16

tion 72 was the primary purpose of the test. Now, simply speaking,
how was a parent to show that? It was, in fact, an impossible
standard.

So my amendment simply said that if the survey, analysis, or
evaluation revealed the private information, that was enough to re-
quire parental consent. Note that it does not exclude tests just be-
cause they’re anonymous. Even in cases where there is no record
of the child, the parents’ consent is required if the other criteria
are met.

Now, that gets us to another big issue of discussion. I specifically
required written parental consent. It is not enough to get implied
consent. Implied consent would work like this: a note is sent home
to a parent saying something like, “If you don’t respond in writing
by a specific date, your child will be given this survey.”

Well, what if, for instance, the parents are out of town or for
some other reason do not receive the notice before a given dead-
line? They are not protected. The only way to guarantee that par-
ents know what is going on is to require their specific written con-
sent before the survey is given.

Another issue that is implicitly covered is whether the child can
make that decision. I address this issue much like the courts have
addressed statutory rape or the prayer decisions.

Under statutory rape laws, we have made a decision as a society
that a child cannot give intelligent, knowing consent to engage in
adult behavior.

The prayer decisions touch another point. They declare that, be-
cause school is a compulsory atmosphere, a child should not be re-
quired to engage in an activity which may compromise his personal
or family convictions.

I believe both of these examples shed light on surveys or other
questionnaires given to children. The language says a minor shall
not be required to submit to a survey. This language is based on
both of these previous examples.

We should not place a child in a compulsory atmosphere in the
position of having to determine what is private information and if
he should reveal it. These are adult decisions to make. That is why
the choice in this language is specifically and deliberately placed in
the hands of the parents.

Thus, the final result of the language is that if a survey, analy-
sis, or evaluation reveals private information in a federally funded
program, the parents must give specific written consent. Without
that specific consent, their child cannot participate.

I am pleased that the committee has decided to make this lan-
guage apply in all federally funded programs. Many of the offensive
surveys come out of the Departments of Health and Human Serv-
ices, Justice, or the Centers for Disease Control. However, by cover-
ing all agencies, your committee will guarantee family private pro-
tection.

1 am currently working on a final step that would eliminate any
future need to address this issue piecemeal. I will soon introduce
a bill to restore the historic decisionmaking authority of the family.
My proposal will declare that the rights of parents to direct their
children is a fundamental right under the 14th amendment. Thus,
a government agency cannot interfere in this relationship unless it


Enrolled Copy HLB. 57

(e) the entities or persons, regardless of affiliation, who will have access to the personally
identifiable information; and

(f) amethod by which a parent of a student can grant permission to access or examine the
personally identifiable information.

(4) (a) Except in [the-ease-of exigent cireumstanees] response to a situation which a school

i . ti 4

Part 4, Child Abuse or Neglect Reporting Act. or by order of a court, disclosure to a parent or legal
guardian must be given at least two weeks[;-but-net-mere-then-five-months] before information

protected under this section is sought.

Following di . . A

[¢@)] (d) A general consent[;ineluding-a-genereteonsent] used to approve admission to
School or involvement in {a] special education [or], remedial [programorregutet] education, or a
schoo) activity[;] does not constitute written consent under this section.



33

the Court created a two-step process by which it determined it would aye great def-
erence to an administrative interpretation of an ambiguous statute. en a court
reviews an agency's construction of the statute it administers, it is confronted with
two questions. First, always, is the question of whether Congress has directly spo-
ken to the precise question at issue. If the intent of Congress is clear, that is the
end of the matter; for the court, as well as the agency, must give effect to the unam-
biguously expressed intent of Congress. If, however, the court determines Congress
has not directly addressed the precise question at issue, the court does not simply
impose its own construction on the statute, as would be necessary in the absence
of an administrative interpretation. Rather, if the statute is silent or ambiguous
with respect to the specific issue, the question is whether the agency’s answer is
based on a permissible construction of the statute.” /d. at 842-843.

If one was to compare the proposed statute with the privacy law used in Utah,
(and amended after a year in practice), some of the following differences become ap-
parent:

1, Why is the generic “survey, analysis, or evaluation” used to explain all
types of intrusion that could occur outside of the educational setting? Is that
not vague when matters of medical health, juvenile or foster care and related
matters are addressed? Is this intended to remove psychological testing that
had been included in the earlier Hatch Act?

2. In the federal court ruling included with this testimony, the judge as not
sure that the parental consent requirement applied to all of the categories of
the statute, As such, and in an effort to limit the possibility of having the word
“reveals information” be construed as being a “strict liability” standard, I would
recommend that the language of the Utah legislation (bolded) be substituted
in page 1, lines 12-13 as ‘Bliows:

“toa survey, analysis, or evaluation without the prior written consent of
the student's parent or legal guardian, in which the purpose or evident
intended effect is to cause the student to reveal information, whether
the information is personally identifiable or not, concerning the stu-
dent’s or any family member’s:”

In addition, guaranteed rights of expression of personal belief and opinion
guaranteed by $53A-13-101.3 (secking to implement broadly First Amendment
protections for students) would not be restricted by the prohibitions. This is an
area which does not appear to be considered at all in the current legislation.
I would recommend that the issue be considered.

3. The Utah legislation provides different perspectives on the prohibited cat-
egories regarding the student or his family member:

(1) political affiliations or philosophies

(3) sexual behavior, orientation, or attitudes

(5) eritical appraisals of individuals with whom the student or family
member has close family relationships

4. Why allow those who are to be restricted to make the sensitive determina-
tion on page 1, lines 15-16 of what is potentially embarrassing? It would be
clearer to simply eliminate that option and conform it to the Utah language.

5. Why not include more specific provisions regarding the nature and means
of obtaining written consent? (See sections §53A-13-301 (3) and (4) of the Edu-
cational Rights and Privacy Act, enclosed.) Faulty notification and consent were
major reasons why the litigation referred to in the enclosed transcript was

brought.

6. What is “academic performance” intended to mean _as stated in Section 401

(b), on page 2, line 8? This broad term should be clarified. (Does it apply to all
curriculum, in a school, for example, or does it include extracurricular activities
as well?)

(3) Are there convincing reasons why there is no provision allowing private en-
forcement of the family privacy protections outlined in the legislation?

The enclosed transcript demonstrates how similar language without express al-
lowance for private enforcement has been recently interpreted in federal litigation
in Utah seeking to privately enforce the former Hatch Act, now Grassley Amend-
ment, (now codified in 20 U.S.C. §1232h(b),) did not allow private enforcement. (It
is this law from which this amendment draws its pattern.) The district court based
this ruling on a Tenth Circuit case that had concluded that when Congress is silent
on the issue, and there are administrative remedies in place, there is a presumption
that Congress intended to foreclose the opportunity of private enforcement. See
Laarke v. Benkula, 966 F.2d 1346, 1347 (10th Cir. 1992). If members of Congress
are concerned with the violations of family privacy, language allowing for private


88

parent had an opportunity to object. This survey was directed
largely at obtaining information about tobacco use.

e second question that you asked is, what are the current poli-
cies and procedures for parental consent with these surveys, analy-
ses or evaluations? I can summarize by saying that a parent is no-
tified in each of the three surveys I mentioned that the children
are being interviewed. In the case of the survey that asks the most
sensitive questions—the second one I mentioned, which is the
youth behavior survey—direct parental consent, either oral or writ-
ten, was required.

In addition to these three reimbursable surveys that actively
seek to include minors as respondents, it’s important for me to note
that in many of the Census Bureau’s surveys, and in the Decennial
Census of Population and Housing, minors are sometimes the only
people we can find at home, or the only household respondents who
can speak and understand English. While in these cases we always
seek first to obtain answers from an adult householder, the inter-
viewer may obtain information from a minor above 15 years of age
in almost all cases, if the interviewer determines that the minor is
knowledgeable about the subjects being asked.

Personal visits to households are very costly, and we have deter-
mined that accepting information from knowledgeable minors as a
last resort is a way to reduce costs and save taxpayers’ dollars.

The third question: are there circumstances under which paren-
tal consent, as required in the draft legislation, would, in your
opinion, not be appropriate? The draft legislation would require
written parental consent before a minor can be required to submit
to a survey analysis or evaluation that reveals information concern-
ing any of eight subjects listed in the bill.

Several of the questions asked in the three surveys I described
above could be interpreted as falling within the subjects listed in
the bill. One subject listed in the bill, that is, income, is collected
in several Census Bureau surveys and in the Decennial Census.
We believe our current policies on parental consent that I very
briefly described above are appropriate in each case, and do respect
the rights of all parties.

We expect, however, that the provisions of this title would have
three effects that are not desirable in terms of collection of valid
information. One is, we expect that the provisions of this title
would reduce response rates; that is, the proportion of people that
actually take part in and respond to the survey. Second, we expect
that these provisions would increase costs of survey operations.
And third, that these provisions would increase survey bias.

Requiring written consent would reduce the flexibility of statis-
tical agencies, like the Census Bureau, to collect data cost-effi-
ciently. As I said, I believe the bill would also increase data collec-
tion costs in the Decennial Census by removing options to obtain
data in a cost-efficient manner.

Your fourth question was, what are the impacts that you foresee
as a consequence of this legislation? As currently written, the bill
could increase data collection costs, as I mentioned.

Other impacts are difficult to judge. The bill does not define
“minor;” introduces the concept of “emancipated minor;” a legal sta-
tus that surely would be difficult for interviewers to determine; and


10

at

12

13

14

15

16

v7

18

19

20

au

22

23

24

25

42

Section 3474 of Title 20 and in place under the regulations
that provide for review of complaints, reports, investigation, |
findings, enforcement that all of that is in place.

I understand the argument that that was not in place
at the time the statute was enacted, however it was authorized

and it was in place at all times when these people were

involved in the program.

\

I don't think the United States Supreme Court cases
that you've referred to, Franklin or the other cases modify or
make less of a precedent binding upon this court, the case of
Monsi L'qgrke v. Benkula 966 F. 2d 1346.

I think the presence of the legislative intent here |
of the provisions of enforcement come within the statement andj
conception of the court that where a statute provides an |
administrative enforcement mechanism the presumption is that |
no private cause of action is intended. |

|

Mr. Hilton makes a very strong point that there were}
times when there seemed to be no enforcement in place yet it |
seems to me that there is no, no private right of action |
granted to the plaintiffs in this case, that silence is not
enough, that Senator Hatch's oratory is not enough and we Hl
don't have in place here a scheme applied to this kind of
testing for this purpose in this case.

I do not intend this as a precedent as to all

aspects of that statute. I'm not trying to go that far but I



10

and juvenile are used interchangeably to denote those who have not yet attained
the age of majority. In almost all states the age of majority is 18, but prior to the
passage of the 26th amendment it was usually 21, Emancipated minors are individ-
uals, younger than the state’s age of majority, who are considered adults because,
depending on the state, they are married, in the military, self-supporting, unmar-
ried mothers, or pregnant.

Just as federal law treats drinking differently from most other age-related duties
and privileges; state laws do not always use the age of majority as the time at which
certain adult activities are allowed. Often the age is lowered, “with parental con-
sent.” For example, in a few states, youth as young as 14 can marry with parental
consent at 16 or 17, Almost all states allow marriage without parental consent only

at age 18 or older.

‘ith the consent of a parent of guardian, a few states issue a juvenile driver's
license to youth as young as 13 (Montana) or 14, although more offer such licenses
at 15 or 16. Regular driver's licenses are often available at age 16, sometimes with
and sometimes without the completion of an approved driver education course; but,
with the exception of Virginia, all states offer a full driver’s license by age 18.

Perhaps the most complex area of age-related state law, as well as the one with
the most potential for causing scrious problems, is that which deals with the age
at which youth can secure reproduction-related care without the consent of their
parents. Prior to the 1960's, all forms of medical care provided to a minor—usually
under age 21—including treatment of sexually-transmitted diseases, provision of
contraceptives, and access to abortions, required the consent of a parent. The first
break-through came in the area of STDs. By the end of the 1960s, al] states had
enacted statutes allowing STDs to be treated without parental consent. Currently,
minors can obtain treatment for most conditions without parental consent if the in-
dividual is mature enough to give the same kind of informed consent that would
be expected of an adult. This has become known as the “mature minor” rule.

In regard to contraception, the Supreme Court in 1977 held that minors had a
constitutional right of privacy and that statues making it a criminal offense to sell
contraceptives to minors contravened that right. In_1978, Congress amended the
Family Planning Act (Title X of the Public Heaith Service Act) to include adoles-
cents specifically. The Reagan Administration's so-called “squeal rule,” the proposed
regulations to notify parents when a minor daughter received contraceptive services,
was found unconstitutional by the courts. Thus today, youth is no barrier to the pro-
vision of contraceptives in federally-funded facilities; but many hospital clinics and
private physicians are not covered by these rules and may refuse to prescribe con-
traceptives to minors.

The question of whether and when a young woman may obtain an abortion with-
out parental consent has an even more stormy history. Although Roe v. Wade gave
women a right to abortion, at least in the first and second trimesters of pregnancy;
later decisions upheld the right of states to limit abortions to minors by requiring
the consent of one or both parents if the state provided a judicial bypass. The cur-
rent interpretation is that in the absence of a state statue, a mature minor may con-
sent to an abortion as she would to any other medical procedure. Where statues do
exist, states must allow a mature minor to present herself to a judge and, providing
that she understands her situation and the risks of an abortion, she has the right
to a court order permitting the abortion.

Laws regarding sexual intercourse also require a determination of when a young
woman is @ child. Many states have laws making intercourse with a female below
a certain age, usually 16, a crime, statutory rape, regardless of the female’s consent.
Some states will not prosecute, however, if the male is close to her age, perhaps
under 25.

Social Welfare

All social welfare agencies that provide services to children define eligibility by
chronological age. The situation is confusing, however, because federal laws may not
only establish minimum age limits; but also allow states the option of raising these
limits, For example, federal law has established eligibility for the Aid to Families
with Dependent Children (AFDC) program up to « child's 18 birthday; but a state
may chose to continue payments until the child is 19, if he or she is a full-time stu-
dent in a secondary or technical school and may reasonably be expected to complete
the program before age 19. .

‘The large number of state options make age requirements for receipt of Medicaid
particularly complex. States must provide Medicaid to all persons receiving cash as-
sistance under AFDC. They may cover adolescents up to ages 18, 19, 20, or 21, and
Ribicoff children, those who meet the AFDC standards on income and resources but
not as a dependent child. States are also required to provide Medicaid to pregnant


70

The Piers-Harris Children’s Self-Concept Scale
PROFILE FORM.

Ellen V. Piers. Ph.O. and Oale B Harris, PaO.

Age Sex circa one): irr Gop) Grade 2A
School = Teacher's Name (optional): exc

Fall 1993

a a ee
m 28 2 2 Ww 10 |B &
can ee cere

sous tens SEO sane


52

evening. In their opinion as parents, requiring their children
to take these tests involved them in a self-labeling process the
parents did not approve of and directly undermined their efforts
to direct the care, upbringing, and education of their children.
In particular, Plaintiffs A.P. and D.P. felt that when the
Defendants required B.P. and N.P. to respond to various
statements on the Piers-Harris Children’s Self-Concept Scale, it
necessarily followed that (1) there was disclosure of family
matters that they as parents desired to keep private within their
family and (2) the very process would required their children to
engage in what they as parents felt was a negative self-labeling
experience, all of which was contrary to and undermined their
efforts as parents to instill specific views, attitudes and world
views in their children.

28. Plaintiffs D.P. and A.P. believe that by requiring their
children B.P. and N.P. to respond to the Piers-Harris Children’s
Self-Concept Scale the Defendants intentionally sought to, (and
with the primary purpose to,) elicit personal, non-academic
information and required their children to begin self-labeling
themselves by answering yes or no to the following questions in
the following categories:

a. Mental and psychological problems potentially
embarrassing to the student or his family (Statement #’s 74,
78.)


50

scope of their authority and employment of the individual
Defendants.

23. At the beginning of the 1993-1994 school year, both B.P.
and N.P. brought home permission slips for their participation in
extra reading assistance programs in federally funded Chapter I
with an invitation to attend an orientation. The permission slip
and notification of B.P. made no such reference to any self-
concept skills or any self-esteem program. (Upon information and
belief, a copy of the information accompanying the permission
slip for B.P., similar to that which was brought home by B.P., is
attached hereto as Exhibit 1, and incorporated herein by this
reference.) The permission slip of N.P. made a reference to the
fact that when leaving the room for one-half an hour each day,
N.P. would, among other things, have "[rleading and self-concept
skills reinforced" with "(rjeading tests and evaluations would be
given your child*. (Upon information and belief, a copy of the
information accompanying the permission slip for N.P., similar to
that which was brought home by N.P., is attached hereto as
Exhibit 2, and incorporated herein by this reference). Both
notices indicated that all of the services were provided by
federal funds.

24. Plaintiff A.P. attended the orientation regarding the
federally funded Chapter I program provided by the Alpine School
District in the fall of the 1993-1994 school year. A specific
reference made to working with children’s self-concept at that

6


56

his mother had approved of him taking the test. All of the
foregoing undermined the familial relationship of Plaintiffs a.P.
and B.P. Plaintiff B.P. was required to take the test by
Defendant Rigby.

34. Upon information and belief, the use of the Piers-Harris
Children’s Self-Concept Scale tests were also used as a pre and
post-test to both monitor a change of attitude among students as
well as to monitor the performance of the counselors and teachers
involved in federally funded Chapter I programs. The repeated
use of tests was also designed to affect the behavior, emotional
or attitudinal characteristics of the students, such as B.P and
N.P., who were involved in the federally funded Chapter I
program.

35. The Piers-Harris Children’s Self-Concept Scale tests
were administered for the primary purpose of having B.P. and N.P.
reveal information concerning (a) mental and psychological
problems potentially embarrassing to the student or his family,
(b) sex behavior and attitudes, (c) illegal, anti-social, self-
incriminating and demeaning behavior, and (d) critical appraisals
of other individuals with whom respondents. have close family
relationships, all as a tool to define and evaluate the non-
academic nature of the self-esteem of B.P. and N.P..

36. The testing or treatment was provided through the use of
federal funds which were administered contrary to the statutory
prohibitions contained in Congressional statute.

12


60

process clause of the Fourteenth Amendment, and 42 U.S.C. § 1983
and § 1988.

51. The Plaintiffs have been damaged (as outlined
heretofore) by reason of the unconstitutional and illegal conduct
of the Defendants.

Count IIr

Violation of the Incorporated Provisions of the First

52. Plaintiffs incorporate by reference herein the
allegations contained in paragraphs 1-36, and do further allege
as outlined hereinafter.

53. The Defendants failed to exercise due care in either
securing the consent of Plaintiff A.P. or D.P. (or ascertaining
that Plaintiff A.P. and D.P. had consented to) regarding the
psychological testing or treatment of their children B.P. and
N.P. This failure has arisen from conduct by Defendants which
was either intentionally undertaken, done with deliberate
indifference or in reckless disregard of the rights of the
Plaintiffs, or simply not performed with due care required by
Defendants’ governmental and professional position.

54. Having so failed, the Defendants intentionally ignored,
(or with deliberate indifference or in reckless disregard of),
Plaintiffs’ incorporated constitutional right under the First,
Ninth and Fourteenth Amendments to the United States

Constitution, all of which protects Plaintiffs’ right to family

16


48

Amend. I, IX and XIV, and the Civil Rights Act of 1871, 42 U.S.c.
§ 1983. This action arises under the Constitution and laws of
the United States, including the Civil Rights Act of 1871, 42
U.S.C. § 1983 and § 1988.

13. Plaintiffs further state that this action arises from an
actual case and controversy required by Article III of the United
States Constitution.

14. Plaintiff’s claim arose in this judicial district and
venue lies in this district pursuant to 28 U.S.C. § 1391(b) (1),
(2) ox (3).

III.
PARTIES

15. Plaintiff D.P. and A.P. are the natural and lawful
parents of Plaintiffs B.P. and N.P., presently residing with them
at the family home in Lindon, Utah County, Utah.

16. During the 1993-1994 school year, Plaintiff B.P. was a
third grade student, receiving federally funded Chapter I
services, while attending Windsor Elementary School, Alpine
School District.

17. During the 1993-1994 school year, Plaintiff N.P. was a
second grade student, receiving federally funded Chapter 1
services, while attending Windsor Elementary School, Alpine
School District.

18. Alpine School District is a governmental entity
organized under the laws of the State of Utah.

4


20

Mr. GRASSLEY. We're not going to be able to write a perfect piece
of legislation. But, for the most part, I think the innocence of the
question would be the core issue, the extent to which there was a
question asked that would lead to an interruption of the constitu-
tional rights and privacy of that student and whether that’s the
goal or not, or the purpose or not. If that’s the outcome, it seems
to me it would violate at least the spirit of your law.

Mr. Horn. Thank you for coming over, and we hope you're not
too late to the markup and we're not too late to a vote.

Mr. GRASSLEY. Thank you.

Mr. Horn. The committee will be in recess for 15 minutes.

[Recess.]

Mr. Horn. The hearing will resume. If the next two witnesses,
Dr. Johnston and Dr. Hilton, will stand and raise their right hand.

[Witnesses sworn.]

Mr. Horn. Both witnesses affirmed. We'll start with Dr. Lloyd
Johnston, who is the program director, Survey Research Center,
University of Michigan, one of America’s most distinguished and
first major survey centers, after the Second World War.

STATEMENTS OF LLOYD D. JOHNSTON, PH.D., PROGRAM DI-
RECTOR, SURVEY RESEARCH CENTER, UNIVERSITY OF
MICHIGAN; AND MATTHEW HILTON, J.D., PH.D., A MEMBER
OF THE UTAH BAR AND AN AUTHORITY ON FAMILY PRIVACY
ISSUES

Mr. JOHNSTON. Thank you very much, Mr. Chairman. I appre-
ciate the opportunity to testify before the committee. I think that
this is an important issue to those of us in the field of research and
drug abuse, and I’ve talked to quite a few of the people who direct
the largest studies who aren’t here, so I think I reflect the thinking
of quite a number of people.

Senator Grassley pointed out, in answer to your question at the
end of his testimony, that there may sometimes be countervailing
values that have to be balanced in any decision, and he was talking
about the problem of illegal immigration and weighing that against
protection of the parent privacy rights and so forth, and I think
that that’s the crux of the problem here.

I have submitted written testimony, which goes beyond what I
could cover in 5 minutes, and I would like to ask that it be put in
the record.

Mr. Horn. That will be put in the record.

Mr. JonNsToTM. Thank you.

Mr. Horn. I will say that for all witnesses, that it automatically
goes in the record, and we know it’s short to limit you to 5 minutes
but, if you could, summarize, and then we'll get into questions.

Mr. JOHNSTON. Yes. I will just give you a thumbnail sketch of
what I think are the key points. I Rink no one would disagree that
there are serious problems among America’s young people today
and, as some have pointed out, those problems are a lot more se-
vere than they were 20 or 30 or 40 years ago when others of us
grew up.

There are problems of violence, of delinquency, victimization, al-
cohol abuse, drug abuse, preparedness for the workforce, dropping
out of school, and so forth. These are problems for which I think


38

S3A-13-101.1 STATE SYSTEM OF PUBLIC EDUCATION

53A-13-101.1. Maintaining constitutional freedom in 4,
public schools.

(1) Any instructional activity, performuace, ur display which includes gy.
amination of or presentations about religion, political or religious thor
expression, or the influence thereof on muaic, art, literature, law, gs
history, or any other element of the curriculum, including the comparatiyy
study of rel jons, which is designed to achieve secular educational Objective,
included wi! the context of a course or activity and conducted in accor,
dance wit with ta applicable rules of the state and local boards of education, may by

the public schools,

RY No of cultural heritage, political theory, moral theory, or societa;
value shal) be included within or excluded from public school curricula for thy
primary reason that it affirms, ignores, or denies religious belief, religion,
doctrine, a religious sect, or the existence of @ spiritual realm or supramy

(3) Public schools may not sponsor prayer or religious devotionals.
(4) School officials and employees may not use their positions to endorse,

Promota, or giepersge e jar religious, denominational, sectarian, ag.
nostic, or atheistic or viewpoint.

History: C. i263, S8A-14-10L1, enacted by came effective oo May, 3, 3 1988 |, PUPSUAR! te
L_1906, oh. 96, ‘Utah Const, Art. VI, Bec.
Esteve Deen. Laws 1968, ch. 05 be

S3A-13-101.2. Waivers of participation.

(1) Ifa parent with legal custody or other legal guardian of a student, ors
sccondary student, determines that the student's participation in a portion of
the curriculum or in an activity would require the student to affirm or deny «
religious belief or right of conscience, or euguge vr refrain from engaging {na
practice forbidden or required in the exercise of a religious right or right of
Eucience, the pareat, guardian, or weudent may Toque:
(a) a waiver of the requirement to participate; or
(b) a reasonable alternative that requires Rasaably equivalent per.
furmanee by the soadent of the secilar objectives of the curriculum or

vity in
a) Tha echcol eal rompaly ag «acdents parent or guardian if
student makes a request under @.

ren ma Sere oe
the participation

requirement;
@) provide @ reasonable ay: the requir mh
school shall ona ensure that the provisions Mireeree eyeratt 3(3) are
met in connection with any required participation.

History: C. 1963, 634-11-101.3, enacted by care fective oa May, 2, 1998, pursuant %
1. {gee oe. Oe. 2 Const, Art VI,
Effective Dates. — Laws 1993, ch. 96 be

182


69

“THE WAY I FEEL ABOUT MYSELF”

The Plers-Harris Children’s Self-Concept Scale

Ellen V. Piers, Ph D, and Dale 8. Harris Ph.D.

Peas

4
Age sexterceene a Gey) tte A

sooo Lucie or <Ca ster Lrescwrsnaneoonn Hechy /Soreccey -T
Fat 1aaz .

Directions: Here is a set of statements that tell how some people
feel about themselves, Read each statement and decide whether or
not it describes the way you feel about yourself. fits true or mostly
true for you. circle the word “yes” next to the statement. Ifitis false or
mostly false tor you, circle the word “no.” Answer every question,
even if some are hard to decide. Do not circte both “yes” and”"0" for
the same statement.

Remember that there are no right or wrong answers. Only you
can tell us how you feel about yourself, so we hope you will mark the
way you really feel inside.

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EXHIBIT & =


TITLE IV OF H.R. 11, THE FAMILY
REINFORCEMENT ACT

THURSDAY, MARCH 16, 1995

HousE OF REPRESENTATIVES,
SUBCOMMITTEE ON GOVERNMENT MANAGEMENT,
INFORMATION, AND TECHNOLOGY,
COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT,
Washington, DC.

