The Arrow newspaper staff knew from experience that surveying fellow students at Norte Vista High School in Riverside, Calif., was popular with readers. Earlier this year, for instance, more than 400 classmates answered a nine-question survey on ethics, said Patrick Monnig, The Arrow's co-editor in chief.
"We found surveys really interest people because it brings the big issues home," Monnig said.
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 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). Administrators held firm.
Noting that California law also supports student expression, Monnig said, "I think that the survey law is too strict and it doesn't explain the students' rights under it."
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 hot — and contested — issue. The federal government and 14 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 even applicable to student media.
Unfortunately, recent changes to the federal law could make distributing surveys more difficult. The changes do not prohibit students from distributing surveys per se. But school officials may try to interpret the changes as requiring approval by parents before the surveys' distribution.
Prior court decisions, nevertheless, support the rights of students. Only a few cases have considered surveys on campus, and only one involved a student-distributed survey. Yet, 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.
The Protection of Pupils' Rights Amendment (PPRA) 1 is the primary federal law regulating surveys in schools. Passed originally in 1974, and amended in 1994 and 2001, the PPRA regulates school surveys addressing the following topics:
* The student's or parents' political affiliation or beliefs
* Mental or psychological problems of the student or the student's family
* Sexual behavior or attitudes
* Illegal, anti-social, self-incriminating and demeaning behavior
* Critical appraisals of other individuals with whom respondents have close family relationships
* Legally recognized privileged or analogous relationships, such as those with lawyers, physicians and ministers
* Religious practices, affiliations or beliefs of the student or the student's parents, or
— Income (other than that required by law to determine eligibility to participate in a program or receive financial assistance).2
If school officials distribute a survey that covers one of these eight topics, the PPRA requires the school to notify parents before distributing it. 3 The law also requires the survey to be available for inspection by the students' parents or guardians.4
As discussed later in this article, 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 does not specifically address student-distributed surveys. Congressional committee reports never even mention student-initiated surveys. At best, the reports shed little light on lawmakers' intent. Certainly, the plain language of the law indicates that the law does not include student-initiated surveys.
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.
This section was added recently under the "No Child Left Behind Act of 2001." Two of its subsections are relevant to student journalists: Subsection (c)(1), which requires school districts to develop policies on student privacy, parental access to information and physical exams and Subsection (c)(2), which addresses parental notification of surveys.
Subsection (c)(1) deals with policies that districts must develop in order to protect a student's and family's privacy. Several of the required policies relate to surveys:
— The right of a parent or a student (if emancipated) to inspect a survey created by a third party before the survey is distributed "by a school to a student," and procedures for granting that inspection emphasis added.
— The agency's arrangements for protecting student privacy if a survey containing one of the eight topics listed in the law is distributed, including the parent's right to inspect the survey.
— The collection, disclosure or use of personal information collected from students for purposes of marketing or selling that information and the agency's arrangements for protecting student privacy in the event of such collection, disclosure or use.5
The first required policy listed above gives parents the right to inspect a survey "before the survey is administered or distributed by a school to a student... ."6 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,7 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.8 And in Yeo v. Town of Lexington,9a 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.10 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 the surveys.
The next required policy addresses the protection of 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." However, because it is closely related to the prior subsection and the language of the two subsections is similar, it can reasonably be argued that this section applies 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.
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. 11 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) deals with parental notification. It has three parts that:
Again, a student journalist can point out that this subsection refers to the prior subsection, subsection (c)(1), which appears to apply to school-distributed surveys rather than student-distributed surveys. Because the rules apply to school-distributed surveys, schools would not have to notify parents about a student-distributed survey, and they would not have to give parents the chance to opt their students out.
The Department of Education has begun educating districts about the 2001 changes to the law on its website. 12 Unfortunately, the information does not distinguish between a school-distributed survey and a student-distributed survey, which is likely to add to the confusion.
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. "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 likely will believe that parents must actively "consent" to a survey and is giving parents this false impression as well.
