Privacy Rights of Faculty Members

Constitutional Autonomy

The concept of constitutional autonomy emerged from two Supreme Court cases in the 1920s, both of which were set in K-12 education: Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925). In these cases, the Court recognized a constitutional privacy right for parents to direct the upbringing of their children to learn a foreign language (Meyer) or to satisfy compulsory attendance laws by choosing to send their children to religiously affiliated nonpublic schools (Pierce). From these cases, constitutional autonomy grew to include many types of situations where the courts were convinced that the government had gone too far in interfering with highly private, personal decisions, such as whether one could marry a person of another race (Loving v. Virginia, 1967), whether one could have access to contraceptive devices (Eisenstadt v. Baird, 1972; Griswold v. Connecticut, 1965), whether a public school board as an employer could decide when pregnant faculty members could take their maternity leaves (Cleveland Board of Education v. LaFleur, 1974), whether one could have access to an abortion (Roe v. Wade, 1973), and whether states could prosecute [Page 355]persons for violating state antisodomy laws (Lawrence and Garner v. Texas, 2003). Where states have privacy clauses in their state constitutions, there is also potential for state claims for constitutional privacy. However, cases involving university personnel asserting violation of state constitutional privacy are rare.

Statutory Privacy

Statutory privacy, as its name implies, arises from legislative actions by the federal Congress and the state legislatures. Statutory privacy at the federal level is exemplified by protections provided by such measures as the Health Insurance Portability and Accountability Act of 1996, the Privacy Act of 1974, the Equal Employment Opportunity Act, and the Family Educational Rights and Privacy Act. Examples of state-level statutory privacy statutes include Connecticut's Privacy Act, which prohibits state agencies from collecting personal data beyond what is necessary for the agency's function and prohibits agencies from releasing personal data. In like fashion, North Carolina's Privacy Act prohibits public agencies from denying individuals rights, benefits, or privileges because they refuse to disclose their social security numbers.

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