Technology weaves a tangled privacy web

Technology affords greater ability to assist and monitor student learning and even track their movements. Can schools afford community backlash and potential lawsuits over alleged privacy violations?

All students at John Jay Science and Engineering Academy in San Antonio, Texas, are required to carry a photo identification badge while in school. That is not unusual.

But in August 2012, a newly deployed technology allowed school officials to use mandatory I.D. badges to track individual student movements around campus. The pilot program was called the SmartID Student Locator Project. Students at John Jay received new identification badges embedded with a radio frequency identification chip. (It’s similar to the technology that retailers use to track their goods from manufacturers to store shelves.) The sensor allowed educators to discern the general location of a particular student but did not provide a pinpoint position; nor did they work off campus.

But one parent, Steve Hernandez, objected. He wrote a letter to the district saying his daughter Andrea would not wear the new badge because it “steps on our religious freedom and civil liberties and privacy.” In a meeting with Northside Independent School District officials, which sprawls around the city and some of its suburbs, Hernandez called the tracking badge “the mark of the beast,” a biblical reference to the devil’s visible imprint. He later wrote, “. . . it is our Hell Fire Belief that if we compromise our faith and religious freedom to allow you to track my daughter while she is at school, it will condemn us to hell.” The school system offered to remove the chip from Andrea’s badge, but the family refused, and Andrea was expelled from school. With the support of the civil liberties advocate Rutherford Institute, Hernandez filed suit on behalf of his daughter to block the entire program on free speech and religion grounds and for violating her right to due process and equal protection.

What kind of bargain is struck by walking onto school grounds or accepting technology necessary to learn?

The conflict is emblematic of a catch-22 facing educators and policy makers nationwide. While technology can be a useful tool for security, it also can trigger a backdraft of protest from parents and students raising Constitutional objections. An action that begins with the noble motive of student safety and helping schools and districts to improve their operations can end up in a full-blown federal court battle over individual freedoms.

For school officials, SmartID was simply a matter of safety. For example, during an emergency that required everyone to leave a building, the badges allowed educators to quickly know which students might not have been evacuated, they told the court. Yet safety is not the only benefit. Other advantages include a more reliable record of daily attendance, which affects state funding to the school.

In January 2013, a judge in the U.S. District Court for the western district of Texas ruled in favor of the district, refusing to issue an injunction to halt the program. Nine days later, the federal Fifth Circuit Court of Appeals affirmed the district court ruling. The lower court said the plaintiff failed to prove that the SmartID badge would create a substantial burden on her ability to exercise her religion. “The rule serves many purposes that have nothing to do with religion, religious beliefs, or religious practices,” the opinion explains. “The district has a legitimate need to easily identify its students for purposes of safety, security, attendance, and funding . . . . ”

The court counseled that Hernandez should have accepted the school’s offer to let Andrea Hernandez wear a chip-less badge. “The accommodation offered by the district is not only reasonable, it removes plaintiff’s religious objection from legal scrutiny altogether.” Despite winning the lawsuit, the district decided to discard the program, saying it failed to meet the intended purpose.

The takeaway for school systems: While safety-enhancing technology can be exciting and powerful, new devices and practices should be assessed not only for effectiveness but for legal implications as well.

A webcam problem

Security companies are eager to sell school districts expensive technology, but school districts should be legally and fiscally alert and deliberate as they consider such purchases. Two years after the tragic shooting of 20 children and six adult staff members at Sandy Hook Elementary in Newtown, Conn., schools more than ever want to assure nervous communities that they are safe by ramping up technology in service of security.

However, the clash between privacy and well-meaning intrusion is not limited to security. Legal questions arise when districts provide academic technology to students or when students bring their own devices to school. When learning technology is loaned to a student, school officials are tempted to believe district ownership means they have total dominion over the device. While that statement is generally true, courts will not hesitate to set limits if schools go too far.

One high-profile example occurred in 2010 in Pennsylvania. Unbeknownst to thousands of high school students who possessed school-issued laptops, Lower Merion School District employees could remotely activate a webcam embedded inside to see what was happening nearby. Court records show the district captured more than 56,000 images.

Two students filed a federal class action lawsuit, Robbins v. Lower Merion School District, alleging privacy violations. The surveillance came to light when sophomore Blake Robbins was disciplined at school for improper behavior in his bedroom. The assistant principal showed him a webcam photograph taken by the school’s Apple MacBook as proof. School officials explained that the TheftTrack software was only supposed to be used to find lost or stolen devices.

A judge issued an injunction barring the district from further webcam monitoring without student and parental consent. The Federal Bureau of Investigation, the U.S. Attorney’s Office, and the county attorney’s office all launched investigations, but found no criminal wrongdoing. A U.S. Senate Judiciary Committee also held a hearing.

An action that begins with the noble motive of student safety and helping schools and districts improve their operations can end up in a full-blown federal court battle over individual freedoms.

Ultimately, the district settled the case by paying $610,000, the vast majority for attorney’s fees. The district also revised its technology policy regarding school-issued laptops.

Cell phone privacy

Cell phones are a good example of how personal devices create difficult choices. A recent court case illustrates the point. Two principals at Hermitage High School in Henrico County, Va., received a report from two parents in February 2013 that a longhaired student had smoked marijuana on the school bus. That day, the principals called the student, W.S.G., to the office and checked his pockets, backpack, shoes, and cellphone. He sued in federal court accusing school district officials of violating his Fourth Amendment right to be free from unreasonable searches by, among other things, viewing his phone.

Courts analyze Fourth Amendment claims by deciding if a student has a reasonable expectation of privacy in a given circumstance. If so, it asks if the school district’s need for safety outweighs the acknowledged privacy right. Supreme Court decisions have established that, while police require probable cause to initiate a search, school personnel need only reasonable suspicion at the outset. Courts also demand that searches be reasonable in scope — a restriction that prevents a “fishing expedition.”

The U.S. District Court for the Eastern District of Virginia ruled in favor of the student in the cell phone case of Gallimore v. Henrico County School Board, saying the search exceeded an acceptable scope. “. . . [T]he cell phone could not have contained drugs,” which was the original reason for the search, the court concluded.

A U.S. Supreme Court case last June (Riley v. California) limiting the right of police to view the cellphones of criminal suspects makes the legal terrain ever murkier. There’s also BYOD — bring your own device — that is a mixed bag of private ownership but compulsory school use. So the question is this: What kind of bargain is struck by walking onto school grounds or accepting technology necessary to learn?

It was famously said in the U.S. Supreme Court’s Tinker v. Des Moines decision that students do not lose their constitutional rights at the schoolhouse gate. Yet technology and its ability to transcend barriers brings the previously private and unknowable into full view.

The onus of restraint and discretion, then, lie with school officials who at the district and building level must determine for themselves by weighing the benefits of deploying technology, its accompanying legal liability, and the effect on school culture.

Citation: Darden, E.C. (2015). Ed law: Technology weaves a tangled privacy web. Phi Delta Kappan, 96 (6), 76-77.