The subcommittee met, pursuant to notice, at 10:05 a.m., in room
2154, Rayburn House Office Building, Hon. Stephen Horn (chair-
man of the subcommittee) presiding.

Present: Representatives Horn, Blute, Fox, Scarborough,
Maloney, and Mascara.

Staff present: J. Russell George, staff director; Mark Uncapher,
rofessional staff member; Andrew G. Richardson, clerk; Ronald
troman, minority deputy staff director; Donald Goldberg, minorit;

assistant to counsel; David McMillen, minority professional sta’
member; and Elisabeth Campbell, minority staff assistant.

Mr. Horn. A quorum being present, the subcommittee hearing
will begin. We have brief opening statements from myself, the
ranking minority member, and Mr. Fox. We will go in order since
our distinguished first witness is in the room.

The Subcommittee on Government Management, Information,
and Technology is meeting to solicit from all interested parties
comments on part of the Contract with America, the Family Rein-
forcement Act.

Title IV, the Family Privacy Protection provision, would prohibit
the asking of any of eight different kinds of privacy-impact ques-
tions unless first approved by parents or guardians. The legislation
attempts to achieve the right balance between government power
and individual rights. H.R. 11 would emphasize and recognize par-
ents’ role in keeping families strong.

We must remain sensitive to the difficulty and the delicacy of the
balance we seek. Our job is to report a bill that will not endanger
minors’ health or safety nor handicap law enforcement operations,
yet safeguard the primacy of parents’ authority.

Parental consent requirements and access have been a matter of
Federal law since 1974. However, that has grown by bits and
pieces, and their scope has been narrow and peculiar to specific leg-
islation. Title IV would cover every survey, analysis, or evaluation
that asks minor questions defined to be of a private nature, which
is funded in whole or part by a Federal agency or department.

For background, we asked a cross-section of educational, health,
and related professional associations to comment or suggest

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74

Mr. Horn. But the question is, if you notify them—and perhaps
it ought to be by certified mail. That obviously adds a cost to the
survey.

If you did send it certified mail, you give them advance notifica-
tion, and that slip and who signs it would prove whether the par-
ents received it. Would that be adequate, in either of your judg-
ments, to assume consent if no written declination were received—
let’s say you had a return envelope inside, and a form—within 2
weeks after receipt?

Mr. JOHNSTON. That certainly could be done. It’s not inexpensive,
I believe. I don’t know the exact cost.

Mr. Horn. Well, when you add up all the telephone calls and the
time on following up, it’s one way to say, “Did they receive it or
didn’t they?” Now, parents could be traveling.

Mr. JOHNSTON. Oh, it’s definitely less expensive than telephone
contact with all the parents.

Mr. Horn. Right.

Mr. JOHNSTON. But when you think of some of these studies
being 50 or 100 thousand people, even something that adds $1,
adds $100,000 to a study of that size, per year.

The other thing that I think about—because when we do
followups of high school seniors—and we follow them into their late
30’s by mail quite successfully—we have used certified mail over
the years, and we get a lot of complaints because many people have
to go to the post office.

They're not home when the attempt for delivery is made there,
they get left a slip, and they have to go to the post office. Then
they're upset because they were hoping at least it was the new
pants they ordered from a catalog or something, and here it’s a
questionnaire, instead, with a low payment.

So, in fact, we’re now moving away from certified mail for that
reason, and I could imagine parents having a similar response. In
many of them, both parents work or the only parent works. They’re
not home, and so they have to—in essence, it becomes more of a
burden for them to have to go pick it up at the post office rather
than to simply receive a first class letter. I do think first class let-
ters make it to just about everyone.

Mr. Horn. Well, you also have the problem of does big sister sign
the slip for little Johnny and it goes back and the teacher files it
or the surveys file it, and you really don’t have a signature to com-
pare with that.

Mr. HILTON. I do think, though, your effort at certified approach
does give a higher degree of assurance that, in fact, notification is
given. You know, in the abstract, to try to balance what is the com-
pelling interest, we're here dealing with drug usage and other
things that Justice O’Connor, at least, and Smith, thought was
compelling in and of itself. We’re balancing out. At least ensuring
they've got the notification would go a long way.

The State has interfered on child labor laws against parents’
wishes, and other things. It’s not an absolute standard. But I would
surely support certified mail as a way to get over that extra step
to do the best you can to get notification.

Mr. JOHNSTON. Mr. Chairman, you may have alluded to this, but
if someone else in the home signs it—I mean anybody who is there


31

practice, the school’s decision about what was most appropriate for the social and
emotional development of the children prevailed over that of the parents.

Legal redress was sought for the parents and children, On one front, the case hi
tory fand many others) were brought to the attention of the Utah legislature. Fam-
ily privacy legislation adopted in 1994 which applied the prohibitions, regardless of
funding, to aff curriculum or extra-curricular activities and included a definition of
written parental consent. The present legislation, amended unanimously in 1995, is
in my written testimony. On another front, with support from the Rutherford Insti-
tute, federal litigation was filed seeking nominal damages and vindication of the
rights of the parents and children. In February of 1995, federal judge J. Thomas
Greene, accepting as true all of the allegations in the complaint, dismissed the com-

aint because, among other things, the then applicable Hatch Act did not provide
for a right of private enforcement.

Tamhere today as a private citizen requesting Congress to make explicit its de-
sire to protect family autonomy and privacy. Specific language and ideas in three
areas have been suggested in written testimony already submitted.

First, make specific findings and policy statements regarding the importance of the
family. Several are suggested. Such statements will give those charged with imple-
menting and living the law with a broader understanding and awareness of why
Congress is choosing to protect families.

Second, make technical corrections to eliminate confusion and clarify the proposed
legislation. Various suggestions have been submitted based in part on the practical
sides of the Utah experience and that in court.

Third, specifically provide for a private right of action. The present proposal—like
the Grassley Amendment—is silent on this issue. None was ever prohibited; allow-
ing the same would let families—those the legislation is designed to protect——to de-
termine when and how to protect their rights rather than limiting protection to
those who have a long term economic and political relationship with offending par-
ties.

Taking these affirmative steps will help give additional meaning to the new Con-
tract with America. When our nation began, a contract was prepared called the Dec-
laration of Independence. Those who exercised their God given rights of fulfilling
their duties and moral responsibilities completed their part of the contract giving
their lives, fortunes and sacred honor. God fulfilled his part by Divine intervention
on behalf of the colonists, A new contract was proposed at Gettysburg, several dec-
ades later, in the midst of a Civil War, in an effort to ensure that the rights afforded
by the Declaration of Independence be given to all, regardless of race or creed. In
1940, the Supreme Court re-wrote a new contract with America and began applying
in a piece-meal fashion various provisions of the Bill of Rights to protect individuals
and families from state and local governments.

Today, Congress is seeking to make a new contract with America. Which Amer-
ica? Can it be the unborn of America, those millions in the future? A lack of Four-
teenth Amendment protection and deficit spending would tend to indicate no. Rath-
er, let this new contract of America be with the American family—the foundation
of a stable society, that institution which collectively, to a large degree, will have
a greater impact on the continuation of freedom than anything else in the nation.
Congress can make a new contract with America’s families by (1) declaring findings
and policies in the support of the family, (2) clarifying ambiguities in the proposed
and existing law, and (3) establishing a private right of action in favor of families
in this and other legislation. While 1 can only bind myself and encourage the mem-
bers of my family to follow, I would be grateful for your attention and protection
of our freedoms.

MarttHew HILTon, J.D., Pu.D.
March 15, 1995.
Rep. STEPHEN Horn,
Chairman, Committee on Government
Reform and Oversight,
Subcommittee on Government Management,
Information, and Technology,
B-373 Rayburn Building,
Washington, DC.

Re: H.R. 11

Dear CHAIRMAN Horn: Thank you for the opportunity to suggest possible amend-
ments to H.R. 11 presently before this committee. The basis for my comments are
derived, in part, from working as a licensed member of the Utah State bar while


17

can demonstrate that there is a compelling government interest to
rotect.

P This change will send a clear message to the courts that the par-

ent/child relationship is primary and must be protected, as we have

supposed it’s been protected by the Constitution since the begin-

ning of time. I look forward to working with many of you on that

proposal.

For now, however, I want to congratulate you once again on your
approach in H.R. 11. There may be some things, and I can’t spell
them out, but that’s the work of your committee, and maybe even
the author will consider some modification. But, for the most part,
it’s a principle that we ought to apply more broadly than just in
the Education Department.

I do have a little bit of time, if you want to ask any questions.
You don’t have to, to humor me, but if you want to, I'll be glad to
try to respond.

Mr. Horn. Thank you, Senator. Let me mention a strange situa-
tion which sometimes affects the child. We had a proposal last year
in the House that school children should be carrying home ques-
tionnaires asking their parents if they were illegal aliens. I’m sure
the motive was noble, such as to try to control the situation we
have, especially in California.

This would be a government-sponsored questionnaire. There was
no “privacy” for the child and, of course, one could say it was a lit-
tle silly to think someone would admit they’re an illegal alien.

I was curious. The child is the messenger there and can see the
document going and coming. I don’t know if, in the second grade,
they can fully understand what the question is. How do you feel
about a situation like that?

Mr. GRASSLEY. I think the extent to which it involves the parent
in making the final decision, I think, answers the concerns that I
have. Whether or not the school invades privacy even under my
bill, if the parent decided to answer that question, they would be
within the law.

I suppose it raises a whole other issue that I haven’t thought
about, which is directly related to the referendum that was in Cali-
fornia last year—the extent to which schools should take the place
of the INS in making some of these determinations.

I guess I come from a little broader approach than just your bill;
but I feel that the illegal alien problem is such a major concern in
America, and the thumbing of the nose at the law and the lack of
respect for the law and what that means for us maintaining our
position as an independent Nation, which very independence im-
plies the control of our borders, that we are going to have to look
for some extraordinary ways of getting at that and solving that
problem.

Mr. Horn. The Representative from New York, Mrs. Maloney.

Mrs. MALONEY. Thank you, Mr. Chairman. First of all, I’d like
to take this opportunity to congratulate you, Senator Grassley, on
your oversight effort, saving taxpayers’ dollars, that was noted in
“Newsweek,” with the abuses of the Air Force in flying generals
and their cats across the country.

Mr. GRASSLEY. Thank you.

Mrs. MALONEY. That was very laudable, your work in that area.


23

As I say, in the end, for the vast majority of legitimate studies, the
decline rate will be in the 1 or 2 percent range.

I try to make the case in my testimony that just about all of the
various parties who have an interest in this gain, and it’s very sel-
dom that we get that kind of a convergence of interests, as you well
know in the Congress. So I think there’s a lot to be said for it and
T hope that you'll give it some serious consideration.

I think it would accomplish the purposes. It would be new legis-
lation, it could still have the same title, and wouldn’t have all these
very serious side effects that I assume are unintended.

e prepared statement of Mr. Johnston follows:]

PREPARED STATEMENT OF LLoyD D. JOHNSTON, PH.D., PROGRAM DIRECTOR, SURVEY
RESEARCH CENTER, UNIVERSITY OF MICHIGAN

Mr. Chairman, I appreciate the opportunity to testify before your Subcommittee
regarding on H.R. 11, Title IV. In my letter on this subject of February 27, 1995,
sent to all members of the full committee, | tried to lay out the problems which I
believe Title IV, as currently worded, would create for present and future studies
which are of significance for understanding a great many of the problems among
our young people. Rather than repeating what was in that letter, I would like to

est that the attached copy be included in the record with my written testimony.

t me begin by briefly stating my experience and qualifications of relevance to
these hearings. I am a social psychologist by training and a Research Scientist and
Program Director at the University of Michigan’s Survey Research Center. Over the
past twenty-five years I have studied primarily adolescents and young adults by
means of representative national surveys. The current ongoing survey series, Mon-
itoring the Puture, of which I am principal investigator, is entering its twenty-first
year. It encompasses young Americans in secondary ‘schools from grades eight
through twelve, as well as young adults from ages 19 to 35.

Under the past six administrations this twenty-year study has served many pur-
poses and has been called upon for insight into the problems and behavior of Amer-
ican young people on many occasions, both by the Congress and the White House.
I believe it is fair to say that it has become this country’s most reliable and influen-
tial source of information about drug use among American young people. It also
serves a number of other purposes of national consequence. For example, it provides
annual information on progress toward some of the National Health Goals for the
Year 2000 and the National Education Goals for the Year 2000.

The viability of this study, which by its very nature is ongoing and dealing with
a set of ongoing problems among our young peopl , as well as the viability of a num-
ber of other studies like it, will be threatened by the enactment of Title IV of H.R.
11, as currently worded. The core of the problem in the legislation lies not in its pro-
viding parents a chance to decline their children’s participation in survey studies, but
rather in the particular mechanism chosen to accomplish this goal—that is, in re-
quiring written parental consent. Since | assume the Subcommittee might consider
alternative mechanisms for advising parents well in advance of the occasion about
the nature of the research undertaking, as well as providing them an opportunity
to decline their child’s or adolescent's participation, allow me to address what I see
as the strengths and weaknesses of the most obvious alternatives. I will start with
the mechanism contained in the legislation. (In all of these deliberations, the scale
of the effort needs to be kept in mind. Our annual samples involve about 50,000
students in 425 schools. The PRIDE surveys involve 300,0000 or more students per
year, the CDC Youth Risk Behavior Study about 16,000 per year, and so on.)

ALTERNATIVE |. WRITTEN PARENTAL CONSENT REQUIREMENT (H.R. 11, TITLE IV)

As currently worded, Title IV requires that the school and/or research investigator
have in hand a signed parental consent form before a student may be included in
a survey.
Strengths: (1) Advance parental notification and the opportunity to decline is
guaranteed for al] students chosen for each survey.
Weaknesses: (1) The representativeness of the national samples will be dra-
matically poorer than in the past, because many parents fail to respond in writ
even though they have no objection to their children’s participation.
'2) Schools, not the researchers, will be required to expend considerable staff
time contacting parents by mail or phone to encourage parental response, since



19

I assume that, if the chairman’s legislation passes, that it’s not
his intent that anything would stand in the way of the compellin
interest of a State. First of all, you’re talking about things financed
by Federal funds. The extent to which this concern of the teacher
or the counselor or principal that there’s been child abuse, at least
jn my State, none of that money would be financed by Federal dol-
lars and it wouldn’t involve a survey, anyway.

Mr. Mascara. The point is made that the school could be receiv-
ing financial assistance and then that would prohibit the participa-
tion.

Mr. GRASSLEY. The Federal dollars must be used for testing, not
just that they receive Federal dollars. That does not trigger in my

aw. The Federal dollars must be related to a survey.

Mr. Mascara. My last question is, I’m not aware of any Federal
surveys. Could you indicate?

Mr. GRASSLEY. Yes. I had 11—no, I think we had 21 States. Let
me back up. I’ve made one mistake already. And then I'll answer
your last question.

I was wrong. It is a federally funded program. That could trigger
this in, yes.

Now, to answer your question, you said you aren’t aware of any
federally funded survey. We had at least—I tried to get instances
from every State. I only got 21 responses.

We had 21 examples from 21 different States that I used in my
floor debate on this subject, where there were Federal funds in-
volved in a survey where parents tried to interact to get their point
of view through and not to have the process go through for that
parent.

Then that’s how all these problems of showing that it was a fed-
erally funded as opposed to a local funded program, and then was
it a psychiatric test, and then was it getting personal information,
and all these hoops they had to go through, they just couldn’t get
through them.

Mr. Mascara. Thanks, Senator.

Mr. Horn. One last question, Senator. I recall when I was in the
third grade, Hitler was rising to power in Europe and Germany.
Nazi Germany’s antics and despicable acts were in headlines every
day. The teacher in the third grade decided on, I’m sure, a very in-
nocent question, to go around the room and ask each child where
did their parents come from.

Well, I happen to have an immigrant father who came as a legal
immigrant from Germany in 1903, and I knew the answer of “Ger-
many” wouldn't exactly sit well on the playground, given all the
headlines Hitler was getting. I had collected stamps, so I answered
Bavaria, which was true—a province of Germany.

Now, to what extent does that kind of asking the child the coun-
try from which they came—ordinarily, it wouldn’t matter. When
you’re in a highly emotional period in this country, and it does
matter. So I’m curious if you have any reaction to that question.

Mr. GrassLey. I’m afraid any law we put on the books—as we
found out, the first amendment was a problem for Jehovah’s Wit-
nesses during World War II, as well.

Mr. Horn. I remember that one, in my class.


32

(1) litigating in federal court claims secking private enforcement of 20 U.S.C.
§ 1232h(b) (the Hatch (now Grassley) amendment) and (2) serving as primary drafls-
man of Utah legislation entitled the Educational Rights and Privacy Act (§§53A-13-
301, 302 U.C.A.) for the State of Utah and Recognizing Constitutional Freedoms in
the Schools (§§53A-13-101.1, 101.2, 101.3 U.C.A.). Copies of the most current,
unanimously adopted versions of these two pieces of legislation are included with
this testimony. A copy of the district court’s ruling in the litigation is also enclosed
I am appearing today in the capacity as a private citizen.

I strongly support what | understand is an effort of this to protect family privacy
and autonomy. “(Tyhe liberty interest in family privacy has its source, and its con-
tours are ordinarily to be sought, not in state Jaw, but in intrinsic human rights,
as they have been understood in ‘this Nation’s history and tradition.’” Smith v. Or-
§anization of Foster Families, 431 U.S. 816, 842 (1977) (plurality opinion) (citations
omitted). “The history and culture of Western civilization reflect a strong tradition
of parental concern for the nurture and upbringing of their children, This primary
role of parents in the upbringing of their children is now established beyond. debate
as an enduring American tradition.” Wisconsin v. Yoder, 406 U.S. 205, 232 (1972).
Indeed, in the words of then Justice Dallin Oaks, speaking for the Utah Supreme
Court, “family autonomy helps to assure the diversity characteristic of a free society.
There is no surer way to preserve pluralism than to allow parents maximum lati-
tude in rearing their own children. Much of the rich variety of American culture has
been transmitted from generation to generation by determined parents who were
acting against the best interest of their children, as defined by official dogma.” In
re J.P. 648 P.2d 1364, 1376 (Utah 1982). With a desire to protect the interests out-
lined above, | would recommend that H.R. 11, as presently written, be revised to
address issues raised by the following four questions:

(1) Are there convincing reasons why the legislation does not have a short title
and basic factual or policy findings to justify the family privacy protections that are
obviously desired by this legislation?

It could well be appropriate for the committee to consider adopting as a preamble
to the legislation certain factual or policy statements. You may wish to consider the
following:

Section 401, This Act shall be known and may be cited as the Family Privacy Pro-
tection Act.

Section 402. Legislative Intent and Findings: It is the intent of Congress to ensure
that the rights of parents and children to family privacy and autonomy are pro-
tected. Protecting family privacy and autonomy is a compelling interest of govern-
ment because:

(a) the rights that are present in a parent-child relationship in a family unit
are presumed to be an inherent and inalienable right derived from a relation-
ship with a Divine Creator, which relationship has natural or prior existence
to those that exist with government;

(b) the family unit is where parents have the right and responsibility to trans-
mit their own rich cultural traditions regarding deeply held values, religious be-
liefs and practices, other moral views, political views and other aspects of the
heritage that is part of the family life in the home;

(c) the family unit is the primary location where parents and children develop
integrity, diligence, kindness and courtesy and other traits of character nec-
essary for democratic values and institutions to flourish;

(a) the family unit is the foundation of a stable society; and

(e) intrusion by government into the privacy and autonomy of the family unit
tends to undermine the ability of members of the family to exercise rights and
responsibilities which provide these critical benefits to society. Thus, at all
times, family privacy and autonomy is to be given greater preference than ad-
ministrative convenience.

By providing clarification as to intent, specific guidance can be given in terms of
implementing regulations or judicial interpretation of the same.

(2) Are there convincing reasons why much of the language in the proposed
amendment is written so broadly, ambiguous in parts, or that terms of consent are
not defined? a

Actions of the United States Supreme Court have recognized that administrative
agencies have expansive power in implementing policy decisions arising from ambig-
uous legislation. While not consistently applied by the Court,! beginning in 1984
with the case of Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984),

1 See Kenneth Culp Davis and Richard J. Pierce, Administrative Law Treatise, Vol. 1, §3.6 at
123-131 (1994); Thomas W. Merrill, “Judicial Deference to Executive Precedent,” 101 Yale Law
Journal 969 (1992).


14

income. If a minor child is engaged in any of these activities, the
problems are better addressed in the confines of a loving family,
rather than in an impersonal school or clinical setting.

On the other hand, as a former county commissioner, I’m also
aware of the positive benefits that result from nationwide surveys
conducted by the National Institute of Child Health and Human
Development. They have provided us with a much better under-
standing of the causes and reasons why children turn to alcohol,
drugs, or engage in teenage sex.

As a result of the data collected, schools and State and Federal
agencies have been able to pinpoint major problems and develop
classes to teach the dangers of this kind of inappropriate behavior.

While I am all for ensuring parents have the opportunity to de-
cline the participation of their children in such surveys, I think we
must be careful that the provisions contained in the Family Privacy
Protection Provision do not go too far.

Dr. Johnston raises very valid concerns in his testimony about
the problems that could arise from requiring that parents actually
give their written consent for participation in surveys. I believe his
compromise provision of sending out first-class letters should be
carefully considered.

At a more important level, we must not interfere with the ability
of law enforcement officials to question children who are being
abused, or block needed clinical treatment. Children must be pro-
tected, but not to a degree that potentially endangers them. If it
is the result of the Family Privacy Protection Act, we would be de-
feating our purpose.

In this regard, I was pleased to note, Mr. Chairman, that you in-
dicated in your memo that the provision should be limited to sur-
veys and related questionnaires, but we still must be careful in
how we draft this language.

I look forward to the hearing here today and talking to the wit-
nesses. Thank you very much, Mr. Chairman.

Mr. Horn. J thank the gentleman and now ask if the gentleman
from Florida, Mr. Scarborough , has any opening comment.

Mr. ScaRBoROUGH. Thank you, Mr. Chairman. I just simply
want to say it’s an honor to be here today to hear the testimony
at the hearing that you're conducting. I certainly am, like you and
other Members of this Congress, interested in broadening of paren-
tal rights.

Tve been concerned with current trends that have been occurring
in the past few years and, again, look forward to hearing remarks
from the Senator and the others that are going to be testifying
today on this important legislation. Thank you.

Mr. Horn. Thank you. Without objection, the statement of the
gentleman from New Hampshire, Mr. Bass, will be put in the
record.

[The prepared statement of Hon. Charles F. Bass follows:]

PREPARED STATEMENT OF HON. CHARLES F. Bass, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF NEw HAMPSHIRE

Mr. Chairman, I would like to take this opportunity to thank our witnesses who
have agreed to testify this morning. T especially thank i Senator Grassley, for
taking time out from your Senate duties to help us understand the importance of
this particular provision.


86

Mr. Butz. Yes, Congresswoman. We do no surveys of minors
without prior parental consent—excuse me, of minors with respect
to the sensitive questions that you asked about.

Mrs. MALONEY. Would OMB be able to identify surveys which
asked about anti-social or demeaning behavior? Does OMB conduct
such surveys or know of any?

Ms. KaTZEN. We do not conduct any surveys ourselves that touch

on these perceived sensitive issues. We do review surveys prepared
by all Federal agencies and, in the course of that review, if we were
to see questions such as you describe, certainly the bells would go
off,
Our function, under the Paperwork Reduction Act, is to assure
that questions asked are only those that are appropriate to the le-
gitimate function of the agency and, therefore, we would look for
some practical utility and useful function in that regard.

Mr. Horn. Remind me at that point, what is the trigger that
forces an agency or requires an agency to send its survey to you
for approval? Is it the number of people?

Ms. KaTzeN. The number of respondents—10.

Mr. Horn. Ten is the limit.

Ms. KATZEN. Ten.

Mr. Horn. So if they go beyond 10, you see every survey the Fed-
eral Government issues?

Ms. KATZEN. Right. Identical questions to 10 or more respond-
ents requires an OMB control number, and the sponsoring agency
would come to us for review under the Paperwork Reduction Act.
We then do a modified cost-benefit analysis—is this within the
mandate of the agency; does it pursue a legitimate mission of the
agency; is it likely to yield useful information; is it being done in
the least burdensome way; is it tailored to the particular objective
of the agency? Only when we are assured that that is the case,
would we approve it.

This process is not done in a vacuum. The submissions are made
available for public inspection.

We receive public comment on the documents, and any approval
lasts for a maximum of 3 years, so if the agency were to want to
continue using the instrument, as it is called, it would have to
come back for renewal, at which time we again would solicit public
comment before we decide to approve it.

Mrs. MALONEY. Would OMB be able to identify surveys which
asked about mental or psychological problems, such as was talked
about earlier in some of the conversations, potentially embarrass-
ing to the minor or his family?

Ms. KATZEN. Yes. In reviewing the survey, we would look, as I
indicated in response to your earlier question, for those types of
questions, which would raise a warning flag and then we would go
through the process of determining whether they were necessary to
be asked, and were being asked in the least intrusive way.

Mrs. MALONEY. Has the Census Bureau received any complaints
from parents of minors in surveys which ask about family income?

Mr. Butz. Of minors?

Mrs. MALONEY. Yes.

Mr. Butz. No, we have not. We receive complaints about our sur-
veys from time to time, but we have not received complaints spe-


73

Mr. Horn. Thank you very much. Let me just ask a couple of
questions and then we'll yield to each side, alternating.

If we’re to write into this bill the parental consent procedure of
an option to decline by mail and to assume consent if no written
declination were received in a reasonable time, would that be le-
gally sufficient, in your judgment? I'd like to hear the answers of
both of you to the question.

Mr. Hitron. I think the issue raised by Senator Grassley pre-
viously, where he indicated he wanted to make sure there was no
question and no burden on the parent to prove that they had got-
ten the notice—occasionally, you miss things in the mail.

I think the judgment call to be made here is for Congress to
make that judgment call. You're broadening out of the school
arena. I feel strongly that consent can be obtained in the school
arena. There are other issues that may ameliorate against obtain-
ing that consent on a broad basis.

At a minimum, we ought to have, at least for the proposal 3
which has been discussed today by Dr. Johnston, I would favor the
written support. If you provided enforcement rights on these other
issues, I think it would go a long way to making that a compromise
that could be lived with.

