Privacy Rights of Students

Constitutional Privacy Claims

Privacy claims under the U.S. Constitution are of two types. Informational privacy is breached when government officials release private information about individuals. Insofar as a substantial number of federal statutes now protect against the release of private information, claims for informational privacy under the federal Constitution are relatively few. Related constitutional claims arise out of concerns associated with student privacy under the Fourth Amendment in areas such as drug testing of student athletes, video surveillance, and possibly student use of social networking sites. The second type of federal privacy claim is constitutional autonomy, a breach of which occurs when governmental officials interfere with highly private, individual decisions.

The legal construct of constitutional autonomy emerged from two U.S. 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, whether to learn a foreign language, which was addressed by the former case, or to satisfy compulsory attendance laws by choosing to send their children to religiously affiliated nonpublic schools, addressed in the latter. 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 school 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), or whether states could prosecute persons for violating state antisodomy laws (Lawrence and Garner v. Texas, 2003). Although there apparently has been no reported litigation on this topic, students could certainly make a constitutional claim opposing the release of any records, especially to their parents, relating to health services that they might obtain on campus, such as for pregnancy, sexually transmitted diseases, or alcohol abuse. Such a dispute would probably be litigated as a constitutional rather than statutory claim under the Family Educational Rights and Privacy Act (FERPA), which controls educational records, because it is unlikely that such information would be viewed or treated as educational in nature.

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