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Excerpted From: Barbara Fedders, The Constant and Expanding Classroom: Surveillance in K-12 Public Schools, 97 North Carolina Law Review 1673 (September 2019) (331 Footnotes) (Full Document)


BarbaraFedders copyToday's K-12 public-school students are under surveillance. Inside and outside the classroom, during the school year and summer, students' movements are tracked and their written words monitored. Schools capture enormous amounts of student data, for which the pertinent federal and state laws are insufficient to protect. Schools implement policies, which deputize students to report on each other for a broad range of suspected infractions. Moreover, they create codes of conduct that permit confiscation and, in some cases, exploration of students' cell phones. The number of police officers stationed in schools continues to grow.

The twin justifications for student surveillance are safety and improved educational outcomes. The companies developing these technologies market them against a backdrop of fear of violence, especially school shootings, and anxiety about academic success. State lawmakers appear convinced by these justifications, passing legislation that mandates adoption of some technologies and allocates funds for the purchase of others. Local school districts take advantage of increased state funding to hire school resource officers for kindergarten through the twelfth grade. The various mechanisms of surveillance combine to make more information available about more students, for a longer period of time, and accessible to a greater number of actors than was possible before the digital age.

North Carolina offers a case study of the mostly unexplored dangers of the emerging student surveillance regime: here, as elsewhere, education policymakers are adding, expanding, and enhancing surveillance methods at a rapid pace. They are doing so, both at the state and the school-district level, without adequate consideration of significant competing substantive and procedural issues.

These issues include, at a minimum, the following: first, the evidence for efficacy of many mechanisms of surveillance is thin. Second, although children's growth and healthy development require protection of some age-appropriate degree of privacy in a public school functioning in loco parentis privacy interests are undervalued by education policymakers.

Third, surveillance does not always operate equitably. The students most vulnerable to surveillance are from low-income families, and those most at risk of adverse outcomes from surveillance are Black and LGBTQ students. Fourth, and finally, school administrators may incur unforeseen legal liability in hastily adopting surveillance practices that function in violation of statutes and judicial precedent that protect student privacy interests.

This Article is the first in the legal literature to identify and analyze the full extent of K-12 student surveillance. Legal scholars have raised concerns about the negative privacy implications for students created by the vast array of digital learning devices used in public schools. They have also identified the costs and harms of school policing and punitive disciplinary practices. Drawing from each of these bodies of scholarship, this Article makes three principal contributions to the burgeoning legal literature on the surveillance state.

It uncovers, in Part I, a pervasive school surveillance regime, exploring the multiple mechanisms for monitoring and tracking students and explaining their heretofore unappreciated range and power.

It analyzes, in Part II, the multiple procedural and substantive objections to student surveillance that should be--but largely are not--considered by school decisionmakers.

Finally, it proposes, in Part III, principles that should guide the selection, implementation, and oversight of student surveillance mechanisms.

[. . .]

Scholars have established that the surveillance state has arrived, and that the most interesting and important issues to be considered are its normative content and scope. I have aimed to contribute to the discussion of surveillance with three principal contributions: by providing a typology of student surveillance technologies and policies; by analyzing the competing considerations relevant surveillance that typically are not--but should be-- considered; and by offering preliminary thoughts on better student surveillance policymaking.

Assistant Professor, University of North Carolina School of Law.

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