[Federal Register Volume 60, Number 166 (Monday, August 28, 1995)]
[Proposed Rules]
[Pages 44696-44701]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-21227]
[[Page 44695]]
_______________________________________________________________________
Part VII
Department of Education
_______________________________________________________________________
34 CFR Part 98
Protection of Pupil Rights; Proposed Rule
Federal Register / Vol. 60, No. 166 / Monday, August 28, 1995 /
Proposed Rules
[[Page 44696]]
DEPARTMENT OF EDUCATION
34 CFR Part 98
RIN 1880-AA66
Protection of Pupil Rights
AGENCY: Department of Education.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Secretary proposes regulations to implement the Pupil
Protection Rights Amendments of 1994 (PPRA) to the Protection of Pupil
Rights provision contained in the General Education Provisions Act
(GEPA). PPRA was amended in the Goals 2000: Educate America Act (Pub.
L. 103-227). The proposed regulations rename and revise the current
regulations (34 CFR part 98 ``Student Rights in Research, Experimental
Activities, and Testing'') for the Protection of Pupil Rights to
implement these statutory changes and to make other changes that are
necessary for proper program operation.
DATES: Comments must be received on or before October 27, 1995.
ADDRESSES: All comments concerning these proposed regulations should be
addressed to LeRoy Rooker, U.S. Department of Education, 600
Independence Avenue SW., room 1366, Washington, DC 20202-4605. Comments
may also be sent through Internet to ``PPRA--Comments@ed.gov.''
A copy of any comments that concern information collection
requirements should also be sent to the Office of Management and Budget
at the address listed in the Paperwork Reduction Act of 1980 section of
this preamble.
FOR FURTHER INFORMATION CONTACT: Ellen Campbell, U.S. Department of
Education, 600 Independence Avenue, SW., room 1366, Washington, DC
20202-4605. Telephone: (202) 260-3887. Individuals who use a
telecommunications device for the deaf (TDD) may call the Federal
Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8
p.m., Eastern time, Monday through Friday.
SUPPLEMENTARY INFORMATION: These proposed regulations have been
reviewed and revised in accordance with the Department's ``Principles
for Regulating,'' which were developed to ensure that the Department
regulates in the most flexible, most equitable, and least burdensome
way possible. These principles advance the regulatory reinvention and
customer service objectives of the Administration's National
Performance Review II and are essential to an effective partnership
with states and localities. The Secretary proposes these regulations
because he believes they are necessary to implement the law and give
the greatest flexibility to local governments and schools. In addition,
the regulations minimize burden while retaining parents' and students'
rights.
The Secretary interprets the Protection of Pupil Rights provision,
as amended, contained in section 445 of the General Education
Provisions Act (GEPA) to provide parents with the right to have access
to surveys, analyses, or evaluations (surveys) administered by a State
educational agency (SEA), local educational agency (LEA), or other
recipient that asks a student to reveal information concerning the
areas specified in section 445(b) of GEPA. In addition, parents or the
student, if a student is an adult or an emancipated minor, must consent
before a student is required to submit to a survey that asks a student
to reveal information concerning these areas. Finally, parents or the
student, if a student is an adult or an emancipated minor, must be
notified of these rights and may file a complaint for alleged
violations of these rights.
Summary of Major Provisions
The following is a summary of the regulatory provisions the
Secretary proposes as necessary to implement the statute, such as
interpretations of statutory text or standards and procedures for the
operation of the program. The summary does not address provisions that
merely restate statutory language. The Secretary is not authorized to
change statutory requirements. Commenters are requested to direct their
comments to the regulatory provisions that would implement the statute.
Section 98.1 Applicable Program
The Protection of Pupil Rights provision contained in GEPA applies
to any program that is an ``applicable program'' under section
400(c)(1) of GEPA. Under this section the term ``applicable program''
means any program for which the Secretary or the Department has
administrative responsibility as provided by law or by delegation of
authority pursuant to law. The term includes each program for which the
Secretary or the Department has administrative responsibility under the
Department of Education Organization Act (DEOA) or under Federal law
effective after May 4, 1980.
