded to include other information. The law does not make a distinction between school-distributed and student-distributed surveys, but the phrase “shall be required to submit” suggests that students could give a voluntary survey without needing parental consent.


Tennessee

T.C.A. § 49-2-211 (2014)

The Tennessee law requires every school district to develop a policy allowing parents to review all surveys prior to administration and have the option to opt their student out. The law does not specify who gives the surveys or whether it also applies to anonymous surveys. Because the law is so broadly worded, it might apply as equally to student-administered and anonymous surveys as it does to school-administered surveys, but Tennessee courts have not offered any clarification. The law also requires specific written consent from the parent before collecting a student’s biometric data. Tennessee law T.C.A. § 49-2-124 also requires that parents be notified of their rights under the PPRA.

THE RIGHT TO SURVEY AND STUDENT SPEECH

State and federal laws are not the only authority when it comes to regulating surveys on campus. Both the U.S. Constitution and prior decisions provide significant support for the right of student journalists to survey on campus.

Courts have commonly recognized that surveys and polls are part of the process of gathering the news. In Branzburg v. Hayes,[18] the U.S. Supreme Court made clear that news gathering is protected under the First Amendment. The Court explained that "without some protection for seeking out the news, freedom of the press could be eviscerated."[19]

Several lower courts have relied on Branzburg and the First Amendment in recognizing the media's right to conduct a survey or poll.[20] For example, in New Kids on the Block v. News America Publishing, Inc.,[21] a California federal court rejected a claim by the singing group New Kids On the Block that USA Today and Star Magazine unfairly profited from the use of the group's name by conducting a "900-number" telephone survey in which callers voted for their favorite member. The publications argued in court that the survey was part of news gathering and protected under the First Amendment. The judge agreed and dismissed the lawsuit. The court said the press's First Amendment rights outweighed the group's concerns that the survey appeared to have their endorsement: "The risk that some people might think that the New Kids implicitly endorsed or sponsored the Star Magazine's and USA Today's 900 number services is outweighed by the danger of restricting news gathering and dissemination."[22]

While these cases recognize the media's right to survey and poll, perhaps more importantly, there appear to be no cases holding that the commercial news media does not have a right to conduct a survey or poll.

Relatively few cases have directly addressed the issue of surveys on a school campus, and the holdings are somewhat mixed:

  • In Trachtman v. Anker,[23] student journalists working on a school-sponsored newspaper went to court when high school officials refused to let them distribute a survey on campus about sex. The Second Circuit Court of Appeals held that the school could refuse to allow the survey's distribution because the school has the authority to "protect students from a foreseen harm." The Trachtman decision is most likely to affect students at high schools in New York, Connecticut and Vermont — the states covered by the Second Circuit.

  • In Duran v. Nitsche,[24] an elementary school student asked a teacher to distribute her student-initiated survey on religion to the teacher's class. In ruling that the school did not violate the girl's First Amendment rights, the district court noted that its decision addressed a survey distributed by a teacher and not a survey distributed in a non-classroom setting.[25]

  • C. N. v. Ridgewood Bd. of Educ.,[26] involved a survey conducted by the school district for community groups that wanted to provide youth services. Before distribution, the superintendent twice notified parents about the survey and advised them it was voluntary and anonymous. In dismissing the parents' constitutional claims, the court held that a voluntary survey does not violate the parents' rights to raise their children. Although the court's ruling supported the survey, the decision provides limited protection to most student survey cases because the survey involved prior parental approval.

Ultimately, conducting a survey on campus raises the question of whether students have the right to distribute written information on campus and to express themselves, even if the topic is controversial. For a student newspaper, the answer depends on whether it is a school-sponsored publication and whether school officials can demonstrate the publication has not been opened as a public forum for student expression where student editors make their own content decisions.

If the answer to these two questions is yes, the paper likely would be guided by the legal standards established in Hazelwood School District v. Kuhlmeier.[27] In Hazelwood, the Supreme Court held that censorship of school-sponsored student expression in non-public forums is permissible if school officials can show that the censorship is "reasonably related to legitimate pedagogical concerns."[28] Because many school officials can meet the standard of reasonableness, these student journalists would have a harder time arguing that they have a right to distribute the survey.

If the answer to these questions is no — the student newspaper is not school-sponsored, or if it is school-sponsored, it is not part of the school curriculum or has been opened as a forum for student expression— student journalists have a stronger argument that the First Amendment protects their right to distribute a survey. These schools would be guided by the principles of Tinker v. Des Moines Independent Community School District,[29] in which the Supreme Court made clear that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."[30] The Court said the free speech right includes "personal intercommunication among the students."[31] A school may not interfere with that right unless it shows that the speech is unlawful or that it "materially and substantially" interferes with the school's ability to maintain discipline or invades the rights of others.[32]

The Tinker standard has been found to apply to school-sponsored student media that have been established as a "public forum" and where student editors are responsible for making content decisions, as well as to independent, or underground, student publications and websites.

