In the Penfield Central School District, a Rochester suburb, students from kindergarten through twelfth grade were asked to answer social-emotional learning surveys. Parents who objected had to go into an online platform and pull their children out. The district did not start that way. "We piloted these surveys in the 2022-2023 school year with an opt-in process," Penfield told the outlet Crisis in the Classroom. "For the 2023-24 school year, we elected to use an opt-out process."

On Monday, Oct. 5, the U.S. Departments of Education and Justice sent every state attorney general in the country a letter declaring that the second approach violates federal law. "If any school expects students to complete 'mental health screenings' or any other similar evaluation or coursework, they must FIRST effectively notify the parent and obtain written consent to administer such screenings," Education Secretary Linda McMahon and Assistant Attorney General Harmeet Dhillon wrote in their joint letter. "When schools ask parents to opt out instead of obtaining prior written parental consent, they violate PPRA."

For New York families, the practical effect is concrete. Any district that runs an emotional, behavioral or mental health screener on a notice-and-opt-out basis is now operating in a way Washington calls illegal. Federal officials want prior written parental consent, meaning a signature collected before a child sees the first question. Ten days after the letter went out, The Standard could find no public response from the State Education Department or from the attorney general's office. NYSED has issued no new guidance telling districts whether to rewrite their consent forms. The letter itself sets no compliance deadline.

What the letter demands

The legal hook is the Protection of Pupil Rights Amendment, a federal law dating to 1974 and known in district offices as PPRA, which shields students from questioning in eight sensitive areas without a parent's sign-off. The second item on that list covers "mental or psychological problems of the student or the student's family," and McMahon and Dhillon read it as broadly as the words allow. "The plain language of the statute is clear: any situation involving a student filling out a form, a screening, a survey, or anything that can be used to evaluate the student's mental health requires prior written parental consent," they wrote, adding a line that leaves districts no middle ground: "Opt-outs are not sufficient in this regard."

The October letter builds on an Aug. 26 notice that Frank E. Miller Jr., director of the Education Department's Student Privacy Policy Office, sent to superintendents and state education chiefs. Miller's back-to-school letter announced that his office would treat any survey touching a protected area as "required," even when a school presents it as optional. The reason, Miller wrote, is that "students commonly feel obligated to participate" when a teacher or counselor hands them the form. The same letter singled out behavioral health screeners that probe a student's emotional state and said districts "must ensure that written parental consent is obtained prior to administration."

Miller also closed a funding question many districts had leaned on. PPRA attaches to programs the Education Department administers. His office now says the consent rule applies "whether or not a specific survey is exclusively or directly administered with Department funds," since nearly every public school takes some federal money through its state.

What the statute actually says

The text of the law is narrower than the letter's paraphrase of it. The consent requirement in subsection (b) applies when a student is "required, as part of any applicable program, to submit to a survey, analysis, or evaluation" in one of the eight areas, which is why so many districts built their screening programs around voluntary participation.

A separate subsection, added by Congress in 2002, lists "the administration of any survey containing one or more" of those same eight items among the activities for which districts must notify parents and "offer an opportunity for the parent" to opt the student out. Federal officials read that provision as a notice requirement layered on top of consent. Miller's August letter states that the opt-out provisions "do not apply as a way of securing parental consent." District lawyers who have relied on the opt-out language for two decades read the same paragraph as the rule for exactly the kind of voluntary screener their schools use.

Under the law's enforcement clause, the education secretary may cut off program funding only after finding that "compliance with such section cannot be secured by voluntary means." The department has made no such finding against any district in New York.

Who is already under investigation

None of the districts the administration has pursued so far are in New York. On July 28 the Education Department opened PPRA investigations into Washington's Bethel School District and Colorado's Denver Public Schools, and said it would examine whether parents were given the chance to keep their children out of surveys and evaluations covered by the law. On Oct. 5, the same day as the attorney general letter, the two departments announced action against the Los Angeles Unified School District, which answered through a spokesperson quoted by K-12 Dive: "The Los Angeles Unified School District complies with all applicable state and federal laws and will continue to do so."

The letter asks state attorneys general to help bring districts into line and promises federal "technical assistance" to that end. In New York that request lands with Attorney General Letitia James, who joined a multistate lawsuit over federal cuts to school mental health grants. Her office has not said whether it intends to relay the federal position to districts, contest it, or leave it alone.

Where New York districts stand

New York City Public Schools already publishes an annual PPRA notice telling families they have the right to written consent before students take part in "any mandatory survey, analysis, or evaluation" touching the protected areas. The word mandatory carries the weight in that sentence, because Washington's position is that a screener offered by a school counselor counts as mandatory no matter what the instructions say.

City officials were moving the other way as recently as last December. That month the New York City Comptroller's office released a report on school mental health services urging the Department of Education to build universal, strengths-based mental health screening into its existing student screening structure beginning in elementary school. The report called for those screenings to include opt-out provisions and privacy protections. That recommendation now runs directly into the federal letter.

Outside the city, the decision sits with district counsel and pupil-services directors in every system that runs universal screeners, school climate surveys or social-emotional learning check-ins of the kind Penfield adopted. When parents there questioned the surveys, Penfield pointed to NYSED guidance encouraging districts to use data to identify social-emotional learning needs. The screeners exist because a classroom is often where a struggling teenager is first noticed, a pattern The Standard examined in its reporting on how schools and families respond to teen mental health.

A switch to signed consent forms changes more than paperwork. Under an opt-out system, a student whose parent never reads the notice is screened by default. Under a signed-consent system the same student is skipped by default, so the families least likely to return a form become the families whose children go unscreened. Districts weighing the change have to decide which of those defaults they can defend to parents, and which one they can defend to federal investigators.

What parents can do now

Start with your district's annual privacy notice, usually posted in the student handbook or on the district website under FERPA and PPRA. Look for any reference to surveys, screeners or social-emotional learning assessments. Then ask the building principal or the district's director of pupil services a few questions in writing: which screening tools the district uses, in which grades, when students will next take them, and whether participation runs on signed consent or on opt-out. Putting it in writing creates a record, the same habit Family Symposium recommends to parents navigating special education requests.

PPRA gives every parent the right to inspect a survey before a school administers it, and that right does not depend on how the current fight over consent resolves. Ask to see the actual instrument, not a summary of it.

Consent cuts both ways. If your child is anxious, avoiding school or showing other signs of strain, a screener may be the fastest route to a counselor. You can tell the school in writing that you want your child included. Family Symposium's guide to school avoidance and anxiety this fall walks through the signs worth watching at home. If the concern is harassment rather than mood, the screener is the wrong door. New York's Dignity for All Students Act gives families a separate reporting process laid out in The Standard's guide to filing a bullying and harassment report.

Parents who believe a district has screened their child without proper consent can file a complaint with the federal Student Privacy Policy Office through its online complaint form. Districts that want to avoid being the subject of one are waiting on Albany, where the State Education Department has not said whether it will issue guidance. They are also waiting on Washington, which promised enforcement without naming a date.