“Any headline that ends in a question mark can be answered by the word no.”
— Betteridge’s law of headlines
Last Tuesday, Clark County School District Board Trustee Katie Williams had an idea she felt compelled to share with Twitter. It wasn’t the first time she felt this particular compulsion, of course — she briefly became Twitter’s main character last year after she bragged about visiting a Red Robin, of all places, at the beginning of the pandemic — but this utterance actually related to possible future school district policy:
As she and the rest of the school board responsible for governing the school district that educates somewhere north of 70 percent of Nevada’s students could, in theory, advocate for and direct funding towards putting cameras in every classroom, which parents could view at any time, this raises a few questions:
Why does she want to install cameras in classrooms? Is doing so even legal? If it’s legal, is it a good idea?
Won’t somebody please think of the children’s parents?
Cameras, and electronic surveillance more generally, have become an increasingly regular part of our public schools for the better part of a generation. According to the National Center for Education Statistics, 77.9 percent of primary schools, 91.5 percent of middle schools, and 93.6 percent of high schools had security cameras installed in them by the end of the 2018 school year. These percentages are much higher than they were 20 years ago — by comparison, fewer than 20 percent of schools used security cameras to monitor schools during the 1999-2000 school year. The increasing proliferation of cameras on school grounds has historically been justified on public safety grounds — the more cameras we install, after all, the fewer school shootings and other safety hazards our students will experience over time:
None of this, however, is why Katie Williams is parroting Matt Walsh and Tucker Carlson, who both are advocating for widespread on-demand audiovisual surveillance of our public classrooms — their explicit concern is ideological safety, not physical safety. Put more directly, they and their supporters are concerned public school teachers are teaching students thoughtcrime; they want to fire and arrest teachers for doing so; and you can’t fire and arrest someone without catching them in the act. So, to make it easier to find and root out the ideological enemies of the greatest and freest country on Earth, the country where freedom of speech and a right to privacy is paramount, they want to connect each and every classroom in the country into parentally accessible livestreams, viewable upon demand whenever a parent gets bored at work.
I kid, of course. These are the same people who install bossware on each and every computer at their business to ensure their employees are doing nothing but thinking about work while they’re on company time — and who demand other companies install it on their computers, too, so the help they publicly interact with knows its place and doesn’t get uppity. If they caught a working parent viewing a classroom livestream and had the power to do so, they’d fire the parent for wasting the company’s time, attention, and bandwidth — and if they didn’t have that power, they’d demand to speak to the parent’s manager.
All of this means the drive to add widespread parental access to our existing electronic surveillance of public schooling isn’t about giving working parents better access and insight to their children’s education. Working parents usually have to work during normal school hours, and the ones who don’t have better things to do than watch their children fall asleep or socialize in a classroom while they have cooking, cleaning, and sleeping to do. Even if working parents were allowed to routinely watch video content while they were on the clock (most don’t), working parents (myself included) have more time-efficient ways of keeping track of our children’s educations, like checking on our children’s homework and emailing teachers directly about their daily lesson plans.
No, this is all about giving affluent parents — those with more flexible working arrangements and nothing but time during the day — greater control over the education of everyone else’s children by empowering them to take slices of classroom video out of context and present it in public comment during school board meetings (something else most working parents don’t have the time to participate in, by the way).
For the sake of argument, however, let’s pretend for a moment that, just as the road to Hell can be paved with good intentions, perhaps the road to Heaven can be paved with culture war trolling and thinly veiled desires for control over working people’s thoughts and lives. It’s unlikely, but stranger things have certainly happened — women, after all, received the anti-discrimination protections of the Civil Rights Act of 1964 because an opponent of the bill may have inserted a prohibition on sex discrimination to scuttle the measure (this interpretation of how that happened is not universal, however).
Would this even be legal?
Want to watch your pet while you’re away? Many kennels advertise the ability to let you do that. Want to see what your child is up to while they’re at daycare? Many daycares offer that feature, as well. So why don’t schools already do this?
The short answer is paying for and attending school is compulsory, while paying for and attending daycare is not. Parents aren’t legally required to enroll their children into daycare, nor are they required to enroll their children into a daycare where pervasive electronic surveillance is installed. There is, in other words, something of a free market in daycare services, in which parents can choose an appropriate daycare for their children depending on the features offered by the daycare provider and the parent’s ability to pay, or parents can just categorically refuse to enroll their children into daycares.
If you don’t like the idea of some other parent seeing your child on your daycare’s livestream, in other words, you can just stop dropping them off there.