Additionally, fourteen states — Arkansas,[33] California,[34] Colorado,[35] Illinois,[36] Iowa,[37] Kansas,[38] Maryland,[39] Massachusetts,[40] Nevada,[41] North Dakota,[42] Oregon,[43] Rhode Island,[44] Vermont,[45] and Washington[46] — have state laws or regulations that offer student media some press freedom protections that should help prevent censorship of surveys. The District of Columbia[47] and Pennsylvania[48] also have Administrative Regulations providing student media protection.

SUMMARY

State and federal laws and previous court decisions indicate that anonymous and voluntary surveys that are initiated and conducted by students are legally permissible in most states. Yet, school officials and parents may point to the federal PPRA or state laws to try to censor or prohibit these surveys, especially if they cover topics such as sexual attitudes and religious affiliations. However, to the extent a federal or state law is applied to prohibit student-initiated surveys, the law could violate free expression protections in state law or the First Amendment.

The specific facts and circumstances of the survey could determine whether the school has the right to restrict it. A student newspaper survey is less likely to receive First Amendment protection if school officials regularly play a role in determining the student media's content. However, if students are generally responsible for editing their publication and if the survey is student-initiated, voluntary, anonymous and not disruptive, it should usually present no legal problem. Even so, a student journalist should be familiar with their state’s laws before conducting a student survey on a potentially sensitive topic.

ENDNOTES

  1. 534 U.S. 426, 433 (2002).
  2. 131 F.3d 241, 254 (1st Cir. 1997).
  3. 20 U.S.C. § 1232h(c)(6)(E).
  4. Formal Opinion No. 15-04, 2015 WL 1639597, at *1 (Colo. A.G. Apr. 8, 2015).
  5. 20 USC §1221(c)(1).
  6. 1993 U.S. Dist. LEXIS 13194 (WD Mich. 1993), aff’d, 57 F.3d 1070 (6th Cir. 1995).
  7. Id. at *13.
  8. 281 F.3d 219 (3rd Cir. 2001).
  9. Ridgewood Public Schools, Complaint Nos. H-0159, H-0160, H-0162, H-0163 (Dep't of Educ. Dec. 18, 2001).
  10. Id.
  11. 1993 U.S. Dist. LEXIS 13194 (WD Mich. 1993).
  12. Id. at *17.
  13. 976 F. Supp. 331, 340 (E.D.Pa.1997).
  14. 1997 Alaska Op. Att’y Gen. 189 (1997); 1998 Alaska Op. Att’y Gen. 208 (1998).
  15. K.S.A. 72-7209 (1992).
  16. Formal Opinion No. 15-04, 2015 WL 1639597, at *1 (Colo. A.G. Apr. 8, 2015).
  17. 20 U.S.C. 1232g(a)(5)(A).
  18. 408 U.S. 665 (1972).
  19. Id. at 681.
  20. New Kids on the Block v. New Am. Publ'g, Inc., 745 F. Supp. 1540 (C.D.Ca. 1990) (holding that a telephone survey constituted news gathering and was protected under the First Amendment; In Re The Express-News Corp., 695 F.2d 807 (5th Cir. 1982) (holding that the First Amendment right to gather news includes polling jurors); CBS v. Smith, 681 F.Supp. 794 (S.D.Fla. 1988) (recognizing the right to conduct exit polls).
  21. 745 F. Supp. 1540 (C.D.Ca. 1990).
  22. Id. at 1545.
  23. 563 F.2d 512 (2nd Cir. 1977).
  24. 780 F. Supp. 1048 (E.D. Pa. 1991). The court order was later vacated without opinion. 972 F.2d 1331 (3d Cir. 1992).
  25. Id. at 1053.
  26. 430 F.3d 159 (3d Cir. 2005).
  27. 484 U.S. 260 (1988).
  28. Id. at 273.
  29. 393 U.S. 503 (1969).
  30. Id. at 506.
  31. Id. at 512.
  32. Id. at 513.
  33. A.C.A. § 6-18-1201-1204 (1995). 
  34. California Educ. Code Sec. 48950 (2011).
  35. C.R.S.A. § 22-1-120 (1977).
  36. 105 ILCS 80 (2016).
  37. I.C.A. § 280.22 (1989).
  38. K.S.A. 72-7209 (1992).
  39. MD EDUC § 7-121 (2016).
  40. M.G.L.A. 71 § 82 (1988).
  41. NRS 388.077 (2017).
  42. NDCC § 15-10-55 (2015).
  43. Ore. Rev. Stat. sec. 336.477 (2007).
  44. R.I. Gen. Laws § 16-109-1 to 109-3.
  45. 16 V.S.A. § 1623 (2017).
  46. RCWA 28A.600.0001 and 28B.10.0003
  47. DCMR 2401
  48. 22 Pa. Code § 12.9