Recap of the Parents Bill of Rights - Part One

Introduction

The Parents Bill of Rights Act (PBOR), - a bill intended to give parents more control over their child’s education - passed in the House. It has been noted that the bill likely will not make it out of the Senate. You can read AASA’s letter in opposition to the bill here. 

News coverage (including press releases from Congressional members) has largely focused on several parental rights and related school requirements identified in the  Education and Workforce Committee's PBOR Fact Sheet and the potential negative impacts that PBOR may have on LGBTQ children. Many people would be surprised to learn that the Parent Bill of Rights primarily amends the two major federal student privacy laws - the Family Educational Rights and Privacy Act (FERPA) and the Protection of Pupil Rights Amendment (PPRA). 

This isn’t to say that amendments to FERPA and PPRA aren’t necessary; they absolutely are. However, the amendments that PBOR makes seem likely to hurt students’ educational opportunities, be ineffective at addressing the student mental health crisis, and massively upend the basic functionality of schools. 

We are most concerned about these four provisions that are not being discussed and are likely to have wide-reaching consequences: 

• Giving parents the right to object to their child using any education technology;  

• Allowing parents to opt-out of their child’s data being collected, used, and shared for legitimate educational purposes;

• Requiring parents to opt-in to surveys or assessments regarding 8 protected categories of information, and to any medical exams (unless there’s an emergency), with no provisions made for students who may need help and can’t get a signed permission slip; and

• Requiring schools to report the gender identity of trans kids to their parents with no exceptions - even if they know the child will be abused as a result of that disclosure. 

To put this in perspective, here’s some background information on current student privacy law and how PBOR may change the status quo:

FERPA 101

FERPA, passed in 1974, provides two major rights to parents and students: 

• Access, by guaranteeing parents (and eligible students) access to their child’s educational records; and 

• Privacy, by restricting unauthorized disclosure of educational records without consent or very specific safeguards.

The Department of Education (USED) has created a plethora of resources to help schools apply FERPA in the digital age. However, that information is scattered and can be hard for schools to find (though USED has put much of it on their privacy website and can be contacted–and will quickly respond–if someone has questions). But finding the information is just the first step - once a school finds the relevant sections of statute, regulation, guidance, and other sources of law, it must be able to interpret the relevant sections. Applying FERPA is even harder; the multitude of situations where privacy arises in the day-to-day operations of schools often don’t have clear FERPA answers, especially when newer technology is involved. 

PBOR’s Amendments to FERPA

The first PBOR clause amending FERPA requires schools to notify parents about what technology is used “in the classroom for purposes of educating the student” and let parents object to it being used for their child. Under FERPA, schools are permitted to consent on behalf of parents–assuming specific privacy safeguards are in place–to enable nearly every aspect of tech-supported education, from keeping attendance records to grading exams. PBOR could potentially reverse the decades-long practice of schools consenting to educational technology use on behalf of parents, forcing schools to contact every parent, every time the school wants to use EdTech– an issue that education stakeholders have flagged before. 

It is not clear what the right to object means. Can the parent opt their child out? Will schools be required to have a formal process to handle objections? Any student whose parents have objected would likely be unable to use EdTech. Teachers may have to choose between creating and implementing multiple lesson plans for the same classroom or not using EdTech at all. This change would leave teachers not only ill equipped to teach in a modern environment, but also coping with post-pandemic challenges like learning loss with resources of the 1980’s. 

It is important to protect the ability of schools to use technology as core curriculum–the digital equivalent of a textbook–without permitting opt-outs. This is not to say that additional parental rights shouldn’t be created in FERPA, including the ability to opt-out in certain circumstances. Requiring that students use extraneous technology that doesn’t add proven educational value (such as heart monitors to measure a student’s “effort” in gym class) can pose a risk to their privacy and to the trust between families and schools. Rather than letting parents object to all educational technology being used with their children, a better change to FERPA may be ensuring that educational technology is not subject to parental consent requirements when it is used as core curriculum or for underlying school administration while permitting parents to opt out of technology that is an add-on (for example, the digital equivalent of field trips or supplementary study guides). 

PBOR also reiterates current requirements for districts under FERPA, underscoring their importance to Republican lawmakers:

• “No educational agency or authorized representative of such agency may sell student information for commercial or financial gain” (already legally restricted by FERPA), with the exception of “products sold to students by or on behalf of the educational agency or institution, such as yearbooks, prom tickets, and school pictures;”

• Schools must engage meaningfully with parents when they develop a privacy policy or procedure (a new provision that has long been considered best practice); and 

• Requiring schools to provide parents, upon request, with information about who their child’s data is being shared with (this is already required under FERPA in most cases, but expanding this is, again, a best practice).