Parent Rights Entangle With Copyright in Student Survey Suit (1)

Miranda Stovall’s lawsuit against her local Kentucky school board in June transformed a national debate over parental access to education into a copyright dispute when the district invoked the rights of a Pearson PLC subsidiary to reject her request for a copy of a mental health survey administered to students.

Stovall learned that her child and others in grades 6 to 12 would receive a ‘Mental Health Screener,’ so in January 2023 she submitted a public records request for a copy of the survey, according to her complaint. But the board denied the request, only offering her to inspect the survey in person. Not because of student confidentiality or health privacy, but due to the copyright protections of education giant Pearson.

School boards have been increasingly thrust into public view as they respond to parents seeking to control the content their children are exposed to at school. A Missouri school district in May was sued by two parents who claimed it thwarted their public record requests for a “Hook-Up Topical Survey” emailed to students by a staff member. The case followed legislation introduced by Sen. Tim Scott (R-S.C.) in January “protecting the right of parents” by acknowledging parents’ rights to “direct” the education of their children.

The Kentucky case represents a novel use of copyright law and could force the school board to decide between parents’ access to school materials and its role in safeguarding Pearsons’ intellectual property used across the country to educate students. The dispute is also among the first federal cases of a parent invoking fair-use exemptions for a declaratory judgment to access copyright-protected material.

“Schools across the country are closing the schoolhouse doors to parents, hiding behind copyright laws that don’t extend to why parents want the records and what they will use them for,” said Kimberly Hermann, executive director of the Southeastern Legal Foundation, which is representing Stovall. If the Kentucky lawsuit is successful, the legal group could pursue similar litigation elsewhere. “Parents are desperate for help right now. They just want to know what is happening in their kids’ schools.”

Education companies like Pearson do have reason to be concerned about the broad distribution of their materials, said Robert Brauneis, a professor at the George Washington School of Law. The copyright considerations in this case are complex because Stovall may have a valid, good faith interest in having a copy, too, he said.

“It may sound like the school board is kind of misusing copyright in a political fight, but they do have legitimate concerns,” he said. “They need to recoup their investment by licensing that test to multiple schools, or whoever else is taking the test, and if somebody, whoever it is—in this case, a parent—can just redistribute the test freely, that undercuts the whole model.”

Stovall is asking a very legitimate question and it will be important that the court strike a delicate balance between intellectual property and public access, said Ben Depoorter, a professor at University of California College of the Law, San Francisco.

Stovall Case

Stovall is “an advocate for parental rights, educational reform, and education transparency” with one child currently attending a Jefferson County high school, according the complaint filed June 6 in the US District Court for the Western District of Kentucky. She regularly requests curriculum, surveys, teacher trainings, professional development sessions, and budget items under Kentucky’s Open Records Act, she said.

In January 2023, she requested a digital copy of a “BESS Social and Emotional Screener” or “Mental Health Screener” or “Screener Questionnaire.” One Behavioral and Emotional Screening System listed on Pearson’s website is used to “determine behavioral and emotional strengths and weaknesses of children and adolescents.”

Stovall couldn’t confirm whether this survey was used in Jefferson County since she was denied copies, Hermann said. Pearson doesn’t administer assessments on behalf of school districts and is “unable to comment on specific school district usage,” said Allison Bazin, Pearson’s Director of Corporate Communications.

The board quickly denied the request, since releasing the form would infringe Pearson’s copyright protection. The county also cited the state’s Open Records Act exemption of “all public records or information the disclosure of which is prohibited by federal law or regulation or state law.”

Pearson and the board instead offered Stovall the opportunity to review the survey in person. Stovall reviewed a survey, Hermann said, but without a copy is unable to verify whether what she saw was complete or what was administered to her child.

Stovall argues the denial is a misapplication of copyright law and that her use would be non-infringing because copies for non-commercial purposes like parental participation in the school system, criticism, comment, and news reporting are fair use. Withholding copies “stifles important political dialogue,” she said in the complaint, and makes it hard for her to prove her claims that schools are asking students “invasive questions.”

The Protection of Pupil Rights Amendment requires schools to receive parents’ written consent before students are required to take a survey if it reveals information about topics including political beliefs, mental health challenges, sex behavior or attitudes, and religious practices. Stovall “has reason to believe” that the survey she requested touches on several or all of these topics, Hermann said.

“This is a widespread issue and we wouldn’t have brought this case if it wasn’t a reoccurring issue,” she said without detailing where records were denied. “We’ve seen a lot of denials based on copyright.”

Pearson declined to address the details of Stovall’s complaint. “We do not believe this case has merit,” Bazin said in an emailed statement.

“We don’t typically comment on ongoing litigation,” Jefferson County Public Schools Communications Manager Mark Hebert said in an emailed statement.

Fair Use vs. Copyright Misuse

Publishers have to meet “very rigorous professional standards to develop these assessments,” said lawyer Marc Weinstein, who has worked on behalf of testing organizations. Developing a test can take years and significant investment because companies have to conduct extensive research to demonstrate assessments measure what they’re supposed to and the results are valid and reliable.

Pearson’s website says millions of dollars have been spent on the research of its tests and “any leakage of test items will severely compromise the value and usefulness of the tests.”

But parents should also be entitled to a copy of the survey for review and discourse, said UC’s Depoorter.

“This is what fair use was designed to do, to allow discourse, you know, commentary, criticism, parody,” said Depoorter.

If and how the copy is distributed could raise infringement concerns. Brauneis questioned whether it would still be fair use to make additional copies of the survey to hand out to other parents, if they also agreed not to further distribute it.

“I think the answer is yes, you know. But that last ‘if’ is an important ‘if,’” Brauneis said. If a parent posts a full copy of the survey online, “that is just straight out and out a public redistribution of copyrighted material to others who will not be committed to limiting their use.”

The board’s license agreement with Pearson could restrict it from offering copies, though.

The agreement hasn’t been entered in the case, but Pearson’s legal policy says any reproduction of its tests or other published materials constitutes an infringement of the copyright. “In Pearson’s view, reproduction of its test materials without prior written consent DOES NOT fall within the ‘fair use’ exception of the copyright law,” according to the policy.

There are also concerns access to the survey could enable parents and students to game the results.

Parents could give kids answers to try to get “a better psychological profile” from the school, Brauneis said. Weinstein echoed those concerns, saying parents could coach their kids so the results demonstrate they have special needs that will require the district to provide additional support.

Pearson knows it’s in the middle of an “education war,” said Harvard Law Professor Rebecca Tushnet. But “there’s a significant problem with private institutions claiming intellectual property rights over something that the state makes part of its operations.”

Pearson and the school board risk being accused of copyright misuse, which is when copyright law is used in an improper way to pursue other motives.

“They’re using copyright law, infringement as a reason not to create transparency” and “copyright law wasn’t designed for that,” said Depoorter.