______________________________________ 

______________________________________________________________________________ 

TO BE PUBLISHED IN THE OFFICIAL REPORTS
 

OFFICE OF THE ATTORNEY GENERAL
 State of California
 

DANIEL E. LUNGREN
 Attorney General
 

OPINION : 

: No. 93-602 

of : 

: November 16, 1993 

DANIEL E. LUNGREN :
 Attorney General :
 

:
 GREGORY L. GONOT :
 Deputy Attorney General :
 

:
 

THE HONORABLE DAVID KNOWLES, MEMBER OF THE CALIFORNIA 

ASSEMBLY, has requested an opinion on the following question: 

May a school district administer a test, questionnaire, survey, or examination

containing questions about a pupil's or his parents' or guardians' beliefs or practices with respect to

the topics of sex, family life, morality, or religion, without receiving written permission from the

parent or guardian? 

CONCLUSION 

A school district may not administer a test, questionnaire, survey, or examination

containing questions about a pupil's or his parents' or guardians' beliefs or practices with respect to

the topics of sex, family life, morality, without receiving written permission from the parent or

guardian. 

ANALYSIS 

The question presented for resolution concerns the application of Education Code 

section 60650.1 Section 60650 states: 

"No test, questionnaire, survey, or examination containing any questions

about the pupil's personal beliefs or practices in sex, family life, morality and

religion, or any questions about his parents' or guardians' beliefs and practices in sex,

family life, morality and religion, shall be administered to any pupil in kindergarten

or grade 1 through grade 12, inclusive, unless the parent or guardian of the pupil is

notified in writing that such test, questionnaire, survey, or examination is to be 

1

All section references hereafter are to the Education Code. 

1. 93-602
 
 

administered and the parent or guardian of the pupil gives written permission for the

pupil to take such test, questionnaire, survey, or examination." 

This statutory directive is clear in requiring that, before the specified questions about the pupil's or

parents' or guardians' beliefs in certain matters may be asked of any pupil, the parent or guardian

must be notified and written permission of the responsible party must be obtained. We are asked 

to determine whether a school district may consider the permission requirement to be met unless the

responsible party responds to the notification with a written denial of consent. We conclude that the 

statute will not support such an interpretation. 

Although we consider the statute to be clear and unambiguous and thus not a

candidate for statutory construction,2 we proceed with further analysis so as to eliminate all doubt.

As recently reaffirmed by the Supreme Court in Burden v. Snowden (1992) 2 Cal.4th 556, 562,

concerning the governing rules of statutory interpretation: 

"The rules governing statutory construction are well settled. We begin with

the fundamental premise that the objective of statutory interpretation is to ascertain

and effectuate legislative intent. [Citations.] `In determining intent, we look first to

the language of the statute, giving effect to its "plain meaning."' [Citations.]

Although we may properly rely on extrinsic aids, we should first turn to the words

of the statute to determine the intent of the Legislature. [Citation.] Where the words 

of the statute are clear, we may not add to or alter them to accomplish a purpose that

does not appear on the face of the statute or from its legislative history. [Citation.]" 

Looking at the plain language of section 60650, we see that the general rule is that

no test, questionnaire, survey, or examination of the type specified may be administered to a pupil.

The sole exception to this rule may occur when written permission for the student to participate is

obtained from the parent or guardian. It is a substantially different proposition to read the statute

as allowing the school district to proceed with the inquiry in all situations except those in which the

parent or guardian has submitted a written denial of permission. Under the latter interpretation the

school district's burden of obtaining consent would be transformed into the objecting parents' or

guardians' burden of expressly denying consent. 

Had the Legislature wished to make administration of the questioning contingent only

upon written notification and the absence of a response from the parent or guardian, it could easily

have done so by stating that the school may administer the test, questionnaire, survey, or 

examination unless the parent or guardian provides a written denial of consent. However, the 

Legislature did not frame the statute in this manner and a court "`may not rewrite the statute to

conform to an assumed intention which does not appear from its language.'" (Napa Valley Wine

Train, Inc. v. Public Utilities Comm. (1990) 50 Cal.3d 370, 381; see also Safer v. Superior Court

(1975) 15 Cal.3d 230, 236-238; Board of Trustees v. Judge (1975) 50 Cal.App.3d 920, 927.) 

Although reliance upon extrinsic aids is unnecessary in these circumstances, we note

that our analysis is supported by the legislative history of section 60650. The predecessor of section

60650 was enacted in 1968 as section 10901. (Stats. 1968, ch. 795.) The legislative bill which 

2

In Rojo v. Kliger (1990) 52 Cal.3d 65, 73, the court stated: 

". . . `[A] court is to construe a statute so as to effectuate the purpose of the 

law.' [Citation.] However, `[w]hen statutory language is . . . clear and unambiguous

there is no need for construction, and courts should not indulge in it.' [Citation.]" 

2. 93-602
 
became section 10901 originally provided that the questionnaire was not to be administered if the

parent or guardian had previously filed with the school district a written objection to such

questionnaire. The bill was later amended to replace that requirement with the one now appearing

in section 60650. Hence, in 1968 the Legislature made a conscious choice to eliminate placement

of the burden upon the objecting parent or guardian to notify the school district. 

Both on its face and in its intent, section 60650 does not permit a school district to

administer to a pupil a test, questionnaire, survey, or examination containing questions about the

pupil's or his parents' or guardians' beliefs or practices with respect to the topics of sex, family life,

morality, or religion, unless it has first obtained affirmative written authorization from the pupil's

parent or guardian. The school may not rely upon the lack of written denial of consent from the

parent or guardian as conferring the permission required by section 60650. 

Having examined the language of section 60650, we turn to section 35160. Section 

35160 provides: 

"On and after January 1, 1976, the governing board of any school district may

initiate and carry on any program, activity, or may otherwise act in any manner

which is not in conflict with or inconsistent with, or preempted by, any law and

which is not in conflict with the purposes for which school districts are established." 

Section 35160.1 additionally provides: 

"(a) The Legislature finds and declares that school districts, county boards

of eduction, and county superintendents of schools have diverse needs unique to their

individual communities and programs. Moreover, in addressing their needs,

common as well as unique, school districts, county boards of education, and county

superintendents of schools should have the flexibility to create their own unique

solutions. 

"(b) In enacting Section 35160, it is the intent of the Legislature to give

school districts, county boards of education, and county superintendents of schools

broad authority to carry on activities and programs, including the expenditure of

funds for programs and activities which, in determination of the governing board of

the school district, the county board of education, or the county superintendent of

schools are necessary or desirable in meeting their needs and are not inconsistent

with the purposes for which the funds were appropriated. It is the intent of the 

Legislature that Section 35160 be liberally construed to effect this objective. 

"(c) The Legislature further declares that the adoption of this section is a

clarification of existing law under Section 35160." 

While the grant of authority contained in Section 35160 is broad, the statute requires

that the exercise of the authority may not be "in conflict with or inconsistent with, or preempted by,

any law . . . ." Here, the express terms of section 60550 preempt administering any tests or

questionnaires contrary to its directive. Accordingly, section 35160 provides no support for a school

district's proposed testing in the manner contemplated. 

3. 93-602
 
In answer to the question presented, we conclude that a school district may not

administer a test, questionnaire, survey, or examination containing questions about a pupil's or his

parents' or guardians' beliefs or practices with respect to the topics of sex, family life, morality, or

religion, without receiving written permission from the parent or guardian. 

* * * * * * 

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