My preference, obviously, would be the written, but I recognize,
I don’t think that is legally mandated at this point in our jurispru-
dence outside of the school setting.

Mr. Horn. Dr. Johnston.

Mr. JOHNSTON. Yes. Well, obviously, I can’t speak as a lawyer,
since I’m not one, but the intent of the procedure—which, inciden-
tally, we’ve been doing since 1991 in our surveys of 8th and 10th
grade students—is to be sure that every parent is notified well in
advance of the actual survey that the survey will take place, what
it’s about, and given the opportunity to decline participation of
their child at no cost to them, and at really very, very little dif-
ficulty to them. It’s either sending back a written card that’s pre-
stamped and pre-addressed or picking up the phone and making a
local phone call to the school to a designated person and simply
saying they don’t want their child to be in that survey.

We've tried to create the situation so there is a minimum of dif-
ficulty, embarrassment, or any kind of obstacle to a parent saying
no, they’d just as soon their child not be in the study. It seems to
me that schools keep pretty good, up to date records of the address-
es and names of the parents or guardians of the children they
serve, so I think it would be one of those things that 99.9 percent
of the parents would be actively and accurately notified.

Under the proposal that I make, and the one that we actually
have had a good opportunity to pretest, we get very low proportions
who actually decline but, as I said, in a different part of the study
where we carry out a full-scale, active parental consent procedure,
we find that only 1 or 2 percent, in the end, decline, of all the par-
ents that are contacted.

Mr. Horn. Yes, I noticed that figure. You said 55 percent didn’t
answer the first mail request and then, ultimately, 1 or 2 percent
decline?

Mr. JOHNSTON. Right.


58

performed with due care required by Defendants’ governmental and
professional position.

40. Having so failed, the Defendants intentionally ignored,
(or with deliberate indifference or in reckless disregard of),
Plaintiffs’ statutory rights (under 20 U.S.C. § 1232(h)(b) and 34
C.F.R. § 98.1 et, seg.) which required the Defendants to obtain
the consent of Plaintiff D.P. or A.P. prior to undertaking
psychological testing or treatment with B.P. and N.P.

41. The Defendants cannot show a compelling state interest
to justify the intrusions listed above.

42. The Defendants cannot show that their existing policies
and practices were the least restrictive means of accomplishing
their interests.

43. The actions of Defendants, acting under the color of
state and local law, custom and usage, deprived the Plaintiffs of
their statutory rights as guaranteed by PPRA, 20 U.S.C. §
1232(h)(b) and 34 C.F.R. § 98.1 et. seg., all protected by 42
U.S.C. § 1983 and § 1988.

44. The Plaintiffs have been damaged (as outlined
heretofore) by reason of the illegal conduct of the Defendants in
violation of federal statutes.

Count II

Violation of the Dye Process Clause of the Fourteenth Amendment

14


6

TITLE V—CHILD SUPPORT ENFORCEMENT
SEC. 501. ENFORCEMENT OF CHILD SUPPORT ORDERS.

(a) IN GENERAL.—Section 1738A of title 28, United States Code, is amended—

(1) in subsection (a) by inserting “or child support order” after “child cus-
tody determination”;

(2) in subsection (b)—

(A) by redesignating paragraphs (2) through (8) as paragraphs (3)
through (9), respectively; and

(B) by inserting after paragraph (1) the following new paragraph:

“(2) ‘child support order’ means a judgment, decree, or order of a court re-
quiring the payment of money, whether in periodic amounts or lump
the support of a child and includes permanent and temporary orders,
ders and modifications, on-going support and arrearages:”,

(3) in subsection (c)—

(A) in the first sentence by inserting “or child support order” after
“child custody determination”, and

(B) in paragraph (2XD\i) by inserting “or support” after “determine the
custody”;

(4) in subsection (d), by striking out “the requirement of subsection (cX1)
of this section continues to be met and”; and

(5) in subsection (f(2), by inserting “as described under subsection (d) of
this section,” after “no longer has jurisdiction,”.

(b) TECHNICAL AND CONFORMING AMENDMENTS.—(1) The heading for section
1738A of title 28, United States Code, is amended to read as follows:
“SEC. 17384. FULL FAITH AND CREDIT GIVEN TO CHILD CUSTODY DETERMINATIONS AND
(CHILD SUPPORT ORDERS.”.
(2) The table of sections for chapter 115 of title 28, United States Code, is amend-
ed by striking out the item relating to section 1738A and inserting in lieu thereof:

“1738A. Full faith and credit given to child custody determinations and
child support orders.”.

(c) EFFECTIVE Date The amendments made by this section shall be effective on
and after the date of the enactment of this Act.
SEC. 502. UNIFORM TERMS IN ORDERS.

(a) IN GENERAL.—Section 452(a) of the Social Security Act (42 U.S.C. 652(a)) is
amended—

(1) in paragraph (9), by striking “and” after the semicolon;

(2) in paragraph (10), by striking the period at the end of the 2nd sentence
and inserting “; and”; and

(3) by adding at the end the following:

“(11) develop, in conjunction with State executive and judicial organiza-
tions, a uniform abstract of a child support order, for use by all State courts
to record in each child support order—

“(A) the date support payments are to begin under the order;

“(B) the circumstances upon which support payments are to end under
the order;

“(C) the amount of child support payable pursuant to the order ex-
pressed as a sum certain to be paid on a monthly basis, arrearages ex-
pressed as a sum certain as of a certain date, and any payback schedule
for the arrearages;

“(D) whether the order awards support in a lump sum (nonallocated)
or per child;

“(E) if the award is in a lump sum, the event causing a change in the
support award and the amount of any change;

“(F) other expenses covered by the order;

“(G) the names of the parents subject to the order;

“(H) the social security account numbers of the parents;

“(I) the name, date of birth, and social security account number (if any)
of each child covered by the order;

“(J) the identification (FIPS code, name, and address) of the court that
issued the order;

“(K) any information on health care support required by the order; and

“(L) the party to contact if additional information is obtained.”.



29

by the way, was one of those put in the record as objectionable, the
district chose to test the children again, using the same test.

In this case, the older child objected, saying his mother didn’t
want him to take the test and was assured by the district, “Don’t
worry, we've talked to your mother,” and the child is retested

again.

ewhy? Well, they had a district policy that said, “The home, com-
munity, and school are jointly responsible for the physical, social,
emotional, and moral development of the youth.” This case has
been going on for 20 years. The school’s decision about what was
most appropriate for that child was given higher priority than what
the parents wished.

Legal redress was sought for the parents and children. On one
front, this case history and numerous others in my State prompted
our legislature to adopt legislation requiring protection of privacy
and family autonomy in all educational matters, regardless of
source of funding. That legislation, as it was amended in 1995, is
included in my original testimony and was adopted unanimously in
1995.

On the other front, with support from the Rutherford Institute,
Federal legislation was filed asking for a dollar in nominal dam-
ages and trying to clarify that the parents did have rights under
this legislation.

In February, Judge Green accepted as true all the allegations in
this complaint and dismissed the proceeding for, among other rea-
sons, he found that there was no right of private enforeement—that
is, the only relief available was through administrative channels—
and that there was no right of a parent to seek vindication in Fed-
eral court.

Therefore, I’m here as a private citizen today requesting that
Congress make explicit its desire to protect family autonomy and
privacy. I make three basic suggestions in the detailed written tes-
timony submitted:

First, make specific findings and policy statements regarding the
importance of the family. I’ve suggested several. They'll help those
implementing and living with the law understand why Congress is
choosing to act the way it is.

Second, agreeing with Representative Maloney, there are many
technical corrections to eliminate confusion and vagaries in your
present legislation, I have several suggestions that we’ve worked
through in Utah, both in theory and in practice now for a year. I
would recommend those be considered.

Last, specifically provide for a private right of action. I rec-
ommend language with that. The present proposal, like the Grass-
ley amendment, like the Hatch amendment, is silent on this issue.
None is prohibited, but it’s not allowed and, at least in the tenth
circuit, without it being specifically provided, it’s unenforceable. I
think you could read the second and fifth circuits differently but,
in my circuit, it gives us no relief.

Now, taking these affirmative steps will allow families to deter-
mine how they will be protected and not those who have a political
or economic tie-in to the supervisors, the administrators in charge.

In my opinion, taking these affirmative steps will help give addi-
tional meaning to this new Contract with America that I’ve heard


65

71. The Defendants cannot show that their existing policies
and practices were the least restrictive means of accomplishing
their interests.

72. By these actions, Defendants have deprived the
Plaintiffs of their rights under U.S. Const., Amendment XIV, and
42 U.S.C, § 1983 and § 1988.

73. The Plaintiffs have been damaged (as outlined
heretofore) by reason of the unconstitutional and illegal conduct
of the Defendants.

REQUESTS FOR RELIEF

74. Plaintiffs seek an award of nominal and general damages
for Plaintiffs A.P., D.P., B.P., and N.P. by reason of the
injuries suffered by reason of the actions of the Defendants.

75. Plaintiffs are entitled to their costs, including
reasonable attorney’s fees as provided by 42 U.S.C. § 1988.

WHEREFORE PLAINTIFF PRAYS:

76. That the Court award nominal or general damages to
D.P., A.P., B.P. and N.P. in the amount to be shown at trial
against Defendant Alpine School District and, if merited, against
each other Defendant in their personal capacity.

77. That Plaintiffs be awarded their costs, including
reasonable attorney’s fees.

78. That the Court grant such further and general relief as

to which the Plaintiffs may be entitled.

21


67

ALPINE SCHOOL DISTRICT

[575 North 100 East, ASERICAN Fors, UTAR 84003 (801) 756-8424

Dr. Luana Searle, ASSISTANT SUPERINTENDENT 0 K-6 SCHOOLS

September 1992

Dear Parents of

‘The Chapter | program this year is being offered for selected third grade students in the area of
reading. {t is designed to provide students with daily hands-on reading experiences. Those
children selected to participate will leave their classroom for 30 minutes per day and study
under the direction of the Chapter | teacher. The class will include phonics lessons, drill on
most used sight words, prereading computer lessons that motivate interest and teach vocabulary
and study skills, postreading computer lessons that leach literal, critical, and creative reading
comprehension skills, and reading in children's literature books. This is a new approach that
uses the philosophy that “we learn best by doing.” A wide variety of outstanding books will be
made available to the students and outside reading will be expected of them. The project is
financed entirely with Chapter | Federal funds.

The program includes pre and post testing so that we can measure your child's progress.
Results of these tests will be shared with you during regularly scheduled parent conferences.

Your child has been recommended by his/her classroom teacher 10 participate with us. if you
would like hinvher to have this opportunity, sign the permission slip below and return it to
school.

Please call if you have any questions. The Chapter | phone number is:

Sincerely,

Chapter | Statt

—— Gesire to have my child participate In the program.

Parent Signature

is = Ee

EXHIBIT 1


ALPINE SCHOOL DISTRICT

‘515 Nom 100 East, AMERICAN Foax, UTAH 84003 (801) 756-2424
Dr. Luma Searle, ASSISTANT SUPERINTENDENT 0 K-—6 ScHOOLS

September 1992

To the Parents of

‘Our schoo! is very fortunate to have the tutoring, Chapter | Reading class available for selected
1st and 2nd grade children. A select group of children are given the opportunity to participate.

‘Your child is eligible to participate this year. This means that he/she would leave the regular
classroom for thirty minutes each day and go to the tutoring room for reading instruction.
He/she would be taught by a tutor from the Sth and 6th grade, supervised by certified
personnel. Reading and self-concept skills will be reinforced.

Reading tests and evaluations will be given your child. The results of such testing will be shared
with you at the parent conferences heli during the year. This program is supported entirely
with Federal funds known as "Chapter |."

Please complete the form below and retum js to schoo! tomorrow so we can know if you desire 10
have your child participate. it you have questions, please call me at 227-8785"

Tus (bac

Chapter | Staff

_ EXHIBIT 2 -


26

Studies adversely affected

One of those, which I believe would be adversely affected in the extreme, would
be the Monitoring the Future Study, of which I am the Principal Investigator. This
study, now in its twenty-first year, has been conducted at the University of Michi-

‘an under a series of research grants from the National Institute on Drug Abuse.
thas been used extensively by, and proven quite satisfactory to, the White House
under the past six presidential administrations. I think it is fair to say that it pro-
vides the most widely-used and reliable measures of drug use, drinking, and smok-
ing by America’s youn, people. It also provides key measures on progress toward
a National Education Goal for the Year 2000 and Health Goals for the Year 2000,
as well as some of the best measures of trends in delinquency and victimization
among adolescents and young adults. Representative samples of some 50,000 stu-
dents in eighth, tenth, and twelfth grades (located in over 400 public and private
secondary schools) are surveyed annually. This is a very cost-effective, independent,
survey operation which has proven highly useful to instruct. policy at all levels of
government, but particularly at the federal level. It has provided accurate informa-
tion for twenty years on the nature and extent of drug use among the nation’s stu-
dents, and more importantly, on changes taking place among them. It also provides
significant findings on the causes of those changes. For example, in the last three
years this study has called attention to an upturn in arg use, specifically mari-
juana use, and particularly among the younger students. It has also shown that de-
clines in the perceived dangers of marijuana use, as well as changes in peer norms,
explain most of this change in use. This knowledge is now being used to help guide
both public and private sector responses to this re-emerging problem among our
youth.

Monitoring the Future is but one of the studies which may be adversely affected
by H.R. 11, Title 4. Many states and communities conduct assessments of alcohol
and other arg use among their children, using federal pass-through monies, includ-
ing the PRIDE surveys, the American Aleohol and Other Drug School Survey, the
Michigan Alcohol and Other Drug School Survey, etc. CDC’s ongoing Youth Risk Be-
havior Survey, which evaluates the prevalence and trends for a number of health
threatening behaviors, would also be affected by this legislation. In addition to these
ongoing studies, many basic research studies important to this country’s under-
standing of its ung. people and their problems, and carried out on a one-time
basis, also would be affected.

The problem being addressed by Title 4

The act does not discuss the problems ostensibly being solved by the legislation,
so one must deduce the intent from the nature of the act. Assuming that there is
no intent simply to kill much-needed research, one can deduce that the intent is to
provide parents with advance notification and description of the nature of survey
studies in which their children are being invited to participate, and to provide a
comfortable way for them to decline their children’s participation if they have objec-
tions to the nature of the research. Except for studies dealing with sexual behavior,
which few in-school surveys do, ‘extremely few parents actually object to their chil-
dren participating in legitimate, established research surveys—on the order of only
one to four percent. Nevertheless, it is widely acknowledged that it is important for
parents to have the opportunity to decline their children’s and adolescents’ partici-
pation, and to do so with a minimum of effort and an absence of embarrassment.

Current safeguards

I think it can be argued that presently there are more than adequate safeguards
in place to accomplish these goals within the context of school-based research, and
to protect children from risk or undue influence. In particular: (a) federal agencies
have explicit regulations, (b) research institutions have institutional review boards
(IRB’s) which screen all proposals before admission for adequate protection of
human subjects, (c) funding agencies have research review committees which must
pass on the adequacy of human subjects protection in each and every research pro-
tocol, and (d) most school systems also Nave a_research review committee which
evaluates the appropriateness and protections of each piece of research carried out
in their school system. All of these screening points require parental notification
well in advance of the survey and a convenient means by which a parent can direct
the school to exclude their son or daughter from a particular survey. Usually, the
procedure for declining is for the parent to call the school’s administrative office. It
is a system that works well. 1 know of no case in which the confidentiality of a child
has been breached, or where a parent declined their child’s participation, but the
child received the survey anyway—and certainly none among the hundreds of thou-
sands of American adolescents who have participated in the Monitoring the Future



78

Mr. JOHNSTON. I wish I had more empirical data with which to
answer that. Not many studies do a full-scale active parental con-
sent, for the reasons I mentioned in my testimony, and so we don’t
know exactly.

The only one I know is one that we have done, where we've fol-
lowed up a nationally representative sample of young people about
15 years of age. We notified the parents of the content of the sur-
vey, which includes drugs and alcohol but not sexual behavior, and
we get between 1 and 2 percent, eventually, who decline their chil-
dren’s participation.

That’s fairly sensitive information. I suspect that if it was ex-
plicit for sexual behavior in the questionnaire, it would be a bit
higher, but probably not dramatically so.

Mr. BLUTE. Let me just say that I agree with you about the prob-
lems associated with doing the mail that way. I certainly, as just
an average person, hate it when I have to go down to the Post Of-
fice for one of those and find out that it’s something that is not that
important directly to me, and I took all that time, so I can see the
problematic nature of that, and so it is a difficult process.

I appreciate your testimony, and we look forward to working
with you and the chairman on crafting this bill. Thank you very
much, Mr. Chairman.

Mr. Horn. Thank you very much. Let me pursue a couple of
questions here. I understand the National Association of School
Psychologists has suggested the degree of formality of the parents’
consent should be driven by how sensitive or controversial the sur-
vey is and an analysis or evaluation would figure that out, presum-
ably.

For example, in the case of intervention decisions involving indi-
vidual children, written consent would be mandatory; where per-
sonal information is gathered, verbal consent should be provided;
and for shaping and defining a proposed program, parents can be
informed and invited to participate.

Do we need to consider this hierarchy of consent forms here or
would one form, such as the decline-by-mail option, be preferable?
What’s your reaction to that, Dr. Johnston?

Mr. JOHNSTON. Well, I think that, almost regardless of content,
that the, what I call model 3 or the first class mail, would be ade-
quate as the most extreme. I do think that the case could be made
that there’s a whole body of research about really non-sensitive top-
ics that probably doesn’t require even that.

Whether this committee is going to be able to put the wording
to that, to make the distinction, I’m not sure. It’s a hard distinction
to make, because one person’s sensitive topic is not another one’s.

Mr. Horn. Right.

Mr. JOHNSTON. 1 think there is a fairly comprehensive list in the
current wording about what constitutes sensitive and, despite the
broad statement of some of those terms, probably, there would be
some consensus around that as being the nn lomain, fairly broadly de-
fined, of sensitive material.

Mr. Horn. Dr. Hilton.

Mr. HILTON. I would simply, drawing on my experience both in
religious liberty, civil rights work, as well as having served as


3

TiTLks J-II, REFERRED TO THE COMMITTEE ON WAYS AND MEANS
TITLE III, REFERRED TO THE COMMITTEE ON THE JUDICIARY
TITLE IV, REFERRED TO THE COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT

TITLE V, REFERRED TO THE COMMITTEE ON WAYS AND MEANS, AND IN ADDITION TO
THE COMMITTEE ON THE JUDICIARY, FOR A PERIOD TO BE SUBSEQUENTLY DETER-
MINED BY THE SPEAKER, IN EACH CASE FOR CONSIDERATION OF SUCH PROVISIONS
AS FALL WITHIN THE JURISDICTION OF THE COMMITTEE CONCERNED

JANUARY 26, 1995

Additional sponsors: Mr. BURTON of Indiana, Mr. Norwoob, Mr. WALKER, Mr.
Lrvincston, Mr. SAM JOHNSON of Texas, Mr. COLLINS of Georgia, Mrs. SEASTRAND,
Mr. SKEEN, Mr. Cox, Mr. Dreier, Mr. DeLay, Mr. Pomso, Mr. PETERSON of Min-
nesota, and Mr. SALMON

A BILL

To strengthen the rights of parents.

Be it enacted by the Senate and House of Representatives of the United States of
America in Congress assembled,

SECTION 1. SHORT TITLE.
This Act may be cited as the “Family Reinforcement Act”.

TITLE I—ADOPTION ASSISTANCE,

SEC. 101. REFUNDABLE CREDIT FOR ADOPTION EXPENSES.

(a) IN GENERAL.—Subpart C of part IV of subchapter A of chapter 1 of the Inter-
nal Revenue Code of 1986 (relating to refundable credits) is amended by redesignat-
ing section 35 as section 36 and by inserting after section 34 the following new sec-
tion:

“SEC. 35. ADOPTION EXPENSES.

“(a) ALLOWANCE OF CREDIT.—In the case of an individual, there shall be allowed
as a credit against the tax imposed by this subtitle for the taxable year the amount
of the qualified adoption expenses paid or incurred by the taxpayer during such tax-
able year.

“(b) LIMITATIONS.—

“(1) DOLLAR LIMITATION.—The aggregate amount of qualified adoption ex-
penses which may be taken into account under subsection (a) with respect to
the adoption of a child shall not exceed $5,000.

(2) INCOME LIMITATION.—The amount allowable as a credit under sub-
section (a) for any taxable year shall be reduced (but not below zero) by an
amount which bears the same ratio to the amount so allowable (determined
without regard to this paragraph but with regard to paragraph (1)) as—

“(A) the amount (if any) by which the taxpayer's adjusted gross income
exceeds $60,000, bears to

“(B) $40,000.

“(3) DENIAL OF DOUBLE BENEFIT.—

“(A) IN GENERAU.—No credit shall be allowed under subsection (a) for
any expense for which a deduction or credit is allowable under any other
provision of this chapter.

“(B) GranTS.—No credit shall be allowed under subsection (a) for any
expense to the extent that funds for such expense are received under any
Federal, State, or local program.

“(c) QUALIFIED ADOPTION EXPENSES.—For purposes of this section, the term ‘quali-
fied adoption expenses’ means reasonable and necessary adoption fees, court costs,
attorney fees, and other expenses which are directly elated to the legal adoption
of a child by the taxpayer and which are not incurred in violation of State or Fed-
eral law or in carrying out any surrogate parenting arrangement. The term ‘quali-
fied adoption expenses’ shall not include any expenses in connection with the adop-
tion by an individual of a child who is the child of such individual’s spouse.

“(d) MARRIED CouPLes Must FILE Joint RETURNS.—Rules similar to the rules of
paragraphs (2), (3), and (4) of section 21(e) shall apply for purposes of this section.”


2

changes to the bill. We received a wide range of responses, which
will be included in the record.

Today, we will hear from several individuals with an interest in
the kind of issues Title IV would cover. With us are a U.S. Senator,
a research scientist, a family private authority, an Associate Direc-
tor of the Commerce Department’s Bureau of the Census, and the
Administrator of the Office of Management and Budget’s Office of
Information and Regulatory Affairs. We also invited representa-
tives of the Department of Health and Human Services, but they
declined to participate.

For all who accepted and are here today, we look forward to your
testimony and to working with you to make Title IV an effective
piece of legislation.

I now yield to the ranking minority member on the committee,
Mrs. Maloney, a Representative from New York.

[The text of H.R. 11 follows:]

HR. 1

To strengthen the rights of parents.

IN THE HOUSE OF REPRESENTATIVES

JaNuaRY 4, 1995

Mrs. VucaNovicn, Mr. THOMAS of California, and Mr. WELLER (for themselves,
Mr. Royce, Mr. McinrosH, Mr. Crane, Mr. ForBEs, Mr. CUNNINGHAM, Mr.
ROHRABACHER, Mr. Dornan, Mr. HasTEeRT, Mr. BLUTE, Mr. WELDON of Pennsylva-
nia, Mr. BARTLETT of Maryland, Mr. ZIMMER, Mr. LINDER, Mr. Bactus, Mr. SMITH
of Texas, Mr. Cootey, Mr. GREENWooD, Mr. Hoke, Mr. Saxton, Mr. TayLor of
North Carolina, Mr. LARGENT, Mr. KIM, Mr. BALLENGER, Mr. CALLAHAN, Mrs, Rou-
keMA, Mr. CHRYSLER, Mr. HANCOCK, Mr. NUSSLE, Mr. BAKER of Louisiana, Mr.
Srearns, Mr. Rotu, Mr. STOCKMAN, Mr. SMITH of Michigan, Mr. BAKER of Califor-
nia, Mr. Suaw, Mr. Hercer, Mr. SENSENBRENNER, Mrs. FOWLER, Mr. EMERSON, Mr.
HutcHinson, Mr. HEINEMAN, Mr. ENGLISH of Pennsylvania, Mr. HOSTETTLER, Mr.
Jones, Mr. ENSIGN, Mr. TIAHRT, Mrs. Myrick, Mrs. Cuptn, Mr. KINGSTON, Mr.
Ewinc, Mr. Hastincs of Washington, Mr. GANSKE, Mr. WELDON of Florida, Mr.
Cosurn, Mr. Lewis of Kentucky, Mr. BUNNING of Kentucky, Mr. INGLIS of South
Carolina, Mr. LicHtTroot, Mr. Istook, Mr. CALVERT, Mr. CREMEANS, Mr.
KNOLLENBERG, Mr. SCHAEFER, Mr. BILIRAKIS, Mr. HaywortH, Mr. Fox, Mr.
RaDANOVICH, Mr. GOoDLING, Mr. Wamp, Mr. GILCHREST, Mr. SOLOMON, Mr. BLILEY,
Mr. DooLiTTLe, Mr. Camp, Mr. Packarb, Mr. Stump, Mr. GILMAN, Mr. MILLER of
Florida, Mr. LaTouretre, Mr. FLANAGAN, Mr. BURR, Mr. LATHAM, Ms. MOLINARI,
Mr. GUNDERSON, Mr. THORNBERRY, Mr. Riccs, Mr. ALLARD, Mr. GooDLaTts, Mr.
CHRISTENSEN, Mr. HILLEARY, Mr. WICKER, Mr. Bono, Mr. Frisa, Mr. SMITH of New
Jersey, Mr. TALENT, Mr. SHADEGG, Mrs. JOHNSON of "Connecticut, Mr. Canapy, Mr.
McCoLLuM, Mr. Siays, Mr. BARTON of Texas, Mr. BARR, Mr. ARMEY, Mr.
WALDHOLTZ, Mr. Tate, Ms. DUNN, Mr. Mica, Mr. McHucH, Mr. Everett, Mr.
Ror, Mr. Crapo, Mr. Paxon, Mr. Younca of Florida, Mr. Coste, Mr. EHRLICH, and
Mrs. Meyers of Kansas) introduced the following bill; which was referred as follows:


15

‘There is a widespread perception that the Federal government has become overly
intrusive, especially when it comes to families. The intent of the legislation before
us is to better balance the rights of families against the power of government. I hope
that it will do just that, and am very interested in listening to this testimony, as
well to as any suggestions our witnesses may have for improving this provision.

I thank the Chairman.

Mr. Horn. I am now delighted to welcome the Senator from
Iowa, Senator Grassley, who has had a rich and lengthy experience
in this area of the law. We know you're on a tight schedule today,
so please proceed in any manner you would like.