Section 98.2 Purpose
The Secretary interprets section 445 of GEPA to provide four
general rights: (1) Parental right of access to certain surveys and the
instructional material used in connection with these surveys of a
student; (2) parental or student right to consent before a student is
required to submit to certain surveys; (3) parental or student right to
file a complaint for alleged violations of their rights under the law;
and (4) parental or student right to receive effective notice of these
rights. The Secretary would implement each of these rights in the
proposed regulations.
Section 98.3 Definitions
The Secretary proposes to define ``recipient'' to include (1) a
contractor who receives financial assistance directly from the
Department to carry out the project and (2) the Department. This
definition clarifies that any survey that the Department directly
contracts for or carries out itself would be subject to these
regulations.
The Secretary proposes not to define the term ``survey'' because he
believes the term is self-explanatory. The Secretary would welcome
comment on whether the terms ``survey, analysis, or evaluation'' as
used in section 445 of GEPA should be defined in regulations.
Sections 98.10, 98.20 Access and Consent
Section 445(a) of GEPA provides for the parental right of access to
instructional materials that will be used in connection with any survey
as part of any applicable program.
Section 445(b) of GEPA provides for the parent's, in the case of an
unemancipated minor, and student's, if the student is an adult or
emancipated minor, right of consent to submit to a survey that reveals
information concerning one or more of the areas specified in the
statute (also listed in Sec. 98.4(a)(2)).
The Secretary interprets the statutory provisions on access and
consent to be read together; this interpretation would require an SEA,
LEA, or other recipient of program funds from the Department of
Education to make available for inspection by a parent or guardian only
those surveys (and instructional material in connection with a survey)
concerning one or more of the areas listed in section 445(b) of GEPA.
Because, unlike the Family Educational Rights and Privacy Act (FERPA),
this statute makes no specific reference applying the access and
consent provisions to post-secondary institutions and the legislative
history supports only applying these provisions to elementary and
secondary school students, these proposed regulations will only apply
to surveys administered in elementary and secondary schools.
[[Page 44697]]
--Access provision: The Secretary would implement the access provision
by requiring that an SEA, LEA, or other recipient that uses any type of
program funds received from the Department, to develop or implement a
survey must make available for inspection by a parent or guardian of a
student a survey, and the instructional materials used in connection
with the survey, if the survey (1) asks the student to reveal
information concerning one or more of the areas listed in section
445(b) of GEPA; and (2) is administered in an elementary or secondary
school.
--Compliance with a request for access: An SEA, LEA, or other recipient
would be required to comply with a request to inspect a survey (and the
instructional materials used in connection with the survey) without
unnecessary delay and in no case more than 45 days after it has
received the request. This requirement is consistent with FERPA. Also,
the Secretary believes this requirement is a reasonable way to ensure a
prompt response to a parent's request for access to these materials
while not requiring an SEA, LEA, or other recipient to provide
immediate access.
An SEA, LEA, or other recipient would not be required to provide
parents with their own copy of a survey (and the instructional material
used in connection with the survey). The Secretary believes that such a
requirement would be unduly burdensome. The Secretary notes, however,
that an SEA, LEA, or other recipient may wish to provide a copy of a
survey in order to accommodate parents with disabilities.
--Destruction of material: An SEA, LEA, or other recipient would not be
permitted to destroy any survey or the instructional material used in
connection with the survey, if there is an outstanding request to
inspect the material under Sec. 94.10 of the regulations. The Secretary
believes this provision is necessary to ensure that a parent's request
for access is not frustrated.
--Consent provision: The Secretary would implement the consent
provision by requiring an SEA, LEA, or other recipient to obtain the
prior consent of the parent or guardian, or student, as appropriate,
before a student is required to submit to the survey if the SEA, LEA,
or other recipient (1) uses any type of program funds, received from
the Department, to develop or implement a survey; (2) the survey is
administered in an elementary or secondary school; and (3) requires a
student to submit to a survey that asks the student to reveal
information concerning one or more of the areas listed in section
445(b) of GEPA. The Secretary has not interpreted ``required'' as used
in section 445(b) of GEPA. By not interpreting the word ``required'',
the Secretary will not be imposing a single rule to address a myriad of
situations. Recipients will make initial judgments in individual cases
as to whether a survey is or has been ``required'' in the
administration of their activities. In the event a complaint is filed
with the Department, the Department will determine on a case-by-case
basis in light of all the circumstances whether a student has been
required to submit to a survey.