Sections (a) and (b)
In addition to the new changes added to the PPRA by Section (c), the law also includes the two earlier provisions, Sections (a) and (b). Student reporters should be aware of these two sections because the DOE and others have tried in the past to suggest that they can have a broad interpretation, and a broad interpretation could affect student-initiated surveys. However, on its website, the DOE currently concedes that "Subsections a and b of PPRA generally apply when a survey is funded, at least in part, by any program administered by the Secretary of Education."
These sections state 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. The law also gives parents the right to inspect these surveys.
The General Education Provisions Act 13 defines "applicable program" as "any program for which the Secretary or Department has administrative responsibility as provided by law or by delegation of authority pursuant to law."
A 1993 case, Newkirk v. East Lansing Public Schools,14 addressed the question of what is an "applicable program." The parents of an elementary school student in East Lansing, Mich., had 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 found that for the PPRA to apply, the "applicable program" must be a "program for which an administrative head of an education agency has administrative responsibility." The court also held that the law applies to "programs," not schools or school districts in general. Thus, there must be a direct connection between federal funds and the survey or evaluation in question for the district to violate the PPRA. 15 Because the evidence failed to make that connection, the court dismissed the parents' lawsuit.
Other courts have followed this interpretation of "applicable program." In Herbert v. Reinstein,16 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.
In addition to interpreting "applicable program," a New Jersey federal court in 2001 addressed whether a voluntary and anonymous survey administered to students violated PPRA's sections (a) and (b). In C.N. v. Ridgewood Board of Education,17 the court said the answer was "no."
First, the court found that the survey was not an "applicable program" because no evidence indicated the federal government funded the survey. Second, the evidence indicated the survey was voluntary and therefore not covered by PPRA, which regulated the use of mandatory surveys. The court granted the school board's request to dismiss the lawsuit.
On appeal, the Third Circuit Court of Appeals reversed the district court because there was a question of whether the survey was in fact voluntary as evidence suggested that some students were not told they could refuse to participate. 18 The court also said further investigation was needed to determine whether the survey was purchased with federal funds.
The DOE subsequently reviewed the parent's complaint and concluded that the school did violate the PPRA. 19 The agency said the survey must satisfy a four-part test to be covered by the law:
The DOE found that because the Ridgewood school admitted it used money from a federally-funded program to buy the surveys, it was an "applicable program" under PPRA.
Again, the key issues in Sections (a) and (b) are whether a survey is required and whether DOE funds helped pay for it. A 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.
States have taken different approaches to surveys in schools. Student journalists would be wise to check their state's statutes before school officials use them to justify restricting a survey.
States with survey laws that appear to be more restrictive than the PPRA are Alaska, Arkansas, California and Utah. 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.
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, two of these states — Arkansas and California — have statutes supporting the rights of students to express themselves, which would likely conflict with a statute that restricts student-initiated surveys.
Nevada's law is comparable to the PPRA. The law states that if a public school administers a program with a survey designed to gather information described in the PPRA, the survey must comply with that section. 20 If the federal PPRA does not cover student-initiated surveys as discussed above, then Nevada school officials should not be required to restrict a student-initiated survey under state law either.
Nine states that appear to have laws less restrictive than the PPRA: Colorado, Kentucky, Indiana, Michigan, New Jersey, Nebraska, Oklahoma, Ohio and Tennessee. These states clearly indicate the law is 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. 21 This places Colorado at the forefront of states permitting student-conducted surveys.
State and federal laws are not the only authority when it comes to regulating surveys on campus. Courts consider individual rights under the U.S. Constitution, as well as other court decisions that have addressed similar questions. Both the 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,22 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."23
Several lower courts have relied on Branzburg and the First Amendment in recognizing the media's right to conduct a survey or poll.24 For example, in New Kids on the Block v. News America Publishing, Inc.,25 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."26
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 addressed directly the issue of surveys on a school campus, and the holdings are somewhat mixed:
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.30 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."31 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,32 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."33 The Court said the free-speech right includes "personal intercommunication among the students."34 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.35
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. (For more information on public forum analysis, see our website.)36
Additionally, eight states — Arkansas, California, Colorado, Iowa, Kansas, Massachusetts, Pennsylvania and Washington — have state laws or regulations that offer student media some press freedom protections that should prevent censorship of surveys. 37
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.