STATEMENT OF HON. CHARLES E. GRASSLEY, A SENATOR IN
CONGRESS FROM THE STATE OF IOWA

Mr. GrassLeY. Thank you, Mr. Chairman. Most importantly,
thank you for looking into this very important area of existing law,
or lack of attention in the past, and how it relates to the privacy
of individuals. And so I compliment you on your leadership. Most
importantly, though, I appreciate the opportunity to come before
your committee to discuss an issue of great importance to me and
to our Nation’s families.

Last year, I sponsored an amendment to Goals 2000, which gave

eater privacy protection to the family. The amendment passed
the Senate 93 to 0 and then became part of the final law. I’m
pleased that you're considering an expansion of that language in

our bill.
y Title IV of your bill expands the protection of the Pupil Rights
Amendment from solely the Department of Education to any feder-
ally funded department or agency. My opinion is that this expan-
sion is needed and welcome.

I wouldn’t want to detract from that statement by some cautions
that maybe have been expressed here to specific programs but, as
a general proposition, I think it’s a very, very good move to make,
to make sure that privacy isn’t protected just in the Education De-
partment but also in other agencies.

I wanted to review for the committee some of the issues raised
during our discussion last year, which I hope will be helpful to you
in your deliberations. The language in Section 4, covering any sur-
vey, analysis, or evaluation was Geliberately chosen by me for its
broad, sweeping effect. The provision covers any form of getting in-
formation from a minor, whether written or oral,

The 1978 original language, which my amendment deleted, relat-
ed to psychiatric or psychological testing, examination, or test, or
treatment. This 1978 language was dropped because no one under-
stood what it meant.

A parent, teacher, or administrator had to get, before my amend-
ment became law, an expert to decide if a written or oral exam. fit
a bureaucratic definition of “psychiatric” or “psychological.” My
change provided broad and very sweeping coverage of any question
of a minor.

The second change my amendment made was to drop a require-
ment that the survey have a “primary purpose” of revealing private
information. Now, it may not appear on the surface, but this is an
impossible standard to meet.

If there was a test with 100 questions, for example, and No. 72
covered one of the private areas, a parent had to show that Ques-


5

“Sec, 36. Credit for taxpayers with certain persons requiring custodial
care in their households.
“Sec. 37. Overpayments of tax.”
(c) EFFECTIVE DATE.—The amendments made by this section shall apply to tax-
able years beginning after December 31, 1995.

TITLE III—CHILD PROTECTION

SEC. $01. INCREASED PENALTIES FOR USE OF A COMPUTER IN SEXUAL CRIMES AGAINST
CHILDREN.

The United States Sentencing Commission shall amend the sentencing guidelines
applicable to section 2252 of title 18, United States Code, to increase the offense
level by 2 levels if a computer was used in the transporting or shipment of the vis-
ual depiction.

SEC. 302. MANDATORY MINIMUM SENTENCE FOR PROSTITUTION OF CHILDREN.

Section 2423 of title 18, United States Code, is amended—

(1) in subsection (a), by striking “or imprisoned not more than ten years,
or both.” and inserting “and imprisoned not less than 3 nor more than 10
years.”; and

(2) in subsection (b), by striking “, imprisoned not more than 10 years, or
both.” and inserting “and imprisoned not less than 3 nor more than 10 years.”.

SEC. 303, SENTENCING GUIDELINES RELATING TO PROSTITUTION OF CHILDREN.

The United States Sentencing Commission shall amend the sentencing guidelines
applicable to section 2423 of title 18, United States Code, to assure that an increase
in the age of the child who is the victim of the offense does not result in a lighter
punishment.

‘SEC, $04. INCREASE IN PENALTY FOR SEXUAL ABUSE OF A MINOR.

Section 2243(a) of title 18, United States Code, is amended by inserting “less than
3 nor” after “imprisoned not”.

SEC. 805. INCREASE IN PENALTY FOR SEXUAL ABUSE OF A WARD.

Section 2243(b) of title 18, United States Code, is amended by striking “more than
one year” and inserting “less than 3 nor more than 15 years”.

TITLE 1V—FAMILY PRIVACY PROTECTION
SEC. 401. FAMILY PRIVACY PROTECTION.

(a) Notwithstanding any other provision of law, no program or activity funded in
whole in or part by any Federal department or agency shall require a minor to sub-
mit to a survey, analysis, or evaluation that reveals information concerning:

(1) parental political affiliations;

(2) mental or psychological problems potentially embarrassing to the minor
or his family;

(3) sexual behavior or attitudes;

(4) illegal, anti-social, self-incriminating, or demeaning behavior;

&) appraisals of other individuals with whom the minor has a familial rela-
tionship;

(6) relationships that are legally recognized as privileged, such as those
with lawyers, physicians, and members of the clergy;

(7) the minor's household income, other thar information required by law
to determine eligibility for participation in a program or for receiving financial
assistance from a program; or

(8) religious beliefs,

without the written consent of at least one of the minor’s parents or guardians or,
in the case of an emancipated minor, the prior consent of the minor himself.

(b) Subsection (a) shall not apply to tests intended to measure academic perform-
ance except to the extent that such tests would require a minor to reveal informa-
tion listed in paragraphs (1) through (6) of subsection (a).

SEC, 402. NOTIFICATION PROCEDURES.

A department or agency which, in whole or in part, supports a program or activity
involving any survey, analysis, or evaluation of minors shall eataklish procedures
by which the department or agency, or its grantees, shall notify minors and their
parents of their rights under this title.

SEC, 403. EFFECTIVE DATE.

This title shall take effect 30 days after the date of the enactment of this Act.


87

cifically about questions asked of minors. Mr. Horn. I’m going to
have to leave. Let me just say that what we face is a live quorum
call, which is 15 minutes, followed by a 5-minute vote. So I think
we're going to have to recess until 5 after 12. Dr. Butz, will you
still be available?

Mr. BuTz. Yes, sir.

Mr. Horn. And Ms. Katzen, what’s your situation?

Ms. KaTZEN. If you'd like me to stay, I'd be happy to do so.

Mr. Horn. OK, do you have some more questions?

Mrs. MALONEY. No, I don’t.

Mr. Horn. All right. I think it would be useful, if you don’t mind.

Ms. KATZEN. I'd be happy to.

Mr. Horn. We'll see you at 5 after 12, a quorum having been es-
tablished.

[Recess.]

Mr. Horn. The hearing will resume and we'll hear from Dr. Butz
and then questions.

Mr. Butz. Thank you, Mr. Chairman. I'll give somewhat abbre-
viated remarks. I would appreciate my full testimony being entered
into the record. It’s a pleasure to be here testifying today on H.R.
11, the Family Reinforcement Act, specifically on Title IV. You list-
ed five specific questions in your letter of invitation to the Census
Bureau, and I'll try to answer each of these in turn.

The first question is, what surveys, analyses or evaluations of in-
dividual minors are currently conducted with Federal funds? I’m
going to restrict my answer to the surveys that are done by the

ensus Bureau. Those are the ones that I know about. And there
are now, or recently have been, three such voluntary surveys. Each
of these is sponsored by another Federal agency. We do the work
for them, and are paid by them to do the survey.

First, we conduct the National Crime Victimization Survey for
the Bureau of Justice Statistics. The purpose of this survey is to
collect information about the types and incidents of personal or
household crime; monetary losses and physical injuries due to
crime; and characteristics of the victim. Interviewers are instructed
to obtain a response directly from each member of a household in
the sample who is 12 years of age or older.

So this is not a survey aimed specifically at minors, but minors
are included in the target sample. A parent is notified by mail
ahead of time that the children are being interviewed.

Second, we conducted the youth behavior survey for the National
Center for Health Statistics in 1992. This survey is part of the
youth risk behavior surveillance system, about which you heard
earlier concerning the school-based components. Ours is a house-
hold-based component. Household members, ages 12 to 17, were in
the survey, and interviewers obtained parental consent to interview
the children personally. We obtained the consent either over the
telephone, or during the personal visit.

Third, we conducted the teenage attitudes and practices survey,
also for the National Center for Health Statistics, which is part of
the Centers for Disease Control. We did this in 1989 and again in
1993, A sample of persons 10 to 21 was interviewed, and advance
letters were sent to parents and youths in the sample so that a


80

ous if you have seen much gagging one way or the other by the ex-
isting State, local school district rules.

Mr. JOHNSTON. I’m not sure I’m answering your question. There
are a lot of groups that have researchers in them, and who depend
on research, that are quite concerned about the legislation as it
currently exists. I think word of the legislation got out rather late.

In fact, the original Grassley amendment on the education legis-
lation I think didn’t get out at all. I mean, it just happened before
anybody had a chance to say, “Wait a minute, there are some prob-
lems here.”

Mr. Horn. Well, I can appreciate that. That’s why we’re holding
this hearing.

Mr. JOHNSTON. Yes. We appreciate that.

Mr. Horn. And we want the response, because I was a university
president when the Buckley amendment was passed, and some of
the things that have occurred as a result of the Buckley amend-
ment boggle the mind.

The Department of Education, in Pennsylvania State University,
said masters’ theses were subject to the Buckley amendment,
which is so ludicrous that I can’t believe it, since you’re supposed
to take your thesis and put it in the library where it’s open to any-
body who would like to read it, and for anyone to check for plagia-
rism or anything else.

So you have the great irony where a master’s student, after sub-
mitting his master’s thesis to a faculty committee and the thesis
is approved, can deny access to it in the university library under
the Buckley amendment. That's absurd. Congress certainly didn’t
intend that. And yet, some eager beaver has stated that.

Mr. Hivron. I think it’s important, in all deference to profes-
sional colleagues—and I hold a degree that dealt in research and
other matters, as well. There are many parents, as expressed by
Senator Grassley and others, who are deeply concerned about in-
trusion in the family.

At least in our State, we have worked out, with additional tech-
nical refinements, balances where those involved in research and
administration feel comfortable with it. Our amended version of the
legislation was endorsed by our State Superintendent Association.
We had extensive testimony from psychologists and counselors
throughout the year on other related matters.

It is a balancing act that we’re involved in here, and let’s make
sure we don’t forget the parents who speak out the least, whether
they have it mailed to them or have to have it signed. Either way,
let’s not forget the parents who really are not heard here very
often. It’s their privacy and their autonomy that we're trying to
protect.

Mr. Horn. Representative Maloney.

Mrs, MALONEY. I want to thank both panelists. Just one conclud-
ing question. How do you protect the privacy of this information
once you compile it in your study? A lot of it is tremendously per-
sonal, could be damaging to a family. How do you protect it?

Mr. JOHNSTON. The fact is, the great majority of such surveys
are anonymous, so the individual is not identified.

Mrs. MALONEY. But many are not.


83

Researchers, however, will tell us that a shift from passive to
written consent will introduce a burden on the individuals that is
sufficient to dramatically lower response rates to the point that it
may effectively invalidate the research being conducted.

There are several critical research efforts underway now in the
area of adolescent high-risk behavior, such as teen pregnancy and
drug abuse. Our ability to approach these issues sensibly and to as-
sess appropriate Federal intervention, if any, depends upon our un-
derstanding of the extent of the problem and the dynamics that un-
derlie teen decisionmaking and conduct.

Valid research is essential to that understanding, and imposing
written consent may jeopardize our ability to conduct valid re-
search and, hence, our ability to address these problems which all
of society is aware of.

For present purposes, I'd like to briefly identify three other situa-
tions where the requirement for written consent may be counter-
productive. One involves the safety of the minor. Written parental
consent presents a unique set of problems and barriers in research
on troubled families and children and could potentially put children
at risk.

The Department of Health and Human Services conducts re-
search on family violence and abuse, including situations where
children are removed from the home due to an abusive situation or
ultimately placed in foster care.

In these situations, it may not be safe, it may not be feasible,
and it probably is not wise to contact the parents for written per-
mission to interview the children. What does parental consent
mean when parents no longer accept their responsibility to protect
the child?

Children away from home is a second circumstance. Again, writ-
ten parental consent could prove an insurmountable barrier to sur-
vey and research efforts involving runaway and homeless youth.
HHS has conducted numerous valuable studies examining youth
behavior and psychological status that have been used to address
the complicated problems of these at-risk teens.

While runaway and homeless shelters often notify parents, the
administrative burden and expense of obtaining a written consent
form would effectively eliminate research of this kind and would be
incompatible with the best interests of the child.

The third situation is an area which was discussed extensively
this morning, on law enforcement activities. Written parental con-
sent could impede routine law enforcement investigations where
the children are the victims, such as child molestation, child por-
nography, or crimes committed by the parents or guardians whose
consent would be requested in writing.

Taken literally, this bill could require parental written consent
whenever someone questions a child who is a victim of abuse or ne-
glect by a parent or guardian. At the very least, parental consent
should not be required in any evaluation or other activity related
to law enforcement or child protective services.

I would also like to briefly note that many of these surveys are
conducted anonymously. In other words, there is no personal iden-
tifier and the identity of both the minor and the family cannot be


21

school surveys have provided a unique window of understanding
and measurement and insight for our society, and that’s why I
think that an amendment such as this is quite problematic if it has
significant adverse impact on this body of research, and I think
that it would.

In general, school research has been important, but I think the
evidence is accumulating that it may be even more important than
we realized, because we're finding that the alternatives, such as by-
phone surveys, are not appropriate for a number of sensitive kinds
of problems that I just spoke of, and that household surveys are ex-
tremely expensive—$300 or $400 per case—which means you have
to have much smaller samples, for one thing and; furthermore, the
validity of what’s gathered from youngsters in the household situa-
tion is often not very good, for obvious reasons. They’re concerned
that their parents, one way or another, will find out what they're
saying.

The large samples that we're able to get very cost-effectively in
school surveys allow us to do a number of things. One is to get
valid measurement and understanding of these problems. Another
is to get large samples that have more accuracy in estimating both
the levels and the trends in important problems in society—we
have certainly been doing that over the last 20 years in our own
study—and ‘they allow us to get a sufficient number of cases in
some important small groups to be able to characterize and study
those groups.

For example, daily marijuana users—we get enough of those to
be able to talk about what they’re like and what motivates them
and what they see as the consequences of their behavior, and so
forth. This would not be possible, without large-scale school sur-
veys like our own.

Our own study, which I allude to in my testimony, is one that
would be affected, and it deals not only with these problems but
also provides some of the measures of the national educational
goals and the national health goals for the year 2000.

There are other major studies like this—CDC’s youth risk behav-
ior system, which deals with measuring health threatening behav-
iors and health protecting behaviors—exercise, diet, drunkenness,
drunk driving, seat belt use, accidents and injury, tobacco, alcohol,
and drug use, and so forth.

There are a number of studies which are done at the communit;
level, at the behest of the local school system, but funded with
passthrough moneys that are Federal in source. They would also be
affected, and some of those are extremely large in numbers of
cases.

The Pride surveys, for example, survey somewhere between
300,000 and 1 million students a year in various systems, and I
think they would be probably disabled because of the difference in
cost, and what's proposed here would double or triple what it costs
to do them, or worse.

Then there are other departments that have various studies—
Labor, Justice, Defense, and so forth—that are important. There is
an important body of work here, and I think probably with a little
discussion, most of us would agree that it is.



TITLE 1V OF H.R. 11, THE FAMILY
REINFORCEMENT ACT

HEARING

BEFORE THE

SUBCOMMITTEE ON GOVERNMENT MANAGEMENT,
INFORMATION, AND TECHNOLOGY

OF THE

COMMITTEE ON GOVERNMENT
REFORM AND OVERSIGHT
HOUSE OF REPRESENTATIVES

ONE HUNDRED FOURTH CONGRESS
FIRST SESSION
ON
H.R. 11

TO STRENGTHEN THE RIGHTS OF PARENTS

MARCH 16, 1995

Printed for the use of the Committee on Government Operations

ee

U.S, GOVERNMENT PRINTING OFFICE
26-804 CC WASHINGTON : 1996

For sale by the U.S, Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402

ISBN 0-16-053627-8



84

ascertained when the data is put together. In those circumstances,
it is unclear what function would be served by written consent.

I commend you for undertaking these hearings. These are very
important and often contentious issues. There are sensitive values
at stake.

I know that you are wrestling with these issues, as are we, and
I look forward to answering any questions you may have.
[The prepared statement of Ms. Katzen follows:]

PREPARED STATEMENT OF SALLY KATZEN, ADMINISTRATOR, OFFICE OF INFORMATION
AND REGULATORY AFFAIRS, OFFICE OF MANAGEMENT AND BUDGET

Good morning, Mr. Chairman and Members of the Subcommittee. I am pleased
to be here to discuss Title IV of H.R. 11, “The Family Reinforcement Act.”

Title IV of H.R. 11 is intended to protect the privacy of families by requiring writ-
ten parental consent for certain types of information asked of minors in Federally
funded surveys, analyses or evaluations. However, as is often the case, one size
doesn’t fit all, and the broad provisions in Title IV may have unintended con-
sequences—in some cases placing children at risk, and potentially jeopardizing im-
portant areas of Federal research on the risks faced by youth in America today.

Title IV resembles Section 1017 of the 1994 Goals 2000: Educate America Act.
While the Department of Education had been subject to a written parental consent
requirement for a number of years, before last year the requirement covered only
a limited number of instances involving psychiatric or psychological examinations
that primarily asked questions perceived as sensitive. The language from Goals
2000 expanded the types of surveys covered, and imposed written consent even
when a single question was perceived as sensitive. That language was not endorsed
by the Administration; indeed, the Department objected to its expanded scope.

The expansive applicability that was objectionable in the Goals 2000 law is mag-
nified in Title IV, which extends the written parental consent requirement to any
Federal agency or federally funded entity. In fact, if construed in light of the Civil
Rights Restoration Act, then any survey, analysis or evaluation conducted by any
recipient of Federal funds, including States, cities, research institutes and univer-
sities, could be subject to this law.

Before focusing on specific issues, let me stress that the Administration recognizes
and endorses the Jegitimate role of parental involvement in research activities.
Moreover, standard practice in most social science research today requires some
form of parental consent before interviewing minors. The majority of the large re-
search organizations have Institutional Review Boards which generally require that
surveys of minors have parental consent. We also agree that two of the categories
of information identified in Title [V—political affiliation and religious beliefs—would
be inappropriate to ask of either adults or children. In fact, the Privacy Act bars
Federal agencies from inquiring about these subjects without consent.

It is important to understand that there are two forms of parental consent: pas-
sive consent, and active or written consent.! Under a passive consent policy, the re-
searcher sends a note home and asks the parent to indicate any objection to the
child’s participation. If no response is received, parental consent is assumed. This
method has been employed in large scale research efforts, particularly in school set-
tings.

i written consent policy, on the other hand, requires an affirmative expression
of permission for the child to participate. Written consent works well when parents
or children are highly motivated to participate in an activity. But when parents
have no strong views one way or the other, the consent form is often perceived as
mindless paperwork and may be ignored. Researchers tell us that to shift from pas-
sive to written consent will introduce a burden on the individuals that is sufficient
to dramatically lower response rates, and it may effectively invalidate the research.

There are several critical research efforts underway in the area of adolescent high
risk behavior, such as teen pregnancy and drug abuse. Our ability to approach these
issues sensibly, and to assess appropriate Federal interventions, if any, depends on
our understanding of the extent of the problem and the dynamics that underlie teen
decisionmaking and conduct. Valid research is essential to that understanding, and
imposing written consent may jeopardize our ability to conduct valid research.

AWhile active consent can be given orally, as is done for some telephone surveys, it is our
understanding that active consent is generally written


10

a

12

13

14

15

16

a7

18

19

20

21

22

23

24

25

44

and caring people and the children look just like my two k
used to look, they are very sweet, but that's the ruling of
the court.

You may prepare an order to that effect. Thank you
very much.

MR. OSTLER: Thank you. I'll do that.

MR. HILTON: Thank you very much.

THE COURT: Court's in recess.

(Excerpt concluded)

REPORTER'S CERTIFICATE
STATE OF UTAH )

COUNTY OF SALT LAKE d

I, REEVE M. BUTLER, do hereby certify that I am
an Official Court Reporter for the United States District
Court for the District of Utah;

That as such Reporter I attended the hearing of
the foregoing matter on 225 and thereat
reported in Stenotype all of the testimony and proceedings
had, and caused said notes to be transcribed into typewritizg:
and the foregoing pages numbered from a to 2
constitute a full, true and correct report of the same.

DATED at Salt Lake City, Utah, nist day of

» 1995.



8

I don’t think the drafters of this legislation did their homework.
At your hearing on Tuesday, one of your witnesses quoted Dr.
Deming saying, “If you want to understand what is going on, talk
to the people doing the job.” Clearly, the drafters of this legislation
didn’t do that. If you talk to the people who do surveys in the Fed-
era] Government, or under contract to the Federal Government,
they will tell you that they do get permission when asking sensitive
questions. Unfortunately, we fave only one representative of the
Federal survey community at this hearing, and no one from the
private sector.

I am disappointed, however, that neither the Justice Department
nor the Department of Education is here. This language, or similar
language, has been included in education language for some time
and it would be useful to understand that experience before we
apply it to all programs receiving Federal aid. I also think it is im-
portant to consider what the effect of this will be on law enforce-
ment agencies. Will they be prohibited from asking children about
parental abuse without the parents’ consent?

Finally, Mr. Chairman, let me share with you what I see as a
supreme irony of this legislation. You want to protect children from
being asked about their parents’ income. At the same time, the Re-
publican party—the new majority—wants to means-test free school
lunches. So, every time a child walks through the cafeteria line and
doesn’t pay, he or she announces his or her parents’ income.

Mr. Chairman, this legislation needs a great deal of work. There
is no clear reason for it. I would be happy to work with you on this
but, as it stands now, passing this legislation, I believe, needs a
great deal more work.

[The information referred to follows:]

Wat Is A CHILD?
LORRAINE V. KLERMAN, UNIVERSITY OF ALABAMA AT BIRMINGHAM
ROOM 112 MORTIMER JOHNSON HALL, BIRMINGHAM, AL 35294-2010

KEY WORDS: Child, definitions, biology, psychology, law, social welfare
The definition of a child has changed over time—and now varies across dis-
ciplines, jurisdictions, and agencies. Some of these differences in definition are pro-
ductive, leading to stimulating arguments about when mature judgement can be ex-
pected in specific spheres of life. But in some domains, differences in definitions by
chronological age may lead to confusion or inability to secure needed information
easily. This paper will mention briefly some historical trends; describe in somewhat
ater length how several fields define children and youth; and review the dif-
ferences in age categorizations used by three federal data-gathering and data-ana-
lyzing agencies.

A HISTORICAL OVERVIEW

One indication of how perceptions of childhood have changed over time can be
found in portraits of families painted before the 19th century. Even very young chil-
dren are dressed in clothing which is just adult styles in very small sizes. The con-
cept of childhood as a period requiring special clothing had not yet developed!

ose of you who are familiar with the adolescent field know that the concept of
adolescence as a distinct period of life did not emerge until the turn of the century.
In 1904, Granville Stanley Hall, a professor of psye ‘ology at Clark University, pub-
lished a two volume study entitled, Adolescence: Its Psychology and Its Relations to
Anthi logy, Sex, Crime, Religion, and Education. Although adolescence with its
physi fogical ‘and psychological changes obviously existed prior to the publication of
this work, Hall appears to have been the first psychologist to seriously study this
period. In that sense, he created adolescence.



7

SEC. 508. WORK REQUIREMENT FOR NONCUSTODIAL PARENTS WITH CHILD SUPPORT AR-
REARAGES.

Section 466(a) of the Social Security Act (42 U.S.C. 666(a)) is amended by insert-

ing after paragraph (11) the following:
C12) Procedures requiring that—

(A) upon a determination by the State agency referred to in section
402(a\(3) that the noncustodial parent of any child who is applying for or
receiving aid under the State plan approved under part A owes child sup-
port (as defined in section 462(b)) with respect to the child, is in arrears
in the payment of such support in an amount that is not less than twice
the amount of the monthly child support obligation, is not incapacitated,
and is not subject to a court-approved plan for payment of such arrearage,
the State agency referred to in section 402(aX3) send to the noncustodial
parent a letter notifying the noncustodial parent that the noncustodial par-
ent—

“(i) is required to pay child support with respect to the child; and
“Gi) is subject, to fines and other penalties for failure to pay the full
amount of such support in a timely manner; and

“(B) if, by the end of the 30-day period that begins with the date the
letter is sent pursuant to subparagraph (A), the amount of the arrearage
has not decreased by at least a percentage amount specified by the State
agency, the State seek a court order requiring the noncustodial parent—

“(i) to participate in a job search program established by the State,

for not less than 2 weeks and not more than 4 weeks; and
“(ii) if, by the end of the 30-day period beginning on the date the
order is entered, the amount of the arrearage has not decreased by at
least a percentage amount specified by the State agency, to participate
in a work program established by the State, for not less than 35 hours
r week (or, if the program also requires job search, for not less than

So hours per week).”"

Mrs. MALONEY. Thank you very much, Mr. Chairman. I am glad
you're holding this hearing today. Hopefully, we can clarify the in-
tent and consequences of this legislation. ; .

The legislation we are considering today is not new. This, or
similar language, has been included in education legislation for 20
years. What is new about this legislation is that it expands the ap-
plication of those provisions to all programs receiving Federal
funds.

Frankly, Mr. Chairman, I’m a bit puzzled by the vagueness of
the language, the breadth of application, and the intent of this leg-
islation. I can understand your concern about asking questions
about sexual behavior, but I’m surprised that you want to prohibit
students being asked about their parents’ political affiliation. Voter
registration lists are, after all, a matter of public record. I hardly
think political affiliation is a sensitive topic.

While I can understand some of your concerns and am surprised
by others, I am befuddled by much of the language in this legisla-
tion. This language uses. vague terms, like “demeaning behavior”
“or potentially embarrassing” problems. I suspect the lawyers could
spend a lifetime arguing over what does and does not fit within
those terms.

Worse yet, this legislation is designed to “protect” minors but no-
where in the legislation does it say what a minor is. Are we talking
about 16, under 18, under 21? I have a paper I would like to sub-
mit for inclusion in the record titled “What is a Child?” Professor
Lorraine Klerman discusses the number of definitions used in law,
religion, and science. In none of these areas is there any consensus
on what is a child.

__ It seems to me that considerable work should be put into clarify-
ing this legislation before we consider it seriously.


