Legislature(2001 - 2002)
04/09/2002 03:00 PM House HES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 408-STUDENT QUESTIONNAIRES AND SURVEYS CHAIR DYSON announced that the next order of business would be HOUSE BILL NO. 408, "An Act relating to questionnaires and surveys administered in the public schools." Number 1397 APRIL HOTCHKISS, Substance Abuse Counselor at Juneau-Douglas High School (JDHS), Juneau Youth Services, informed the committee that although she usually doesn't become politically involved, this legislation impacts how well she can do her job. Ms. Hotchkiss announced her support of HB 408 because it allows the Youth Risk Behavior Survey (YRBS) to be done. She explained that she attends many meetings with parents, teachers, and the community. At [those meetings], one of the major questions is in regard to the drug situation at [Juneau-Douglas High School]. She said she couldn't comfortably answer that question because she would be guessing the answer, since there is no proof with regard to how JDHS is doing with the drug problem. Also, this is problematic because it leaves Ms. Hotchkiss, as a professional, guessing what [the students] need. For example, she informed the committee that she has heard a rumor that cocaine is "big" at JDHS now. With that information, she redirected her focus on cocaine awareness education. She reiterated that she is just guessing. MS. HOTCHKISS informed the committee that many kids she sees aren't drug users, but only look like them. Therefore, many assumptions are being made. She said, "People tend to assume a lot. And without an anonymous test to know where we stand and what we do need to focus on, we tend to be spinning our wheels." In summary, Ms. Hotchkiss said, "Without identifying what the problem is, it is hard to be able to work the solution out." Number 1290 JESSICA PARIS, High School Teacher, Juneau-Douglas High School, testified in support of HB 408. Ms. Paris said she felt that society is often naive about the problems youth are facing and the risky behaviors in which they choose to participate. Without the 1999 YRBS, Ms. Paris said that she would've never thought that about half of the juniors and seniors and about one in four freshmen at JDHS are having sex. She expressed the need to do a better job of educating [students] how to say "No." Although there are programs that attempt to confront these issues, there need to be accurate statistics in order to evaluate the need and effectiveness of the programs. The current law has hampered the [school's] ability to administer a survey that will judge whether these programs are effective. Under HB 408, parents will still be able to refuse permission for their child to participate in an anonymous survey and students will maintain the right to refuse to participate. Under the current law, parents of students and students who want to participate in an anonymous survey can't if the student doesn't remember to return the consent form, which is a large problem. Number 1145 ANDREE McLEOD, testifying via teleconference, began by saying that committee members have asked her ways, other than the YRBS, that this information could be obtained from students. Ms. McLeod said that although she didn't have the wherewithal to answer [this question], the Department of Health & Social Services (DHSS) and EED both have the financial and human resources to answer this question. She suggested using a key informant survey or a random stratified sampling to find out [more accurate results]. Ms. McLeod felt that a 10 percent [response] from surveys isn't so bad; the [current response] is at 30 percent. Ms. McLeod related her belief that surveying minors without written parental consent is a form of abuse, which is unacceptable. Ms. McLeod requested that DHSS and EED find other ways to gather this information. She charged the departments with negligence in not doing so before now. Number 0897 BILL DIEBELS, JR., Parent, informed the committee that he is moderately involved in support activities at school. Mr. Diebels noted that he recently learned how difficult it is to gather statistically valid data on drug, alcohol, and sex problems due to the logistical nightmare of obtaining parental consent before conducting anonymous surveys. Without this information, Mr. Diebels related that one can't be sure that resources are being targeted where they're most needed. Furthermore, the effectiveness of the programs can't be measured. Mr. Diebels announced his support of HB 408 and urged the adoption of its intent. However, Mr. Diebels pointed out that Section 2 says in part, "the school district shall provide each student's parent or legal guardian the opportunity to submit to the school principal a written denial of permission to take the questionnaire or survey." MR. DIEBELS said it would be a shame for future arguments regarding what constitutes "opportunity" to diminish the intent of this legislation. Therefore, he