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

-- By AnthonyMahmud - 12 Mar 2021

Introduction

Across levels of education, the COVID-19 pandemic has marked a radical change in classroom engagement. 2020 introduced us to virtual seminars, suit jackets with pajama bottoms, and the fatigue of being live on video for hours at a time. 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 protections?

Schools as State Actors

Analyzing institutions of education through the lens of the fourth amendment requires a finding of state action. This means that the practices of private schools and universities 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 freedom of religion rights have been recognized in many high profile public school cases. While this means that we can apply the fourth amendment to public school surveillance tactics, precedent on the matter introduces nuances that must be considered.

An Altered Standard of 4th Amendment Analysis

Although public institutions are subject to constitutional restrictions on state action, the supreme court has recognized limitations on how 4th Amendment 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, the majority opinion applied a “reasonable suspicion” two-part 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 court opined that student rights should be limited given that teachers and administrators have a “substantial interest in maintaining discipline. . .on school grounds,” and that they play a role in loco parentis, in place of typical parental "custodial and tutelary" responsibilities.

You're discussing New Jersey v. TLO, but your ;l;inmk is to the opinion in Erles

Scrutinizing the "Reasonable Suspicion" Test

In my view, the “reasonable suspicion” standard is 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 middle school 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 search or surveillance.

Furthermore, I take issue with the basis on which a lower standard is justified, and how the scope of the lowered standard is derived. It is reasonable for the court 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 4th amendment rights on that basis seems unfounded and dangerous. Supreme Court 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. In T.L.O., the opinion does not specify the ways in which a probable cause can impair order and safety, and it does not limit the applicability of the rule to such situations. A general need to protect particular institutional interests is used to strip an entire group of people of their enumerated level of constitutional rights.

Rethinking "Probable Cause" in the Education Context

Even if we were to accept that public school students are in an environment that warrants drastic alterations to their 4th amendment 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 seems 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 of Education v. Earls, the Supreme Court tried a similar case where all high school athletes were subject to mandatory biometric search (urine tests for drugs.) 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, I think these precedents present a compelling argument that public university biometric data gathering is unconstitutional.

I think this is a very strong draft, reflecting serious effort to come to grips with an important issue.

There are some technical improvements to make. You should link to the cases you discuss, for example. "I take issue with the Supreme Court" is not the best tone of legal analysis. Depersonalizing and not appearing to argue on the basis of personal authority is just routine.

Substantively, it makes sense to differentiate high school cases from the university situations that are your real subject on the basis of the age and maturity of the students: the inevitable tendency to devalue children's rights does not apply to voting-age citizens enrolled in public universities. As to them. I agree with you that there are going to be new classes of cases in the near future. Perhaps you will decide to make them part of your practice.

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