57

37. As a direct and proximate result of Defendants’ conduct
described above, all done under the color of state law,
Plaintiffs have been damaged, suffering a denial of due process
under the Fourteenth Amendment, PPRA, 36 C.F.R. Subtitle A,

§ 98.1, et. seg. denial of First Amendment rights, Plaintiffs
have suffered additional family hardships, emotional distress,
and an invasion of their family privacy along with undesired,
negative self-labeling of Plaintiffs B.P. and N.P. and disruption
of the relationship of Plaintiffs A.P. and B.P.

v.

CAUSES OF ACTION

38. Plaintiffs incorporate by reference herein the

allegations contained in paragraphs 1-36, and do further allege
as outlined hereinafter.

39. The Defendants failed to exercise due care in either
securing the consent of Plaintiff A.P. or D.P. (or ascertaining
that Plaintiff A.P. and D.P. had consented to) the psychological
testing or treatment of their children B.P. and N.P. This
failure has arisen from conduct by Defendants which was either
intentionally undertaken, done with deliberate indifference or in

reckless disregard of the rights of the Plaintiffs, or simply not

13


10

a

12

13

14

15

16

7

18

19

20

21

22

23

24

25

40

IN THE UNITED STATES DISTRICT couRT
IN AND FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

-000-
DP, et al., Case No, C94-181

Plaintiffs, Salt Lake City, Utah

Date: February 21, 1995

vs. Time: 10:30 a.m.

ALPINE SCHOOL DISTRICT,

(Court's ruling)
et al.,

Defendants.

REPORTER'S TRANSCRIPT
BEFORE: THE HONORABLE J. THOMAS GREENE

APPEARANCES OF COUNSEL:

For the Plaintiff: MATTHEW HILTON, ESQ.
For the Defendant: BLAKE OSTLER, ESQ.
Court Reporter: REEVE M. BUTLER, RPR

official Court Reporter
Rm. 224 Federal Bldg.

350 S. Main Street

Salt Lake City, Utah 84101

Tel. 128-0837


81

Mr. JOHNSTON. Well, some are not, and I should add that in-
cludes our own study, because we take a sub-sample of the young-
sters who we survey in school and follow them up for years after-
ward.

We have very elaborate protection procedures, one of which is
that when we get identifying information, we get it on a separate
document which cannot be—even if you were standing there hold-
ing them both, you wouldn’t know that the two documents go to-
gether. They have a randomly matched 10-digit number that’s
printed on them, a different number on each one. Unless you have
the computer tape, you don’t know that those two go together.

We have our own people always in control of the documentation.
We don’t turn it over to school personnel. Those materials are sent
to different locations, put on computer, and kept under lock and
key or in bank vaults, and, in our case, we’re able to get, because
we deal with drug use, a special grant of confidentiality from the
Justice Department that precludes our being forced to provide iden-
tifying information or results from an individual in any Federal,
State, local criminal or other type of proceeding. So basically, it’s
a very sweeping kind of protection.

That protection may not exist in all subject areas, but we go to
great lengths to protect our subjects.

Mrs. MALONEY. Is there any punishment in the law for people
who may violate this protection?

Mr. JOHNSTON. Not that I know of, no.

Mr. HILTON. My observation would be more directed on the dif-
ferent ways on a State level you can remedy that, other than con-
curring with what Dr. Johnston said, that is the general rule and,
hopefi lly, many times, studies don’t identify the people to that de-
tail.

Your observation about possible protection or punishment for dis-
closure, I think, could be addressed by ensuring you do have a pri-
vate right of enforcement for violation of rights, as we discussed
earlier.

Mrs. MALONEY. Thank you very much.

Mr. Horn. We thank you both for coming. You've both been very
helpful. Your written material was very succinct and mentioned
the arguments in a very effective way, so thank you for coming.
We'll be sending you some additional questions. We would appre-
ciate if you have the time to respond to them, because we want to
work it all into the mix before the committee considers the markup
of the bill.

Mr. JOHNSTON. Thank you very much.

Mr. HILTON. Thank you.

Mr. Horn. On our next and last panel, we have Ms. Sally
Katzen, the Administrator of the Office of Information and Regu-
latory Affairs, and Dr. William Butz, the Associate Director, Demo-
grap ic Programs, Bureau of the Census.

If you both will stand and raise your right hand.

[Witnesses sworn.]

Mr. Horn. Let the record show both witnesses affirmed.

Ms. Katzen, we're delighted to have you here. We mentioned ear-
lier the old Bureau of the Budget that was your predecessor office


28

the lines suggested here. Please do not hesitate to contact me if additional informa-
tion or suggestions are needed.
Sincerely,

Lioyp D. JoHNsToN, PH.D.

Program Director and Research Scientist.
*We know this from follow-up studies of adolescents who have provided us with
home addresses. Before mailing them a survey at home we first contact the parents
for written permission. Less than half respond initially. We then follow-up by phone,
and permit them to give permission by ‘phone_-permission which is carefully re.
corded in each case. Very few of those parents who are successfully reached actually
decline (4%-5%). Most simply did not remember to respond by mail.

Mr. Horn. Thank you. We'll get back to that in the question pe-
riod. We'll also put in the record, at this point, besides your full
statement, which went earlier, the letter you sent to the chairman
and other members of the committee dated February 27, 1995.
That will also be included in full.

Dr. Hilton, we’re delighted to have you here. Dr. Hilton comes to
us in his role as a member of the Utah Bar and an authority on
family privacy issues. Welcome.

Mr. HILToNn. I’m delighted to be here, Mr. Chairman. I would like
to request as well, in addition to the written comments I’ve alread:
provided your counsel, that my written opening statement, as well
as a copy of the complaint in the litigation I’m going to be talking
about, be inserted in the record.

Mr. Horn. OK. And you also wrote us a letter dated March 15.

Mr. HILTON. Yes, sir.

Mr. Horn. And that will go in the record in full, also.

Mr. HILTON. Thank you.

Mr. Horn. How large is that complaint? What are we talking
about, 30 pages?

Mr. HILTON. This is the complaint right here.

Mr. Horn. That's fine. It’s when I get to the 800-page variety
that I get a little nervous.

Mr. Hitton. No.

Mr. Horn. I’m just thinking of saving the government money.

Mr. HILTON. Thank you. ['d like to begin my comments today
with a brief story. In 1993, a new family moved into a local Utah
school district from out of State. Two children in the family were
enrolled in a federally funded Chapter 1 reading program.

When their mother went to a parent-teacher conference that fall,
the mother found that the children had been given a Psycholo ical
self-esteem test without her knowledge or consent or that of her
husband. On this test, the 7- and 8-year-old children had been
asked, among other things, to engage in a self Jabeling process:

“T cause trouble to my family. Yes or no.” “I behave badly at
home. Yes or no.” “I pick on my brothers and sisters. Yes or no.”

The children were also asked to label their family:

“My parents expect too much of me. Yes or no.” “My family is dis-
appointed in me. Yes or no.” “I’m picked on at home. Yes or no.”

The mother immediately contacted the children’s teachers and
counselors and went to the district offices and said, “Please don’t
test my children” and asserted what she understood were her
rights under the then Hatch amendment, pre-Grassley.

jronically, on the very day that the Senate was considering the
Grassley amendment and debating it on the floor, where this test,


45

Matthew Hilton (#A3655)

HILTON & STEED, P.C.

Cooperating Attorneys for THE RUTHERFORD INSTITUTE
P.O. Box 781

Springville, UT 84663

Telephone: (801) 489-1111

Fax: (801) 489-6000

IN THE UNITED STATES DISTRICT COURT
IN AND FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

---0000000---
D.P. and A.P., for themselves

individually, and for their
children B.P. and N.P.,

Plaintiffs, : SECOND AMENDED COMPLAINT
vs. :

Victoria Anderson and Rebecca
Rigby, in their personal
capacities, and Alpine School
District, a governmental entity,

Civil No. 94-C- 181 G

Defendants.
---0000000---
‘INTRODUCTION
1, This case seeks vindication of federally guaranteed

constitutional rights of freedom of association, family and
parental privacy and autonomy, as well as those articulated in
the Protection of Pupil Rights Amendment (*PPRA,* 20 U.S.C. §
1232h(b); 34 C.P.R. § 98.1 et. geg.).

2. This is a 42 U.S.C. § 1983 civil rights action by a
father, a mother, and two children to redress intrusion into and
violation of these federally protected rights caused by the

Defendants intentional administration to Plaintiffs B.P. and N.P.


27

Study. Those few parents who have indicated that they did not want their children
involved have always had their wishes honored without argument, and in a manner
preventing embarrassment for either the parent or the child. Further, if a student
indicates that he or she does not wish to participate—even though the parent did
not object—that wish is also always honored, and no attempt is made to pressure
them otherwise,

School involvement in the procedures

Because schools are prohibited from supplying the names and addresses of par-
ents or students to outsiders, the mailing of the notification/consent letters to the
home must be done by the school. For the same reason, any follow-up which might
be required to increase the response rate from the parents must also be conducted
by school staff, not the outside researchers. The importance of this fact will become
apparent in the next section.

The less-than-obvious problem with H.R. 11

Currently, the standard procedure for parental notification of, and parental ap-
proval for their child’s participation in a federally-funded or federally-conducted sur-
vey, has been by first-class letter stating the date and nature of the forthcoming
school survey. The letter from the school principal is sent to the parents’ home ad-
dress and provides simple instructions for those parents who want their children ex-
empted from the survey. This usually is accomplished by the parent making a local
phone call to the school administrative office, and when such a call is made, the
parents’ wishes are recorded and procedures are activated to exempt the student.

The procedures required in H.R. 11 do not seem so different at first glance, but
there is one critical difference. It requires that a signed, parental consent form be
provided to the school or researcher for the student to participate. In other words,
the default is that the student cannot participate unless parental approval is pro-
vided in writing. This may seem reasonable enough, until you realize that in es-
sence two surveys are now being carried out instead of one—a survey of parents and
a subsequent one of their children—and that the “non-response” rate for the study
will be the sum of the non-response rates for the two surveys. Unfortunately, par-
ents these days are busy people, who on average are not very good at responding
to this sort of mail. Even the inclusion of a postage-paid return postcard yields ini-
tial responses from less than half of the parents under the procedures proposed
under H.R. 11. If no further action is taken, that 50% non-response rate to the study
would mean that the data are worthless for characterizing American young people.
Under the proposed procedures it is then necessary to badger the parents to return
their signed response form with an explicit answer in order to even approach a sci,
entifically useful response rate on the survey. Because schools cannot release par-
ent’s names, addresses, or telephone numbers to researchers, they must assume this
added burden, often requiring up to four contacts, and bothering a great many par-
ents in the process. In our own experience few parents withhold this consent.* Rath-
er, many simply forget to sign and return a card giving their approval. To make
matters worse, these are not a random set of parenis; minorities, those with lower
education, and those with problems like substance abuse, are less likely to respond.
Therefore the higher the non-response rate, the more non-representative is the sam-
ple actually attained. Many of the children at highest risk of problem behaviors like
drug use, delinquency, dropping out of school, eic. are systematically omitted from
the sample.

Summary and conclusion

To summarize, Title 4 of H.R. 11, while presumably well-intentioned, is solving
a problem that does not exist and ironically, doing it with the unintended con-
sequences of reducing the qualit and usefulness of federally sponsored research,
making that research considerably more costly to carry out, increasing the level of
intrusion into the lives of parents whose rights it is intended to protect, and adding
to the burdens of already overburdened schools. Requiring parental advance notifi-
cation and explanation of the research, as well as a comfortable and easy method
for parents to decline their children’s participation, is desirable. Requiring an ex-
plicit signature from every parent before the student can participate in any survey
puts an unrealistic and unnecessary burden on researchers, schools, and parents.
And, ironically, it does so by adding’ government regulations to an already elaborate
network of regulations which accomplish the same general goal.

To- avoid inadvertently “killing off” a number of important research programs
which have been helping us to understand our children and their problems, Prope
that the supporters of H.R. 11 will consider some major revisions to Title 4 along


64

right to exercise care and authority over the upbringing of their
children, and the children’s right to receive the care their
parents desire to give them.

69. Upon information and belief, Defendants’ conduct was
undertaken intentionally by Defendant Rigby, in violation of
professional duties, and/or with deliberate indifference or with
reckless disregard of Plaintiffs’ constitutional and statutory
rights regarding family association, privacy, due process, and
right to refuse medical treatment. In particular, the
misrepresentation by Defendant Rigby to Plaintiff B.P. of the
position of Plaintiff A.P. disrupted and directly impacted on the
credibility and consistency Plaintiff A.P. had been striving to
maintain with her children. The statement made by Defendant
Rigby also caused Plaintiff B.P. to suffer great anxiety,
personal stress, and physical discomfort because he could not
tell whether his mother had not told him the truth when she
indicated to him the school had been told not to test him or
whether Defendant Rigby was not telling the truth because of her
implication that his mother had approved of him taking the test.
This communication--intentionally made--deprived both of the
Plaintiffs of an aspect of their private, familial relationship
in an arbitrary and capricious manner, all without due process of
law.

70. The Defendants cannot show a compelling state interest
to justify the intrusions listed above.

20


(b) CONFORMING AMENDMENTS.—
(1) Paragraph (2) of section 1324(b) of title 31, United States Code, is
amended by inserting before the period “, or from section 35 of such Code”.
(2) The table of sections for subpart C of part IV of subchapter A of chapter
1 of such Code is amended by striking the last item and inserting the following:
“Sec, 35. Adoption expenses.
“Sec. 36. Overpayments of tax.”.
(c) EFFECTIVE DaTe.—The amendments made by this section shall apply to tax-
able years beginning after December 31, 1995.

TITLE 1H—ELDERCARE ASSISTANCE

SEC, 201. REFUNDABLE CREDIT FOR CUSTODIAL CARE OF CERTAIN DEPENDENTS IN TAX-
PAYER'S HOME.

(a) IN GENERAL.—Subpart C of part 1V of subchapter A of chapter 1 of the Inter-
nal Revenue Code of 1986 (relating to refundable credits) is amended by redesignat-
ing section 36 as section 37 and by inserting after section 35 the following new sec-
tion:

“SEC. 36. CREDIT FOR TAXPAYERS WITH CERTAIN PERSONS REQUIRING CUSTODIAL CARE IN
‘THEIR HOUSEHOLDS.

“(a) ALLOWANCE OF CREDIT.—In the case of an individual who maintains a house-
hold which includes as a member one or more qualified persons, there shall be al-
lowed as a credit against the tax imposed by this subtitle for the taxable year an
amount equal to $500 for each such person.

“(b) DEFINITIONS.—For purposes of this section—

“(1) QUALIFIED PERSON.—The term ‘qualified person’ means any individ-

ual—

“(A) who is—

“(i) a father or mother, or stepfather or stepmother, of the tax-
payer, his spouse, or his former spouse, or

“(ii) a father or mother, or stepfather or stepmother, of an individ-
ual described in clause (i),

“(B) who has been certified by a physician as—

“Gi) being unable to perform (without substantial assistance from
another individual) at least 2 activities of daily living (as defined in
paragraph (2)), or

“(ii) having a similar level of disability due to cognitive impair-
ment, and
“(C) who has as his principal place of abode for more than half of the

taxable year the home of the taxpayer.

“(2) ACTIVITIES OF DAILY LIVING.—For purposes of paragraph (1), each of the
following is an activity of daily living:

“(A) BATHING.—The overall complex behavior of getting water and
cleansing the whole body, including turning on the water for a bath, show-
er, or sponge bath, getting to, in, and out of a tub or shower, and washing
and drying oneself.

“(B) DRESSING.—The overall complex behavior of getting clothes from
closets and drawers and then getting dressed.

“(C) TOILETING.—The act of going to the toilet room for bowel and blad-
der function, transferring on ‘and ot the toilet, cleaning after elimination,
and arranging clothes.

“(D) TRANSFER.—The process of getting in and out of bed or in and out
of a chair or wheelchair.

“(E) EATING.—The process of getting food from a plate or its equivalent
into the mouth.

“(3) PHYSICIAN.—The term ‘physician’ means a doctor of medicine or osteop-
athy legally authorized to practice medicine or surgery in the jurisdiction in
which he makes the determination under paragraph (1).

“(c) SPECIAL RULES.—For purposes of this section, rules similar to the rules of
paragraphs (1), (2), (3), and (4) of section 21(e) shall apply.

eit REGULATIONS.—The Secretary shall prescribe such regulations as may be nec-
essary to carry out the purposes of this section.”

(b) CONFORMING AMENDMENTS.—

(1) Paragraph (2) of section 1324(b) of title 31, United States Code, is
amended by inserting “or 36” after “section 35”.

(2) The table of sections for subpart C of part IV of subchapter A of chapter
1 of such Code is amended by striking the item relating to section 36 and in-
serting the following:


18

In your education bill, how did you define a child?

Mr. GrassLey. A child—somebody under 18 years of age or an
emancipated minor.

Mrs. MALONEY. When you were talking about requiring written
documentation from the parents, wouldn’t that put another paper
burden on the parents? Would it not suffice if they could call the
school or call the agency and say, “You can discuss this with my
child?” Does it have to be in writing?

Mr. GRASSLEY. I believe it must be in writing. I do appreciate
that. On the other hand, I believe that maybe the triggering in of
this sort of, at least as far as education is concerned, is fairly—not
too often in a particular school year that it would be a burden.

I think it’s so important that we don’t let the situation be looked
at by school authorities as a sort of nonchalant process. We have
problems because it has been.

If you go back to the 1978 law, through the 1980's, so many at-
tempts to get your rights exercised under the 1978 law by the De-
partment of Education, if you were a parent, and each one of these

oops that you had to go through—like was it a psychiatric test,
was the question really revealing personal information, all these
hoops you had to go through—there were only less than 2 dozen
cases where a parent was ever able to exercise this right.

So I guess we felt that, if we were going to get it through there,
and get through all these hoops, we Sean want the one last step
of did the parent really give an OK or not to be questioned; the
written consent, albeit it some paper, is a necessary step to make
it certain that the other rights are protected.

Mrs. MALONEY. Thank you, Senator. I have no other questions.
Thank you for your testimony.

Mr. Horn. The gentleman from Pennsylvania.

Mr. Mascara. Thank you, Mr. Chairman.

Mr. Horn. You and I can split up the next 3 or 4 minutes.

Mr. Mascara. I'll just take a moment. Thanks, Senator, for com-
ing over and sharing with us your vast knowledge in this field.

My concern is that this bill might cause some problems as it re-
lates to identifying problems related with sexual abuse, incest.
What safeguards do we have to make sure that this is not going
to cause a problem in this area?

Mr. GRASSLEY. I’m not a lawyer, but it would seem to me that
the compelling interest—in my State, for instance, where a school
nurse or maybe an administrator, maybe even a counselor—there’s
more of a personal relationship, confidential relationship, maybe
with a counselor—I think that compelling interest, to get—if it’s
obvious child abuse, the reporting requirements would override this
without any question whatsoever, because you're talking about a
criminal activity.

If it were a question, though, that you were trying to get infor-
mation about child abuse through a questionnaire, then I presume
that it would be and should be protected. But where that’s a sus-
picion of it, obviously they aren’t going to use a questionnaire that’s
financed by Federal funds to get at that. They’re going to go right
to the source, and they have an obligation to do that, as far as I’m
concerned, and nothing in my law would, or my legislation, would
stand in the way.


82

way back in the New Deal. As I remember, the Bureau of the
Budget had to clear every survey that involved X number of people.

STATEMENTS OF SALLY KATZEN, ADMINISTRATOR, OFFICE OF
INFORMATION AND REGULATORY AFFAIRS, OFFICE OF MAN-
AGEMENT AND BUDGET; AND WILLIAM P. BUTZ, ASSOCIATE
DIRECTOR FOR DEMOGRAPHIC PROGRAMS, BUREAU OF
THE CENSUS, U.S. DEPARTMENT OF COMMERCE

Ms. KATZEN. The Federal Reports Act gave that authority to
them and I am pleased to see that both Houses of Congress have
already passed, now, the Paperwork Reduction Act, which contin-
ues that same authority for my office.

Mr. Horn. So the surveys will be succinct surveys after the
Paper Reduction Act?

Ms. KaTzEN. Tight as can be.

Mr. Horn. Good. Please proceed.

Ms. KaTZEN. Thank you very much, Mr. Chairman and members
of thé subcommittee. I’m pleased to be here to discuss Title IV of
H.R. 11 with you this morning. By now, some of the things that
Pll be saying are cumulative of comments, you've already heard,
but I think it is important to make sure that the record is clear.

Title IV of H.R. 11 is intended to protect the privacy of families
by requiring written parental consent for certain types of informa-
tion asked of minors in federally funded surveys, analyses, or eval-
uations. However, as is often the case, one size doesn’t fit all, and
the broad provisions in Title IV may have unintended con-
sequences, in some cases placing the children who are expected to
be protected at risk and potentially jeopardizing important areas of
Federal research on the risks faced by youth in America today.

Before focusing on the specific issues, I'd like to stress that the
administration recognizes and endorses the legitimate role of pa-
rental involvement in research activities involving children. The
standard practice in most social science research today requires
some form of parental consent before interviewing minors, as it
should. The majority of the large research organizations have insti-
tutional review boards which generally require that surveys of mi-
nors have parental consent. But it is important to understand that
there are at least two forms of parental consent—passive consent
and active or written consent.

Under a passive consent policy, the researcher will send a note
home and ask the parents to indicate any objection to the child’s
participation. If no response is received, parental consent is as-
sumed. This method has been employed in large-scale research ef-
forts, particularly in school settings.

On the other hand, a written consent policy requires an affirma-
tive expression of permission for a child to participate. Written con-
sent works well when the parent or child is highly motivated to
participate in an activity. But when a parent has no strong views
ene way or the other, the consent form is often perceived as mind-
less paperwork, and may be ignored.

T can tell you, from my own experience as the mother of a child,
papers that come home in the backpack may or may not get the
attention that they deserve.


55

32. Prior to taking the Piers-Harris Children’s Self-Concept
Scale, Plaintiff B.P. objected to Defendant Rigby that he should
not take this test on the grounds that his mother would not like
him to take the test. Without making any additional inquiry of
Plaintiff A.P. or any staff in the Alpine School District,
Defendant Rigby assured Plaintiff B.P. that she had spoken to his
mother three times and gave him assurances that it was
appropriate for him to take the test. Upon information and
belief, these statements were made by Defendant Rigby,
intentionally, in violation of professional duties, and/or with
deliberate indifference or with reckless disregard of Plaintiffs’
constitutional and statutory rights regarding family association,
privacy, due process, and right to refuse medical treatment.
Defendant Rigby knew or should have known that such statements
would have a direct impact on Plaintiff A.P.’s relationship with
B.P. and the relationship of Plaintiff B.P. with A.P.

33. The statement by Defendant Rigby disrupted and directly
impacted on the credibility and consistency Plaintiff A.P. had
been specifically striving to maintain with her children,
including Plaintiff B.P.. The statement made by Defendant Rigby
also caused Plaintiff B.P. to suffer great anxiety, personal
stress, and physical discomfort because he could not tell whether
his mother had not told him the truth when she indicated to him
the school had been told not to test him or whether Defendant
Rigby was not telling the truth because of her implication that

11


79

counsel to one of our registered Indian tribes, it’s extremely dif-
ficult to have outsiders decide what is sensitive and what is not.

I would strongly urge you to consider a procedural mechanism,
a general procedural mechanism, rather than trying to define and
have varying standards based on a vague definition of what could
be offensive or not.

Mr. Horn. Let’s take that example of an Indian tribe. What
you're talking about, of course, are the multicultural differences
that occur in our society.

The Long Beach schools and the Los Angeles schools are a part
of my congressional district. There are 70 to 80 foreign languages
spoken in the home. That doesn’t happen in most States of this Na-
tion, except perhaps New York.

That obviously creates a different climate of values as well as
communication between these students and, certainly, parents.
Most of the parents are still speaking the language of the old coun-
try. The children are learning English as well as any of the rest
offs, So that creates quite a problem.

Mr. JOHNSTON. If 1 could add, Mr. Chairman, the one consider-
ation that I think you would all want to take into account is cost.
A sweeping requirement will add probably tens of millions of dol-
lars to what goes on in our schools throughout the country, so one
has to weigh, is it worth adding those costs to government at one
level or another in order to accomplish this objective?

It seems to me where you could make the case that maybe most
of the work that’s done isn’t that sensitive and really doesn’t re-
quire that cost. It doesn’t sound like a lot, because maybe it’s $1
or $2 per person, but when you do that—and: we have a population
of 15 or 20 million minors in school—you start to multiply numbers
like that times $1 or $2, as Ev Dirksen once said, “Pretty soon
you're talking about real money.”

Mr. Horn. Right. Well, we have another expert panel coming up,
and they'll know the answers to a lot of these questions, whic
have been around since the New Deal. The survey questions of the
Federal Government had to be reviewed by the Office of Manage-
ment and Budget or the old Bureau of the Budget. So we'll hear
from them shortly.

Now, several respondent groups that we’ve heard from—teachers,
counselors, administrators—warned against gagging or unduly re-
stricting their members’ work to the detriment of the youth in-
volved, if the bill were passed as written.

What has been your experience in today’s situation where there
are already some written consent surveys and State and Federal
controls in place? Would you say that’s gagging research? How do
you look on that? Dr. Johnston, I'll let you start.

Mr. JOHNSTON. I’m sorry. I had trouble hearing all of what you
said. In States where they’re already using active parental consent?

Mr. Horn. Well, these are from just general groups in the United
States that represent various professionals. I mentioned earlier the
school psychologists, but there are a lot of others. Everybody’s orga-
nized in this country.

Mr. JOHNSTON. Sure.

Mr. Horn. They are worried about gagging and unduly restrict-
ing the research that goes on by their members, and I’m just curi-


94

I mentioned earlier, in the case of Long Beach in Los Angeles, 70
different foreign languages are the spoken languages of the home?

How does one really get consent from that diversity of families?
The survey goes home in English, although it might go home in
Spanish. I’ve got problems with that, but that’s reality. How do we
deal with that reality on consent surveys?

Mr. Butz. Well, that’s a very important point. There is a small
body of research that looks at the effect on response rates, that is,
on cooperation, of requiring prior, explicit, active parental consent.
And the general thrust of this work is that requiring written pa-
rental consent reduces samples to about half the size they may oth-
erwise be; and in effect, also results in overrepresentation of whites
and underrepresentation of some minority respondents.

The reason for this is that basically requiring prior consent is
like adding another survey on top of the one that you're trying to
do. And for reasons that I think Dr. Johnston emphasized particu-
larly, some people don’t answer the mail: it doesn’t look like some-
thing one wants to participate in and therefore many don’t. And
those kinds of responses appear to occur differentially by income
level and by other things that are of interest.