Section 445(b) of GEPA provides that if a student is an
unemancipated minor, a parent or guardian of a student provides the
consent. If a student is an adult or emancipated minor, the student
provides the consent. An adult would be defined as an individual who
has attained 18 years of age. An emancipated minor would be defined
according to the definition under State law.
--Obtaining consent: To meet the requirements of prior consent an SEA,
LEA, or other recipient must provide an opportunity for the student or
parent or guardian of a student to review a general description or
summary of the type of information found in section 445(b) that is
included in the survey and to provide information to the parent or
guardian on the right to inspect the materials before the student
submits to the survey. Rather than prescribing in regulations a
standard form of written consent for parents or guardians, the
Secretary proposes to allow an SEA, LEA, or other recipient the
flexibility to develop its own type of written consent. To provide
guidance to SEAs, LEAs, and other recipients, the Department intends to
develop a model consent form.
Section 98.30 LEA Notification
Section 445(c) of GEPA provides that educational agencies and
institutions shall give parents and students effective notice of their
rights. The Secretary would implement this provision by requiring each
LEA to give effective notice to parents of students in attendance, and
students currently in attendance, at the LEA of their rights under the
regulations. The notice would state, at a minimum, that parents and
students have the four rights listed in Sec. 98.2. An LEA would have
the option to include more information in the notice. With respect to
frequency, an annual notification, for example, would constitute an
effective notice.
Section 98.40 Family Policy Compliance Office and the Office of
Administrative Law Judges Functions
Section 445(e) of GEPA requires the Secretary to establish or
designate an office and review board within the Department to
investigate, process, review, and adjudicate violations of the rights
established under this section. The Secretary would designate the
Family Policy Compliance Office (Office) to investigate, process, and
review complaints of violations under the regulations and to provide
technical assistance to ensure compliance with the regulations. The
Secretary would designate the Office of Administrative Law Judges as
having jurisdiction over proceedings to recover, withhold, and
terminate funds and to conduct hearings to compel compliance through
cease and desist orders.
Section 98.41 Conflict With State or Local Laws
If an SEA or LEA determines that it cannot comply with the
requirements of these regulations due to a conflict with State or local
laws, it would be required to notify the Office within 45 days, giving
the text and citation of the conflicting law. This provision is
consistent with the Family Educational Rights and Privacy regulations
(34 CFR 99.61). The Secretary believes that, to the extent possible,
these proposed regulations should parallel the regulations implementing
the Federal Educational Rights and Privacy Act (FERPA) because both the
protection of pupil rights legislation and FERPA were originally
introduced together with a common purpose and, therefore, should be
administered in a similar fashion.
Section 98.42 SEA or LEA Required Reports
Under the proposed regulations the Office may require an SEA or LEA
to submit reports containing information necessary to resolve
complaints under this part, including information regarding the source
of funding for the survey, and to ensure that SEAs, LEAs, or other
recipients are complying with the statute. This requirement is in the
current regulations (34 CFR 98.6).
Sections 98.43, 98.44, 98.45 Complaint Procedures
The statute does not specify any procedures for filing or
processing a
[[Page 44698]]
complaint. The regulations would allow a parent or student, as
appropriate, to file a written complaint with the Office regarding an
alleged violation under this part. This requirement is in the current
regulations (34 CFR 98.7(a)).
The proposed regulations would clarify when a parent and student
have a right to file a complaint. Also, the proposed regulations would
require that a complaint contain specific allegations of fact giving
reasonable cause to believe that a violation of this part has occurred.
The Office would investigate each timely complaint to determine whether
an SEA, LEA, or other recipient has failed to comply with the proposed
regulations. These requirements are in 34 CFR 98.7(a) and (b),
respectively, of the current regulations.
The proposed regulations clarify when a complaint would be timely
and when the Office may extend the time limit. These provisions are
consistent with the requirements in 34 CFR 99.64(c) and (d) of the
FERPA regulations. Again, the Secretary believes that for the reasons
already discussed, and to the extent possible, the proposed regulations
should be consistent with the FERPA regulations.
