Recent increases in violent acts in schools have left school officials struggling to find a balance between student safety and student liberty. Fraser recognized that students’ constitutional rights in public schools “are not automatically coextensive with the rights of adults in other settings,” 21 but the court also held in Tinker that school officials must ensure a student’s constitutional rights are not violated before restricting speech, invading privacy, or disciplining a student for actions that occur both on and off campus. These standards allow for a shifting line of privacy rights; how far is too far for school interference?
Schools in Texas, Illinois, Wisconsin, Missouri and California have been testing out pilot programs that track students on campus through a device placed in their student identification card. 2. 22 The purpose of the tracking device is to improve safety and security in schools and maintain attendance records. The identification cards allow school officials to quickly confirm that the student belongs on campus, while also providing a dual use as a library and lunch card. This tracking program claims to be especially beneficial for large school districts, some with the responsibility of educating over 100,000 students. However, with the benefits of the chip-implanted cards comes the risk of infringing upon students constitutional rights. This article focuses on the student constitutional right of privacy and whether tracking devices in student identification badges are an unconstitutional infringement.
RFID Technology: What is it?
The identification badges are embedded with radio frequency identification (RFID) technology that sends unique serial numbers wirelessly to sensors through radio waves. The sensors do not provide pinpoint locations of students, but give a general idea of the student’s location. 23 The badges only work on the school campus, do not contain privacy information (only a serial number), and do not transmit radio waves to the sensors while located in restrooms. The information is stored on the school district’s internal servers with data encryption and firewall protection. Since students experience less privacy rights on a school campus, these badges have been challenged as a violation of a student’s constitutional right to privacy by several privacy advocate organizations through position papers.
The RFID website states, “the school system is expected to know, and parents expect the school to know, where the children are at all times.” In addition, results from the tracking device are compared to specific class scheduling, including specific time periods for lunch and between classes. Proponents of the RFID device provide situations in which the tracking device was found helpful, including a parent who was unable to locate whether her special needs child had boarded the school bus so the tracking device provided information of what time the student boarded the bus. Also, the device has helped determine which students were left in the building during an evacuation and where those students were located. In the instance of extreme violence on campus, the chips would be able to provide information quickly of which students are subject to extreme danger.
School Privacy Laws
Are the benefits from the RFID tracking device enough to justify the possible infringement of a student’s constitutional rights? New Jersey v. T.L.O. and Vernonia School District v. Acton form the basis of analysis for the invasion of privacy in schools. T.L.O. justifies school searches of students when there are reasonable grounds for suspecting the search will reveal evidence that the student is violating or has violated the law or rules of the school. The search is allowed in scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive with regard to the age and sex of the student and nature of the act. 24 Vernonia illustrates the extent to which schools are permitted to invade a student’s privacy interests by holding that the physical monitoring of a student athlete’s urinalysis and subsequent testing of the sample was not considered too intrusive, and was a reasonable search under the Fourth Amendment. 25 Would tracking a student’s location through the school day for an entire academic year be more or less intrusive than the monitoring of a urinalysis? The Supreme Court in T.L.O. provides guidance by reiterating that the Fourth Amendment protects against society’s legitimate expectations of privacy, but does not protect against subjective expectations of privacy. 26
However, the most analogous facts, with respect to the RFID tracking device, is last year’s Supreme Court decision, United States v. Jones. 27 The 2012 decision in Jones found warrants to be required in order to place GPS tracking devices on cars, as the placing of the GPS monitor was considered a trespass. The Supreme Court found the 28 day GPS monitoring of Jones’ car violated his reasonable expectation of privacy due to the prolonged period of constant monitoring. Jones only correlates to the school RFID tracking devices with respect to the length and duration of GPS monitoring. As the Supreme Court found 28 days of tracking excessive, would RFID tracking everyday for an academic year violate even a student’s lesser expectation of privacy?
Recent Litigation over RFID
Last month, a court in Texas found tracking devices on student’s identification badges did not violate a student’s First Amendment rights of freedom of religion. The student claimed the tracking badge symbolized the “mark of the beast” 28 and objected to the tracking as a violation of her religious beliefs. While school officials agreed to remove the device in the student’s badge to accommodate her religious beliefs, the student started objecting to wearing the badge completely as to not support the pilot program. U.S. District Court Judge Orlando Garcia found that the badge had an “incidental effect, if any, on religious beliefs” and that she had worn an identification badge for the past several years. 29
Have Recent School Shootings Affected Parents’ Tolerance of Children’s Privacy Rights?
After interviewing several parents regarding their views on their children’s privacy interests in light of tracking devices and school shootings, there was a split on whether tracking devices go too far. One attorney parent stated, “the overarching interest in protecting children and providing safe environments for learning far outweigh some compromise in a student’s expectation of privacy.” When probed about Vernonia and how far below reasonable a student’s privacy expectations can dip, the parent believed that a general tracing of a student’s location was less of a violation of a privacy interest than the urinalysis or a “bra lift” 30 , which “far more exposes the student.” Other parents find that tracking devices are extreme violations of a student’s privacy interests. These parents emphasized how constant monitoring of students fails to teach and provide their children with opportunities to be responsible. There is also a struggle to rationalize the cost of the RFID devices, especially with budget cuts experienced by most school districts.
Other Solutions to Creating Safer Schools
Are tracking devices, at the expense of student’s privacy interest, the only solution to creating safer schools? Arguably not, students are entitled to privacy, albeit a lesser standard. With some students tolerating invasions of privacy by walking through metal detectors, being searched, and recorded on cameras in schools, a limit needs to be established – how far is too far? Instead of tracking the location of students, schools can use these badges as electronic keys that must be scanned at a keypad in order to unlock building doors. These electronic keys can keep buildings secure from unauthorized persons, while also providing schools with the ability to maintain attendance records. Students can physically scan their ID at a designated card reader rather than using IDs to display students as moving blinking lights on a computer monitor, tracking their every move. These badges accomplish the same goals and become less burdensome on privacy rights by eliminating the constant monitoring.