And therefore, when one requires that, there is some research
that one gets more undercoverage, more differential undercoverage
of the sort that we see, for example, in the Decennial Census.

Mr. Horn. Very good. The rest of the questions, I regret to say,
because of this vote and I don’t want to hold you all up, will have
to come in writing. We'd appreciate your response in the next week
if we could get it.

Mr. Butz. Certainly.

Mr. Horn. I want to thank the staff that put this hearing to-
gether on very short notice from the full committee. The counsel to
the subommittee, Mark Uncapher; the staff director, Russell
George; the deputy staff director for the full committee, Judith
Blanchard; and the staff of the subcommittee, Andrew Richardson;
Mark Brasher; Anna Young; Wallace Hsueh; and Tony Polzak. And
thanks to our hardworking reporter, Mark Handy. Thank you,

ark.

With that, this meeting is adjourned.

(Whereupon, at 12:30 pm the subcommittee was adjourned,
subject to the call of the Chair.]

e)


85

For present purposes, I want to identify three other situations where the require-
ment for written consent may well be counterproductive.

Safety of the Minor. Written parental consent presents a unique set of problems
and barriers in research on troubled families and children, and could potentially
place children at risk. The Department of Health and Human Services conducts re-
search on family violence and abuse, including situations where the children are re-
moved from the home due to an abusive situation or ultimately placed into foster
care. In these circumstances it may not be safe, feasible or wise to contact the par-
ents for written permission to interview the children. What does parental consent
mean when parents no longer accept their responsibility to protect a child?

Children Away From Home. Written parental consent could prove an insurmount-
able barrier to survey and research efforts involving runaway and homeless youth.
HHS has conducted numerous valuable studies examining youth behavior and psy-
chological status that have been used to address the complicated problems of these
at-risk teens. While runaway and homeless shelters often notify parents, the admin-
istrative burden and expense of obtaining written consent forms would effectively
climinate research of this kind and be incompatible with the best interests of the
child.

Law Enforcement Activity. Written parental consent could impede routine law en-
forcement investigations where children are victims, such as child molestation, child
pornography or crimes committed by parents or guardians, as well as actions includ-
ing individual case examinations and evaluations under every Federally funded
service program. Taken literally, it would require written parental consent to ques-
tion a child who is (or is suspected of being) a victim of abuse or neglect by a parent
or guardian. At the very least, the parental consent requirement should not be ap-
plied to any evaluation or other activity related to law enforcement or child protec.
tive service interventions for the protection of child victims.

1 also want to note that with few exceptions, surveys and evaluations are con-
ducted anonymously. In other words, no personal identifier information is collected
and the identity of the minor and the family cannot be ascertained. In this cir-
cumstance, it is unclear whether written consent is really necessary to protect the
privacy of the respondent or the family.

Although the us Bureau will address this issue more fully, | would add that
we concur with their position that subsection (7) of Title IV, which calls for includ-
ing income in the definition of sensitive questions, should be removed. This aspect
of the definition will result in a requirement to obtain written parental consent for
many major Federal surveys, which as a matter of course involve questions on
household income as a key variable.

Finally, the letter inviting me to testify today asked me to provide detailed infor-
mation, Unfortunately, a comprehensive compilation of the policies and practices
underlying Federal surveys of minors—not to mention those carried out by grant
programs, States, school districts, or other recipients of Federal funding—would be
resource intensive and time consuming. | was simply unable to respond in the time
provided.

T nonetheless commend you on having this hearing and beginning to explore what
are very important issues. I would be happy to answer any questions. ‘Phank you
Mister Chairman.

Mr. Horn. Representative Maloney, do you have any questions
at this point? We have a vote, and we're trying to figure your
schedule and our schedule. We're going to have to recess in a
minute or two.

Mrs. MALONEY. I'll submit mine into the record to be answered.
I have about five, but I’ll just hand them in for the record.

Mr. HorN. Would you like to start on any of them, until we hear
the 10-minute bell?

Mrs. MALONEY. What surveys does the Census Bureau or other
agencies conduct that ask minors about sexual behavior without
parental permission?

Ms. KATZEN. I think my colleague from the Census Bureau will
be able to address those surveys that the Census Bureau has un-
dertaken. We received with the letter of invitation a request but
did not have sufficient time to respond.

Mrs. MALONEY. Mine are directed to the Census Bureau, really.



92

form that they’re going to be using, that they provide the back-
ground information.

While it hasn’t been legislated that children are a special sub-
population that we need to be sensitive to, I’m not aware of anyone
im my office who wouldn't be acutely sensitive to that and review
forms with that in mind. I can review our guidelines and see, in
light of your questions here, whether we should be more explicit.
As I said, however, I have heard no complaints or any problems
that have been raised to date about abusive or invasive practices.

Mr. Horn. Right. With that objection, the relevant material from
OMB, the policy guidelines, written instructions, that are now in
existence will be put in the record at this point. So please furnish
us what is relevant in terms of the issue before the committee,
which is the degree of parental consent that is involved. Are there
certain things by which your staff, certain criteria, are to review
agency submission? But that will go in the record at this point.

(Due to high printing costs, the material referred to above can
be found in subcommittee files. ]

Mr. Horn. Next question—how is the level of consent needed for
a minor to participate decided?

Ms. KATZEN. I’m sorry, there was a sneeze right in the middle
of your sentence.

Mr. Horn. How is the level of consent needed for a minor to par-
ticipate decided? And how are you involved in the sense—simply by
review of the written survey that is coming to you? And for exam-
ple, are there education by OMB, your office in particular, of agen-
cy officials dealing in this area? How do we do that?

Ms. KATZEN. There are two aspects of this. First, our function is
as an oversight or reviewer. We look to the agencies or the depart-
ments, in the first instance, to compile the information and prepare
the survey. The agencies normally have trained persons on their
staff, or available to them, who will help formulate the survey. We
will review it, under the Paperwork Reduction Act, under the sub-
stantive criteria that I outlined earlier.

In addition, within my office, is the Statistical Policy Office of the
United States. The chief statistician reports to me, and the Statis-
tical Policy Office is relevant here because one of the issues about
written versus passive consent relates to response rate. We subject
all surveys to a sort of screen through the Statistical Policy Office
because it is not enough to get the answers. You want to make sure
the answers are accurate and generally reflective of the informa-
tion that you’re seeking to obtain.

Our statisticians are able to help us review—again, that’s the
protocols—what kinds of conditions surround the piece_of paper
that goes out to ensure quality of data, as well as sufficiency of
data response.

Mr. Horn. Very good. We'd appreciate having the specific lan-
guage from OMB you would like to see in this section, so we have
a basis for seeing what the administration policy is on this, and
then integrate that with the views we've ascertained through this
hearin

Ms. Karzen. I would join with my colleague from the Census Bu-
reau in giving serious consideration to the deletion of the require-
ment for written consent. I think that it is highly problematic in


62

60. The Defendants failed to exercise due care in either
securing the consent of Plaintiff A.P. or D.P. (or ascertaining
that Plaintiff A.P. and D.P. had consented to) regarding the
psychological testing or treatment of their children B.P. and
N.P. This failure has arisen from conduct by Defendants which
was either intentionally undertaken, done with deliberate
indifference or in reckless disregard of the rights of the
Plaintiffs, or simply not performed with due care required by
Defendants‘ governmental and professional position.

61. Having so failed, the Defendants intentionally ignored,
(or with deliberate indifference or in reckless disregard of),
Plaintiffs’ rights under the Fourteenth Amendment to avoid
unwanted medical or psychological treatment, which right protects
Plaintiffs’ right to family association, family privacy, and the
parental right to exercise care and authority over the upbringing
of their children, and the children’s right to receive the care
of their parents.

62. The Defendants cannot show a compelling state interest
to justify the intrusions listed above.

63. The Defendants cannot show that their existing policies
and practices were the least restrictive means of accomplishing
their interests.

64. By these actions, Defendants have deprived the
Plaintiffs of their rights under U.S. Const., Amend. I, Amend.
IX, Amendment XIV, and 42 U.S.C. § 1983 and § 1988.

18


35

Enrolled Copy HB. 57

EDUCATIONAL RIGHTS AND PRIVACY ACT

AMENDMENTS
1995 GENERAL SESSION
STATE OF UTAH
Sponsor: Shirley V. Jensen
AN ACT RELATING TO PUBLIC EDUCATION; PROVIDING THAT THE PUBLIC
EDUCATION SYSTEM SHALL PROTECT THE PRIVACY OF STUDENTS, THEIR
PARENTS, AND THEIR FAMILIES; PROVIDING FOR A WAIVER; PROVIDING FOR
WITHDRAWAL OF AUTHORIZATION TO DISCLOSE; PROVIDING AN EXCEPTION;
AND MAKING TECHNICAL CHANGES.
This act affects sections of Utah Code Annotated 1953 as follows:
AMENDS:
53A-13-301, as enacted by Chapter 267, Laws of Utah 1994
53A-13-302, as enacted by Chapter 267, Laws of Utah 1994
Be it enacted by the Legislature of the state of Utah:
Section 1. Section $3A-13-301 is amended to read:
53A-13-301. Application of state and federal law to the administration and operation
of public schools.
(1) Employees and agents of the state's public education system shall {eomply] protect the

student privacy under Section 53/4-13-302 and the Federal Family Educational Rights and Privacy
Act[res-enaeted-by-the-United States-Congress;] and related provisions under 20 U.S.C. 1232 (g)
and (h), in the administration and operation of all public school programs, regardless of the source
of funding.

(2) Each public schoo! district shall enact policies governing the protection of family and
student privacy as required by this section.

Section 2. Section 53A-13-302 is amended to read:

53A-13-302. Activities prohibited without prior written consent — Validity of consent


75

can sign it—then that may undercut the purpose, which is to have
the parents show that they received it.

Mr. Horn. Sure. The ranking member, Mrs. Maloney of New
York.

Mrs. MALONEY. Thank you very much. The way Title IV is draft-
ed, it could prevent a local police department receiving Federal
funds from interviewing a minor about crimes without the consent
of their parents. Is that the intent of the legislation? I guess the
chairman can answer, too.

In other words, I think that my colleague raised a very important
point, that of interviewing young children that may have experi-
enced abuse of some sort, or the example that I gave, of a police
department interviewing a minor about crimes. The way this is
drafted, this would preclude them from doing it. ,

Mr. HIuTOon. If I could address that issue by referring you to my
written testimony, in the Utah legislation, we were concerned
about the very question.

On page 3, we put in explicit protections, except in response—
this is dealing in the school setting, of course, same idea—to a situ-
ation which a school employee reasonably believes to be an emer-
gency, or as authorized under our State laws dealing with child
abuse reporting, or by order of the court—and we have certain Ju-
venile Court rules and State rules that allow that kind of question-
ing at all times—disclosure to a parent or guardian must be given
so many weeks before informed consent is allowed.

All that has to be done—and I suggest this in my testimony—
is putting in an amendment saying nothing in this legislation
would, in fact, prohibit some of the very things youre talking about
and what I understand we have consensus on that this was never
intended to prevent or block happening.

We've worked with it now for 1% years in a practical sense and
your very concern is one that we had. We’ve had to have teacher
training all over our State to make sure that the record was clear
we were not trying to infringe on any child abuse reporting or
interfere with law enforcement at all.

Mrs. MALONEY. What about, say, a State receiving welfare funds
through a block grant? Would it prevent the State officials from
asking a minor receiving welfare benefits about other family mem-
bers living together in the same household without the consent of
their parents? Is that the intent? Would that not bar officials from
asking such questions, the way the language is drafted?

Mr. HILTON. Unless you’re implying that we have illegal conduct
going on in the home and, therefore, it would be barred by Section
4 in that sense. If we have a protection that says a minor’s house-
hold income, other than information required by law to determine
eligibility for participation or assistance, if that caveat was applied
to all of the categories, then no.

If it was just intended to apply to income then, arguably, yes, but
let’s make that caveat apply to everything if that would make the
law easier to administer and achieve its purpose of what was in-
tended.

Mrs. MALONEY. Can you give us some examples of agencies that
required minors to submit to a survey and asked for information
concerning anti-social or demeaning behavior?


36

HB. 57 Enrolled Copy
— Qualifications.

Policies adopted by a school district under Section $3A-13-301 shall include prohibitions on

(1) the administration to a student of any psychological or psychiatric examination, test. or
treatment, or any survey, analysis, or evaluation without the prior written consent of the student's
parent or legal guardian, in which the purpose or evident intended effect is to cause the student to
reveal information, whether the information is personally identifiable or not. conceming the student's
or any family member's:

(a) political affiliations or, except as provided under Section $34-13-101.1 or rules of the
‘State Board of Education, political philosophies;

(b) mental or psychological problems;

(c) sexual behavior, orientation, or attitudes;

(d) illegal, anti-social, self-incriminating, or demeaning behavior,

(e) critical appraisals of individuals with whom the student or family member has close
family relationships;

(f) religious affiliations or beliefs;

(g) legally recognized privileged and analogous relationships, such as those with lawyers,
medical personnel, of ministers; and

(h) income, except as required by law.

(2) The prohibitions (regarding the inquiry ordiselosing-of information] under Subsection
(1) shall also apply [te) within the curriculum [er] and other school activities unless prior written
consent of the student's parent or legal guardian has been obtained.

(3) Written parental consent is valid only if a parent or legal guardian has been first given
written notice and a reasonable opportunity to obtain written information concerning:

(a) records or information, including information about relationships, that may be examined
or requested;

(b) the means by which the records or information shall be examined or reviewed;

(c) the means by which the information is to be obtained;

(d) the purposes for which the records or information are needed;

+2.


51

meeting was made by Defendant Rigby who explained that it had
specific reference to building the esteem of children that were
going through divorce. that there would be self-esteem groups for
such children, and that no children would participate in such a
group without written parental permission. In light of this
explanation, and there being no disclosure of any actual or
intended psychological testing or treatment, Plaintiff A.P.
executed the permission slip. Had Plaintiff A.P. been fully
informed of the testing or treatment that would be undertaken
with her children, neither she nor her husband, D.P., would have
agreed to the same.

25. Later that fall, when Plaintiff A.P. attended parent-
teacher conference for B.P. and N.P. with the federally funded
Chapter I staff, she was given copies of the test given and
scored for B.P., (attached hereto as Exhibit 3, and incorporated
herein by this reference), and for N.P. (attached hereto as
Exhibit 4, and incorporated herein by this reference).

26. When Plaintiff A.P. found the tests had been given, she
vehemently objected to the tests having been given and met with
each teacher of her children and Defendant Rigby, giving specific
instructions that her children were not to be tested in this
manner and that, in the opinion of Plaintiff A.P., Defendants’
conduct violated federal law.

27. That evening, at their home, Plaintiffs A.P. and D.P.
reviewed the tests the children had been taken at their home that

7


24

most schools are precluded from giving information about parents, their ad-
dresses, or phone numbers to outside people.

(3) The research projects, and therefore the government sponsors of them, will
be expected to pay for this follow-up effort, substantially raising the cost of re-
search.

(4) Many schools will decline participation in the study because of the added
burden of follow-ups, further damaging representativeness.

(5) Even with an extensive followup of non-responding parents, response
rates will be poor and the resulting samples biased Because children from high
risk families are more likely to have non-responding parents, and, therefore
more likely to be omitted from the sample. For example, in one inner city school
in which we conducted a survey requiring signed parental consent, only 17 out
of 100 parents returned the form, resulting in a 17% response rate.

(6) A number of parents will have to be contacted repeatedly in order to get
a response from them, which will be seen by many of them as an intrusion.

Net result: Less representative, poorer-quality research at considerably higher
cost, with overburdened schools shouldering more burden than before, and parents
being bothered more. A number of studies may simply yield unusable results.

ALTERNATIVE II. TELEPHONE CONSENT REQUIREMENT.

One obvious variation on Alternative I is to secure non-responding parents’ con-
sent by phone. (Again this will have to be done by the schools, since they are prohib-
ited from providing home addresses, phone numbers, etc. to outsiders, even for use
in tracking non-respondents.)

‘Strengths: (1) Advance parental notification and the opportunity to decline is
guaranteed.

(2) This should reduce the non-representativeness of the samples from what
it would be under Alternative I, by increasing parental response rates.

Weaknesses: (1) Schools are stil] burdened with the task of contacting parents.

(2) Parents are stil] bothered, though less so than in Alternative I.

(3) Costs are still quite significant for the new follow-up procedure since mul-
tiple calls often are needed to reach parents.

(4) Calling parents for follow-up must extend beyond school hours, since many
parents work, making effective accomplishment of the task by school personnel
difficult, and again, more costly because of overtime, etc.

(5) Many schools will decline to participate in surveys because of the added
burden of follow-up and because of the need to bother parents who fail to re-
spond by mail.

Net Result: Representativeness of samples obtained will be better than under Al-
ternative I, but poorer than at present, because more schools will decline to partici-
ate in survey studies and because not all parents will be reached in the phone fol-
low-up conducted by school personnel.

(Also, schools will vary in how good a job they do in conducting the follow-ups,
erhaps resulting in other biases in the sample. For example, big city schools often
Rave the least resources available to help out with research activities, which means
they are likely to have lower participation rates.) Parents will have to be bothered,
though not as much as in Alternative I, because they can give their consent by
phone. Finally, Federally conducted or sponsored research will be distinctly more ex-
ensive to conduct than at present because of the additional costs for parental fol-
low-ups.

ALTERNATIVE Ill, ADVANCE PARENTAL NOTIFICATION BY FIRST-CLASS MAIL, WITH THE
OPPORTUNITY TO DECLINE BY MAIL AND/OR PHONE

‘Another logical variation for accomplishing the main objective of H.R. 11, Title IV
is to require that a first-class letter be sent to the parents or guardians of each stu-
dent chosen for a survey, (a) describing the time, place, and nature of the forthcom-
ing survey and (b) providing a low-effort method for the parent to exclude his or
her child from participation in the survey. This method is now used in a number
of studies, including the Monitoring the Future Study, but is not used routinely in
all Federally funded or Federally conducted survey studies. H.R. 11, Title [V could
be revised to mandate this procedure, accomplishing the same goals as Alternative
I without most of the serious side effects.

A few more words about the specifics of this alternative: The letter to parents
would usually come in the form of a letter from the school principal, since the
schools cannot reveal parent names and addresses to outsiders. A “recommended
letter” could be provided to principals by the researcher to save them time and to


54

administered again until the end of the school year. Plaintiff
A.P. continued to be adamant that her children not be tested
again. Upon information and belief, Defendant Anderson failed to
communicate the content of this follow-up visit by Plaintiff A.P.
or any other matter relative to Plaintiffs to Defendant Rigby or
any of the staff at Windsor Elementary School. Regardless,
Plaintiffs A.P. and D.P. took specific steps to ensure that each
of their children, including B.P. and N.P., clearly understood
(1) that they were not to be involved in additional psychological
testing or treatment at school, (2) that this prohibition had
been communicated to school officials, and (3) that refraining
from such a testing or treatment was in accord with their family
values and beliefs.

31. Thereafter, on or about February 4, 1994, Defendant
Rigby, (without exercising either professional judgment or due
care to determine whether or not D.P. or A.P. had submitted
written consent for B.P. and N.P. to be re-tested), intentionally
or with reckless disregard or callous indifference, violated the
constitutionally and statutorily protected rights of Plaintiffs,
(including parental rights, family privacy, right to refusal
unwanted medical treatment) re-administered the Piers-Harris
Children’s Self-Concept Scale to B.P., (attached hereto as
Exhibit 5, and incorporated herein by this reference), and for
N.P. (attached hereto as Exhibit 6, and incorporated herein by
this reference) .

10


63

65. The Plaintiffs have been damaged (as outlined
heretofore) by reason of the unconstitutional and illegal conduct
of the Defendants.

Count V

iolati £ the si . ied
of the Fourteenth Amendment

66. Plaintiffs incorporate by reference herein the
allegations contained in paragraphs 1-35, and do further allege
as outlined hereinafter.

67. The Defendants failed to exercise due care in either
securing the consent of Plaintiff A.P. or D.P. (or ascertaining
that Plaintiff A.P. and D.P. had consented to) regarding the
psychological testing or treatment of their children B.P. and
N.P. This failure has arisen from conduct by Defendants which
was either intentionally undertaken, done with deliberate
indifference or in reckless disregard of the rights of the
Plaintiffs, or simply not performed with due care required by
Defendants’ governmental and professional position.

68. Having so failed to either obtain consent or insure that
written consent had been given, the Defendants intentionally
ignored, (or with deliberate indifference or in reckless
disregard of), Plaintiffs’ substantive due process and liberty
rights protected by the Fourteenth Amendment to the United States
Constitution, all of which protects Plaintiffs’ right to family

association, family privacy, family privacy and the parental

19




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don't think there is a bootstrap argument that brings .
1983 into play where there is in this case no private ri
action and no implied right of action, no standing, and it
appears to me that the due process arguments do not justify
going forward here either.

There is not a sufficient coherent allegation with
respect to violation of familial rights. I think the Tenth |
Circuit case of Griffin v. Strong applies with respect to due |

process. I think there is that they don't rise to, on the

level of violation of a due process right under the facts of
this case.
I'm going to grant the motion to dismiss the case as|
a matter of law and it renders the other aspects and motion

that applied to the case as moot. I apply that to the !

existing complaint and to the proposed second amended

complaint which both parties agree is appropriate for reach
and scope here.

There would be no point in having another proceeding
if I were to procedurally permit the filing of the complaint
and then talking about it again and you agree with that, Mr.
Hilton?

MR. HILTON: Absolutely, Your Honor.

THE COURT: I appreciate the quality of your

advocacy, it's been very good and I appreciate th? presence of

these plaintiffs. It's apparent to me that they are earnest


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41

THE COURT: All right. ‘Thank you. I'm sure that
you can tell from my questions that I'm troubled by the scope
of this lawsuit as applied to the facts of this particular
case.

I don't really think that we're talking about
psychological examination, testing or treatment that had it's
primary purpose to reveal information concerning mental and
psychological problems potentially embarrassing to parents or
family, or sex behavior or attitudes or any of the other 7
categories within psychiatric and psychological examination
testing or treatment set forth in Section 1232h of Title 20 of
the United States Code.

It seems to me that what we have is something that
was incidental if at all in connection with some other kind of
thing that was being pursued, namely reading and things of
that nature. In all events I don't consider that the facts of
the case come within the definition of what is sought to be
prohibited in the statute.

Secondly, I don't think that the statute itself
affirmatively requires consent although it does require
availability for inspection by parents or guardians, but
fundamentally it seems to me that there is no implied right of
action that exists under the statute, that as a matter of law
it does not exist and that in view of the comprehensive

enforcement scheme set forth authorized by the statute in


Dated November 23,

1994.

By:

22

HILTON & STEED, P.C.
» if

Otto tel
Matthew Hilton

(Cooperating Attorneys for
The Rutherford Institute)


11

women and to children under the age of six with family incomes below 133 per cent
of the federal poverty income guidelines. In addition, states must phase in coverage
of all children under age 19 whose family income is below 100 per cent of poverty.
Eighteen-year olds will not be covered until the year 2002.

e Special Supplemental Food Program for Women, Infants, and Children (WIC)
also defines children as those under the age of six. Given other, more expansive defi-
nitions of children, this program might more accurately be called the Special Sup-
plemental Food Program for Women, Infants, and Preschoolers, or WIP.

Other Definitions

This review does not exhaust the definitions of children. Educational systems re-
quire children to start first grade by age 7 as a maximum. The Federal Aviation
Administration mandates that “children under the age of 15 may not sit in an exit,
row,” thus suggesting that individuals 15 and over are not children in the eyes of
the FAA. And religious groups establish ages at which children can be expected to
meet adult religious obligations. The age of Bar Mitzvah for Jewish boys is 13. The
age of other rites of passage, signifying movement from childhood to adult status,
varies across primitive and civilized cultures. The closest approximation to a univer-
sal rite of passage in the United States may be the acquisition of a driver’s license!

AGE CATEGORIZATIONS USED BY SEVERAL FEDERAL DATA AGENCIES

The lack of uniformity across states in age categorizations may be understandable
in terms of the independence given to states under the federal constitution. The rea-
sons, however, for differences in age categorizations among those federal agencies
whose duty is to collect or analyze data are less clear. And, in addition, the age cat-
egorizations chosen by some of the agencies cause difficulties for many policy-ana-
lysts and program developers. The following paragraphs describe the age groupings
used by three agencies for individuals under age 21.

National Center for Health Statistics

The National Center for Health Statistics issues periodic reports on vital statistics
and on its many surveys. In its reports on births, maternal age is categorized as
under 15 and by single years for 15 through 19, with a grouping of 15 to 19, and
then by five year intervals, 20-24 and so forth. In its reports on deaths, age is cat-
eperized as under one, 1 to 4, 5 to 9, 10 to 14, 15 to 19, and 20 to 24 years. The

fational Hospital Discharge Survey uses the following age categories: under one
year, 1 to 4, 5 to 14, 15 to 19, and 20 to 24. It also groups data by under 15 and
15 to 44, as well as under 17, The 1988 National Survey of Family Growth has re-
ported its findings in relation to the age of the mother in several ways: 15 to 24,
15 to 19, and 20 to 24; and under 18, 18 and 19, and 20 to 24. The National Health
Interview Survey in its annual publication, Current Estimates, reports a range of
health-related problems in the categories: under 5, 5 through 17, and 18 through
24. It also groups data by under 18 and 18 through 44. The NCHS plans to inter-
view adolescents aged 12 to 21 in a Youth Risk Behavior Surveillance supplement
to its 1992 Health Interview Survey; and, starting in 1995, as a routine part of the
Health Interview Survey. Note the lack of uniformity across reports, as well as the
absence of an adolescent period in the Hospital Discharge Survey and the Health
Interview Survey.

Bureau of the Census

Current Populations Reports, the publication of the Census Bureau’s Current Pop-
ulation Survey, defines children in several ways. For example, the report on poverty
in the United States, categorizes family status by whether the household contains
related children under 18 or related children under 6. But in the section devoted
to age of individuals, the categories are under 15 and 15 to 24.

Office of Technology Assessment

In its 1991 report entitled, Adolescent Health, the federal Office of Technology As-
sessment. noted that definitions of adolescence vary and that a definition based on
age alone is insufficient because of significant individual variation in the processes
of adolescent development. Nevertheless, the OTA report focused on 10- through 18-
year-olds. Its rationale was that by age 10, many individuals had begun puberty and
that at 18 most are still in high school and dependent on their parents. OTA also
divided the adolescent group into younger adolescents, 10 through 14, and older ado-
lescents 15 through 18.