--Notice of complaint issued by the Office: The Office notifies the
complainant and the SEA, LEA, or other recipient in writing if it
initiates an investigation of a complaint and notifies the complainant
if it does not initiate an investigation of a complaint. The required
content of the notice to the SEA, LEA, or other recipient is consistent
with 34 CFR 98.8(a) and (b) of the current regulations. The Secretary
believes this notification is necessary to keep the complainant
properly informed of the status of his or her complaint.
Sections 98.46, 98.47 Enforcement Process
The statute does not prescribe any enforcement procedures except
for the establishment or designation of an office and review board
within the Department of Education to investigate, process, review and
adjudicate violations of the rights established by section 445 of GEPA.
Under the proposed regulations, the Office would review a complaint and
response and may permit the parties to submit further written or oral
arguments or information. Following its investigation, the Office would
provide to the complainant and the SEA, LEA, or other recipient written
notice of its findings and the basis for its findings. If the Office
found that the SEA, LEA, or other recipient had not complied with these
regulations, the notice would (1) include a statement of the specific
steps that the SEA, LEA, or other recipient must take to comply; and
(2) provide a reasonable period of time, given all the circumstances of
the case, during which the SEA, LEA, or other recipient may comply
voluntarily. This procedure is consistent with that in 34 CFR 98.9 of
the current regulations.
If an SEA, LEA, or other recipient other than a contractor does not
voluntarily comply with the proposed regulations, the Office may, in
accordance with part D of GEPA, (1) withhold, recover, or terminate
funds under 34 CFR 81.3; or (2) issue a complaint to compel compliance
through a cease-and-desist order under 34 CFR 81.3. This is consistent
with 34 CFR 98.10(a)(1) of the current regulations.
If a contractor does not voluntarily comply with the proposed
regulations, the Office may direct the contracting officer to take an
appropriate action authorized under the Federal Acquisition Regulation,
including either (1) issuing a notice to suspend operations under 48
CFR 12.5; or (2) issuing a notice to terminate for default, either in
whole or in part under 48 CFR 49.102.
If, after an investigation, the Secretary finds that an SEA, LEA,
or other recipient has complied voluntarily with these regulations, the
Secretary provides the complainant and the SEA or LEA written notice of
the decision and the basis for the decision. These enforcement
provisions are consistent with 34 CFR 98.10(b) of the current
regulations.
Executive Order 12866
1. Assessment of Costs and Benefits
These proposed regulations have been reviewed in accordance with
Executive Order 12866. Under the terms of the order the Secretary has
assessed the potential costs and benefits of this regulatory action.
The potential costs associated with the proposed regulations are
those resulting from statutory requirements and those determined by the
Secretary to be necessary to administer this program effectively and
efficiently. Burdens specifically associated with information
collection requirements, if any, are identified and explained elsewhere
in this preamble under the heading Paperwork Reduction Act of 1980.
In assessing the potential costs and benefits--both quantitative
and qualitative--of these proposed regulations, the Secretary has
determined that the benefits of the proposed regulations justify the
costs.
To assist the Department in complying with the specific
requirements of Executive Order 12866, the Secretary invites comment on
whether there may be further opportunities to reduce any potential
costs or increase potential benefits resulting from these proposed
regulations without impeding the effective and efficient administration
of the program.
2. Clarity of the Regulations
Executive Order 12866 requires each agency to write regulations
that are easy to understand.
The Secretary invites comments on how to make these proposed
regulations easier to understand, including answers to questions such
as the following: (1) Are the requirements in the proposed regulations
clearly stated? (2) Do the regulations contain technical terms or other
wording that interferes with their clarity? (3) Does the format of the
regulations (grouping and order of sections, use of headings,
paragraphing etc.) aid or reduce their clarity? Would the regulations
be easier to understand if they were divided into more (but shorter)
sections? (A ``section'' is preceded by the symbol ``Sec. '' and a
numbered heading; for example, Sec. 98.1 To which programs do these
regulations apply?) (4) Is the description of the regulations in the
``Supplementary Information'' section of this preamble helpful in
understanding the regulations? How could this description be more
helpful in making the regulations easier to understand? (5) What else
could the Department do to make the regulations easier to understand?