suggested the following language: If a school district administers an anonymous questionnaire or survey, written permission from a student's parent or legal guardian is not required, but the school district shall not ask any student to participate in such a survey if that student's parent or legal guardian has submitted to the school principal a written denial of permission to take the questionnaire or survey. Number 0785 RICHARD BLOCK, Christian Science Committee on Publication for the State of Alaska, testified via teleconference. He informed the committee that the federal law [20 U.S.C. Section 1832 and 20 U.S.C. 1232h] has a direct bearing on [HB 408]. He characterized the thrust of those laws as the parental right to be informed with regard to what's going on in school with respect to the curriculum, surveys, and questionnaires, as well as the right of parents to prevent their children from participating in these surveys. Therefore, he found it curious that there have been grants that were denied on the basis of failing to provide information [obtained through these questionnaires and surveys]. MR. BLOCK reported that in researching this claim, he discovered that one of the grants that was applied for was denied not by the federal government but rather by EED, because of the failure to provide data supporting [the need for the grant]. In his discussion with the department, any data substantiating the [grant] request would've been satisfactory; the data didn't necessarily have to result from a questionnaire. He recalled Ms. McLeod's testimony that this data could be gathered from police reports, absentee reports, and disciplinary reports from the schools. He informed the committee that through his inquiry of these surveys as they relate to grant requests he could see that there is probably a value to these surveys. Therefore, an absolute barring of these surveys may not be in the best interest of the schools. However, he recognized why there is a great deal of concern with regard to the content of these surveys, including the YRBS. MR. BLOCK turned to his view as a parent, and related his concern that the content of the survey may be inappropriate in the eyes of some parents because the questions seem to propose that there's a certain amount of propriety to the things being asked. In conclusion, Mr. Block specified that his concern is not in regard to whether surveys should be given or not given but rather that parents be adequately informed in order to provide sound judgment. Therefore, he proposed an amendment to tighten the notice provisions by requiring that the notice be mailed directly to the parent. The amendment specifies that the notice be mailed two weeks in advance via First Class mail. Number 0456 KATHRYN ARLEN, Member, Board of Directors, Youth on the Streets Action Group; Member, Meeting the Challenge Advocacy Program; Volunteer, Detention, Johnson Youth Center, noted [that the committee packet should include] her written testimony. Ms. Arlen also noted her agreement with Mr. Block's suggestion to provide parental notification via the mail. She highlighted her agreement that every parent should be informed. However, she noted her concern with regard to "active" versus "passive" parental consent. MS. ARLEN turned to her experiences through volunteering. She informed the committee that a great deal of young people come from "fractured, rearranged, repartnered families." Therefore, she questioned who the parent would be [that would be charged] with signing and returning the parental consent notification. Ms. Arlen related her experiences with young people who are suffering the consequences of risky behavior. She noted that the young people with whom she works requested that she relay the following message: "We need to get things off our chests. We need to have the right to answer questions just like our parents do and a lot of times ... our parents don't care or they don't want everyone else to know what's really going on." Ms. Arlen said that she strongly urged the passage of HB 408. Number 0146 RIC IANNOLINO, Chair, Youth on the Street, testified in support of HB 408. He commented that any survey that is anonymous and voluntary does not violate either the protection of people's rights, known as the Buckley Amendment, or family education rights and the Privacy Act of 1974. TAPE 02-29, SIDE A Number 0001 MARY TONSMEIRE, Nurse, Adolescent Health Care Coordinator, Juneau-Douglas High School, began by saying that there are many angles she could take in supporting HB 408. Although she expressed the importance of parent notification, she [conveyed the need for passage of HB 408] in order to obtain a true cross- section of the population that would afford the ability to determine the trends in JDHS as well as the state. Ms. Tonsmeire informed the committee that last year the high school started the Postponing Sexual Involvement (PSI) program in which peer educators are trained. This