53

b. Sex Behavior and Attitudes: (Statement #’s: 29, 54, 57,
69, 73.)

c. Anti-social, self-incriminating or demeaning behavior:
(Statement #’s: 2, 3, 4, 6, 7, 8, 10, 11, 13, 14, 18, 20, 22, 25,
26, 27, 31, 32, 34, 40, 43, 45, 46, 47, 48, 50, 53, 56, 58, 59,
61, 64, 68, 71, 72, 74, 75, 78, 79.)

d. Critical appraisals of other individuals with whom the
respondents have a close family relationship: (Statement #'s: 38,
59, 62.)

29. During the next week, Plaintiff A.P. met again with
Defendant Rigby and notified her again, with specificity, that
both D.P. and A.P. were adamant that their children were not to
be tested as they had been previously.

30. Thereafter, after an exchange of several phone messages,
Plaintiff A.P. was able to discuss the matter with Defendant
Anderson. Plaintiff A.P. notified Defendant Anderson that
Plaintiffs A.P. and D.P. did not want B.P. or N.P. tested, and
that they were asserting their rights under the Protection of
Pupil Rights Amendment ("PPRA," 20 U.S.C. § 1232h(b); 34 C-F.R. §
98.1 et. seg.) (commonly known as the Hatch Amendment) .

Plaintiff A.P. was notified by Defendant Anderson that the
practices complained of had been in place for twenty years, that
the self-esteem testing was required to meet Chapter I funding
regulations, scores showed she had nothing to worry about insofar
as it related to her children, and the tests would not be

9


59

45. Plaintiffs incorporate by reference herein the
allegations contained in paragraphs 1-36, and do further allege
as outlined hereinafter.

46. The Defendants failed to exercise due care in either
securing the consent of Plaintiff A.P. or D.P. (or ascertaining
that Plaintiff A.P. and D.P. had consented to) regarding the
psychological testing or treatment of their children B.P. and
N.P. This failure has arisen from conduct by Defendants which
was either intentionally undertaken or done with deliberate
indifference or in reckless disregard of the rights of the
Plaintiffs.

47. Having so failed, the Defendants intentionally ignored,
(or with deliberate indifference or in reckless disregard of),
Plaintiffs’ rights under the due process clause of the Fourteenth
Amendment which required the Defendants to obtain the consent of
Plaintiff D.P. or A.P. prior to undertaking psychological testing
or treatment with B.P. and N.P.

48. The Defendants cannot show a compelling state interest
to justify the intrusions listed above.

49. The Defendants cannot show that their existing policies
and practices were the least restrictive means of accomplishing
their interests.

50. The actions of Defendants, acting under the color of
state and local law, custom and usage, deprived the Plaintiffs of
their constitutional right to due process as required by the due

15


13

she had urged reversal of the “presumption of incompetency.” Rather than assuming
on the basis of chronological age that a child or adolescent was not competent, she
had suggested that we presume individuals, even children, are competent until
proven otherwise. A radical approach to defining childhood!

Mr. Horn. Without objection, the statement cited by the ranking
minority will be included following her remarks. The gentleman
from Pennsylvania, Mr. Fox.

Mr. Fox. Thank you, Mr. Chairman. I want to thank the chair-
man for his leadership on this subcommittee and in the legislation
that he has annually shepherded to help support family and fortify
families here in the United States.

I’m proud to have as one of our guests with me today the execu-
tive director of CADCOM of Montgomery County, PA, an agency
dedicated to support of families in Pennsylvania, and he shares my
enthusiasm with the foregoing information about you and what our
committee will be doing.

Mr. Chairman, as you know, H.R. 11, the Family Reinforcement
Act, is an essential objective to the Contract with America. This
legislation strengthens the family and it has received bipartisan
support by this Congress.

By way of clarification, I should add that, in the welfare legisla-
tion that I’ve seen, we have talked only about eliminating the Fed-
eral bureaucracy on the School Lunch Program and, thereby, will
be able to feed more children with more meals.

Within the Family Reinforcement Act is Title IV, Section 401,
which requires parental or guardian consent for minors to partici-
pate in any federally funded survey that includes eight kind of pri-
vacy-impact questions. This initiative stems from longstanding op-
position to federally funded surveys designed to gain information
on sensitive subjects.

While almost identical Federal regulations already exist, this
provision reaffirms a commitment to privacy. Furthermore, the
Family Privacy Protection provision is integral in producing a
strong and viable piece of legislation that bolsters family ties.

Mr. Chairman, thank you for holding this hearing, for your lead-
ership, and for allowing the participation of so many important wit-
nesses, and we look forward to hearing them. Thank you, Mr.
Chairman.

Mr. Horn. Thank you very much. Does the other gentleman from
Pennsylvania have any comments? I’m conscious of Senator Grass-
ley’s time. He had a markup beginning at 10 o’clock, I believe.

Mr. GRassLEY. That’s been changed.

Mr. Horn. OK, fine.

Mr. Mascara. I'll be brief, Mr. Chairman.

Mr. Horn. Thank you.

Mr. Mascara. I want to thank you, Mr. Chairman. As a father
of four and a grandfather, I’m always concerned about protecting
the rights of parents to know about the activities in which their
children are involved. This particularly applies to surveys which
might ask them about their most personal behavior or their family

ife.

I believe parents should have the right to know and should be
informed if their children are being questioned about drug use, sex-
ual activities, mental or psychological problems, or their family’s


CONTENTS

Hearing held on March 16, 1995
Text of H.R. 11

Statement of:
Grassley, Hon. Charles E., a Senator in Congress from the State of

Towa a
Johnston, Lloyd D., Ph.D., Gat director, Survey Research Center,
University of Michigan; ‘and latthew Hilton, J.D., Ph.D., a member

of the Utah Bar and an authority on family privacy issues
Katzen, Sally, Administrator, Otiee of Information and Re latory A\
fairs, Office of Management and Budget; and William P. Butz, Associ-
ate Director for Demographic Programs, Bureau of the Census, U.S.
Department of Commerce ..
Letters, statements, etc., submitted for the record by:
Bass, Hon. Charles F., a Representative in "Congress from the State
of New Hampshire, prepared statement of ...

Butz, William P., Associate Director for Demographic Programs, Bureau
of the Census, U.S. Department of Commerce, prepared statement of ...
Hilton, Matthew, J-D., Ph.D., a member of the Utah Bar and an authority

on Famniy rivat issues. prepared statement of
Johnston, Lloyd D., Ph.D., program director, Surve
University of Michigan, prepared statement of
Katzen, Sally, Administrator, Office of Inform: gu
fairs, Office of Management and Budget, prepared statement of
Maloney, Hon. Carolyn B., a Representative in Congress from the tate
of New York, “What Is a Child?”

ID),


34

enforcement should be included so to not be thwarted by administrative agencies
that enforce a similar law only seventeen times in sixteen years.?

T would suggest that private enforcement is a remedy that should be considered.
Possible language to express that concept could be included as an amendment (or
addition) either to page 2, line 17, or as a separate section which states as follows:
The protections afforded by this Act shall be enforced by procedures estab-
lished by the relevant department or agency as well as any private enforce-
ment sought by any aggrieved persons pursuant to 42 U.S.C. § 1983 or other
recognized means of Securing r S.

The amendments adopted by Congress last year to 20 U.S.C. § 1232h(b) could also
be considered to clarify the duties on the respective departments who are charged,
in part, with enforcement of the provisions of the legislation.

(4) Is it the intent of this committee to revise or impede in any way the effect
of the amendments made last term in 20 U.S.C. §1232(h)b, commonly called the
Grassley Amendment, (to the former Hatch Act), or Protection of Pupil Rights
Amendment?

If there is no intent to change the impact of this legislation from the last session,
it would seem that the provisions of Section 401(b), page 2, lines 7-10 are not need-
ed. If there is, then additional clarification would need to me made on those provi-
sions. Because it is my understanding that this is not intended, these other matters.
will not be reviewed here.

Thope that this information has been helpful in your careful deliberations.

Sincerely yours,
Matthew Hilton.

Enclosures: Educational Rights and Privacy Act Amendment, 1995 General Ses-
sion, State of Utah, H.B. 57 $$534-13-101.1, 101.2, 101.3 U.C.A. Transcript, D.P.,
et. al. v. Alpine School District, Case No. 94-181, United States District Court for
the District of Utah, February 21, 1995, The Honorable J. Thomas Greene

2See Richard W. Riley, Secretary of the U.S. Department of Education, to Hon. Charles £.
Grassley, October 7, 1993, at S 660 (February 4, 1994).


76

Mr. HILTON. The example I was giving you at the beginning was
coming out of the educational setting. That’s where I’ve spent most
of my time. I’m not as well-versed as Dr. Johnston, at all, on that
type of a survey.

Mrs. MALONEY. Could you give us some examples of some of
these——

Mr. Horn. Dr. Johnston, did you want to comment on that?

Mr. JOHNSTON. Well, to tell you the truth, when I originally read
this, I read it as applying to school surveys but, in fact, that’s not
a qualification in this. I guess I generalized from the original
Grassley amendment to the school legislation.

T don’t even know if he meant and had intended something be-
yond schools, but I think the point you make is a very relevant one,
that there are probably many other agencies that most of us would
agree legitimately ask these questions as part of their statutory au-
thority and intent and that we wouldn’t want to put them in a bind
by an overly broad statement of intent.

Mr. HILTON. But the overall question is, isn’t it, that you can get
around that by having their consent. Senator Grassley was very
clear, if a family wants to have their privacy invaded, and consent,
that’s great. ‘All he's trying to do is make sure they have the con-
sent.

Mr. JOHNSTON. Do you think he meant to include say, police ask-
ing a child about child abuse and so forth?

Mr. HILTON. No. The other provisions that I’ve submitted, under
Utah, are clearly designed to exempt that.

Mrs. MALONEY. I’m aware of educational surveys, as a product
of public schools. I was asked them all the time when I was in pub-
lic school. But I’m unaware of other federally funded surveys which
require minors to participate.

Can you identify surveys you are concerned about? I think it
would be helpful if we got an understanding of how many surveys
are going into the home, are going into the children, not just in the
educational system. If you know of any surveys that——

Mr. JOHNSTON. My impression is that there are extremely few,
certainly national surveys, that require anything. That is, they're
all voluntary and the child can choose not to be in the survey, and
that’s explicitly explained in procedures enacted, and we do the
same thing ourselves.

I think probably the most egregious examples that one might
dredge up would come from local surveys maybe done by local col-
leges or by people in the school system and so forth, who simply
don’t think about these things, and human subjects’ protection isn’t
even a phrase in their lexicon.

Mr. Horn. It’s supposed to be in colleges and universities, maybe
not in high schools. Is that your experience, that your colleagues
in public and private colleges and universities really don’t follow a
human subjects review? Because it’s mandatory, in most research
protocol.

Mr. JOHNSTON. Yes, I think most academic work goes through so
many procedures that children are properly protected.

Mrs. MALONEY. The background memo for this hearing from
Chairman Horn, suggests that some surveys do not require paren-


22

I think this proposed legislation, as currently worded, constitutes
a threat to this entire corpus of important work. The viability of
the work could be undermined by driving the non-response rates so
high that the samples are really useless for interpretation, and/or
driving the survey costs so high that we couldn't have large sam-
ples and the Federal Government would get a lot less product for
its investment in research.

Now, the problem as I see it is not one of gaining parental con-
sent. It seems to me that’s the objective of this, of Title IV, and I
think that objective can be attained virtually completely with a dif-
ferent mechanism. It’s the mechanism which is the problem—the
one of active written consent by every parent whose child will par-
ticipate.

Many, many parents simply do not answer their mail. It’s not
that they object to their child’s participation. It’s just that they
don’t answer their mail. We do an active consent procedure on a
particular sample of our study population and we know that 55
percent of the parents don’t answer the first mail request for their
consent. If you have a 45 percent response rate in a survey, it’s
useless.

Then, we have to undertake an expensive procedure to follow
them up. In this case, we are able to do it ourselves and do it by
phone, and eventually we get very high cooperation rates with be-
tween 1 and 2 percent saying no, they don’t want their child to par-
ticipate.

That’s what we're dealing with is, in order to give that 1 or 2
percent of the people a chance to say no, we threaten to undermine
the entire study and the 98 percent of the parents who are per-
fectly glad to have their children participate.

I mentioned the sharp increase in cost. There’s also more burden
on schools, because they're not allowed to give out the names, ad-
dresses, or phone numbers of parents, so we can’t do the followup
in general. They have to do it and, of course, they'll do it with dif-
ferential quality.

Further, many parents have to be bothered by this process—in
essence, pestered to answer, to return those parental consent
forms, and to give us some answer. Now, that seems to me contrary
to another value that we all seek. And districts, I think, would be
prevented from doing surveys that they think are important on
their own populations of students due to the costs and the staff re-
quirements.

I laid out in my written testimony three different models for ac-
complishing the objective that we’re talking about here and tried
to evaluate each one: The first is H.R. 11 itself, as currently word-
ed. The second would be a variation where you'could use telephone
answers from parents who don’t respond in writing, which amelio-
rates some of the problems but still has a considerable number and
a considerable cost.

Finally, the first class mail advance notification of all parents—
this is new; this is not currently in Federal legislation—providing
them an easy opportunity to decline either by phone or by mail or
both, with low embarrassment—basically, a very easy thing. You
could call it active dissent, if you want, instead of active consent.


COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT
WILLIAM F. CLINGER, JR., Pennsylvania, Chairman

BENJAMIN A. GILMAN, New York CARDISS COLLINS, Iinois
DAN BURTON, Indiana HENRY A. WAXMAN, C:
CONSTANCE A. MORELLA, Maryland TOM LANTOS, California
CHRISTOPHER SHAYS, Connecticut ROBERT E. WISE, JR., West Virginia
STEVEN SCHIFF, New Mexico MAJOR R. OWENS, New York
ILEANA ROS-LEHTINEN, Florida EDOLPHUS TOWNS, New York
WILLIAM H. ZELIFF, JR, New Hampshire JOHN M. SPRATT, JR., South Carolina
JOHN M. MCHUGH, New York LOUISE McINTOSH SLAUGHTER, New
STEPHEN HORN, California York
JOHN L. MICA, Florida PAUL E. KANJORSKI, Pennsylvania
PETER BLUTE, Massachusetts GARY A. CONDIT, Califorma
THOMAS M. DAVIS, Virginia COLLIN C. PETERSON, Minnesota
DAVID M. McINTOSH, Indiana KAREN L. THURMAN, Florida
JON D. FOX, Pennsylvania CAROLYN B. MALONEY, New York
RANDY TATE, Washington THOMAS M. BARRETT, Wisconsin
DICK CHRYSLER, Michigan GENE TAYLOR, Mississippi
GIL GUTKNECHT, Minnesota BARBARA-ROSE COLLINS, Michigan
MARK E. SOUDER, Indiana ELEANOR HOLMES NORTON, District of
WILLIAM J. MARTINI, New Jersey Columbia
JOE SCARBOROUGH, Florida JAMES P. MORAN, Virginia
JOHN B. SHADEGG, Arizona GENE GREEN, Texas
MICHAEL PATRICK FLANAGAN, Illinois CARRIE P. MEEK, Florida
CHARLES F. BASS, New Hampshire FRANK MASCARA, Pennsylvania
STEVEN C. LATOURETTE, Ohio CHAKA FATTAH, Pennsylvania
MARSHALL “MARK” SANFORD, South —

Carolina BERNARD SANDERS, Vermont.
ROBERT L. EHRLICH, JR., Maryland (Independent)

JAMES L. CLARKE, Staff Director
KEVIN SABO, General Counsel
JUDITH McCoy, Chief Clerk
Bun MYERS, Minority Staff Director

SUBCOMMITTEE ON GOVERNMENT MANAGEMENT, INFORMATION, AND TECHNOLOGY

STEPHEN HORN, California, Chairman
MICHAEL PATRICK FLANAGAN, Illinois CAROLYN B. MALONEY, New York

PETER BLUTE, Massachusetts MAJOR R. OWENS, New York
THOMAS M. DAVIS, Virginia FRANK MASCARA, Pennsylvania

JON D. FOX, Pennsylvania ROBERT E. WISE, JR., West Virginia
RANDY TATE, Washington JOHN M. SPRATT, JR., South Carolina
JOE SCARBOROUGH, Florida PAUL E. KANJORSKI, Pennsylvania

CHARLES F. BASS, New Hampshire

Ex OFFICIO

WILLIAM F. CLINGER, JR. Pennsylvania CARDISS COLLINS, Iinois
J. RUSSELL GEORGE, Staff Director
MARK UNCAPHER, Professional Staff Member
ANDREW G. RICHARDSON, Clerk
Davip MCMILLEN, Minority Professional Staff

ay


91

Ms. KATZEN. It is the staff, rather than me personally, that re-
views the surveys. We have desk officers, as they are known, who
will look at both the regulatory and paperwork issues that are
raised by the various departments and agencies. For the most part,
this is very beneficial because the person reviewing the paperwork
already has a keen sense of the programatic missions and the regu-
latory objectives of the different agencies.

Questions will be raised either to my deputy, or to me if they are
of a particularly sensitive nature, or confrontational with the agen-
cies. We try to work in a collegial fashion. And I’ve been very grati-
fied that very few questions of this sort have been raised to me in
the past year. But it is not unheard of for a paperwork issue to
come to my attention, at which point I will give it the look that it
deserves,

Mr. Horn. Has any type of case that relates to the subject mat-
ter before this committee ever come to you on appeal?

Ms. Katzen. No, and similarly, we have not heard any com-
plaints from any parents that these kinds of issues are creating a
problem. My experience has been that many of the people who do
research in this area are themselves acutely sensitive to the abili-
ties and privacy interests of the respondents. Also, I was listening
to the questions of the earlier panel, and there was a question
about how do you keep information confidential; how do you know
that that’s the way the survey is going to be conducted? I wanted
to say that we not only look at the piece of paper that would be
sent out, to see whether the data elements are appropriate under
our criteria, but we will also review the protocols that accompany
them. If there is a consent form, what does it look like? Whether
or not there are procedures for accumulating the data, aggregating
it, stripping personal identifiers, et cetera, how will those be? We
have the track record of most of these agencies, so that it is the
whole approach that we are reviewing, rather than just the piece
of paper as such.

Mr. Horn. Now, these criteria have been developed, I assume,
over, really, five decades or more.

Ms. KATZEN. Yes.

Mr. Horn. Because I remember one reason for this particular of-
fice was, Secretary of Agriculture Wallace went out to his native
State of Iowa and found a farmer saying, “Look at all the surveys
Tm getting from your department.” He came back sort of deter-
mined to do something about that.

Ms. KaTZEN. I think the situation has gotten worse, rather than
better in the last four decades.

Mr. Horn. Yes. Could you file the criteria and guidance you use
on the question before this committee, which is minors, and their
parental consent, if any needed, that you use in evaluating those
particular surveys? There must be some regulation or guidance
that has been Geveloped over the years in, first, Bureau of the
Budget, and now, OMB to deal with this.

Ms. KATZEN. We have tracked fairly carefully the generally
thoughtful standard set forth in the Paperwork Reduction Act it-
self. There are regulations that we have provided to the agencies,
so that when they provide a submission to us, as we call it, of the



46

certain psychological examinations, testing or treatment, without
obtaining the knowing and voluntary informed consent of either
the parent or the minor children involved.

3. Upon information and belief, Defendant Alpine School
District, while acting under color of state law and pursuant to
official policy, custom and practice, has intentionally,
recklessly, or unprofessionally violated the parental liberty and
privacy rights of Plaintiffs D.P. and A. P., and the familial
associational rights of D.P., A.P., B.P. and N.P..

4. Upon information and belief, Defendants Rigby and
Anderson, while acting under the color of state law and contrary
to the intended policy, custom and practice of Alpine School
District, have intentionally, recklessly, unprofessionally, or
with deliberate indifference, violated the parental and privacy
liberties of Plaintiffs D.P. and A.P., and the familial
associational and privacy rights of D.P., A.P., B.P. and N.P.

5. The Defendants, acting under the color of state law and
either pursuant to official policy, custom and practice, or in
derogation of official policy, custom and practice, have
intentionally, in violation of professional duties, or with
reckless disregard of, or in deliberate indifference to,
Plaintiffs’ rights, invaded Plaintiffs’ constitutionally
protected right of familial association, privacy rights, right to
refuse medical treatment, and parental liberty to raise their
children, as well as violating the provisions of PPRA.

2


30

so much about where I live. When our Nation began, we had a con-
tract prepared, called the Declaration of Independence.

Those who exercised their God-given rights of fulfilling their du-
ties and moral responsibilities completed their part of the contract
by pledging their lives, fortunes, and sacred honor. God fulfilled his
part by divine intervention on behalf of the colonists.

A new contract, proposed at Gettysburg several decades later, in
the midst of a civil war, tried to ensure that the rights provided
by the Declaration of Independence be given to all, regardless of
race and creed.

Finally, in 1940, the Supreme Court rewrote a new contract with
America and began applying the protections of the Bill of Rights
on States and local governments to protect individuals and fami-
ies,

I heard much in the opening statements about efforts to write a
new Contract with America. My question is, which America? Can
it be the unborn or those millions in the future? Lack of the 14th
amendment in deficit spending would probably say no.

Rather, let your contract be with the family, the foundation of so-
ciety that collectively will have a greater impact on our freedoms
than anything else. You can make this contract by one, declaring
findings and policies in support of the family, clarifying ambiguities
in present law, and establishing a private right of action in favor
of families in this and other legislation.

I can only bind myself and encourage my own family to follow,
but I would be grateful for your kind attention and protection of
our freedoms through careful technical work on your legislation.

[The prepared statement of Mr. Hilton follows:]

PREPARED STATEMENT OF MATTHEW Hitton, J.D., Pu.D., A MEMBER OF THE UTait
BAR AND AN AUTHORITY ON FAMILY PRivacy IssuES

Chairman Horn and other distinguished members and witnesses: Thank you for
the opportunity of speaking with you today. I would like to begin my comments with
a story.

In 1993, a new family moved into a local Utah school district from out of state.
Two children in the family were enrolled in a Chapter | reading program. When
their mother attended a parent-school conference that fall, the mother found that
the children had been given a psychological, self-esteem test without her or her hus-
band’s knowledge or consent. On this test their seven and eight year old children
had been asked, among other things, to label themselves regarding the following de-
meaning behavior:

T cause trouble to my family: Y N

I behave badly at home:

I pick on my brothers and sisters: YN
The children were also asked to label their family as follows:

My parents expect too much of me: Y

My family is Qisappointed in me: YN

Iam picked on at home:
The mother immediately contacted her children’s teachers, counselors and the dis-
trict offices and explained her children were not to be tested. She also indicated that
she believed their conduct had violated the provisions of the Hatch Amendment.

Tronically, on the very day that the Senate was considering the Grassley amend-
ment last session, (and placing in the Congressional Record this test as an example
of what would be prohibited), the school district chose to test this mother's children
again, with the very same self-esteem, psychological test. Over one of the children’s
objections that his mother did not want him taking the test, the test was readminis-
tered with the assurances to the child that the school district had spoken with his
mother, Why was this done? Perhaps as part of fulfilling existing district poli
where “the home, community, and the school are jointly responsible for the physical,
social, emotional and moral development of the youth.” In this case, obviously, in


39

CURRICULUM IN THE PUBLIC SCHOOLS SSA-13-102

53A-15-101.3, Expressions of belief — Discretionary time.

+) Expression of personal beliefs by a student participating in whwol-di-
oe curricula or activities may not be prohibited or penalized unless the
expression unreasonably interferes with order or discipline, threatens the
ail-being of persons or property, or violates concepts of civility or propriety
inte to @ school setting.
Pig) (a) As used in this section, “discretionary time” means noninstructional
time during which a student is free to pursue personal interests.

(b) Free exercise of voluntary religious practice or freedom of speech by
students during discretionary time shall not be denied unless the conduct
unreasonably intarferea with the ability of school officials to niaintain
order and discipline, unreasonably endangers persons or property, or vis-
lates concepts of civility or propriety appropriate to a school setting.

(3) Any limitation under Sections 58A-19-101.2 and 53A-13-101.3 on stu-
dent expression, practice, or conduct shall be by the least restrictive maans
necesaary to satisfy the school’s interests as stated in those sections, or to
satisfy another specifically identified compelling governmental interest.

wi

History: C. 1068, 69A-12-101.3, enscred by came effective un May 3, 1998, pursuant to
L 1988, ob. 96, 44 ‘Utah Const. Art. V1, Sec. 25.
‘Bifective Dates, Laws 1003, ch 98 be.

88A-13-102. Instruction on the harmful effects of alcohol,
tobacco, and controlled substances — Assistance
from the Division of Alcohol and Drugs.

(1) Sections 32A-12-208 and 76-10-1065 and Subsection 58-37-&(2aXi) pro-
hibit l-aged persons from using sleohol, tobacco, and enntrolled sub-
stances. The State of Education shall adopt rules providing for instruc-
tion et each grade Icvcl on the harmful effects of alcohol, tobacco, and con-
trolled substances upon the human body and society. The rules shall require
put ure not limited to instruction on the following:
(a) teaching of skills needed to evaluate advertisements for, and media
ral of, alcohol, tobacco, and controlled substances;
b) students towards health and productive alternatives to
the use of alcohol, tobacco, and cuntrolled substances; and
(c) discouraging the use of alcohol, tobacco, and controlled substances.
Ca) Ab the request of the board, the Divisio a ae all
cooperate with board in developing programs to provide this instruction.
The board shall participate in efforts to enhance communication among
community tions and state agencies, and shall cooperate with those
entities in which are compatible with the purposes of this section.

History: C. 1988, S8A-18-102, enacted by Cross-References, — Controlled sub-
1908, ch. 2, $ 17% 1988, ch. $0, § 84 stances, Title 68, Chapter 37.
Amendment Notes. — The 1992 amend- Teen substance abuse intervention and pre
effective April 27, 1902, substituted vention, # 62A-6-201 ot seq.
12-200" for “32A-12-13" in the fire oea-

of Subsection (1).

r

rel


89

lists as sensitive subjects some vague concepts such as anti-social,
demeaning, and “appraisals of other individuals with whom the
minor has a familial relationship.”

Some topics, such as political affiliation or religi us beliefs, may
be inappropriate of the Federal Government to ask, even of adults.