A copy of any comments that concern how the Department could make
these proposed regulations easier to understand should be sent to
Stanley M. Cohen, Regulations Quality Officer, U.S. Department of
Education, 600 Independence Avenue, SW. (room 5121, FOB-10B),
Washington, DC 20202-2241.
Regulatory Flexibility Act Certification
The Secretary certifies that these proposed regulations would not
have a significant economic impact on a substantial number of small
entities.
The small entities that would be affected by these proposed
regulations are small LEAs receiving Federal funds from the Department.
However, the regulations would not have a significant economic impact
on the small LEAs affected because the regulations would not impose
excessive regulatory burdens or require unnecessary Federal
supervision. The regulations would
[[Page 44699]]
impose minimal requirements to ensure that LEAs comply with the pupil
protection requirements in GEPA.
Paperwork Reduction Act of 1980
Section 98.30 contains information collection requirements. As
required by the Paperwork Reduction Act of 1980, the Department of
Education will submit a copy of this section to the Office of
Management and Budget (OMB) for its review. (44 U.S.C. 3504(h))
SEAs, LEAs, and other recipients may be affected by these
regulations. The Department needs and uses the information to ensure
compliance with requirements in the Pupil Protection Rights in GEPA.
Annual public reporting burden for this collection of information is
estimated to be .25 hours per response for 15,713 respondents,
including the time for reviewing instructions, searching existing data
sources, gathering and maintaining the data needed, and completing and
reviewing the collection of information.
Organizations and individuals desiring to submit comments on the
information collection requirements should direct them to the Office of
Information and Regulatory Affairs, OMB, room 3002, New Executive
Office Building, Washington, DC 20503; Attention: Daniel J. Chenok.
Invitation to Comment
Interested persons are invited to submit comments and
recommendations regarding these proposed regulations. This section
highlights those issues already discussed in the preamble on which the
Secretary would particularly like comment.
The Secretary has attempted to balance a number of interests by
interpreting ``applicable program'' narrowly and applying these
regulations only to surveys that are developed or implemented under
Department programs. The Secretary believes that this interpretation
balances the rights of parents and students under the statute with the
interests of local governments and schools in minimal administrative
burdens. The Secretary requests comments on this interpretation. The
Secretary is trying to minimize the role of the Federal government in
implementing the statute.
The Secretary specifically requests comments from school officials
regarding the practicality of a narrow interpretation. As proposed, if
asked, an SEA or LEA would have to be able to identify which funds it
used to develop, or otherwise implement, a survey. On the other hand,
if the Secretary interpreted ``applicable program'' broadly, the
regulations would apply to any survey given by a school that receives
money from the Department, and an identification of whether Department
money was used in developing or implementing the survey would be
unnecessary. The Secretary welcomes comments on whether school
officials believe the broader interpretation of ``applicable program''
would be less burdensome.
The Secretary also requests comments on whether it is clear that
these proposed regulations only apply to surveys that are developed,
purchased, implemented, or otherwise funded under Department programs
covered by section 445 of GEPA. The Secretary also requests comments on
whether the provisions regarding access and consent rights, Secs. 98.10
and 98.20 respectively, provide adequate guidance.
As previously stated in the preamble the Secretary would like
comments on whether the regulations should include a definition of
``survey'' (see discussion of Sec. 98.3 Definitions) and ``required''
(see discussion of Secs. 98.10, 98.20 Access and consent: Obtaining
consent).
Finally, as already discussed, the regulations interpret the
statute to apply to surveys administered in elementary or secondary
schools because the statute specifically provides protections under
this law to ``students.'' The Secretary requests specific comments on
whether the statutory provisions should be interpreted to include
surveys administered in settings outside of schools, such as
Department-sponsored household-based surveys, conducted either by
telephone or in person.
All comments submitted in response to these proposed regulations
will be available for public inspection, during and after the comment
period, in room 1366, FOB-10, 600 Independence Avenue SW., Washington,
DC, between the hours of 8:30 a.m. and 4 p.m., Monday through Friday of
each week except Federal holidays.
