Commissioner of Education Finds Violation of Consent Requirements for Administering Student Surveys
On October 24, 2016, the New Jersey Commissioner of Education (“Commissioner”) upheld an Administrative Law Judge’s (“ALJ”) decision that the Ocean Township Board of Education (“Board”) violated a state education statute which requires school districts to obtain informed written consent prior to administering a student survey. However, the Commissioner rejected the ALJ’s decision to impose a monetary penalty against the Board.
In Green v. Board of Education of the Township of Ocean, the parents of sixth-graders successfully argued that the Board failed to obtain written informed consent in violation of N.J.S.A. 18A:36-34. Pursuant to the Board’s policy and practice at the time regarding student surveys, the Superintendent wrote a letter to all parents informing them that an “Attitude and Behavior Survey” will be administered to the students which addressed issues related to family life, school, extracurricular activities, personal relationships, and drugs and alcohol. The goal was to obtain information to assist the Board in developing programs and services for the school community. In addition, the Superintendent’s letter explained to the parents that the survey will be anonymous.
The Superintendent instructed the parents that if they do not want their child to participate in the survey, they must return an “opt-out” form. Thereafter, the Board administered the survey only to those students whose parents did not submit the opt-out form. Sometime after the administration of the survey but before the parents filed their petition, the Board revised its policy.
The Commissioner concurred with the ALJ that the Board’s “opt out” system does not satisfy the informed written consent requirement pursuant to N.J.S.A. 18A:36-34. While the Superintendent provided notice to the parents of the specific nature of the survey, a parent’s silence or failure to opt-out of the survey does not rise to the level of informed written consent. Moreover, the Commissioner and ALJ rejected the Board’s argument that the anonymity of the survey does not require any written consent from the parents. Rather, N.J.S.A. 18A:36-34 imposes an affirmative duty on the school district to secure express written consent. Stated differently, the statute permits the school district to give the survey only after the parent “opts in.”
As a result, the Commissioner agreed with the ALJ that the Board violated N.J.S.A. 18A:36-34 and required the Board to redact the results of the survey from student records if any results were contained therein. The Board was also required to retrieve all survey information from any outside agencies that may have received the survey results.
Fortunately for the Board, the Commissioner did not impose a $1000 penalty recommended by the ALJ. In reaching that conclusion, the Commissioner reasoned that the Board had revised its policy and had taken remedial steps to comply with N.J.S.A. 18A:36-34 moving forward. Therefore, a monetary penalty is not appropriate.
The entirety of N.J.S.A. 18A:36-34 regarding the administration of student surveys can be found here.
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