program comes out of Emory University in Atlanta, Georgia. The statistics from Atlanta illustrate that there should be some significant reductions in attitudes toward becoming sexually involved at an early age. At this point, there is no mechanism by which to evaluate whether that is true. Therefore, Ms. Tonsmeire expressed the need to see whether the youth hold the lessons that their peers taught them a year or two earlier. Ms. Tonsmeire concluded by saying that is merely one of many issues. Number 0177 LISA TORKELSON, Full-time Parent, testified via teleconference in opposition to HB 408. Ms. Torkelson emphasized that passive consent isn't consent at the bank, school, or the grocery store. "Only our signatures are consent," she highlighted. Therefore, surveys shouldn't be treated any differently. Ms. Torkelson pointed out that students can't go on a field trip or obtain aspirin without parental permission and surveys shouldn't be any different. She informed the committee that there are sources of documented evidence that anonymity doesn't exist when surveying students in school. Furthermore, she said there is a list of places where reliable data can be obtained without surveying students. Ms. Torkelson related that the federal government doesn't make money contingent upon the provisions of specific survey data. Moreover, federal law also prohibits making the sharing of personal data mandatory when tied to grants. She stressed that self-reported data isn't reliable. MS. TORKELSON said that if HB 408 passes, [Alaska school districts] will be open to potential lawsuits. Currently, New Jersey is facing this issue in court. Lawsuits are much more expensive than most grants. Ms. Torkelson pointed out that HB 408 doesn't limit questions to those in the YRBS. "There's documented evidence that any topic is and has been open for discussion within the confines of the survey," she charged. Although she acknowledged that those in support of HB 408 speak of the importance of parental notification, she said she hasn't found where [parental notification] would occur under HB 408. She concluded by urging the committee to protect the right to privacy and thus she suggested not passing HB 408. Number 0385 BARBARA BONNER, Teacher, CHOICE, Juneau-Douglas High School; Member, Youth on the Streets, informed the committee that CHOICE is a program for at-risk students. Ms. Bonner announced her support of HB 408. Ms. Bonner informed the committee that JDHS conducted a survey last year for which parental permission forms were sent home for the parents to sign. Only those students returning the permission forms were able to take the survey. In her classroom of 27 sophomores, there was one student who could take the survey. That one student doesn't represent the other students in the classroom, which included some of the neediest students in the district. If surveys are conducted in this manner, it's not representative of what is really happening with the youth. Therefore, she urged the committee to support HB 408. Number 0468 DEE HUBBARD testified via teleconference. She pointed out that HB 70 didn't say that surveys couldn't be done; rather, it specified that parents must be asked first. Ms. Hubbard related a quote from Carol Nunn (ph) in North Carolina regarding a New Jersey statute that "married" 20 U.S.C. Section 1232h: A parent's silence should never constitute consent. A school district should never second-guess why a parent has not sent back a consent form. Passive consent is an oxymoron, and only a moron would rely on passive consent when surveying minor children without their parent's informed, active, and written consent. Number 0579 SAM TRIVETTE, Parent, informed the committee that his son took these surveys when they were still permitted. His son related to him that he and his friends were fairly thoughtful when taking the survey and, in fact, answered the questions truthfully because the survey was anonymous. Therefore, Mr. Trivette related that he didn't believe these surveys were problematic if they are anonymous. He noted that he worked for the Department of Corrections for 33 years and was involved with surveys, and therefore he said he understood the need to have good information to make good decisions on educational issues. It is critical to obtain this information. Mr. Trivette related that the parents who attended a parent group meeting [at JDHS] were all supportive of these surveys. Number 0708 KAREN McCARTHY, Staff to Representative Con Bunde, Alaska State Legislature, speaking as the committee aide for the House Special Committee on Education, sponsor of HB 408, reiterated that this is a voluntary, anonymous survey, which is in sharp contrast to the New Jersey court case and the federal law. Ms. McCarthy pointed out that 20 U.S.C. Section 1232h [protects the rights of parents and students] because it says that "schools and contractors have to obtain written parental consent before the minor students