Assessment of Educational Impact
The Secretary particularly requests comments on whether the
proposed regulations in this document would require transmission of
information that is being gathered by or is available from any other
agency or authority of the United States.
List of Subjects in 34 CFR Part 98
Administrative practice and procedure, Education, Educational
research, Privacy, Reporting and recordkeeping requirements, Schools,
and Students.
Dated: August 21, 1995.
Richard W. Riley,
Secretary of Education.
(Catalog of Federal Domestic Assistance Number does not apply.)
The Secretary proposes to amend title 34 of the Code of Federal
Regulations by revising part 98 to read as follows:
PART 98--PROTECTION OF PUPIL RIGHTS
Subpart A--General
Sec.
98.1 To which programs do these regulations apply?
98.2 What is the purpose of these regulations?
98.3 What definitions apply to these regulations?
Subpart B--Access
98.10 What are a parent's rights of access to a survey?
Subpart C--Consent
98.20 In what circumstances must an SEA, LEA, or other recipient
obtain consent before requiring a student to submit to a survey?
Subpart D--Notification
98.30 What must an LEA include in its annual notification?
Subpart E--Enforcement
98.40 What are the functions of the Family Policy Compliance Office
(Office) and the Office of Administrative Law Judges?
98.41 What are an SEA's and LEA's responsibilities in the case of a
conflict with State or local laws?
98.42 What information must an SEA, LEA, or other recipient submit
to the Office?
98.43 Where are complaints filed?
98.44 What is the complaint procedure?
98.45 What is the content of the notice of complaint issued by the
Office?
98.46 What are the responsibilities of the Office in the
enforcement process?
98.47 How does the Office enforce decisions?
Authority: 20 U.S.C. 1232h, unless otherwise noted.
Subpart A--General
Sec. 98.1 To which programs do these regulations apply?
This part applies to any applicable program, that is, any program
for which the Secretary or the Department has administrative
responsibility as provided by law or by delegation of authority
pursuant to law.
(Authority: 20 U.S.C. 1232h)
Sec. 98.2 What is the purpose of these regulations?
Parents and students have the following rights under this part:
(a) Parental right to have access to certain surveys, analyses, or
evaluations
[[Page 44700]]
(surveys), and the instructional materials used in connection with
these surveys of a student.
(b) Parental or student right to consent before the student is
required to submit to certain surveys.
(c) Parental or student right to file a complaint for alleged
violations of the rights in paragraphs (a), (b), and (d) of this
section.
(d) Parental or student right to receive effective notice of the
rights under paragraphs (a), (b), and (c) of this section.
(Authority: 20 U.S.C. 1232h)
Sec. 98.3 What definitions apply to these regulations?
(a) The following terms used in this part are defined in 34 CFR
77.1:
Department
Elementary school
Grantee
Local educational agency (LEA)
Secondary school
Secretary
State educational agency (SEA).
(b) Other definitions. The following definitions also apply to this
part:
Adult means an individual who has attained 18 years of age.
Emancipated minor means a person under 18 years of age who would be
considered emancipated according to state law.
Recipient, for the purposes of this part, means a grantee,
subgrantee, or contractor that receives financial assistance directly
from the Department to carry out a project and includes the Department.
(Authority: 20 U.S.C. 1232h)
Subpart B--Access
Sec. 98.10 What are a parent's rights of access to a survey?
(a) An SEA, LEA, or other recipient that receives funds from the
Department to develop or implement a survey shall make available for
inspection by a parent or guardian of a student the survey, and the
instructional materials used in connection with the survey, if the
survey--
(1) Is administered in an elementary or a secondary school; and
(2) Asks the student to reveal information concerning one or more
of the following areas:
(i) Political affiliations.
(ii) Mental and psychological problems potentially embarrassing to
the student or his or her family.
(iii) Sex behavior and attitudes.
(iv) Illegal, anti-social, self-incriminating, and demeaning
behavior.
(v) Critical appraisals of other individuals with whom the student
has close family relationships.
(vi) Legally recognized privileged or analogous relationships, such
as those of lawyers, physicians, and ministers.
(vii) Income, other than that required by law to determine
eligibility for participation in a program or for receiving financial
assistance under a program.
