How do we protect student privacy?

The more kinds of technology we have in our schools, the more opportunities we have for creativity, innovation, and hands-on learning in our classrooms, right? Of course. The downside? Protecting our privacy -- and our students' -- becomes all the more difficult. Read on....

Private Eyes
Protecting Student Privacy and Data

Ellen R. Delisio

When trying to respect and protect student privacy, educators find that with more technology comes more issues.

Just a few decades ago, probably the most inappropriate messages students sent during class were handwritten notes on scraps of paper that were passed between desks. Occasionally teachers who intercepted notes would read them aloud, revealing a secret student crush or even a rant about the teacher himself. Today, times certainly have changed. Educators need to think twice before reaching for any form of student communication.

As texts, e-mail messages, videos, and status updates replace handwritten notes, administrators are left wondering how far into cyberspace their reach extends and how to balance student privacy and free speech rights with school security and decorum.

What Doesn't Happen at School…

One of the trickiest problems regarding student privacy has been deciding whether school personnel can monitor content that students post on nonschool websites while outside of school and discipline students for content on those sites that is critical of school programs, personnel, or classmates.

"Practically speaking, it used to be that what was said at a shopping mall [that might be critical of school personnel] would stay at a shopping mall, because the administrator wouldn't know about it," says Catherine Crump, a staff attorney with the American Civil Liberties Union. "But with the new technology, everybody knows about it."

Traditionally activities that took place off school grounds, independent of school activities and school hours, were considered beyond the authority of school personnel, Crump adds. In one well-publicized case, though, a senior at Martin Luther King Jr. Magnet School in Nashville, Tenn., was suspended in 2010 and later expelled after posting comments on his Facebook page about his coaches. One such message included, "I'ma gonna kill 'em all." According to USA Today, administrators considered it a credible threat and have suspended or expelled other students in the past for incidents involving social media messages, texts, and e-mails.

The courts have given schools some latitude in regulating postings such as these, and they generally have agreed with the approach taken by many schools that administrators can intervene if the speech is disruptive to the school environment, according to Crump.

That is the approach adopted by the Middletown, Conn., school district. A district policy adopted in May 2011 warns staff members in part against posting any social media content that creates a hostile atmosphere or interferes with learning, according to Superintendent Michael J. Frechette.

"With everything going on—kids creating web pages, blogging, and using Twitter [about other kids]—these are huge, huge issues," says Dan Domenech, executive director of the American Association of School Administrators. "You have freedom of speech and jurisdiction—a whole range of issues here that are tangled and not clear. Administrators are walking on eggshells trying to decide the right thing to do at the right time."

According to the Philadelphia Inquirer, in June 2011 the U.S. Court of Appeals for the Third Circuit issued its first two rulings about speech students posted on the Internet, indicating that schools cannot punish students for out-of-school speech that does not create a substantial and material disruption inside the school. The court was unanimous in its decision that the Hermitage School District in Pennsylvania violated a student's free speech rights when it suspended him for creating a parody MySpace profile for the Hickory High School principal. The student created the profile from a computer at his grandmother's house during nonschool hours, and his actions did not disrupt the school, according to the court's decision.

But even if content is created at school, educators need to think twice before confiscating a student's personal device, such as a cell phone, and scrolling through messages to see what might have been sent during class. "Just because students have smartphones doesn't give schools a free pass to go through this information," Crump says. "Students have a zone of personal privacy even in school. Schools don't have free rein to go through e-mail and cell phones."

Once schools allow students to have phones on the premises, the school needs policies to regulate their usage, Crump says. These policies should be enforced consistently and fairly.

Caught on Film

The evolution of video technology also means administrators have to weigh new security against privacy issues. Many districts have security cameras in their hallways and classrooms, while other schools have gone even further, installing security cams on buses, in locker rooms, and even in bathrooms.