are required to participate." However, the survey in HB 408 is completely voluntary. As the law is written, school districts and social service agencies are losing grants that are meant to help prevent and combat risky behavior in young people. That situation needs to be changed, she said. The students who are at most risk for such behavior are those whose parents aren't involved in their children's lives, and those parents don't return active-consent forms. Ms. McCarthy concluded by relating Representative Bunde's hope that HB 408 would move from this committee today. REPRESENTATIVE STEVENS recalled hearing that school districts can decide whether to conduct these surveys via questionnaire. MS. McCARTHY answered that such was her understanding, and added that it's completely voluntary. In further response to Representative Stevens, she agreed that taking the survey is also voluntary with regard to the child. She specified that a child may review the survey in total and refuse to take it or the child may decide not to answer a particular question. REPRESENTATIVE JOULE inquired as to the penalties for breach of confidentiality. Number 0899 KRISTEN BOMENGEN, Assistant Attorney General, Human Services Section, Civil Division (Juneau), Department of Law, answered that she didn't know what the specific penalty would be. However, she said that a number of methods for recovery would be available for individuals if [breach of confidentiality] resulted in individual privacy issues. She surmised that using confidential information would be in violation of an employment contract. She noted that there may other specific penalties in federal education law and state law of which she is not aware. Number 0954 ELMER LINDSTROM, Deputy Commissioner, Office of the Commissioner, Department of Health & Social Services (DHSS), related his belief that EED and DHSS both have clear statutory obligations relative to the preservation of confidentiality. He deferred to Tammy Green, Epidemiology Section, who agreed with Ms. Bomengen's comments. Mr. Lindstrom said that he could provide the committee with a written response tomorrow. MS. McCARTHY, in regard to the penalties for breach of confidentiality, informed the committee that a complaint can be filed with the Professional Teaching Practices Commission (PTPC). Furthermore, federal law [20 U.S.C. Section 1232h] says: (d) Enforcement The Secretary shall take such action as the Secretary determines appropriate to enforce this section, except that action to terminate assistance provided under an applicable program determines that (1) there has been a failure to comply with such section; and (2) compliance with such section cannot be secured by voluntary means. MS. McCARTHY summarized that per federal law the U.S. Secretary of Education could cut off funding to the school district. CHAIR DYSON, upon determining that no one else wished to testify, closed the public hearing on HB 408. Number 1071 REPRESENTATIVE WILSON recalled her nine-and-a-half years teaching in a school system of 4,000 students, and remarked on how few of the permission slips are returned [for various things]. Therefore, [the school district] went to passive permission. She emphasized the importance of having proof [of the effectiveness] in regard to what is taught. Representative Wilson urged everyone to vote for HB 408. REPRESENTATIVE STEVENS recalled testimony that the denial of grants isn't really an issue because one of the grants that was denied was denied by EED. However, the testimony from the professionals is that there are numerous grants that have been lost due to the lack of information. REPRESENTATIVE CISSNA, as a parent and foster parent, remarked that one can only find out what teenagers are thinking by asking them. Furthermore, [the school districts/the state] can't afford to pay for programs unless there is knowledge with regard to what and how those programs are doing. CHAIR DYSON recalled that Version C [22-LS1458\C, Ford, 3/21/02] was adopted [March 26, 2002]. Number 1238 REPRESENTATIVE JOULE said that he would like an answer to his question regarding the penalties for breach of contract, even if that answer comes after HB 408 has moved to the next committee of referral. Representative Joule related the importance of obtaining a snapshot of what students are facing [in order] to make adjustments and review [those adjustments that have already been made]. However, Representative Joule remained concern with regard to anonymity. He related his belief that the penalties for breach of confidentiality would be fairly severe. REPRESENTATIVE COGHILL remarked that in the smaller communities, anonymity would be even more important. Representative Coghill said although he understands the need to know, he struggles with the societal question of whether the school should [have to] fix [problems related] to family struggles. He didn't view the school as fixing these problems. Representative Coghill