(b)(1) An SEA, LEA, or other recipient shall comply with a parent's
request to inspect a survey (and the instructional material used in
connection with the survey) under paragraph (a) of this section without
unnecessary delay and in no case more than 45 days after the recipient
receives the request.
(2) An SEA, LEA, or other recipient is not required to give a
personal copy of the survey, and the instructional materials, to a
parent who requests to inspect a survey under paragraph (a) of this
section.
(c) An SEA, LEA, or other recipient may not destroy any survey, or
any instructional material used in connection with the survey, if there
is an outstanding request by a parent to inspect the material under
this section.
(d) An SEA, LEA, or other recipient shall make the survey available
for inspection under paragraph (a) of this section even if a student is
not required to submit to the survey under Sec. 98.20.
(Authority: 20 U.S.C. 1232h(a))
Subpart C--Consent
Sec. 98.20 In what circumstances must an SEA, LEA, or other recipient
obtain consent before requiring a student to submit to a survey?
(a) An SEA, LEA, or other recipient shall obtain the prior consent
of the parent or guardian of a student, or the student, if appropriate
under paragraph (b) of this section, before the student is required to
submit to the survey if the SEA, LEA, or other recipient--
(1) Uses funds, received from the Department, to develop or
implement the survey;
(2) Administers the survey in an elementary or secondary school;
(3) Requires the student to submit to the survey; and
(4) Asks the student in the survey to reveal information concerning
one or more of the areas listed in Sec. 98.10(a)(2).
(b)(1) If a student is an unemancipated minor, the SEA, LEA, or
other recipient must obtain the consent required in paragraph (a) of
this section, in writing, from the parent or guardian of the student.
(2) If a student is an adult or emancipated minor, the SEA, LEA, or
other recipient must obtain the consent required in paragraph (a) of
this section from the student.
(c) To meet the requirements of prior consent the SEA, LEA, or
other recipient must provide--
(1) An opportunity for the student or parent or guardian of a
student to review a general description or summary of the type of
information found in Sec. 98.10(a)(2) that is included in the survey;
and
(2) Information to the parent or guardian on the right to inspect
these materials before the student submits to the survey.
(Authority: 20 U.S.C. 1232h(b))
Subpart D--Notification
Sec. 98.30 What must an LEA include in its notification?
(a) Each LEA shall give effective notice to parents of students in
attendance, and to students currently in attendance at the LEA of their
rights under this part.
(b) The notice must state that parents and students have the rights
listed in Sec. 98.2.
(c) As used in paragraph (a) of this section, effective notice
means a notice that is reasonably likely to inform parents and
students, including those with disabilities and those whose primary or
home language is not English, of their rights.
(Authority: 20 U.S.C. 1232h(c))
Subpart E--Enforcement
Sec. 98.40 What are the functions of the Family Policy Compliance
Office (Office) and the Office of Administrative Law Judges?
(a) The Family Policy Compliance Office (Office)--
(1) Investigates, processes, and reviews complaints of violations
under this part; and
(2) Provides technical assistance to ensure compliance with this
part.
(b) The Office of Administrative Law Judges has jurisdiction to
conduct the following proceedings to enforce the requirements in this
part--
(1) Hearings for recovery of funds.
(2) Withholding hearings.
(3) Termination hearings.
(4) Cease and desist hearings.
(Authority: 20 U.S.C. 1232h(e))
Sec. 98.41 What are an SEA's and LEA's responsibilities in the case of
a conflict with State or local laws?
If an SEA or LEA determines that it cannot comply with any of the
requirements of this part due to a conflict with State or local laws,
it shall notify the Office within 45 days, giving the text and citation
of the conflicting law.
[[Page 44701]]
(Authority: 20 U.S.C. 1232h)
Sec. 98.42 What information must an SEA, LEA, or other recipient
submit to the Office?
The Office may require an SEA, LEA, or other recipient to submit
reports containing information necessary--
(a) To resolve complaints under this part, including information
regarding the source of funding for the survey; and
(b) To ensure that SEAs, LEAs, or other recipients are complying
with the statute.
