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Separate federal and state laws require that written consent be obtained from a parent or guardian before a student participates in a non-educational survey or questionnaire that asks about information not directly related to a student's academics. While similar, the two laws are not co-extensive, with slightly different scope, procedures and exceptions. 

A.  General.

1. For the purpose of this policy, "non-academic survey" shall include a survey, questionnaire, analysis, evaluation or any other document which seeks any information in the categories listed in sections B (as to state law) or C (as to federal law), below.  However, non-academic surveys should not be deemed to include questions directed to an individual student by school counselor, nurses or appropriate personnel under circumstances indicating such questions are reasonably necessary for such person's compliance with applicable laws or regulations, and the discharge his or her duties.

2. All non-academic surveys must have the prior approval of the Superintendent or his/her designee. 

3. Non-academic surveys conducted for other agencies, organizations or individuals must have both the recommendation of the Superintendent and the approval of the Board of School Committee as to content and purpose.  The results of such approved non-academic surveys must be shared with the Board of School Committee.

4. No non-academic survey requesting sexual information will be administered to any student in kindergarten through grade six unless required by federal or state law or regulation.  School personnel administering any such questionnaire or survey will not disclose personally identifiable information.

5. As used below, the consent and notification provisions apply to a child's parent/legal guardian(s), unless the student is an adult or an emancipated minor who consents.

B.  New Hampshire Law.

Under RSA 186:11, IX-d, prior notice and prior consent (opt-in) is required for any non-academic survey designed to elicit information about:

1. A student's social behavior;

2. family life;

3. religion;

4. politics;

5. sexual orientation;

6. sexual activity;

7. drug use;

8. or any other information not related to a student's academics.

C.  Federal Law.

1. Protection of Pupil Rights Amendment.  Under the federal Protection of Pupil Rights Amendment, prior written consent is required only if the non-academic survey, analysis, or evaluation or its administration is paid for or in any way uses federal funds from the federal Department of Education and reveals information concerning the following:

   1. Political affiliations;

   2. Mental and psychological problems potentially embarrassing to the student or the family;

   3. Sexual behavior and attitudes;

   4. Illegal, anti-social, self-incriminating, and 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/guardian; 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).

2. Federal Exception. Non-academic surveys which do not require consent and notice under New Hampshire law (section B) but might otherwise require notice and consent under the federal law (section C.1 above).  However, the federal requirement exempts 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:

   1. College or post-secondary education recruitment, or military recruitment;

   2. Book clubs, magazines, and programs providing access to low-cost literary products;

   3. Curriculum and instructional materials used by schools;

   4. Tests and assessments used by schools to provide cognitive, evaluative, diagnostic, clinical, aptitude, or achievement information about students, or to generate other statistical data for educational purposes;

   5. The sale of products or services to raise funds for school-related or education-related activities; and

   6. Student recognition programs.

Caution: This exception only applies if the non-academic survey is otherwise exempt under New Hampshire law (section B, above).

D.  Notification and Inspection.

When school personnel intend on administering a non-academic survey the school shall provide ten (10) day notice to parents/guardians.  Included in the notice will be information regarding the purpose of the non-academic survey; how the survey will be administered; how it will be utilized; and the persons or entities that will have access to the results of the completed survey.  Parents or guardians wishing to inspect a non-academic survey will be able to do so in the school's administrative office.  Parents/guardians may refuse to give consent for their student to participate, with or without first reviewing the non-academic survey.  The school will not penalize students whose parents/guardians decline to provide written consent.  The school will take reasonable precautions to protect student privacy during their participation in any non-academic survey.

E.  Consent Exception for Youth Risk Behavior Survey Developed by the Centers for Disease Control and Prevention.

Neither state nor federal law requires prior written consent for administration of the Youth Risk Behavior Survey developed by the Centers for Disease Control and Prevention.  Guidance issued by the Center for Disease Control, United States Department of Health and Human Services, concludes that federal law, including the Protection of Pupil Rights Amendment, also does not require prior written consent from parents or guardians because students are not required to participate and the survey is not paid for by the United States Department of Education. 

However, New Hampshire law nonetheless requires the Manchester School District to provide parents/guardians with notice at least ten (10) days before the Youth Risk Behavior Survey is administered.  Parents may inspect the Youth Risk Behavior Survey at the school's administrative office.  Parents or guardians may opt their student out of participating in the Youth Risk Behavior Survey by providing the Principal with written notice.  Manchester School District staff administering the Youth Risk Behavior Survey shall insure students understand that participation is voluntary and that students who opt-out will not be penalized.

Legal References:

20 U.S.C. § 1232h; 34 CFR Part 98, Protection of Pupil Rights Amendment

RSA 186:11, IX-d

2017 CDC YRBS Guidance Manual

NHSBA history: Revised: May 2018; September 2017; September 2008

NHSBA note, May 2018: Prior to the 2017 amendment to RSA 186:11, XI-d, the notice and previous "opt-out" requirements of the state law were found in NHSBA sample policy ILDA.  With the 2017 amendments, the similarities between the state and federal statutes were greater than their differences, and NHSBA determined to combine the requirements into one policy.  As such, we have modified sample policy ILD to identify some of remaining differences between the applicable state and federal statutes, and to reconcile the resulting overlap between former ILD and ILDA.  NHSBA adoption consideration: Districts should be sure that in adopting the modified ILD they simultaneously repeal policy ILDA (or its equivalent).

NHSBA note, September 2017: The adoption of Senate Bill 43 by the Legislature in 2017 added a requirement for prior written consent from a parent or guardian before a non-academic survey can be administered.  As a result, state law, RSA 186:11, IX-d, requirements are nearly identical to the requirements of the federal Protection of Pupil Rights Amendment.  This update, therefore, combines sample policy ILD, Educational Questionnaires, Surveys, and Research with sample policy ILDA, Non-Educational Questionnaires, Surveys, and Research.

NHSBA Code ILD

First Reading Coordination: 08/14/2018

Second Reading and. Approval BOSC: 08/27/2018