questioned whether [HB 408] is about dollars or families. That is, when is it more important for the parents to acquiesce so that the survey can be done in order to obtain grants to do social engineering. "At what point does the government [public schools] have to fix it all," he asked. He noted his refusal to believe that the school is the only place to fix these problems. Therefore, Representative Coghill informed the committee that he wouldn't be supporting HB 408. He stressed the need to obtain active permission. REPRESENTATIVE JOULE said he didn't necessarily view this as [something] the government should fix. Once the information is obtained by the school districts, the schools should be able to review the information in order to inform the community of the results. Therefore, [there would be] the type of community involvement to which Representative Coghill alluded. Representative Joule said he didn't view HB 408 as a way in which to obtain grant money. He encouraged the local school districts to bring [the information obtained from questionnaires] back to their local school councils. REPRESENTATIVE STEVENS remarked that he would agree with Representative Coghill if this were a perfect world and every child had two supportive and active parents in their lives. However, there are children that are falling through the cracks, and [the state] has an obligation to those children as well as those with active parents. He reiterated earlier testimony that these [surveys] are voluntary. REPRESENTATIVE COGHILL agreed that there are "some broken places in society." However, he charged that just because there are parents who don't participate, "we" are going to turn a "blind eye" to those parents who are involved. In so many areas of law, everyone pays the price for the broken portions of society. The voluntariness is being taken out of the hands of the parents [under HB 408]. Number 1610 REPRESENTATIVE KOHRING noted his agreement with Representative Coghill's remarks. Representative Kohring related the following from Lisa Torkelson's e-mail: "In conclusion, House Bill 408 when it comes up for a vote, please retain parental rights and vote 'Do Not Pass.' After all, isn't it the school districts who say they desperately want parental involvement?" With regard to funding, Representative Kohring said he wasn't convinced [the legislature] should be concerned with the passage of measures tied to the funding of grants. REPRESENTATIVE WILSON echoed earlier testimony that [HB 408] isn't just about obtaining grants, but is about the school system's trying to determine whether its [programs] are working. Number 1672 CHAIR DYSON informed the committee that a few years ago the legislature passed HB 70 with a 39-0 vote in the House and a 19- 1 vote in the Senate, and was immediately signed by the governor. That legislation was viewed as a major strengthening of parental rights with regard to the invasive and private questions that a school can ask. He said that some of the questions [that are asked] are outrageous, and there isn't anything in HB 408 that limits the scope of the outrageous questions that might be asked. When the Anchorage School District came forward because it couldn't obtain enough active parental permission to obtain the data necessary to know what is happening with the students and to evaluate the efforts to remediate, he agreed to hear the bill. CHAIR DYSON noted that he has a letter from the president of the Anchorage Parent Teacher Association (PTA), which says they never even heard about [HB 408]. In the past, the Council of PTAs has been opposed to passive parental permission. Furthermore, the Anchorage School District's web site doesn't mention the problem either. CHAIR DYSON emphasized that passage of HB 408 merely requires notification of anonymous surveys. There is no specification as to how the notification will occur. Therefore, a student could still be given a form to take home and return to the school. Chair Dyson noted his strong objection to that. Furthermore, Chair Dyson noted his belief that by-and-large HB 408 is about money. He echoed earlier testimony that federal law prohibits disqualification from grants if there is a problem with parental consent. Therefore, he didn't view that as a problem. Furthermore, the federal law says that questions violating a child's Fourth and Fourteenth Amendment [rights] can't be asked. Children can't be asked to incriminate themselves. CHAIR DYSON said he interpreted the New Jersey case to mean that it's not voluntary when a voluntary survey is given to the students and [those administrating the survey] stress the need [for the students to take the survey] and everyone else is doing it. Such a situation is compelled speech in violation of the First Amendment. He informed the committee that under the federal law [individuals] may not be asked [questions regarding] their political affiliation; mental and psychological problems; sex behavior