The same, however, is not true for public schooling. Per state law, all children between the ages of 7 and 18 are required to attend school — for most students, this means attending either a traditional or charter public school. Additionally, all of us pay for public schools through a mixture of federal, state, and local taxes whether our children attend public schools or not.
In other words, if you don’t like the idea of me seeing your child on your school’s livestream, well, you better call your congressman — because if you just stop taking them to school, you’ll learn that School Resource Officers absolutely make house calls and arrests.
Data collected by public schools — data collected by institutions you probably didn’t explicitly choose to pay for nor enroll your children into, remember — is heavily regulated to help ensure the harms caused by compulsorily collecting information from our children are minimized. The primary regulation governing public school data is the Family Educational Rights and Privacy Act (FERPA).
Conceptually, FERPA is similar to the Health Insurance Portability and Accountability Act (HIPAA), only applied to educational data instead of health data — a comparison valid enough for the Center for Disease Control to maintain an infographic comparing HIPAA and FERPA. This conception, however, also extends to the amount of power both regulations actually possess over the data protected by these laws.
On the internet, “HIPPA” supposedly protects anyone from being questioned about any vaguely medical topic, including, most notably, whether you’re vaccinated or not (this is completely false). In reality, though HIPAA remains quite important — it’s why I can’t go behind your back and ask your doctor whether you’re vaccinated or not — it’s nowhere near that strong in reality. HIPAA is actually narrowly written and applies to only a small number of covered entities (doctors, hospitals, and insurance companies, mostly), each of whom are still permitted to use and disclose your medical data without your authorization under certain circumstances.
Similarly, FERPA looks much stronger in concept than it’s actually proven to be in practice. As the Congressional Research Service explains in The Family Educational Rights and Privacy Act (FERPA): Legal Issues, FERPA prohibits schools from releasing students’ education records without the written consent of each student’s parents, with education records defined as materials the “contain information directly related to a student” and “are maintained by an educational agency or institution or by a person acting for such agency or institution.” Conceptually, then, if a school releases a video of any school-aged child, they are releasing an education record and must disclose them within the limits of FERPA.
In short, turning every classroom into a taxpayer-funded YouTube channel would probably be every bit as illegal as smoking cannabis in Nevada — it’s just illegal enough to annoy the sort of person who might do so, within very limited circumstances, but probably not illegal enough to stop anyone.
That said, the goal isn’t to turn every classroom into a taxpayer-funded Twitch stream for our personal amusement — it’s to limit the speech of public employees and more effectively prohibit them from teaching whatever each parent imagines “critical race theory” to be at any given moment. Doing so, however, is almost certainly unconstitutional, at least in this part of the country. As Ken White, a lawyer specializing in freedom of speech law explained a while back on his personal blog, though public employees don’t enjoy the sort of blanket protections of freedom of speech at work that any of us would enjoy in our homes, they are not entirely without protections, especially if they work in education. According to the Ninth Circuit’s decision in Demers v. Austin:
Under Garcetti, statements made by public employees “pursuant to their official duties” are not protected by the First Amendment. 547 U.S. at 421. But teaching and academic writing are at the core of the official duties of teachers and professors. Such teaching and writing are “a special concern of the First Amendment.”
Because the Ninth Circuit has appellate jurisdiction over Nevada, the precedent set by Demers v. Austin applies here. Consequently, in Nevada, at least, it’s likely unconstitutional to install surveillance cameras inside of schools for the purpose of controlling the speech of public school teachers — and Idaho’s recently passed critical race theory ban is almost certainly unconstitutional on similar grounds as well.
What if it was legal, though? Would it be a good idea?
Just because something is illegal, that doesn’t mean it’s a bad idea.
Even so, increasing school surveillance for any reason — especially one as reflexively ridiculous as keeping our children “safe” from ideas — is not only a bad idea, it’s provably ineffective at solving the problems proponents promise increased surveillance will solve.
