The Advocate April 2023 - HR5, FERPA and PPRA

March was a busy time on Capitol Hill as House Republicans approved their signature K-12 initiative The Parents Bill of Rights (HR5). Moving at lightning speed, HR5 was introduced, marked up and passed out of the House Education and Workforce Committee and voted on by the full U.S. House of Representatives in less than three weeks. The passage of the bill out of Committee was strictly on party lines and the final vote tally in the House was 213-208, with five Republicans—mostly members of the House Freedom Caucus—joining all Democrats in voting against it.

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. Floor debate primarily focused on whether the bill would lead to the banning of books and whether parents would have enough opportunities to object to what their child was learning and how they were being treated in school.

But if you only read the headlines and listen to the debates, you would never know that major changes to student data privacy laws are actually at the heart of the bill. Specifically, amendments to the Family Educational Rights and Privacy Act (FERPA), and the Protection of Pupil Rights Amendment (PPRA). While AASA believes amendments to FERPA and PPRA are necessary and should be prioritized as part of broader policy conversation around the use of education technology in schools, the unfortunate reality is the FERPA and PPRA amendments in HR5 could majorly disrupt how schools operate by limiting the use of edtech in schools, restricting access to student data for legitimate educational purposes and requiring parental opt-in for mental health services.

AASA sent a letter opposing HR5 for principled reasons, such as deep concerns about federal overreach into localized education policy and decision-making and the number of new unfunded mandates. We also highlighted how the bill would change the longstanding precedent that districts can consent to educational technology use on behalf of parents and let parents object to its use in the classroom for their child. This could force schools to contact every parent, every time the school wants to use any kind of edtech.

The bill does not specify what object means or the process by which schools would handle objections, but the implementation reality is that any student whose parents have objected to the educational technology would likely be unable to use it. This would mean 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 1980s.

Another aspect of HR5 that AASA objected to is allowing parents to opt-out of their child’s data being collected, used and shared for legitimate educational purposes. Allowing parents to opt-out of schools using student information for legitimate educational purposes may have a serious impact on student success, potentially leaving students “to navigate in the dark” when making pivotal decisions where educational data could shed light on paths forward. For example, giving parents the ability to opt out of the collection, disclosure, or use of personal information collected from students and commonly used education technology in the classroom would make it nearly impossible for schools to meet the educational needs of students and use a host of online diagnostic, differentiated and adaptive assessments and tools to measure a student’s understanding, proficiency and growth academically.

Another concern with HR5 is the notification requirement that schools give parents the chance to opt-in before administering non-emergency “medical examinations or screenings” - defined as including any “mental health or substance use disorder screening.” It is good for parents to know when schools administer non-emergency medical examinations or screenings to their children - and it could be an overstep if parents aren’t informed. Students whose parents are not engaged or are otherwise unavailable to provide opt-in consent, wouldn’t be able to get the medical care they need, including mental health services. This would make a district’s ability to identify child abuse or address students’ immediate mental health needs much more challenging.

A few amendments to HR5 that passed during the floor debate would specifically focus on transgender students, such as the right of a parent to know if a child is using a bathroom or locker room or being addressed by a name or pronoun different than the one correlated to their birth certificate. Another provision would require the school to disclose publicly if any transgender girls were playing on athletic teams or using bathrooms or locker rooms for girls.

Also, there was an amendment during the floor debate that would have transformed Title I into an education savings account voucher. The amendment had no fiscal strings and would have allowed Title I money to “follow the child” to either the homeschool, private school or public school of the parent’s choice. Fortunately, the amendment was soundly defeated by a vote of 311-113. You can see how your member of Congress voted on the amendment here. This will definitely not the be the last floor vote on vouchers this year given Republican control of the House, so superintendents should continue to voice concerns with the privatization of federal education funding as much as possible.

While this bill was passed expeditiously and with significant political fanfare, we are not expecting the legislation to move in the Senate given the Democrats control of the chamber. However, we are expecting legislation that focuses exclusively on the rights of transgirls/transwomen to play on high school athletics teams to be on the House floor as early as this month. That legislation known as the Protection of Women and Girls in Sports Act of 2023 (HR 734) will be voted on by the full House and likely passed on party-lines.

We also expect other legislation related to FERPA and PPRA to move during this Congress and will remain vigilant in tracking these bills to ensure they strike the right balance between ensuring parents are informed about educational technology used by their children while still giving districts the leeway to utilize this technology without jeopardizing basic educational operations and disrupting critical learning in classrooms.