The COVID-19 pandemic’s full psychological toll on youth remains unknown, but alarming evidence of that toll — including a rise in suicide attempts — has education leaders scrambling to understand and intervene. Many have turned to student surveys and mental health screening to do so. Such tools can help educators meet students’ diverse mental health needs, but they can also raise concerns about students’ privacy.
Such concerns may grow as surveys and screening gain popularity in the pandemic’s wake. When school buildings prepared to reopen to students in 2020 and 2021, policymakers in states like Indiana, Michigan and New Jersey expressly permitted or even funded schools to adopt mental health screening. States including Alaska, Texas and Virginia used funding from the American Rescue Plan to help local education agencies field surveys on school climate or students’ social and emotional health.
Such policies can be an integral part of strategies for expanding school-based mental health services to students who might not receive them elsewhere. Even so, mental health screening and surveys collect sensitive information about students, and their parents or guardians might find them intrusive.
During the pandemic, school leaders received guidance on federal laws like FERPA and HIPAA that protect the privacy of student medical records, including information about students’ mental or emotional health. It is all too easy to overlook a lesser known federal law that governs how schools can collect mental health information in the first place: the Protection of Pupil Rights Amendment.
PPRA governs implementation of surveys, analyses or evaluations that address protected categories, such as political affiliations, mental health challenges, sexual behaviors, incriminating behaviors, religious practices or affiliations, household income or criticism of family members. It requires districts or schools to notify parents or guardians of such surveys and allows them to opt their children out. If districts or schools require students to complete federally funded surveys that address at least one protected area, then they must first require parents or guardians to opt in. (For further nuances in the law, see this explainer from Student Privacy Compass.)
The law casts a wide net, affecting mental health screening, surveys of social and emotional learning, school climate surveys and even ACT college-readiness surveys, which include questions about household income and religious affiliation. The law can also apply to small, informal surveys conducted by individual teachers or counselors. Even ostensibly anonymous surveys can be subject to privacy protections because students may have distinctive handwriting, ask clarifying questions while taking the survey or offer personal information in open-ended responses.
Those who are unaware of the law can easily run afoul of its requirements. A 2021 survey of school counselors found that some had unintentionally violated the law by asking students about sensitive topics without first informing parents.
Some states have adopted laws that echo or exceed regulations in PPRA. For example, Utah Code 53E-9-203 requires parents’ consent even for anonymous surveys, and New Jersey Statute §18A:36-34.1 requires school districts to notify parents or guardians of any anonymous or voluntary survey, assessment, analysis or evaluation that addresses such topics as drug and alcohol use or sexual behaviors.
States can enact policies that protect students’ privacy and engage parents without keeping schools in the dark about their students’ struggles. For example, Utah H.B. 323 funds approve mental health screening and treatment programs, but it also requires parents’ consent for screening and prohibits results from becoming part of certain student records.
In the wrong hands, the very information schools need to support students can threaten students’ reputation and well-being. Student privacy policies can help education leaders strike the right balance between information and privacy.