§ 1232h.
(b)
Limits on survey, analysis, or evaluations
No student shall be required, as part of any applicable program, to submit to a survey, analysis, or evaluation that reveals information concerning—
(1)
political affiliations or beliefs of the student or the student’s parent;
(2)
mental or psychological problems of the student or the student’s family;
(3)
sex behavior or attitudes;
(4)
illegal, anti-social, self-incriminating, or demeaning behavior;
(5)
critical appraisals of other individuals with whom respondents have close family relationships;
(6)
legally recognized privileged or analogous relationships, such as those of lawyers, physicians, and ministers;
(7)
religious practices, affiliations, or beliefs of the student or student’s parent; or
(8)
income (other than that required by law to determine eligibility for participation in a program or for receiving financial assistance under such program),
without the prior consent of the student (if the student is an adult or emancipated minor), or in the case of an unemancipated minor, without the prior written consent of the parent.
(c)
Development of local policies concerning student privacy, parental access to information, and administration of certain physical examinations to minors
(1)
Development and adoption of local policies
Except as provided in subsections (a) and (b), a local educational agency that receives funds under any applicable program shall develop and adopt policies, in consultation with parents, regarding the following:
(A)
(i)
The right of a parent of a student to inspect, upon the request of the parent, a survey created by a third party before the survey is administered or distributed by a school to a student; and
(ii)
any applicable procedures for granting a request by a parent for reasonable access to such survey within a reasonable period of time after the request is received.
(B)
Arrangements to protect student privacy that are provided by the agency in the event of the administration or distribution of a survey to a student containing one or more of the following items (including the right of a parent of a student to inspect, upon the request of the parent, any survey containing one or more of such items):
(i)
Political affiliations or beliefs of the student or the student’s parent.
(ii)
Mental or psychological problems of the student or the student’s family.
(iii)
Sex behavior or attitudes.
(iv)
Illegal, anti-social, self-incriminating, or demeaning behavior.
(v)
Critical appraisals of other individuals with whom respondents have close family relationships.
(vi)
Legally recognized privileged or analogous relationships, such as those of lawyers, physicians, and ministers.
(vii)
Religious practices, affiliations, or beliefs of the student or the student’s parent.
(viii)
Income (other than that required by law to determine eligibility for participation in a program or for receiving financial assistance under such program).
(C)
(i)
The right of a parent of a student to inspect, upon the request of the parent, any instructional material used as part of the educational curriculum for the student; and
(ii)
any applicable procedures for granting a request by a parent for reasonable access to instructional material within a reasonable period of time after the request is received.
(D)
The administration of physical examinations or screenings that the school or agency may administer to a student.
(E)
The collection, disclosure, or use of personal information collected from students for the purpose of marketing or for selling that information (or otherwise providing that information to others for that purpose), including arrangements to protect student privacy that are provided by the agency in the event of such collection, disclosure, or use.
(F)
(i)
The right of a parent of a student to inspect, upon the request of the parent, any instrument used in the collection of personal information under subparagraph (E) before the instrument is administered or distributed to a student; and
(ii)
any applicable procedures for granting a request by a parent for reasonable access to such instrument within a reasonable period of time after the request is received.
(2)
Parental notification
(A)
Notification of policies
The policies developed by a local educational agency under paragraph (1) shall provide for reasonable notice of the adoption or continued use of such policies directly to the parents of students enrolled in schools served by that agency. At a minimum, the agency shall—
(i)
provide such notice at least annually, at the beginning of the school year, and within a reasonable period of time after any substantive change in such policies; and
(ii)
offer an opportunity for the parent (and for purposes of an activity described in subparagraph (C)(i), in the case of a student of an appropriate age, the student) to opt the student out of participation in an activity described in subparagraph (C).
(B)
Notification of specific events
(C)
Activities requiring notification
The following activities require notification under this paragraph:
(i)
Activities involving the collection, disclosure, or use of personal information collected from students for the purpose of marketing or for selling that information (or otherwise providing that information to others for that purpose).
(ii)
The administration of any survey containing one or more items described in clauses (i) through (viii) of paragraph (1)(B).
(iii)
Any nonemergency, invasive physical examination or screening that is—
(I)
required as a condition of attendance;
(II)
administered by the school and scheduled by the school in advance; and
(III)
not necessary to protect the immediate health and safety of the student, or of other students.
(4)
Exceptions
(A)
Educational products or services
Paragraph (1)(E) does not apply to the collection, disclosure, or use of personal information collected from students for the exclusive purpose of developing, evaluating, or providing educational products or services for, or to, students or educational institutions, such as the following:
(i)
College or other postsecondary education recruitment, or military recruitment.
(ii)
Book clubs, magazines, and programs providing access to low-cost literary products.
(iii)
Curriculum and instructional materials used by elementary schools and secondary schools.
(iv)
Tests and assessments used by elementary schools and secondary schools to provide cognitive, evaluative, diagnostic, clinical, aptitude, or achievement information about students (or to generate other statistically useful data for the purpose of securing such tests and assessments) and the subsequent analysis and public release of the aggregate data from such tests and assessments.
(v)
The sale by students of products or services to raise funds for school-related or education-related activities.
(vi)
Student recognition programs.
(B)
State law exception
The provisions of this subsection—
(i)
shall not be construed to preempt applicable provisions of State law that require parental notification; and
(ii)
do not apply to any physical examination or screening that is permitted or required by an applicable State law, including physical examinations or screenings that are permitted without parental notification.
(5)
General provisions
(A)
Rules of construction
(ii)
Paragraph (1)(D) does not apply to a survey administered to a student in accordance with the Individuals with Disabilities Education Act (
20 U.S.C. 1400 et seq.).
(C)
Information activities
(6)
Definitions
As used in this subsection:
(A)
Instructional material
(B)
Invasive physical examination
(C)
Local educational agency
(E)
Personal information
The term “personal information” means individually identifiable information including—
(i)
a student or parent’s first and last name;
(ii)
a home or other physical address (including street name and the name of the city or town);
(iii)
a telephone number; or
(iv)
a Social Security identification number.
(e)
Enforcement
The Secretary shall take such action as the Secretary determines appropriate to enforce this section, except that action to terminate assistance provided under an applicable program shall be taken only if the Secretary determines that—
(1)
there has been a failure to comply with such section; and
(2)
compliance with such section cannot be secured by voluntary means.
([Pub. L. 90–247, title IV, § 445], formerly § 439, as added [Pub. L. 93–380, title V, § 514(a)], Aug. 21, 1974, [88 Stat. 574]; amended [Pub. L. 95–561, title XII, § 1250], Nov. 1, 1978, [92 Stat. 2355]; [Pub. L. 103–227, title X, § 1017], Mar. 31, 1994, [108 Stat. 268]; renumbered § 445, [Pub. L. 103–382, title II, § 212(b)(1)], Oct. 20, 1994, [108 Stat. 3913]; amended [Pub. L. 107–110, title X, § 1061], Jan. 8, 2002, [115 Stat. 2083]; [Pub. L. 114–95, title IX, § 9215(mm)(5)], Dec. 10, 2015, [129 Stat. 2176].)