The pitfalls of security cameras became abundantly clear to administrators in the Lower Merion, Pa., school district in 2009. In a well-publicized case, administrators activated cameras, which were designed to be used if a laptop was missing, in the school computers students were permitted to bring home. The laptop cameras wound up recording hours of footage in students' homes, in some cases when students were in their bedrooms, completely unknown to the students. The cameras also snapped pictures of students' chats and records of the websites they visited. The snapshots were transmitted to servers at the school, where school administrators studied them and, in some cases, passed on photographs.

In one instance, a student was disciplined at school after administrators viewed a photo taken by the computer camera—in his bedroom. Administrators thought he was taking drugs, but the youth maintained he was eating candy. A lawsuit brought by the student's family on behalf of him and other students led to a $610,000 judgment against the district. Investigators found that the district had snapped more than 58,000 photographs of students without their knowledge.

Some schools are expanding the presence of cameras in hallways and classrooms for both security and teaching purposes. "I think we are quickly moving to the stage where every classroom will have a security device," Domenech says. But even using cameras for professional development raises privacy issues, because there is a chance some teachers or students might not be aware they are on, he adds.

Dealing with Student Data

As if administrators did not have enough privacy issues to tiptoe around, regulations requiring them to collect more detailed student data are also posing concerns. The U.S. Department of Education is requiring districts to forward extensive databases to state departments of education in preparation for longitudinal studies, which are designed to track the progress of individual students over a long period.

In part to prepare for this, the Department of Education named its first chief privacy officer, Kathleen Styles. The federal government is also in the process of revising the Family Educational Rights and Privacy Act (FERPA) to ensure that "FERPA continues to keep student privacy but at the same time allows responsible use of state longitudinal data systems," according to Styles. "I think FERPA is being administered unevenly across the country, and part of my job will be to clarify aspects of FERPA. We have about 55 million students in public and private schools, and in the process of schooling, [they] create a lot of data—some of it can be quite intimate—and we want to help states determine how to comply with FERPA."

The data needs to be secured, and districts need proper controls in place so that administrators know who can view the data and for what purpose. "We want to make sure that if we're publishing anonymous data, it is in fact anonymous," Styles notes. "The biggest challenge is developing an appropriate governance structure so that people who have access to the data have a legitimate need to see it."

Aimee Guidera, executive director of the Data Quality Campaign, adds, "To ensure people are being deliberate and thoughtful, we want to build the privacy piece into the process. The past two years, I've reached out to privacy experts in other fields who are using data for best practices about how we need a method for collecting and using data without compromising security."

Many administrators are unclear about how this data will be shared and the potential liability they will face if certain data is inadvertently lost, according to Domenech. Administrators have become almost paranoid about the security of data, he adds.

"A lot of community agencies that want to work with districts to provide student services get angry because districts are reluctant to share certain information," Domenech says. "Districts are concerned about privacy issues and releasing any information to an outside agency, such as free and reduced-price lunch figures."

On the horizon, educators need to create policies for what kind of information is transmitted by e-mail between staff members and between staff and students. "There are some concerns about what e-mails from staff are privileged and which are not," Domenech says. "Because of technology, teachers can communicate with students online and post assignments online. What happens if a teacher sends the wrong message to the wrong person and a student's information goes to someone else?"

At the Department of Education, Styles regularly answers questions about e-mail communication. People are submitting freedom of information requests to schools to view e-mails from teachers' accounts regarding students. Videos are another issue; if a school security camera records a student fight, for example, can that footage be released to the media or police, or is it considered a student record?

"We need to provide more guidance about when e-mail is a student record and when videos are student records," Styles says. "We're finding in more and more cases that student e-mail would not be considered an educational record."

Educators face even more challenging days ahead. "Privacy issues are rushing ahead of us, faster than we can control the ramifications," Domenech says.

Full article available at: http://www.ascd.org/publications/newsletters/education-update/oct11/vol53/num10/Private-Eyes.aspx