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State health department seeks separate AG opinion on student health survey

After the State Board of Education received an assistant attorney general’s opinion last Friday stating that parents must give written consent before students can take the biennial Healthy Kids Colorado Survey, the Colorado Department of Public Health and Environment decided to seek its own opinion from the attorney general’s office on the subject.

It will likely be a couple of weeks before that opinion is ready, said Mark Salley, communications director for the state health department.

Until now, health department officials said, it has been up to districts to decide which of two methods of parent consent to use.

The vast majority of schools use “passive consent” to notify parents about the survey. That means parents must sign and return a form to opt their children out of the survey.

Active consent, which is what last Friday’s informal opinion said is necessary, means that parents must sign and return a form before their children can be given the survey. In 2013, only 8 percent of schools that administered the survey required active consent.

The opinion requested by the health department will come from a different assistant attorney general, but like the opinion provided to the state board by Senior Assistant Attorney General Tony Dyl, is expected to be an “informal opinion.”

In other words, it will represent the legal opinion of the lawyer who wrote it and is not a formal ruling of the attorney general.

This tale of two opinions erupted after recent criticism from some parents and state board members about the survey’s parent notification methods and the explicit nature of some questions.

The high school version of the survey asks questions about sexual orientation, sexual behavior, suicide, smoking, alcohol, drugs, bullying, exercise, nutrition, grades, and school involvement. The middle school version of the survey doesn’t ask questions about sexual orientation or sexual behavior, but does ask about the other topics.

In 2013, the Healthy Kids Colorado Survey was given to more than 40,000 middle and high school students at more than 220 schools.