Emerging technologies, ranging from genetic testing to data mining to online social networking, have given rise to privacy concerns that affect not only students but society generally. With millions of students using sites such as Facebook and MySpace, the boundaries between public and private have shifted. As privacy is redefined in the light of scientific innovations, college students may look to several sources to assert their privacy rights, including federal and state constitutions, federal and state statutes, and the common law. This entry reviews the constitutional rights, legislation, and common law that provide the foundation for privacy claims that relate to issues of students at institutions of higher education.
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. In the world of intercollegiate sports, student athletes have, with limited success, challenged the use of drug testing as a condition for participation. In the one case where students successfully challenged the use of drug testing, University of Colorado Through Regents of University of Colorado v. Derdeyn (1993), they did so on the basis that the practice violated their constitutional right to privacy, because no important governmental interest supported the underlying policy.
In an emerging area where law, technology, and campus life intersect, growing numbers of colleges and universities are adopting video surveillance as a means to ensure safety for faculty, staff, and students. As the practice becomes more widespread, it is likely that some will raise privacy issues in the event that institutional officials are not careful in terms of where they place such equipment.
There have been few claims filed to date over social networking sites that are so commonly used by college students and others. In one such case, Snyder v. Millersville University (2008), a student teacher was dismissed from her assignment due to what university and school district officials deemed were inappropriate postings on her MySpace page. The teacher challenged her dismissal as an alleged violation of her First Amendment right to free speech, but it is possible that privacy issues will emerge in this growing area.
In addition to federal claims, many jurisdictions include privacy clauses in their state constitutions. For example, the constitution of the State of Washington promises that “no person shall be disturbed in his private affairs, or his home invaded, without authority of law.” Although there is potential for state claims for constitutional privacy under state constitutional provisions, claims involving college and university students are rare.
Statutory privacy originates in actions by the U.S. 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, which governs medical records; the Americans with Disabilities Act, which addresses the extent to which individuals with disabilities must inform college and university officials about how to accommodate their needs; and FERPA.
Examples of state-level statutory privacy laws include Utah’s Governmental Internet Information Privacy Act, which limits the collection of personally identifiable information by postsecondary institutions and other governmental entities. Similarly, Connecticut’s Privacy Act, which prohibits state agencies from collecting personal data beyond what is necessary for their function, also forbids agencies from releasing personal data.
Common Law Privacy
Common law privacy arises from tort claims that judges have recognized. 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 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. A successful intrusion claim occurred in Doe v. High-Tech Institute (1998), in which a student filed suit after consenting to a blood test for rubella but was instead given a test for AIDS, which confirmed that he had the latter disease. An appellate court in Colorado ruled that the student could recover damages for both intrusion on seclusion and unreasonable disclosure of private facts, insofar as he was subjected to a test without his knowledge, and the results were made available to others without his consent.
Conversely, a federal trial court in North Carolina rejected the intrusion claim that a student filed against a coach in Jennings v. University of North Carolina (2004). In granting a motion for summary judgment in favor of the coach and university officials, a federal trial court was of the opinion that the coach’s asking members of the soccer team about their sex lives neither violated the plaintiff’s right to privacy not was actionable under Title IX of the Education Amendments of 1972 as a form of sexual harassment. However, on further review, the Fourth Circuit found that if proven, the coach’s actions could serve as the basis for liability under Title IX (Jennings v. University of North Carolina, 2007). At the same time, three courts rejected motions for summary judgment in disputes in which there were allegations of rape or sexual harassment because they were satisfied that there was sufficient evidence on which to permit the cases to proceed to trial (Kelley v. Troy State University, 1996; Liu v. Striuli, 1999; Simon v. Morehouse School of Medicine, 1995).
Public disclosure of private fact claims occur where one can prove that another publicized a matter that would be highly offensive to a reasonable person and that is not of legitimate concern to the public. In Cantu v. Rocha (1996), a student unsuccessfully sued university officials for public disclosure of a private fact arising out of events that occurred at a party that was conducted by the criminal justice club at a university in Texas. When the student alleged that she was sexually assaulted at the party, and university police were called to the scene, she claimed that the investigating officer violated her rights by commenting to witnesses at the party about his summarized impressions of her testimony. Insofar as the witnesses were in the process of disclosing the same information to the investigator, the court decided that he did not commit a public disclosure of a private fact.
False light privacy claims occur when one publicizes a matter in the private life of another, when the matter that was disclosed would be highly offensive to a 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 was included in a counterclaim in a dispute wherein a graduate student in Illinois filed suit against a faculty member for sexual harassment. In response, the faculty member counterclaimed that the student may have engaged in an affair with a colleague. The Seventh Circuit affirmed that because the faculty member who filed the report acted within the scope of his employment in reporting the possibility of the affair, there was no basis for the graduate student’s invasion of privacy claim (Shockley v. Svoboda, 2003). The court added that the student could not try to sue under Section 1983, which is designed to protect those whose civil rights have been violated, to enforce the nondisclosure provisions of FERPA, because the latter statute simply does not allow for such claims to proceed.
Appropriation occurs when one makes use of another person’s name or likeness for the first person’s benefit or purposes. An example of appropriation occurred in a relatively early case 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, pointing out 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). Apparently no appropriation cases involving college or university students have been reported. However, in light of the increasing use of technology for teaching and for student social networking, it is possible that appropriation claims will become more common on college and university campuses.
David L. Dagley
See also Drug Testing of Students; Fourth Amendment Rights of Students
Jones, H., & Soltren, J. H. (2005). Facebook: Threats to privacy. Retrieved May 27, 2009, from http://groups.csail.mit.edu/mac/classes/6.805/student-papers/fall05-papers/facebook.pdf
Russo, C. J. (2009). Social networking sites and the free speech rights of school employees. School Business Affairs, 75(4), 38–41.
Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq.
Cantu v. Rocha, 77 F.3d 795 (5th Cir. 1996).
Civil Rights Act of 1871, Section 1983, 42 U.S.C. § 1983.
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.
Doe v. High-Tech Institute, 972 P.2d 1060 (Colo. Ct. App. 1998).
Eisenstadt v. Baird, 405 U.S. 438 (1972).
Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g.
Griswold v. Connecticut, 381 U.S. 479 (1965).
Health Insurance Portability and Accountability Act of 1996, 29 U.S.C. §§ 1181 et seq.
Jennings v. University of North Carolina, 340 F. Supp. 2d 666 (M.D.N.C. 2004), 482 F.3d 686 (4th Cir. 2007), cert. denied, 128 S. Ct. 247 (2007).
Kelley v. Troy State University, 923 F. Supp. 1494 (M.D. Ala. 1996).
Lawrence and Garner v. Texas, 539 U.S. 558 (2003).
Liu v. Striuli, 36 F. Supp. 2d 452 (D.R.I. 1999).
Loving v. Virginia, 388 U.S. 1 (1967).
Meyer v. Nebraska, 262 U.S. 390 (1923).
Pierce v. Society of Sisters, 268 U.S. 510 (1925).
Roe v. Wade, 410 U.S. 113 (1973).
Shockley v. Svoboda, 342 F.3d 736 (7th Cir. 2003).
Simon v. Morehouse School of Medicine, 908 F. Supp. 959 (N.D. Ga. 1995).
Snyder v. Millersville University, 2008 WL 5093140 (E.D. Pa. 2008).
University of Colorado Through Regents of University of Colorado v. Derdeyn, 863 P.2d 929 (Colo. 1993).
Utah Governmental Internet Information Privacy Act, Utah Stat. 63D-2-101 et seq. (1953).
Wash. Const. Article I, Section 7 (1889).