Dear editor,
The following was submitted to Georgia legislators.
Freedom in Education acknowledges HB 268's intent to enhance student safety following the Apalachee High School tragedy but opposes the bill due to significant infringement on constitutionally protected parental rights, individual liberties, and medical ethics.
Key concerns include:
- Broad and sweeping scope: The bill affects 22 state laws and is NOT narrowly tailored to accomplish the compelling state interest of school safety.
- Makes several government agencies “legal custodians” of potentially all students’ private information, data, records, and personally identifiable information: HB 268 redefines “education records” to include, among other things, “student financial information, health records, special education records, and psychological evaluations.”
- Amends Georgia parents' Bill of Rights, further reducing rights of parents: The bill shifts certain parental rights to government officials.
- Violates FERPA: Gives government agencies access to students’ data and records that are protected by the federal Family Education Records and Privacy Act (FERPA).
- Violates HIPAA: Hides “health records” and “psychological evaluations” within the definition of “education records” to try to circumvent the Health Insurance Portability and Accountability Act (HIPAA), which is a federal law that protects patients’ health information and preempts state law. HB 268 does not even address HIPAA.
- Violates state privacy laws: Discloses “health records” and “psychological evaluations” without regard to state laws protecting the privacy of medical records and state laws requiring communications between patients and mental health professionals to be confidential, unless there is a threat to the patient or others.
- Establishes Office of Safe Schools: This new entity will have broad authority that infringes on parental rights and creates a statewide “S3 Database” of personal information.
- Orwellian "individuals of concern" profiling: The Office of Safe Schools can identify “individuals of concern” and access their data without parental consent, notice, or a right to appeal. All students can be considered as “individuals of concern.”
- Inappropriate mental health assessments and diagnosis: The Office of Safe Schools would have the authority to conduct mental health assessments without parental consent and possibly provide treatment. Schools are not independent and therefore should not be performing mental health assessments or treatment. This would be a violation of psychiatric ethics.
- Prior restraint: The bill's provisions could be interpreted as a prior restraint on free speech, which is generally disfavored in First Amendment law.
- Georgia needs to enforce current laws: There are existing laws that need to be enforced.
Recommendations:
- Narrowly tailor the legislation: Focus on specific, targeted measures that align with the state's compelling interest in school safety without infringing on parental rights, individual rights, and medical ethics.
- Enforce existing laws: Utilize current Georgia laws for managing situations where parents do not comply with requests from local school districts.
- Amend specific provisions: Modify sections like O.C.G.A. 20-2-766.1 to ensure compliance without expanding state authority over parental rights.
- Preserve parental consent: Ensure mental health assessments or treatments require parental consent.
Freedom in Education urges the Georgia State Legislature to abandon most of HB 268 as written or significantly reduce it to bolster existing laws without violating constitutional protections. The organization emphasizes that the bill, as written, is likely to face legal challenges due to its broad scope and potential violation of established parental rights precedents.
Unfortunately, HB 268 is rife with constitutional issues and is not the best use of taxpayer dollars.
If there is one overarching theme, it is that the proponents of HB 268 try to make the schools so safe that they are virtually prisons, and the parents and students have very little liberty. That doesn’t send a healthy message to students and parents, either. Plus, in the hands of the wrong leadership, the S3 Database could be devastating. Therefore, we strongly urge you to abandon HB 268 and examine other options.
Respectfully, Melissa Jackson, Freedom in Education President