The Volokh Conspiracy
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Can a Public School Ask Students to State their Religion?
Overzealous school administrators should think about students' privacy rights.
Last month, at the end of a three-year saga, the U.S. Department of Education ruled on a complaint that New Jersey parents had filed against the Cedar Grove School District. The conflict is interesting for what it suggests about overreaching school administrators and about the capacity of persistent parents who believe their kids' rights have been violated to get things done.
Back in 2021, without giving parents prior notice, the district surveyed elementary, middle and high school students about a variety of sensitive topics, including the students' gender identity, race, ethnicity and, in the case of high school students, religious affiliation. The district argued that it was collecting the students' information confidentially in the interests of promoting diversity, equity, and inclusion.
When they learned about the surveys, many parents objected. One of those parents was my colleague at St. John's Law, Patricia Montana. As she recounts in a recent Legal Spirits podcast, with a little research, she discovered that the surveys violated several state and federal privacy laws, including, with respect to the question about religious affiliation, the federal Protection of Pupil Rights Amendment, or PPRA. The PPRA requires a school district that wishes to survey students on certain subjects, including religious affiliation, to notify parents in advance and allow parents an opportunity to opt their children out of participation.
The district didn't act on the parents' complaints, so the parents contacted the NJ and US Departments of Education for help. The NJ authorities quickly sided with the parents and ordered the district to destroy the results of the surveys. The US DOE delayed giving an answer, for reasons that are unclear, so Montana and the parents sued. Last month, US DOE finally ruled—again, in favor of the parents. The US DOE ordered the district to train its employees so that violations of the PPRA's parental notification and opt-out provision do not occur again (and to provide documentation of such training) and, in future, to notify parents of their rights under the PPRA.
This is a fascinating story for a couple of reasons. First, it shows how overzealous school administrators can be so sure of their own good faith that they ignore basic privacy concerns. How could the administrators have thought it was wise to ask students about their religious affiliations? Just as the state has no business forbidding students from holding and expressing religious beliefs, it has no business asking students to reveal their beliefs. Even if surveys are anonymous—and Montana and the other parents were skeptical about how anonymous they were—students could legitimately feel uncomfortable revealing such sensitive information to school authorities. Plus, asking about religious affiliation, at least without advance notice to parents, is illegal—which the school administrators should have known.
Second, the story shows that parents can prevail against school bureaucracies. True, some of the parents' success here resulted from the serendipitous fact that one of them just happened to be a lawyer, who saw that what the district had done was illegal. That won't always be the case, of course. But with luck and persistence, it is possible to win an important battle every now and then. That's worth remembering as another school year begins.
You can listen to my podcast with Professor Montana here.
