Privacy on Principal: Surveillance in Education and the Fourth Amendment.

-- By AnthonyMahmud - 12 Mar 2021

Introduction

Across levels of education, COVID-19 has caused a radical change in classroom engagement. 2020 introduced us to virtual seminars, suit jackets with pajama bottoms, and the fatigue of prolonged video calls. But while these changes in modality may have been sudden, the increased reliance on digital platforms and services reflects a long-coming trend with highly concerning privacy implications. Hardware made by an advertising company became the standard in primary schools over five years ago. Digital exam proctoring software popped up in university courses in the late 2000s, and they increasingly incorporate invasive technologies that monitor the student’s surroundings and their own biometric data. More than ever, the eye of the educational institution is in our persons, houses, papers, and effects. When and how might these disturbing trends violate fourth amendment ('4A') protections?

Schools as State Actors

Analyzing educational institutions through the lens of the 4A requires a finding of state action. This means that the practices of private schools are not implicated by constitutional restraints--even if they receive federal funding. Conversely, public school students fall squarely within the scope of constitutional protections; indeed, first amendment freedom of speech and religion rights have been recognized in many high profile cases. While this means the 4A applies to public school surveillance tactics, relevant precedent introduces nuances that must be considered.

An Altered Standard of 4th Amendment Analysis

The Supreme Court has recognized certain limitations on how 4A protections should apply within the school context. In _New Jersey v. T.L.O._, the Court found that “probable cause” was not the correct benchmark for searching a 14-year-old girl suspected of smoking cigarettes in the school bathroom. Instead, they applied a “reasonable suspicion” standard that considers “whether the . . . action was justified at its inception," and “whether the search. . .was reasonably related. . .to the circumstances which justified the interference in the first place." The T.L.O. court and others have opined that student rights should be limited given that teachers/administrators have a “substantial interest in maintaining discipline. . .on school grounds,&#8221. and that they play a role in loco parentis, in place of typical parental "custodial and tutelary" responsibilities.

Scrutinizing the "Reasonable Suspicion" Test

Absent more concrete guidelines for implementation, the “reasonable suspicion” standard appears unactionable and ill-founded. The language boils down to a generic evaluation of “reasonableness” and nearly boundless deference to the judgment of school officials. An upper threshold was established in _Safford v. Redding_, where a 13-year-old girl was forced to remove her clothes and “[partially expose] her breasts and pelvic area” on suspicion of sharing over-the-counter pain relief medicine with a classmate, (a violation of school policy.) There, the court found the extent of the search did not meet “reasonable suspicion” given that the school’s only evidence was the girl’s classmate claiming she was distributing ibuprofen. An upper boundary as extreme as Safford does little to clarify the ambiguity of the “reasonable suspicion” test, and the thin rationale the court provides does not easily translate to an analysis of digital surveillance.

Furthermore, the common law precedent provides little explanation of the basis on which a lower standard is justified, or how the scope of the lowered standard is derived. It is reasonable for courts to consider the school administrator’s special role in maintaining order and ensuring the safety of minor children, but stripping nearly the entirety of their 4A rights on that basis seems unfounded and dangerous. SCOTUS rulings on 1st amendment rights have identified more pointed areas of rights restrictions--public schools have an interest in pursuing the educational goals of the state, and certain instances of speech can be impermissibly disruptive to that end. The T.L.O. opinion neither specifies the ways in which a probable cause can impair order and safety, nor limits the applicability of the rule to such situations. A general need to protect particular institutional interests is used to strip an entire group of their enumerated level of constitutional rights.

Rethinking "Probable Cause" in the Education Context

Even if we were to accept that the public school environment warrants drastic alterations to 4A rights, the “reasonable suspicion” threshold seems blindly one-sided. While there may be select instances where a lower burden for searches is to the benefit of general student welfare, accommodating the unique dynamics of the education institute should also merit a higher burden of evidence to be applied generally. The student-teacher/administrator relationship is inherently one of great power asymmetry. Yet, essential to a student’s educational experience is an amount of trust in and vulnerability with their instructors. In primary school, teachers play the role of trusted adults on whom students can rely for academic and personal support alike. The university professor is tasked with facilitating critical thought, challenging students to refine their beliefs and sometimes confront their cognitive dissonance. These educational goals are impaired when their authority figures wield broad power to police their possessions and surveil their personal engagements with course material.

Testing the Fourth Amendment in the Public University

If the rationale for diluting the threshold of constitutional search is tied to elements unique to minors and the primary school system, university students should at least receive the typical level of fourth amendment protections. Thus, the surveillance practices public universities are an ideal target for specific inquiries into 4th amendment violations, and the gathering of biometric data from mandatory exam software is one such case study. The Supreme Court has unquestionably held that the taking of a fingerprint is a search, and it appears that capturing facial recognition data would fall under the same category of conduct. There is seemingly no probable cause, or even “reasonable suspicion” to make these ubiquitous searches in the first place unless every single student had already demonstrated a likelihood of committing violations. In Board v. Earls, the Supreme Court tried a similar case where all high school athletes were subject to mandatory biometric search (urine drug tests.) The policy was found constitutional, but only because the court found that athletes had a significantly reduced expectation of privacy than other students, or even students in non-athletic extracurriculars. In tandem, these precedents present a compelling argument that public university biometric data gathering is unconstitutional.

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