In Louisiana, 9‐year‐old Ka Mauri Harrison was suspended after his teacher spied a BB gun in his bedroom during an online class. In Colorado, the mom of seventh grader Isaiah Elliott received a call from the vice principal of her son’s school telling her the police were on their way—his teacher had seen him playing with a toy gun. And in Baltimore County, Maryland, Courtney Lancaster’s home was searched by police after one of her fifth grade son’s teachers saw a BB gun behind him during online instruction.
“I felt violated as a parent, for my child, who’s standing there with police officers in his room, just to see the fear on his face,” said Lancaster.
COVID-19 has created huge disruptions in education, with none more seismic than the massive shift toward online schooling. There are many problems with this mode of delivery, but perhaps the most legally explosive is that on‐camera public school classes essentially open every child’s home to the scrutiny of government officials. That would seem to threaten bedrock constitutional protections against such intrusions as warrantless government searches.
As Chelsea Cusimano, a lawyer for the Harrison family said, “This family chose to do virtual learning. What they didn’t choose is to be opened up to Jefferson Parish to look into their home and judge what happens there, such as allowing a kid to have a BB gun.”
Unfortunately for the Harrisons, Elliotts, and Lancasters—and likely other families—the Fourth Amendment case law does not appear to protect things seen by teachers during online schooling.
Given the newness of nationwide K-12 distance learning, there are no legal precedents perfectly consistent with what has occurred to these children. But previous U.S. Supreme Court rulings suggest that what a teacher observes online is far more equivalent to putting something out for all to see than to a government search of a constitutionally protected area.
Perhaps the most apt precedent is California v. Greenwood (1988), in which homeowners objected to the use of evidence that police had found by searching trash bags they had left out in the street. The court accepted that the homeowners may have sincerely expected privacy in the trash bags but explained that it was not an expectation the public would find reasonable. It is common knowledge that trash bags left near a public street are easily accessible to animals, children, and snoops, and the homeowners placed the garbage near the curb to be picked up by a third party who might themselves have sorted through its contents.
Quoting another seminal case, Katz v. U.S. (1967), the court concluded, “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.”
This is in contrast to Kyllo v. U.S. (2001), in which the court ruled unconstitutional a police search that used thermal imaging to essentially see into a home. The court held that when the government employs a device that is not in use by the general public to explore details of an area that would have previously been inaccessible without physical intrusion, that surveillance is a search subject to Fourth Amendment limitations.
Essentially, whether or not one has a reasonable expectation of privacy determines whether what a government official sees constitutes an illegal search. In the case of an online class there is no such expectation.
Knowing that a public‐school teacher and other students are viewing your home is akin to leaving a trash bag out for collection—you know that the sights and sounds captured by your webcam are going to be easily accessible to others. And at this point, unlike a thermal‐imaging device, webcams and programs such as Zoom are in use by large masses of the public every day.
But even if authorities peering into your house and punishing children for what they find is not technically unconstitutional, it still seems like a major government intrusion. This is especially true in education, because government both compels parents to provide their children an education and to pay taxes for public schools. That basically forces millions of children into public schools, or more accurately today, forces millions of government eyeballs into kids’ homes.
The way to balance compulsory education, funding, and privacy is to allow families real education choice: options that do not require them to choose either use of their tax dollars or their privacy.
One way to do this is for public schools to offer both online and in‐person options during COVID-19. At least then families for whom the risk of getting COVID-19 is outweighed by privacy concerns can put privacy first. But there should be more than just that.
Truly fair and powerful choice, such as a voucher program or scholarship tax credit, enables families to take the money to educate their children to any school, public or private, that provides both the education and policies the family believes are best.
That means not just being able to choose in‐person instruction, but schools that might explicitly allow to be seen, on camera, items that might be forbidden in other schools.
Or schools that say teachers will only report things that they reasonably suspect indicate neglect or abuse, rather than, say, a “zero‐tolerance” policy even about toys.
In the brave, new world of online education we do not have all the constitutional protections against government intrusions we might think we should. But that does not mean we should give up on privacy. A great way to keep it would be to expand school choice.
Neal McCluskey directs the Center for Educational Freedom at the Cato Institute, where Mallory Reader is a legal associate in the Robert A. Levy Center for Constitutional Studies.
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