Privacy, as Judge Thomas Cooley described it, is “the right to be let alone” (1888, p. 29). Faculty members, as well as all university employees, may look to several sources—constitutional, statutory, and common law—as a basis for asserting their privacy rights. Insofar as the entry on the Fourth Amendment Rights of Faculty members focuses on issues surrounding searches of their persons, offices, and property, this entry highlights other concerns associated with the privacy rights of faculty members and other employees in institutions of higher education.
Constitutional privacy claims under the U.S. Constitution consist of two types. The first is informational privacy, which is breached when governmental officials release private information about individuals. Because a substantial number of federal laws address release of private information, claims for constitutional informational privacy are few, with potential plaintiffs apparently opting for specified claims under federal statutes. The second type of federal constitutional privacy is constitutional autonomy, a breech of which occurs when governmental actions interfere with highly private individual decisions.
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 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, 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.
Common Law Privacy
Common law privacy arises from tort claims that the judiciary has recognized. In fact, common law privacy is actually composed of four separate intentional tort claims: intrusion on seclusion, public disclosure of a private fact, placing another in a false light, and appropriation of another’s name or image.
Intrusion on Seclusion
Intrusion on seclusion occurs when one intrudes on another’s solitude or private affairs, where the other person had a reasonable expectation of privacy and others would agree that the intrusion is highly offensive. Most intrusion on seclusion claims in university settings come from investigations, and most are unsuccessful. For example, when a university administrator confiscated a researcher’s university-owned laptop to investigate a plagiarism charge, an appellate court in California affirmed the denial of the intrusion claim on the basis that the laptop was university property (Baughman v. State, 1995). In addition, the court was of the opinion that the officials did not violate the researcher’s rights, because the officials did not access or disclose any private information from the computer files. Another unsuccessful intrusion claim addressed the placement by campus security of a surveillance camera in an office area where a secretary had changed clothes and applied sunburn medication when she thought she was alone. Massachusetts’s highest court denied the secretary’s claim that officials invaded her privacy, because she did not have a reasonable expectation of privacy in the office area (Nelson v. Salem State College, 2006).
Public Disclosure of Private Fact
Public disclosure of private fact claims arise where one can prove that another gave publicity to a matter that would be highly offensive to a reasonable person, and the subject matter was not of legitimate public concern. Such a case arose when university officials informed the student newspaper that a facilities supervisor was one of three people who resigned after an investigation revealed use of university equipment for personal gain. When the supervisor sued a variety of defendants claiming publication of a private fact, an appellate court in New Jersey affirmed the denial of his claim on the basis that the investigation was not a private matter (Gallo v. Princeton University, 1995).
Placing Another in a False Light
False light privacy claims occur when one publicizes a matter in the private life of another, when the matter publicized would be highly offensive to the reasonable person, and when the actor had knowledge of or acted in reckless disregard concerning the falsity of the matter. An example of an unsuccessful false light claim involved a university faculty member who supposedly made anti- American comments in a political science course. A student alleged that the faculty member directed him to leave class; the student left the class because the instructor would not allow him to express an opinion that did not agree with the one the instructor espoused. The student subsequently contested the faculty member’s in-class statements by contacting a local newspaper, which published the student’s account. The faculty member then unsuccessfully filed a false light privacy claim against the newspaper and others. An appellate court in Georgia upheld the denial of the faculty member’s claim, because he had been unable to demonstrate that staff at the newspaper acted with actual malice in publishing the student’s version of the event (Sewell v. Trib Publications, 2005).
Appropriation of Another’s Name or Image
Appropriation occurs when one makes use of another person’s name or likeness for the first person’s benefit or purposes. The first of three cases of unsuccessful appropriations occurred in a relatively early dispute, where a faculty member objected to the use of his name on an updated version of a legal treatise. An appellate court in New York rejected the claim, noting that it was insufficient to state a claim for a prima facie tort or other form of intentional harm absent an allegation that the faculty member suffered any losses as a result of being named as editor of the book (Clevenger v. Baker Voorhis & Co., 1960). Similarly, in another early case, a university and its president unsuccessfully objected to the use of its name in a book and movie. New York’s highest court affirmed an earlier judgment denying the university’s request for an injunction seeking to prevent the release and distribution of a movie and book about its football team on the ground that appropriating its name, symbols, and reputation constituted commercial misappropriation, concluding that if any claim had been present, it should have been filed as libel (University of Notre Dame Du Lac v. Twentieth Century–Fox Film Corp., 1965). A final example of an unsuccessful claim against a university is supplied by Nemani v. St. Louis University (2000). The Supreme Court of Missouri rejected the claim of a faculty member who alleged that university officials submitted a grant in his name without his express knowledge or consent. Reversing an earlier order awarding the faculty member $300,000 in damages, the court ruled that a “collaborative research” clause in his employment contract implied that he granted university officials permission to use his name in the grant process.
As can be seen by the sampling of relevant litigation, most common law privacy claims brought against colleges and universities fail, because plaintiffs fail to prove each of the elements of their charges, or because the court recognizes public interest that outweighed their private interests.
See also Personnel Records
Cooley, T. M. (1888). A treatise on torts. Chicago: Callaghan & Co.
Baughman v. State, 45 Cal. Rptr. 2d 82 (Cal. Ct. App. 1995).
Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974).
Clevenger v. Baker Voorhis & Co., 199 N.Y.S.2d 358 (N.Y. App. Div. 1960).
Connecticut Privacy Act, Conn. Gen Stat. § 4-193. Eisenstadt v. Baird, 405 U.S. 438 (1972).
Equal Employment Opportunity Act, 42 U.S.C. §§ 2000e et seq.
Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g.
Gallo v. Princeton University, 656 A.2d 1267 (N.J. Super. Ct. App. Div. 1995).
Griswold v. Connecticut, 381 U.S. 479 (1965).
Health Insurance Portability and Accountability Act of 1996 (HIPAA), 29 U.S.C. §§ 1181 et seq.
Lawrence and Garner v. Texas, 539 U.S. 558 (2003).
Loving v. Virginia, 388 U.S. 1 (1967).
Meyer v. Nebraska, 262 U.S. 390 (1923).
Nelson v. Salem State College, 845 N.E.2d 338 (Mass. 2006).
Nemani v. St. Louis University, 33 S.W.3d 184 (Mo. 2000).
North Carolina Privacy Act, N.C. Gen. Stat. § 143-64.60.
Pierce v. Society of Sisters, 268 U.S. 510 (1925).
Privacy Act of 1974, 5 U.S.C. § 552a.
Roe v. Wade, 410 U.S. 113 (1973).
Sewell v. Trib Publications, 622 S.E.2d 919 (Ga. Ct. App. 2005).
University of Notre Dame Du Lac v. Twentieth Century–Fox Film Corp., 259 N.Y.S.2d 832 (N.Y. 1965).