Before the current moral panic surrounding “critical race theory” turned into a casus belli to turn every classroom into a taxpayer-funded Facebook Live feed, student privacy had already steadily deteriorated over the past two decades. As Barbara Fedders described for the North Carolina Law Review in The Constant and Expanding Classroom: Surveillance in K-12 Public Schools:
“To fully appreciate the scope and power of contemporary student surveillance, consider the experiences of “Manuel,” a fifteen-year-old public-school tenth grader. One Saturday night, he posts a photo of himself and a group of male friends—all Latino—on Instagram, captioning it “Me and My Crew.” The boys are making a variety of gestures with their hands—peace signs, thumbs-up signs, and other gestures of indeterminate meaning. His school, which owns a third-party social media-scanning software program, is alerted by the company that makes the program due to what its algorithm identifies as suspicious activity. On Monday, the assistant principal directs the school resource officer (“SRO”) to question him about the Instagram post. Manuel explains that the photograph simply shows him and his friends having fun. Not satisfied with that explanation, the SRO trails him at every class exchange. The SRO also asks for and reviews footage from the school’s video cameras from the past week. The assistant principal alerts Manuel’s teachers that he suspects Manuel of possible gang involvement. When Manuel sneaks a look at his cell phone during math class, his teacher confiscates it, referencing the student code of conduct prohibiting students from having their phones out in class. Later Monday night, on the school-issued laptop he uses because his parents cannot afford to buy him his own, Manuel takes a break from his homework and emails a friend to confide that he is depressed, anxious about the SRO, and angry at a mutual friend, Jose. Within an hour, a different SRO is at his home, alerting his parents that he is conducting a “wellness check” because of concerns over Manuel’s email.
To be clear, and as the author explicitly notes, “Manuel” is not a real student, but is instead a composite of several student experiences, both real and promised by various companies selling school surveillance software. The current reality of student surveillance, however, is not nearly far enough off from the fictional example described above. Before the pandemic, social media scanning software like Social Sentinel and Gaggle, along with free facial recognition technology deployed against existing school surveillance footage, gave school administrators near-total visibility into each student’s academic and private lives.
The pandemic, however, brought school surveillance home.
Remote schooling encouraged many school administrators to adopt wholesale introduction and use of proctoring software, all to ostensibly prevent students from cheating at home. The result, as the Electronic Frontier Foundation pointed out, was widespread home surveillance, student strikes, and pointed curiosity from federal lawmakers about the actual efficacy of the software. The reason: Proctoring software used machine learning to determine, based on facial features, noises in the background, and so on, whether or not each student was cheating. Consequently, many students in smaller, louder homes, or students who were neurodivergent and struggled to sit still, were erroneously flagged as cheaters.
The fundamental problem, as Barbara Fedders pointed out, is:
The creation and implementation of technologies for watching and policies for monitoring and control are premised on the notion that they achieve their intended purposes: improved learning outcomes and student safety. The safety imperative seems, as evidenced by state and federal legislative priorities, to be particularly pronounced. However, for many of these technologies, the evidence of efficacy is scant; others have not been tested at all. What is more, the technologies and policies can lead to problematic and unintended consequences that policymakers may not have fully considered.
Much of the administration of Gaggle and similar tools is left to school Information Technology Specialists, who have neither the training nor institutional capacity to know how to evaluate and respond to students who present with mental health problems.
In other words, educational surveillance technology, like proctoring software and classroom surveillance cameras, is frequently deployed long before anyone actually proves the problem it’s meant to fix really exists. Additionally, much of the technology employed is frequently dumped in the laps of overworked technology professionals, who certainly know how to turn it on and keep it in good working order but are frequently left to guess about how to properly interpret the data — or, worse yet, abuse their privileges.
Considering how poor a job increased student surveillance has done at keeping our children safe and keeping our children from cheating, I personally find it hard to believe that it would meaningfully reduce the amount of “critical race theory” taught in a single classroom — unless you trust IT professionals to recognize it when they hear it, just as they’re being asked to identify potentially dangerous or suicidal students. (Before you get your hopes up, you should probably read my thoughts on critical race theory and my bio at the end of this column.)
What do we do, then?
If you’re really concerned about your child’s curriculum, just check on their homework and talk to their teachers. Speaking from experience, teachers love it when parents actually make sure their students do their work.
If you’re concerned about your child’s privacy when they’re at school, on the other hand, learn both your and your child’s rights. Review the Electronic Frontier Foundation’s Spying on Students: School-Issued Devices and Student Privacy and read the Privacy Rights Clearinghouse’s Privacy in Education: Guide for Parents and Adult-Age Students. Additionally, learn about Nevada’s student privacy laws. Understand that you and your children do have fundamental rights to privacy, even on public school property, but many of them require your active participation to protect.
Most importantly, insist on holding elected officials accountable for their actions and preferred policies. Make them show their work — not only in terms of demonstrating the reality and seriousness of the harms they seek to solve, but also in the efficacy of the solutions they propose to address them. Policy outcomes don’t care about your intentions, after all, and they certainly don’t care about the intentions of a Twitter troll turned school trustee, either.
David Colborne was active in the Libertarian Party for two decades. During that time, he blogged intermittently on his personal blog, ran for office twice as a Libertarian candidate, and served on the Executive Committee for his state and county Libertarian Party chapters. He is now an IT manager, a registered non-partisan voter, and the father of two sons. You can follow him on Twitter @DavidColborne or email him at [email protected].