And income, while it may be a sensitive topic, is a fundamental
measure, essential to understand and analyze in most every social
and economic issue.

The fifth question was, do you have any suggestions for improve-
ments to the legislation? I would like to offer three. First, the lan-
guage, as I suggest, should be sharpened in a number of details.

Second, we believe the need for written consent should be reex-
amined. There are occasions when other forms of consent, or no
consent, are entirely appropriate.

In particular, we believe there should be exemptions for cir-
cumstances where obtaining written consent would be infeasible or
might put a child at risk. And last, we believe that income informa-
tion should be treated differently from the other types of sensitive
information covered by the bill.

Thank you, Mr. Chairman, for the opportunity to testify.

(The prepared statement of Mr. Butz follows:

PREPARED STATEMENT OF WILLIAM P. BUTZ, ASSOCIATE DIRECTOR FOR DEMOGRAPHIC
PROGRAMS, BUREAU OF THE CENSUS, U.S. DEPARTMENT OF COMMERCE,

Thank you, Mr. Chairman, for the opportunity to testify before this Subcommittee
today on WR. 11, the Family Reinforcement Act, specifically on Title IV of the bill,
which is entitled “Family Privacy Protection.” You listed five questions in your letter
of invitation and I will answer each of those now.

1. First, What surveys, analyses, or evaluations of individual minors are currently
conducted with Federal funds? The Census Bureau conducts or recently has con-
ducted three voluntary surveys in which minors are among the targeted respondents
or are the only respondents. Each of these surveys is sponsored by another Federal
agency. We conduct the survey and provide the resulting information to the sponsor-
ing agency. The other agency pays for the survey, determines the questions that are
aske and conducts any analyses and evaluations.

We conduct the National Crime Victimization Survey for the Bureau of Justice
Statistics. The purpose of this survey is to collect information about the types and
incidence of personal or houschold crime; monetary losses and physical injuries due
to crime; and characteristics of the victim. Interviewers are instructed to obtain a
response directly from each member of a household in the sample who is 12 years
of age or older. parent is notified that the children are being interviewed,

e conducted the Youth Behavior Survey for the National Center for Health Sta-
tistics in 1992. Household members ages 12-17 were in the survey and interviewers
obtained parental consent to interview the children personally. We obtained the con-
sent either over the telephone or during the personal visit. Questions in this survey
ranged from those about vehicle safety habits, fighting, cigarette smoking, alcohol
and drug use, and nutrition, to a battery of questions on sexual behavior, preg-
nancy, and sexually transmitted diseases that were asked of only those children 14
years old and older.

We also conducted the Teenage Attitudes and Practices Survey for the National
Center for Health Statistics in 1989 and 1993. A sample of persons 10-21 was inter-
viewed and advance letters were sent to parents and youths in the sample, so that

arent had an opportunity to object. This survey was directed largely at obtaining
information about tobacco use. It included a few questions about the child’s close-
ness to the parent. It did not include questions on drug use or sexual behavior.

In answering this question, 1 have discussed only those activities in which the
Census Bureau is involved. There are other surveys conducted with Federal funds,
by public or private organizations other than the Census Bureau, that would be af-
fected by this legislation.

2, Second, What are the current policies and procedures for parental consent with
these surveys, analyses or evaluations? To summarize, a parent is notified in each
of the three surveys that the children are being interviewed. In the case of the sur-



25

assure that the letter provides adequate information about the study. (An alter-
native is to have a letter from the researcher with a cover letter by the principal.)

An opportunity for the parents to decline their child’s participation can be pro-
vided with (a) an enclosed, self-addressed, stamped (return- or postage prepaid)
postcard to be mailed back to the school or the principal's designee in the event that
the parent does not want the student to participate, (b) a phone number at the
school (usually of the principal's secretary) to be called by the parent(s) to indicate
that their son or daughter will not participate, (c) a toll-free number provided by
the research team, or (d) some combination of a, b, and/or c.

Strengths: (1) Advance parental notification and an opportunity for parents to
decline is guaranteed for all students chosen in each survey.

(2) This should reduce the non-representativeness of the obtained sample con-
siderably from Alternatives | and II, because more schools will be willing to par-
ticipate and many fewer children will be lost from the survey simply because
their parents failed to respond to the parental consent letter.

(3) Those few parents who really wish their child(ren) to be omitted from any
given survey (usually no more than 1% to 4%, depending on the survey) have
adequate opportunity to do so at no cost and very little effort.

(4) Parents are not bothered by prompting calls and letters aimed at getting
a response.

Weaknesses: (1) For studies which do not currently use these procedures,
there will be a very modest increase in cost for postage and a small amount
of school staff time, but the staff time requirements and the costs are far less
than under Alternatives I and II perhaps by a ratio of 15 to 1, according to a
recent journal article on the subject. A number of surveys, including our own
national surveys of eighth and tenth Frade students, already use these proce-
dures and, therefore, would not incur this increase in costs. (They seem to work
very well. We have used them in our eighth and tenth grade samples each year
since 1991, surveying some 140,000 students, without problem or complaint.)

Net result: The quality of Federally-funded research will not suffer a serious dec-
rement under Alternative III, and the costs of such research will rise only very mod-
estly. Schools will not be unduly burdened, and parents will not be bothered by any
unwanted follow-up calls or letters.

s you can see, I believe that the interests of nearly all parties involved are maxi-
mized under Alternative III: Parents, schools, the Federal government (the ultimate
consumer of the research), the researchers (who must try to provide a meaningful
Interpretation of the survey results), and the general public (who ultimately pay for
the research, and who stand to benefit from the answers it provides or harmed if
it provides inaccurate answers). It is not often that such a convergence of optimal
outcomes can be found, and I would urge the Subcommittee to seize the opportunity
by modifying Title IV of H.R. 11 to adopt the Alternative III mechanism for assuring
a parental role in their children’s participation in research.

istorically, of course, we have largely operated on a model in which schools were
given broad authority to act in loco parentis, but that model is giving way gradually
to one of greater direct parental decision-making. While I think in general the
former model has served the country well, there certainly have been exceptions;
and, in any case, a number of parents have asked for more authority in the process.
This is not unreasonable, and I think that we probably should be moving in that
direction. I simply urge that burdensome new government regulations not be added
if they are not needed to accomplish the underlying objective, and particularly, if
they unnecessarily increase the research costs, the burden on schools, and the Ba
den on parents, and also reduce the quality of the product the public is buying—
in this ease, the quality of our scienlifie research on American young people sad
their problems.

ISR,
Ann Arbor, MI, February 27, 1995.
Hon. STEPHEN Horn,
House of Representatives,
Committee on Government Reform and Oversight,
Room 129 CHOB,
Washington, DC.

DeaR CONGRESSMAN Horn: | am writing regarding H.R. 11, Title 4, Family Pri-
vacy Protection Act. If enacted as now drafted, it will lead to some serious, and I
assume, unintended problems for the successful conduct of a substantial number of
vital research activities that are underway in this country.


90

vey that asked the most sensitive questions, the Youth Behavior Survey, direct pa-
rental consent—either oral or written—was required.

In addition to these three reimbursable surveys that actively seek to include mi-
nors as respondents, it is important to note that in many of the Census Bureau's
surveys and in the decennial census of population, minors are sometimes the only
people we ean find at home or the only houschold respondents who can speak and
understand English. While in these cases we always seek first to obtain answers
from an adult householder, the interviewer may obtain information from a minor
(above 15 years of age in most cases) if the interviewer determines the minor is
knowledgeable about the subjects being asked. Personal visits to households are
very costly and we have determined that accepting information from knowledgeable
minors as a last resort is a way to reduce costs and save taxpayers’ dollars,

3. Third, Are there circumstances under which parental consent, as required in
the draft legislation would, in your opinion, not be appropriate? The draft legislation
would require written parental consent before a minor can be required to submit to
a survey, analysis, or evaluation that reveals information concerning any of eight
subjects listed in the bill. Several of the questions asked in the three surveys I de-
scribed could be interpreted as falling within the subjects listed in the bill (e.g., sex-
ual behavior or attitudes; illegal, anti-social, sclf-incriminating, or demeaning be-
havior; appraisals of other individuals with whom the minor has a familial relation-
ship). One subject listed in the bill (income) is collected in several Census Bureau
surveys and in the decennial census. We believe our policies on parental consent de-
scribed above, are appropriate in each case and respect the rights of all parties. We
expect, however, that the provisions of this Title would reduce response rates, in-
crease costs, and/or increase survey bias. Requiring written consent would reduce
the flexibility of statistical agencies, like the Census Bureau, to collect data cost effi-
ciently. It would be harder to make greater use of telephone interviewing techniques
and to proceed, in some cases, on the basis of only verbal parental consent to inter-
view minors.

The decennial census has collected income on a sample basis in recent censuses.
While, as I said above, we first try to obtain the data from an adult householder,
it is sometimes both appropriate and useful to obtain the data from a knowledgeable
minor. I believe the bilPwould increase data collection costs in the census by remov-
ing options to obtain data in a cost efficient manner.

4. Fourth, What are the impacts that you foresee as a consequence of this legisla-
tion? As currently written, the bill could increase data collection costs. Other im-
pacts are difficult to judge. The bill does not define “minor,” introduces the concept
of “emancipated minor,” a legal status difficult for interviewers to determine, and
lists as sensitive subjects some vague concepts (such as “anti-social,” “demeaning,”
and “appraisals of other individuals with whom the minor has a familial relatio
ship”), some topics (such as political affiliation or religious beliefs) that may be inap-
propriate for the Federal ‘overnment to ask even of adults, and income, which,
while it may be a sensitive topic, is a fundamental measure essential to analyzing
and understanding most every social and economic issue.

5. Fifth, Do you have any suggestions for improvements to the legislation? First,
the language should be sharpened in a number of details; the words “anti-social,”
“demeaning,” and “minor” are undefined in the current bill. Second, we believe the
need for written consent should be reexamined; there are occasions when other
forms of consent, or no consent, are entirely appropriate. In particular, we believe
there should be exemptions for circumstances where obtaining written consent
would be infeasible or might put a child at risk. Third, we believe that income infor-
mation should be treated differently from the other types of sensitive information
covered by the bill; it is not sensitive for the same reasons, and it is sometimes ap.
propriate to obtain it from knowledgeable minors when the parent is not available
to consent.

Thank you, Mr. Chairman, for the opportunity to testify today. | am happy to an-
swer any questions.

Mr. Horn. I’m conscious of Ms. Katzen’s schedule, and I'd like
to question you for a few minutes, and you'll still make that com-
mitment.

Ms. KATZEN. Thank you very much.

Mr. Horn. Your review process in OMB, is that you personally
go over them, or do you have a staff that worries about these sur-
veys? What's the volume of surveys a year in general? And how
many of those might concern minors?



9

Adolescence is a relatively recent creation not only in terms of its study as a
chronological period; but also in terms of the way society views this period. Our
forbearers expected that as soon as children were able to learn the skill necessary
for employment, they would obtain jobs and be considered adults. Childhood was a
gradual passage from infancy into adulthood, without an in-between period when
youth were capable of some adult activities, but considered too immature to under-
take them.

‘The elongation of the period of dependency and the expansion of the years of com-
pulsory education has also contributed to the concept of an adolescent period. Al-
though a lengthy period of education is now usually perceived as necessary for the
acquisition of essential skills, it can also be viewed as a way of limiting the number
of individuals in the job market. Perhaps we “warehouse” children in schools be-
cause there are no legitimate functions for them in today’s adult world. Clearly, we
perceive children and youth very differently today than did the portrait painters of
the 18th century or Hall at the beginning of the 20th.

DEFINTIONS USED IN SEVERAL FIELDS

The simplest definition of the term, child, is perhaps the one that is most used.
It is the one that is devoid of any connotation of age, but rather describes a relation-
ship. A son or a daughter is a child of the parents, regardless of age. Various dis-
ci fines, however, subdivide the period from birth until adulthood into distinct peri-
ods, label these periods or stages, and sometimes define them in terms of chrono-
logical age.

Biology

Perhaps the most obvious changes between birth and adulthood are in appear-
ance, particularly size and sexual characteristics. While most growth after infancy
and prior to adulthood is relatively gradual, a sudden spurt in height and weight
starts around age 10 and a half in girls and age 13 in boys. For the biologists, the
beginning of this growth spurt signals the beginning of adolescence. The develop-
ment of primary and secondary sex characteristics occurs at about the same time,
perhaps even more obviously signifying the end of childhood.

Psychology

Some of the best known descriptions of the stages of childhood are those of the
psychologists. Freud’s work focuses on sexual interest, labeling periods with names
such as oral, anal, and genital, and pre-latency and latency.

Erickson wrote’ about the eight ages of man: oral-sensory, muscular-anal, loco-
motor-genital, latency, puberty and adolescence, young adulthood, adulthood, and
maturity. Each of these ages have tasks which must be mastered if the individual
is to progress. So, for example, the period of puberty. and adolescence is character.
ized by the need to establish an identity and to avoid or overcome role confusion;
while the period of young adulthood requires an ability to develop intimacy and
avoid isolation.

Law

The legal profession has many precise definitions of children, usually couched in
terms of chronological age. Some of these definitions are written into federal law
and thus are the same for all areas of the United States. But other legal definitions
vary among states and even among smaller jurisdictions, such as counties.

In 1971, the 26th amendment to the federal constitution was passed. It stated,
“The right of citizens of the United States, who are 18 years of age or older, to vote
shall not be denied or abridged by the United States or any state on the account
of age.” This age was probabl ly chosen because it was the age at which young men
became elgibile for the draft. There was considerable feeling that if you asked some-
one to be willing to sacrifice his life for his country, you should at least give him
the privilege of deciding how and by whom that country was to be governed. These
two federal cut-off points, the voting age and the draft age, point to age 18 as the
beginning of adulthood. The federal constitution, however, also specifies the mini-
mum age for three positions: 25 to become a member of the House of Representa-
tives; 30 to become a Senator; and 35 to become president, suggesting ages at which
higher levels of judgement are expected. Although 18 appears to signal the end of
childhood in two areas of federal law, it seems contradicted by the assignment of
21 as the minimum drinking age.

While federal law sets some age standards, state laws establish many more. For
example, states determine the age of majority in their own jurisdictions. The a
of majority is the age at which an individual becomes an adult in the eyes of the
law. According to the American Civil Liberties Union, the terms infant, child, minor,



61

association, family privacy, and the parental right to exercise
care and authority over the upbringing of their children, and the
children's right to receive the care of their parents. The
intentional representation to Plaintiff B.P. that implied
Plaintiff A.P. had approved him had a direct impact on Plaintiff
A.P.’s relationship with B.P. by disrupting and directly
undermining the credibility and consistency Plaintiff A.P. had
been striving to maintain with her children.

55. The Defendants cannot show a compelling state interest
to justify the intrusions listed above.

56. The Defendants cannot show that their existing policies
and practices were the least restrictive means of accomplishing
their interests.

57. By these actions, Defendants have deprived the
Plaintiffs of their rights under U.S. Const., Amend. I, Amend.
IX, Amendment XIV, and 42 U.S.C. § 1983 and § 1988.

58. The Plaintiffs have been damaged (as outlined
heretofore) by reason of the unconstitutional and illegal conduct
of the Defendants.

Count Iv
Right to Refuse Unwanted Medica] Treatment

59. Plaintiffs incorporate by reference herein the

allegations contained in paragraphs 1-36, and do further allege

as outlined hereinafter.

17


717

tal consent, yet minority counsel to the committee, in checking with
the agencies that do these surveys, was told they do get consent.

Do you know of any cases in these surveys where minors have
been asked questions about sexual behavior without parental con-
sent?

Mr. JoHNSTON. I think there are some examples of studies which
basically do whatever the school requires rather than following a
single guideline about parental consent. I believe the youth risk be-
havior survey is such an example.

So, in some schools, they may be required to do active, in some
schools passive; in some schools, the school basically acts in loco
parentis. So that would be an example, I think. And those sur-
veys——

Mr. Horn. And that survey is sponsored by whom, now, and
funded?

Mr. JOHNSTON. I’m sorry. That’s a CDC——

Mr. Horn. Center for Disease Control in Atlanta?

Mr. JOHNSTON. Correct.

Mr. Horn. OK. And so what you’re saying is they follow the local
rules on parental consent?

Mr. JOHNSTON. Yes. So, for example, what I proposed as an alter-
native would be a change for that study, which would mean that,
under all circumstances, parents would get advance notification
and an opportunity to decline.

Mrs. MALONEY. Counsel to the committee informs me that youth
risk surveys do get parental consent now.

Mr. JOHNSTON. As I say, what I understand from the people who
direct it is that they have different procedures, depending on the
school, and I should also note that they encourage States to do
their own State assessments, so there are other variations. I don’t
know if anyone is here from CDC or not.

Mr. HILTON. In our legislative hearings this past year, we had
reports on drug testing in our State that were done, they thought,
to comply with Federal funding mandates, and were much broader
than was required to meet the Federal needs, although it was done
by State personnel and State staff to verify the nature of the drug
problem and get the funding.

That's a variation on the theme. It’s not a federally mandated
survey, but they were surveys that were quite intrusive, that we
found out in our hearings really didn’t have to be done.

Mrs. MALONEY. Thank you, Mr. Chairman.

Mr. Horn. Thank you. The representative from Massachusetts,
Mr. Blute.

Mr. BLUTE. Thank you very much, Mr. Chairman. I want to com-
mend you for having this hearing and the panel for their very good
testimony.

I apologize for being late and I hope I’m not going over turf that
has already been chewed up here; but I’m interested in the issue
of parental objections and find it interesting, and I wanted to ask
Dr. Johnston, does the parental objection rate differ with the con-
tent of the study being performed? Are parents more likely to ob-
ject to a survey on sex or drugs or both, or do those jump off the
charts, or are there other issues that tend to result in higher rates
of parental objection?


al

6. The Defendants’ conduct has violated the Plaintiffs’
familial associational rights and individual right to privacy
secured to the Plaintiffs by U.S. Const., Amend. I, IX and XIV
and the Civil Rights Act of 1871, 42 U.S.C. § 1983.

7. Defendants’ conduct also violated Plaintiff parents’
right to parental liberties and the raising of their children
secured to the Plaintiffs by U.S. Const., Amend. I, IX and XIV,
and the Civil Rights Act of 1871, 42 U.S.C. § 1983.

8. Defendants’ conduct has also violated Plaintiffs right to
unwanted medical treatment protected by the Fourteenth Amendment.

9. Defendants’ conduct has caused the Plaintiffs’ hardship,
emotional distress, and unnecessary expenditure of time and
effort.

10. Plaintiffs seek an award of damages against the
Defendants in their personal capacities and against Defendant
Alpine School District.

11. These claims are asserted against the Defendants for
their actions and omissions which have resulted in the Plaintiffs
being deprived of their time-honored fundamental and
constitutional, statutory rights of familial association, privacy
and parental liberties.

Ir.
QURISDICTION AND VENUE

12. The jurisdiction of this Court is invoked under 28

U.S.C. § 2201 and 2202, 28 U.S.C. § 1331 and 1343, U.S. Const.,
3


49

19. At the time of the events complained of herein,
Defendant Victoria Anderson was an employee of Alpine School
District and was in charge of all Student Services and is sued in
her personal capacity.

20. At the time of the events complained of herein,
Defendant Rebecca Rigby was an employee of Alpine School District
and as, as a second-level counselor, directly involved in
administering the psychological testing or treatment complained
of to federally funded Chapter I students at Windsor Elementary
School, such as Plaintiffs B.P. and N.P. Defendant Rigby is sued
in her personal capacity.

IV. STATEMENT OF THE CASE

21. At all times relevant hereto, all of the Defendants
either acted under the color of state law, custom or usage,
acting within the scope of their authority and public employment,
or, as individuals, were acting under the color of state law and
pursuant to their public position, but outside of the custom,
practices and procedures of the Alpine School District.

22. All of the acts alleged to have been done or not to have
been done by Defendant Alpine School District, were done (either
intentionally, in reckless or callous disregard of Plaintiffs’
rights, or in violation of professional standards) directly or
indirectly through their agents, servants, or representatives,

acting under the color of state law, custom or usage, within the


93

a number of these areas. There is other tightening language, which
he referred to, that I subscribe to as well. And I think we can work
with your staff as we proceed to make sure that there are no unin-
tended consequences of what is attempting to be a productive ef-
ort.

Mr. Horn. OK. Well, I’m going to release you right now, but
we're going to send you a few questions. And we hope you'll be able
to answer them in the next week or so——

Ms. KATZEN. Thank you very much for your courtesy.

Mr. Horn. So we can complete the hearing record.

Ms. KaTZEN. Thank you.

Mr. Horn. Dr. Butz, let us pursue some of these questions with
you. You’ve heard the testimony, probably, this morning of most
witnesses.

Mr. Butz. Yes.

Mr. Horn. On behalf of the Bureau of the Census, what are some
of your reactions? And what advice would you give the committee,
besides what you have in the written testimony? Is there anything
that. comes to mind that you didn’t anticipate in your written testi-
mony?

Mr. Butz. Yes, sir. I think two aspects come to mind from having
heard the discussion. One is how broad the legislation is. How it
appears to have the possibility to affect all surveys—and indeed,
that appears to be the intent—not just school-based surveys. So the
broadness of it, including, as I suggested, into the operational as-
pects of doing the Decennial Census, impresses me, having heard
the discussion, and bothers me, frankly.

Second, the broadness in terms of the remedy that’s involved,
that is, the written consent. The universality of that that’s in-
tended in the legislation also impresses me. And I would agree
with Ms. Katzen, that I think other kinds of consent, of the sort,
for example, that we do in two of the three cases that I mentioned,
are adequate—adequate a priority and adequate in the sense that
we have not received complaints at all when we have carried those
out.

Mr. Horn. Let me ask you about the questions on law enforce-
ment officials and health care professionals.. Obviously, that’s of
concern to many legislators, that we not deny information where
you might have an emergency situation—you have a critical illness,
you have a criminal situation, whatever. Are there any suggestions
you might have, because you do administer some of those surveys?

Mr. Butz. Well, I don’t really have any suggestions of how to
word the legislation so as to make possible law enforcement or law
investigative activities. We certainly at the Census Bureau try in
our survey and census efforts to separate ourselves in fact and in
public perception as much as possible from law enforcement activi-
ties so as to get as much cooperation as possible.

Mr. Horn. Now, the Census is very familiar with the difficulties
of surveying multicultural populations. When I was vice-chair of
the U.S. Commission on Civil Rights, as I recall, we did an analysis
of both the 1970 Census and the 1980 Census during my period.
We found real problems of undercount and so forth and so on. Do
you have any advice on surveys going to schoolchildren, where, as


12

RECOMMENDATIONS

These descriptions lead to three recommendations, The first deals with uniform-
ity. It would be helpful to policy analysts and program developers if there was uni-
formity in age categorization across at least the federal statistical agencies, pri-
marily the Bureau of the Census and the National Center for Health Statistics, but
also some of the other agencies that issue reports such as OTA, the Agency for
Health Care Policy and Research, and the Centers for Disease Control and Preven-
tion, the National Center for Educational Statistics, and the Substance Abuse and
Mental Health Administration. Uniformity within the various subdivisions of these
agencies is also urged.

‘The second recommendation deals with the reporting of health data by the Na-
tional Center for Health Statistics. Those of us who study the health and social
problems of adolescents and the programs directed at them have for many years re-
quested that the NCHS routinely provide data on the adolescent years. whi le NCHS
issues publications that deal with adolescents specifically and also makes available
its data tapes from which it is relatively easy to conduct analyses by any age break-
down, some of its reports do not have data on the adolescent period. {neloding an
adolescent period in all reports would make them more useful.

The final recommendation relates to the term, feenager, namely that this term
should be avoided. In the review just completed, few fields or reports focused on “the
teenager years,” presumably from thirteen to nineteen. The media and advocacy or-
ganizations concerned with early pregnancy, gang behavior, and other forms of devi-
ance use the term, teenager, instead of the term, adolescent, perhaps because it in-
creases the number of youth who have exhibited some form of deviant behavior. If
this is true, then its use is a “scare tactic.” The federal government’s agency in the
area of early pregnancy refers to it services as the Adolescent Family Life Program
and is concerned with women under the age of 19. The term, teenager, makes little
sense biologically, psychologically, legally, or in almost any other way. It is a collo-
quialism that should have no place in scientific documents.

CONCLUSIONS

To return to the question posed by those who planned this panel, “What is a
Child?”, we have seen that the conceptual basis for the definition of a child varies
depending on whether the individual doing the defining is a biologist, a psychologist,
a lawyer, an educator, a member of the clergy, etc. We have also noted that the
chronological age used to define child varies. The legal term, minor, is easier to de-
fine both chronologically and conceptually. set at 18 and differentiates sharply
between those who are and are not considered able to make adult decisions. In
most, but not all instances, a minor is under the age of 18, so we might say that
a child is someone under the age of 18.

For statistical Purposes, however, it would seem logical and even helpful to name
sub-periods within childhood and to assign them chronological ages. The definitions
of children used in several fields, and in particular those involving chronological
age, suggest only one period about which there is total aj ment and two others
about which there is partial agreement, The one period whose name and definition
is generally agreed upon is infancy. Children are infants from the time of birth until
their first ‘birthday. In addition, there seems to be a consensus that youth can as-
sume many of the functions of adulthood on reaching their 18th birthday; and also
that the sixth birthday represents some type of a turning point, perhaps because
most children enter first grade between their sixth and seventh birthday. Thus, the
following categorization could at least be considered: infancy: birth through one;
early childhood: one through 5; late childhood: 6 through 11; early adolescence: 12
through 14; and late adolescence: 15 through 17. Other analysts might chose dif-
ferent ages, particularly for the conclusion of adolescence, but the ability to vote and
be drafted, ‘rather than the completion of high school or the teenage years, appears
to signal the end of the adolescent period. Note, however, that although we usually
restrict the word child and the childhood period to the time between the end of in-
fancy and the beginning of adolescence; sometimes, for example in the title of this
conference, “Families and Children,” childhood is meant to extend from birth
through the end of adolescence.

This review would seem to suggest that the question, “What is a child?” must be
answered with two other questions, “Who is defining the term?” and “For what pur-
poses does the term need to be defined?” Lest this audience feel that this entire dis-
cussion has been just an intellectual exercise, of no practical importance, think back
to the recent presidential campaign. At least one of the reasons why Hillary
Rodham Clinton was the target of so much negative publicity was her advocacy for
giving children some of the rights usually reserved for adults. In a published article,