(Authority: 20 U.S.C. 1232h)
Sec. 98.43 Where are complaints filed?
A parent or student, as appropriate under Sec. 98.44(a), may file a
written complaint with the Office regarding an alleged violation under
this part. The Office's address is: Family Policy Compliance Office,
U.S. Department of Education, 600 Independence Avenue, SW., FOB-10,
room 1366, Washington, D.C. 20202-4605.
(Authority: 20 U.S.C. 1232h(d))
Sec. 98.44 What is the complaint procedure?
(a)(1) A parent may file a complaint under this part for alleged
violations of the parent's rights of access, consent, or to be notified
of the parent's rights under Secs. 98.10, 98.20, and 98.30.
(2) A student who is an emancipated minor or an adult may file a
complaint under this part for alleged violations of the student's
rights to consent or to be notified of the student's rights under
Secs. 98.20 and 98.30.
(b) A complaint filed under Sec. 98.43 must contain specific
allegations of fact giving reasonable cause to believe that a violation
of this part has occurred.
(c) The Office investigates each timely complaint to determine
whether the SEA, LEA, or other recipient has failed to comply with the
provisions of this part.
(d)(1) For purposes of this section, a timely complaint is an
allegation of a violation of this part that is submitted to the Office
within 180 days of--
(i) The date of the alleged violation; or
(ii) The date that the complainant knew or reasonably should have
known of the alleged violation.
(2) The Office may extend the time limit in this section if the
complainant shows that he or she was prevented by circumstances beyond
the complainant's control from submitting the matter within the time
limit, or for other reasons considered sufficient by the Office.
(Authority: 20 U.S.C. 1232h(d))
Sec. 98.45 What is the content of the notice of complaint issued by
the Office?
(a) The Office notifies the complainant and the SEA, LEA, or other
recipient in writing if it initiates an investigation of a complaint
under Sec. 98.46(b). The notice to the SEA, LEA, or other recipient--
(1) Includes the substance of the alleged violation; and
(2) Requests that the SEA, LEA, or other recipient submit a written
response to the complaint.
(b) The Office notifies the complainant if it does not initiate an
investigation of a complaint because the complaint fails to meet the
requirements of Sec. 98.44.
(Authority: 20 U.S.C. 1232h(d))
Sec. 98.46 What are the responsibilities of the Office in the
enforcement process?
(a) The Office reviews the complaint and response and may permit
the parties to submit further written or oral arguments or information.
(b) Following its investigation, the Office provides to the
complainant and the SEA, LEA, or other recipient written notice of its
findings and the basis for its findings.
(c) If the Office finds that the SEA, LEA, or other recipient has
not complied with this part, the notice under paragraph (b) of this
section--
(1) Includes a statement of the specific steps that the SEA, LEA,
or other recipient must take to comply; and
(2) Provides a reasonable period of time, given all the
circumstances of the case, during which the SEA, LEA, or other
recipient may comply voluntarily.
(Authority: 20 U.S.C. 1232h(d))
Sec. 98.47 How does the Office enforce decisions?
(a) If the SEA, LEA, or other recipient other than a contractor
does not comply during the period of time set under Sec. 98.46(c)(2),
the Office may, in accordance with part D of the General Education
Provisions Act--
(1) Withhold, recover, or terminate funds under 34 CFR 81.3; or
(2) Issue a complaint to compel compliance through a cease-and-
desist order under 34 CFR 81.3.
(b) If a contractor does not comply during the period of time set
under Sec. 98.13(c)(2), the Office may direct the contracting officer
to take an appropriate action authorized under the Federal Acquisition
Regulation, including either--
(1) Issuing a notice to suspend operations under 48 CFR 12.5; or
(2) Issuing a notice to terminate for default, either in whole or
in part under 48 CFR 49.102.
(c) If, after an investigation under Sec. 98.44(c), the Secretary
finds that an SEA, LEA, or other recipient has complied voluntarily
with this part, the Secretary provides the complainant and the SEA,
LEA, or other recipient written notice of the decision and the basis
for the decision.
(Authority: 20 U.S.C. 1232h(d))
[FR Doc. 95-21227 Filed 8-25-95; 8:45 am]
BILLING CODE 4000-01-P
