34 C.F.R. § 98.4

Protection of students' privacy in examination, testing, or treatment

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(a) No student shall be required, as part of any program specified in § 98.1 (a) or (b), to submit without prior consent to psychiatric examination, testing, or treatment, or psychological examination, testing, or treatment, in which the primary purpose is to reveal information concerning one or more of the following:

(1) Political affiliations;

(2) Mental and psychological problems potentially embarrassing to the student or his or her family;

(3) Sex behavior and attitudes;

(4) Illegal, anti-social, self-incriminating and demeaning behavior;

(5) Critical appraisals of other individuals with whom the student has close family relationships;

(6) Legally recognized privileged and analogous relationships, such as those of lawyers, physicians, and ministers; or

(7) Income, other than that required by law to determine eligibility for participation in a program or for receiving financial assistance under a program.

(b) As used in paragraph (a) of this section, prior consent means:

(1) Prior consent of the student, if the student is an adult or emancipated minor; or

(2) Prior written consent of the parent or guardian, if the student is an unemancipated minor.

(1) Psychiatric or psychological examination or test means a method of obtaining information, including a group activity, that is not directly related to academic instruction and that is designed to elicit information about attitudes, habits, traits, opinions, beliefs or feelings; and

(2) Psychiatric or psychological treatment means an activity involving the planned, systematic use of methods or techniques that are not directly related to academic instruction and that is designed to affect behavioral, emotional, or attitudinal characteristics of an individual or group.

(Authority: 20 U.S.C. 1232h(b))

Notes of Decisions

Cited in 4 cases (2 in the last 5 years), 1997–2023 · leading case: Altman v. Bedford Cent. Sch. Dist., 45 F. Supp. 2d 368 (S.D.N.Y. 1999).

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Altman v. Bedford Cent. Sch. Dist., 45 F. Supp. 2d 368 (S.D.N.Y. 1999). · cites it 2× “§ 1232 (h)(b); and 34 C.F.R. § 98.4 . was tried before this Court without a jury on February 22, 1999, continuing on February 24, 1999, March 1, 2 and 4, 1999, concluding on March 4, 1999.”

Herbert v. Reinstein, 976 F. Supp. 331 (E.D. Pa. 1997). “§ 1221 (c)(1); 34 C.F.R. § 98.4 (c)(1). The text of this statute and the regulations implementing it indicate that Section 1232h was meant to apply only to programs administered by the Secretary of Education.”

Doe No. 1 v.Bethel Local Sch. Dist. Bd. of Educ. (S.D. Ohio 2023). · cites it 2× “in which the primary purpose is to reveal” a forbidden topic, 34 C.F.R. § 98.4 (a)—feature the kind of “broad and nonspecific” language that courts lack the expertise to scrutinize.”

Parents Protecting Our Child., UA v. Eau Claire Area Sch. Dist., Wisconsin (W.D. Wis. 2023). · cites it 2× “§ 1232h, and its implementing regulations, 34 C.F.R. § 98.4 (a). Specifically, plaintiff cites §§ 1232h(b)(2), (3), and (5), which provide that “[n]o student shall be required, as part of any applicable program, to submit to a survey, analysis, or evaluation that reveals…”

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