and attitudes; illegal, antisocial, and self- incriminating or demeaning behavior; critical appraisals of other individuals; legally recognized privileged or analogous relationships; and income. Furthermore, the New Jersey Third Circuit Court of Appeals decision dated December 10, 2001, seems to mean that if [HB 408] passes as written, it will be in violation of federal law. CHAIR DYSON turned to the issue of anonymity. He said that very experienced teachers have related to him that there is no such thing as anonymity with a survey conducted in a classroom. He expressed his hope that these surveys would be conducted in large groups in order to minimize the loss of anonymity. Chair Dyson pointed out that information pertaining to specific children won't be available because of the anonymity, and furthermore street kids don't take surveys. Although he agreed that "we" want to know what is going on in society, he stressed that those willing to vote in favor of HB 408 are willing to sacrifice the parents' rights in order to obtain more data. Chair Dyson informed the committee that he has had some high- ranking educators come into his office and tell him that their districts are in favor of HB 408, but they, as parents, weren't. Chair Dyson announced that he would be voting against HB 408. Number 2008 REPRESENTATIVE CISSNA asked, "Did I understand you to say that if I don't vote the way you think, I am violating someone's rights because that's the way you think?" CHAIR DYSON replied no, and said that if he'd said that, he didn't mean it. He clarified that from his reading of the New Jersey decision, the law would be in violation of the federal law and that passage of HB 408 will result in no good definition of notification. Furthermore, HB 408 guts many protections put in place by HB 70. REPRESENTATIVE WILSON related her understanding that currently parents can inform the school that their children cannot take a survey without the parents' permission, and that this would continue under HB 408. CHAIR DYSON said he believes that is true. He recalled that during the passage of HB 70, it was clear that [the schools] could obtain blanket permission, perhaps with an additional box on an existing form that is vital to enrollment. This has not been done. REPRESENTATIVE WILSON specified that such is done in some school [districts]. CHAIR DYSON clarified that it isn't done in the school [district] in his area. Number 2151 REPRESENTATIVE CISSNA related her understanding that a child could choose, as he/she is taking the survey, not to answer specific questions. She asked whether being forced to respond is different from having a paper full of questions. CHAIR DYSON said he wasn't the best person to ask the question, but reminded everyone that the public testimony had been closed. However, he clarified that the argument in New Jersey is [that being forced to respond isn't different than having a paper full of questions]. REPRESENTATIVE CISSNA related the following [information] from Mr. Iannolino: "First, the situation in New Jersey was entirely different. The New Jersey school district used federal funds for a survey in which at least some students believed participation was mandatory. However, the order to remand the case back to the district court was based on the plaintiff's inability to conduct discovery, and that the main parties in the suit could be sued." Therefore, the New Jersey case seems to be a different situation from that in Alaska, were HB 408 to pass and perhaps even before. CHAIR DYSON said that in the New Jersey case they argued that due to the manner in which the survey was conducted, some students felt compelled. Although the defense argued that the survey was voluntary and the students were informed as such, it was determined that it wasn't adequate. Therefore, he understood the ruling to have been that there was compelled speech. Therefore, HB 408 relies upon the school district to ensure that every student understands that they have the right to refuse to take the survey/questionnaire. REPRESENTATIVE CISSNA said, "I'm assuming that ... our votes: we can feel as if they're not mandatory and that we have the freedom to answer in the way we feel." CHAIR DYSON replied yes. REPRESENTATIVE COGHILL remarked that it comes down to the convenience of the schools [over] parental rights, to which he objected. Number 2255 REPRESENTATIVE JOULE moved to report CSHB 408, Version C [22- LS1458\C, Ford, 3/21/02], out of committee with individual recommendations and the accompanying fiscal notes. REPRESENTATIVE COGHILL objected. A roll call vote was taken. Representatives Stevens, Cissna, Joule, and Wilson voted to report CSHB 408, Version C, out of committee. Representatives Coghill, Kohring, and Dyson voted against it. Therefore, CSHB 408(HES) was reported out of the House Health, Education and Social Services Standing Committee by a vote of 4-3.
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