Summaries of concerns and suggestions presented to Georgia Legislators and other state officials regarding the final version of HB 268 during the 2025 Georgia Legislative Session.

To read the details of our legal analysis on the final version of Georgia HB 268, please click the download brief button.

Executive Summary

Freedom in Education acknowledges HB 268's intent to enhance student safety following the Apalachee High School tragedy but we have critical concerns about the bill due to significant infringement on constitutionally protected parental rights, individual liberties, and medical ethics.

Key concerns include:

1. Broad and Sweeping Scope: The bill affects 22 state laws and is NOT narrowly tailored to accomplish the compelling state interest of school safety.
2. 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.”
3. Amends Georgia Parents' Bill of Rights Furthering Reducing Rights of Parents: The bill shifts certain parental rights to government officials.
4. Violates FERPA: Gives government agencies access to students’ data and records that are protected by the federal Family Education Records and Privacy Act (FERPA).
5. 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.
6. 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.
7. Prior Restraint: The bill's provisions could be interpreted as a prior restraint on free speech, which is generally disfavored in First Amendment law.
8. Prior Restraint: The bill's provisions could be interpreted as a prior restraint on free speech, which is generally disfavored in First Amendment law.
9. Georiga Needs to Enforce Current Laws:  here are existing laws that need to be enforced.

Recommendations:

1. 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.
2. Enforce Existing Laws: Utilize current Georgia laws for managing situations where parents do not comply with requests from local school districts.
3. Amend Specific Provisions: Modify sections like O.C.G.A. 20-2-766.1 to ensure compliance without expanding state authority over parental rights.
4. Preserve Parental Consent: Ensure mental health assessments or treatments require parental consent.

Freedom in Education urges the Georgia State Legislature to revisit HB 268 as written and significantly modify 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.

The following sections include an expanded summary and a detailed analysis for your consideration.

Expanded Summary

Freedom in Education has already provided two Open Letters with suggested revisions to HB 268. We appreciate the revisions made by the legislators and staff. In fact, many of those revisions are praised in the Analysis below. This Open Letter, which pertains to the third and most recent version of HB 268, looks at some of the prior issues more closely and with additional research, particularly on the “Health or Safety” exception to the Family Educational Rights and Privacy Act (FERPA). We hope that this additional guidance will be taken to heart, particularly given that FERPA violations can result in heavy criminal, monetary, administrative, and civil penalties. It is not our intention to simply complain or poke holes in proposed legislation; rather, our goal is to provide input that accomplishes a better balance between keeping students safe and protecting parental rights.

The primary focus of the Analysis is FERPA compliance, which cannot be put off until the bill has passed because it strikes at the core of HB 268’s provisions. HB 268 makes several government agencies “legal custodians” of all students’ data and records. Per the FERPA guidance, this is not permitted nor is the proposed amendment to Georgia’s Parents Bill of Rights. Also, FERPA, which is a federal law that preempts state law to the contrary, has its own definition of “education records.” HB 268’s definition of “education records,” which is not the same, only causes conflict and confusion.

Although HB 268 no longer has the “S3 Database,” “S3 records” and “Office of Safe Schools,” much of the substance remains. For example, HB 268 still requires “a behavioral threat assessment management plan for providing a structured multidisciplinary process to identify, assess, and mitigate potential threats.” Access to data and records for this type of predictive analysis is not permitted under FERPA. Instead, FERPA allows a disclosure “in connection with an emergency,” which means that it must be related to an “actual, impending, or impending emergency, such as a natural disaster, a terrorist attack, a campus shooting, or the outbreak of an epidemic disease.” The FERPA guidance states that “[d]isclosures under FERPA’s health or safety emergency provision do not include disclosures to address the threat of a possible or eventual disaster or other emergency for which the likelihood of occurrence is unknown, such as would be addressed in emergency preparedness activities.” (Emphasis original). Moreover, the penalties for FERPA violations are stiff – particularly when the violations are part of policy or “willful.” HB 268 still casts the net too wide and risks severe penalties for noncompliance with FERPA.

In our two prior Open Letters, we focused on parental rights and the fact that the U.S. Constitution “protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” Troxel v. Granville, 530 U.S. 57 (2000). We also highlighted that when a law infringes on parental rights is challenged in the courts, strict scrutiny is applied to the law, and the state must demonstrate that the law is narrowly tailored to accomplish a compelling state interest. If the state cannot meet this standard, the law will be deemed unconstitutional and stricken. These issues remain. Constitutionally protected parental rights are what undergirds FERPA, PPRA, and state laws that protect the privacy of individuals and certain relationships with professionals. In other words, our constitutional rights, both state and federal, remain as the backstop.

Out of respect for your service to the state of Georgia, we would like to inform you that we have been updating parents with a very measured tone that the bill was created to address a valid and shared concern over school safety, but that the bill as written will transfer parental rights to the states violating their constitutional rights.  We have also submitted a letter with the same analysis to the office of AG Chris Carr.