Part III: Legal Considerations

    Legal Considerations for School Districts

    In addition to understanding privacy and equity impacts, schools should be aware of important legal implications associated with adopting monitoring technologies and collecting student information related to mental health and potential to self-harm. In addition to CIPA (described here), there are several federal laws and protections that may influence how school districts can implement self-harm monitoring programs, manage the student information collected through such programs, and interact with students identified through self-harm monitoring. Additional state laws may apply as well. Schools should be aware of federal and state regulations that may apply to student information collected through student monitoring technologies and weigh these legal implications when deciding whether to adopt monitoring programs. Schools should be sure to consider:

    FERPA and Student Privacy

    The Family Educational Rights and Privacy Act (FERPA) is the main federal privacy law that applies to student information. In addition to requiring schools to safeguard student data and restricting the parties to whom schools can disclose personal information from student’s education records without parental consent, FERPA affords students and their caregivers or parents certain rights regarding their information. Parents and caregivers have the right to access and correct their children’s education records, and this right transfers to students when they reach the age of 18 or enroll in postsecondary school. Generally, FERPA protections, including limitations on disclosure of student information, apply to information gathered via self-harm monitoring technology. If parents submit a FERPA request for information collected and maintained via self-harm monitoring technology, the law would very likely require schools to provide the parent with the opportunity to inspect that information.

    ADA and Section 504 Disability Discrimination.

    The Americans with Disabilities Act (ADA) is a comprehensive non-discrimination law that provides civil rights protections in all areas of public life to all individuals with disabilities. Likewise, Section 504 of the Rehabilitation Act provides civil rights protections to all individuals with disabilities in institutions that receive federal funding, which applies to most public schools.133 Both the ADA and Section 504 define disability broadly as a physical or mental impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment.134 This means that under these two laws, mental illness is considered a disability, and disability discrimination includes differential treatment arising from the perception of someone having a mental illness, regardless of actual diagnosis.135 This is important information for schools to consider. All children flagged as at risk for self-harm are, by definition, perceived by their school as having a mental health disability that impedes their safety, and are receiving differential treatment accordingly. As a result, school districts should be aware that two different disability-related protections may be triggered when a school flags a student as at risk for self-harm due to potential mental health problems. One is privacy protections that the ADA provides regarding disclosure of a perceived disability/mental health condition; the other is non-discrimination protections for these students under both laws. School districts should carefully consult with their legal counsel around disability protections and examine their follow-up practices to ensure they do not treat students flagged through monitoring in discriminatory ways.136

    Fourth Amendment Considerations

    Whether monitoring students’ use of school-issued devices and services at home constitutes an unreasonable search or seizure under the Fourth Amendment remains an open question. The Fourth Amendment implications are also exacerbated when many of the monitoring flags occur outside of school hours. In Minneapolis Public Schools, for example, approximately three quarters of incidents that the district’s monitoring system reported to school officials took place outside of school hours.137 In a recent survey of teachers whose schools use monitoring software, only 25 percent reported that monitoring is limited solely to school hours, and 30 percent reported that their school monitors students all of the time.138 As yet, no Supreme Court jurisprudence has addressed the question of whether monitoring students online while they are at home (whether they use a personal or school-owned device or whether they are connected to their personal or school-provided network) constitutes a Fourth Amendment violation.139 This is especially important when students are learning remotely; in most cases, students are engaging from the privacy of their homes. Schools and districts should keep in mind the unique sensitivities that arise when monitoring students while they are off campus or learning from home.

    Title VI

    Schools should be aware that monitoring students’ online behavior could possibly implicate Title VI considerations. Title VI of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, or national origin in any program or activity that receives Federal funds or other Federal financial assistance, which includes all public schools.140 The use of these protected characteristics or close proxies of these protected characteristics (such as English Language Learner status) in monitoring or profile-building could thus be a trigger for potential anti-discrimination concerns, particularly if students who are racial or ethnic minorities are disproportionately flagged by school’s monitoring systems or receive disparate treatment as a result.

    Other Legal Protections for English Language Learners

    Several laws protect the rights of English Language Learners. The Equal Educational Opportunities Act (EEOA) of 1974 prohibits discrimination against students. It also requires school districts and states’ departments of education to take action to ensure equal participation for everyone, including removing language barriers for ELL students. Additionally, the Every Student Succeeds Act (ESSA) of 2015 authorizes the U.S. Department of Education to award grants to state education departments, which may issue them as subgrants to K–12 school districts. The subgrants are intended to go toward improving ELL students’ instruction and abilities to meet state academic content and achievement standards. By accepting these federal funds, districts are required to provide language accommodations to non-English-speaking families. The Supreme Court case of Plyler v. Doe also provides protections and rights for students who are English Language Learners in schools.141

    Title IX

    Schools should also be aware that monitoring students’ online behavior could also potentially implicate Title IX considerations if monitoring has the effect of exposing the sexual orientation and gender identity of students in harmful, discriminatory, or disparate ways. Title IX of the Education Amendments of 1972 states that “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”142 A recent Supreme Court decision, Bostock v. Clayton County, held that Title IX also encompasses discrimination based on sexual orientation.143 As some monitoring systems and schools may include words or phrases related to sexual orientation or gender identity144 that trigger alerts to school officials, that screening may implicate direct or proxy characteristics for protected classes under Title IX.

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