Dear County and District Superintendents and Charter School Administrators:

Surveys under the PPRA and Records under FERPA

We have received inquiries as to whether an August 26, 2026, letter from the U.S. Department of Education (USDOE) Student Privacy Policy Office (SPPO) changes federal law impacting public education. It does not. The federal law remains unchanged. A USDOE letter cannot modify or override statutory provisions. The August 26 letter does not have the force and effect of law, and it does not bind the public or create new legal standards.

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Under the federal Protection of Pupil Rights Amendment (PPRA), prior written consent of the parent (or adult student or emancipated minor student) is needed to “require” a student, as part of any applicable program, to “submit to” a “survey, analysis, or evaluation” that reveals information concerning:

1. political affiliations or beliefs of the student or the student’s parent;
2. mental or psychological problems of the student or the student’s family;
3. sex behavior or attitudes;
4. llegal, anti-social, self-incriminating, or demeaning behavior;
5. critical appraisals of other individuals with whom respondents have close family relationships;
6. legally recognized privileged or analogous relationships, such as those of lawyers, physicians, and ministers;
7. religious practices, affiliations, or beliefs of the student or student’s parent; or
8. income (other than that required by law to determine eligibility for participation in a program or for receiving financial assistance under such program). 20 U.S.C. 1232h(b).

This requirement for prior written consent of the parent is sometimes referred to as “active” consent, or “opt in.”

The August 26, 2026, letter expresses the SPPO’s view that every survey, analysis, or evaluation administered by a school to students that addresses one or more of these eight areas necessarily “requires” students to “submit to” it, such that active consent would always be needed, without regard to whether student participation is expressly made voluntary. This appears to be a new interpretation of the SSPO, whose previous approach appears to have been that the issue of whether a survey, analysis, or evaluation “requires” students to “submit to” it is to be determined based on the totality of circumstances. As noted above, the SPPO’s new view is not law. The federal law remains unchanged. That is, under the federal law, active consent is needed only if the survey, analysis, or evaluation addressing one or more of these eight areas “requires” students to “submit to” it.

California law in this area also remains unchanged. California sets a general rule that is, to some extent, stricter than the federal rule. That is, state law provides generally for an “active consent” requirement relating to any “tests, questionnaires, surveys, or examinations” containing questions about the pupil’s or the pupil’s parents’ or guardians’ beliefs or practices in “sex, family life, morality, and religion,” at grades one to twelve, without regard to whether the exercise is considered “required” as opposed to voluntary. Cal. Educ. Code Section 51513.

However, notwithstanding that general rule, California allows for a “passive consent” (or “opt out”) process with respect to “anonymous, voluntary, and confidential” research and evaluation tools to measure pupils’ “health behaviors and risks,” including tests, questionnaires, and surveys containing age-appropriate questions about the pupil’s attitudes concerning or practices relating to sex, in grades seven to twelve. As to such tools, a school shall not require active consent (i.e., “opt in”). A parent or guardian must be notified of the right to excuse their child from such a test, questionnaire, or survey through a passive consent (i.e., “opt-out”) process. Cal. Educ. Code Section 51938(c).

It is important to note that for this passive consent exception to apply, the tool must be not only anonymous and confidential but also “voluntary.” It is recommended that a school take steps to expressly communicate voluntariness, i.e., that students are not “required” to “submit to” the exercise. For example, the tool’s written instructions can emphasize that participation is voluntary. For another example, the verbal instructions from the school staff member administering the tool can make explicit to students that participation is voluntary, and that nonparticipation will have no impact on the student’s grade.

Finally, both federal and California law require that schools notify parents if a tool such as those described above is to be administered, and that schools make all instructional materials that will be used in connection with the administration of any such tool available for parent inspection. 20 U.S.C. 1232h(a), (c)(2)(C)(ii); Cal. Educ. Code sections 49091.10(a); 51513. This is equally so with respect to those tests, questionnaires, and surveys that qualify for a passive consent process in grades seven to twelve. Cal. Educ. Code 51938(c).

For further information on one particular survey, the California Health Kids Survey, see https://www.cde.ca.gov/ls/he/at/chks.asp.

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The SPPO’s August 26, 2026, letter that is referenced above also addresses gender support plans and the Family Educational Rights and Privacy Act (FERPA). 20 U.S.C. 1232g. We are providing a reminder that a support plan that includes information regarding a student’s gender identity and is maintained separately from a student’s cumulative file is subject to inspection and review by parents, upon request, under FERPA. See, for example, the CDE’s previous guidance on this point at “Further Update Regarding FERPA,” February 11, 2026, https://www.cde.ca.gov/nr/fa/.

Under FERPA, parents of students under eighteen years of age have the right to inspect and review the education records of their children, upon request. 20 U.S.C. 1232g(a)(1)(A); 34 C.F.R. Section 99.5(a)(1).Under FERPA, education records are records, files, documents, and other materials that contain information directly related to a student and are maintained by the educational agency. 20 U.S.C. 1232g(a)(4)(A). FERPA does not recognize the following as education records:

• records made by school personnel “which are in the sole possession of the maker thereof and not accessible or revealed to any other person except a substitute,”id.at subd. (a)(4)(B)(i);
• records maintained by law enforcement units of the educational agency or institution created for law enforcement purposes,id.at subd. (a)(4)(B)(ii);
• records of employees of an educational agency “which relate exclusively to such person in that person’s capacity as an employee and are not available for use for any other purpose,”id.at subd. (a)(4)(B)(iii); and
• records “made or maintained by” a medical or mental health professional “in connection with the provision of treatment to the student” for students “eighteen years of age or older” that “are not available to anyone other than persons providing such treatment,”id.at subd. (a)(4)(B)(iv).

As we have noted in previous communications to you about FERPA, whether a support plan (or other education record of a student) is maintained by school officials in a central file or in a separate location to ensure privacy related to third parties (such as other school staff, students, or volunteers), it remains subject to a parental request for inspection and review in accordance with FERPA’s provisions. See, for example, “Further Update Regarding FERPA,” February 11, 2026, https://www.cde.ca.gov/nr/fa/.

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California remains focused on moving the needle for student achievement. Thank you for all you do for California’s students.

Sincerely,

David Schapira
Chief Deputy Superintendent
Chief of Staff
California Department of Education

Ingrid Roberson
Chief Deputy Superintendent