No Child Left Behind
In 2001, President Bush signed into law H.R.1, passed by the 107th Congress, a large-scale education bill that expands federal involvement in student testing, academic standards, and teacher quality. H.R.1 is also known as the No Child Left Behind Act (NCLB). Included in the Act's 670 pages is Section 1061, a provision that provides students and parents with rights to be informed about, and opt out of, the in-school collection of students' personal information.
Section 1061 amends a part of the Elementary and Secondary Education Act (ESEA) of 1965, and applies to any "local educational agency"— meaning a public or private school, school district, or local board of education — that receives federal funds. It does not apply to colleges or universities. The local educational agencies (LEAs) must develop a number of policies, in consultation with parents, regarding the collection and use of student information.
In 2001, Senators Christopher Dodd (D-CT) and Richard Shelby (R-AL) introduced Senate Bill 290, the Student Privacy Protection Act, to address the problem of "student profiling," the in-school collection of data for marketing and sales purposes. The legislation would have required that before schools could provide companies with information collected from students in school, the schools would have to explain to parents what information would be disclosed, to whom it was going, how it would be used, and the amount of class time used to collect the information. The information could not be released without parents' consent. Further, the Dodd-Shelby bill would apparently have completely prohibited a company from itself gathering students' information, as opposed to requesting the information from a school, if the information was to be used for a commercial purpose. College recruiting and book clubs were exempted from this "commercial purpose" category.
Senator Dodd, in introducing the bill, pointed to examples of marketing in schools, such as the 27-page survey "All About Me" that a New Jersey television station had induced elementary students to fill out for marketing purposes. "If someone came to your home and started to ask your child about his or her age, gender, neighborhood, food preferences, and entertainment preferences, surely you would want to know the purpose of such questions before deciding whether to consent to them," Dodd's introduction stated. "We think parents and children are entitled to no less consideration just because a child is in school."
Congress, however, adopted compromise language after being lobbied by groups such as the American Advertising Federation and American Student List, a company that sells personal information about tens of millions of American students. The resulting provision, Section 1061 of the No Child Left Behind Act, departed significantly from the Dodd-Shelby bill by not requiring parents' written consent for companies to collect information from students. Section 1061 only mandates that parents and adult students be given the opportunity to opt out of commercial surveys. In other words, the default rule shifted from "no collection unless affirmatively granted permission," to "collection unless denied permission." The burden falls on the student or parent to make it known that they do not want personal student information to be gathered by companies. In addition, Section 1061 departed from the Dodd-Shelby bill by adding fundraising programs, magazine sellers and "student recognition programs" to the list of companies not considered "commercial." These companies are therefore exempt from the requirement that parents and students be given the opportunity to opt-out of their surveys.
First, LEAs must adopt policies giving adult students and parents of minor students, the right to inspect any survey created by a third party before it is administered in school. (20 U.S.C.S. § 1232h(a)). Second, LEAs must notify parents and adult students about, and allow them to decline participation in, surveys which collect information from students regarding a number of subjects:
- Political affiliations or beliefs of the student or the student's parent
- Mental and psychological problems of the student or the student's family
- Sex behavior or attitudes
- Illegal, anti-social, self-incriminating or demeaning behavior
- Critical appraisals of other individuals with whom respondents have close family relationships
- Legally recognized privileged or analogous relationships, such as those of lawyers, physicians, and ministers
- Income (other than that required by law to determine eligibility for participation in a program or for receiving financial assistance under such program)
- Religious practices, affiliations or beliefs of the student or the student's family
These categories are drawn from the 1978 Protection of Pupil Rights Amendments (PPRA) to the ESEA, also known as the Hatch Act. The PPRA, as updated in 1994, addresses only Department of Education-funded surveys, and requires schools and contractors to obtain written parental consent before minor students are required to participate in any Department survey, analysis, or evaluation that reveals information concerning the above categories of information. (20 U.S.C.S. § 1232h(b)). (The "religious practices, affiliations or beliefs" category was added by NCLB). NCLB's Section 1061 expands the PPRA significantly by applying this requirement to any survey collecting such information, not just to those surveys developed by the Department of Education.
Section 1061 also requires that parents and adult students be notified about in-school surveys conducted for sales or marketing purposes, and be able to opt of participation. (20 U.S.C.S. § 1232h(c)(1)(E)). However, NCLB carves out a number of exceptions to this restriction on commercial surveys. The exempted surveys, which may be administered without parental notification and without allowing opting out, involve an array of subjects:
- College or other postsecondary education recruitment, or military recruitment
- Book clubs, magazines, and programs providing access to low-cost literary products
- Curriculum and instructional materials used by elementary schools and secondary schools
- Tests and assessments used by elementary and secondary schools to provide cognitive, evaluative, diagnostic, clinical, aptitude, or achievement information about students - and the subsequent analysis and public release of the aggregate data from it
- The sale by students of products or services to raise funds for school-related or education-related activities
- Student recognition programs
(20 U.S.C.S. § 1232h(c)(4)).
Section 1061 leaves in place schools' ability, under the FERPA, to release students' "directory information" — such as addresses and phone numbers — as long as parents or adult students do not request that the information be kept private. (Opting out of such disclosure is usually performed by noting this preference on a form at the beginning of the school year.) According to a 2003 Department of Education letter, this means that schools may release to companies the directory information of students who are not opted out of release. However, if a company seeks personal, non- "directory" information — such as Social Security numbers — a school would be obligated under FERPA and, apparently, under Section 1061, to specifically notify parents and students of such collection and permit them to opt out.
Section 1061 also requires schools to:
- Notify parents and adults students about nonemergency, invasive physical examinations and provide them with the ability to opt out (20 U.S.C.S. §1232h(c)(2)(C)(iii)).
- Allow parents to inspect, upon request, any instructional material used in the classroom (20 U.S.C.S. §1232h(c)(2)(A)).
- Provide at least yearly notice of the privacy policies that are adopted (20 U.S.C.S. §1232h(c)(1)(A)(i)).
- H.R. 1, The No Child Left Behind Act of 2001, THOMAS Database (see section 1061).
- S. 290, the Student Privacy Protection Act, THOMAS Database.
- Senator Dodd's Introduction to S.290, THOMAS Database.
- American Advertising Federation's letter opposing S.290.
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Privacy Law Sourcebook (2016)