Legal Matters

Facial recognition technology is starting to be considered for use in schools in a variety of ways. This technology isolates identifiable shapes and contours from photos of people’s faces to match those photos with people whose pictures may be accessed from—among other places—state drivers’ license databases and public social media accounts.

This technology is most likely known for its use with maintaining order and ensuring safety in schools; it could be used to identify sexual predators or school shooters. For example, a school might use this technology to regulate entry onto a campus by using a database of people who have been flagged as a potential danger. The Washington Post highlighted that “an expanding web of largely unknown security contractors is marketing face recognition directly to school and community-center leaders, pitching the technology as an all-seeing shield against school shootings like those at Parkland [FL] and Santa Fe [TX].” Facial recognition has also been used to monitor student attendance and to confirm that students are actually participating in online learning activities.

Although there are benefits with the use of this technology, several areas of concern have also emerged. For instance, could facial recognition technology be used to target specific groups of students? Might this then encourage students who are undocumented to avoid coming to school? Due to this concern and others, the American Civil Liberties Union (ACLU) has been engaged in a campaign to acquire public records in accordance with the Freedom of Information Act, including policies, contracts, and other records supporting government use of facial recognition and other technologies that potentially “enable undetectable, persistent, and suspicionless surveillance … permit[ting] the government to pervasively track people’s movements and associations in ways that threaten core constitutional values.”

The ACLU is not alone in its concern. In 2017, the U.S. Government Accountability Office’s recommendations to the U.S. Department of Justice and the FBI regarding privacy laws and accuracy in facial recognition technology were either dismissed or not fully implemented. Federal bills addressing these concerns have yet to gain traction, including attempts to encourage guidelines for such technology use. The House Committee on Oversight and Reform’s proposed exploration of national security risks posed by facial recognition software has been tabled until later this year. Some state and local governments, however, have successfully implemented bans on the use of facial recognition by police and government agencies. These actions relate to concerns that such technology compromises privacy and that flaws in its application disadvantage women, seniors, and people of color. According to Human Rights Watch, several studies suggest that facial recognition software can be less accurate for people of color and for women.

Legal Considerations in K–12 schools

Facial recognition technology as applied to students, school staff, or the privacy of school records remains a concern as well, although nobody has challenged its application in court yet. Nevertheless, this technology raises several legal questions that are worthy of exploration.

Constitutional Issues and Privacy. The American Bar Association notes that this technology may implicate the First Amendment right to freedom of association, which could create a chilling effect. For example, Muslim students who gather for prayer or students who assemble for a peaceful protest might be fearful of being recorded. Also, facial recognition includes a large amount of information about students, which might compromise their privacy. Under the Fourth Amendment, school officials need only reasonable suspicion to search a student. The sometimes disparate relationship between constitutional protections afforded the general citizenry and those applied inside the schoolhouse gates has been recognized in case law with certain deference granted to schools, both for the use of administrative practices to maintain order and in recognition of schools’ responsibilities to nurture and protect.

Specifically, the U.S. Supreme Court’s New Jersey v. T.L.O. decision requires that, in order for a search of a student to be reasonable in a public school, the search must merely be justified at its inception and also reasonable in scope. Courts have generally agreed, however, that surveillance recording in public schools does not constitute a constitutional violation when the recordings are done in public areas—e.g., hallways—where the students’ expectations of privacy are minimal. The use of facial recognition technology would arguably be considered more invasive than general surveillance because the software can look at faces captured by several cameras to calculate whether those faces match any person of interest that school officials identify.

State and Federal Laws. Forty-one states have passed laws that address student privacy, but a much smaller number of laws address biometric data in public schools. In New York, there was proposed legislation to prohibit facial recognition technology in all public schools until it is further studied. Additional states and cities are exploring this issue.

The Family Educational Rights and Privacy Act (FERPA), a federal law that protects students’ educational records, is a potential issue as well. The FERPA regulations define a biometric record as “one or more measurable biological or behavior characteristics that can be used for automated recognition of an individual”—fingerprints, retina patterns, facial characteristics, etc. Under FERPA, a video falls under the law’s protection if it directly relates to a student and is maintained by an educational agency. A video would directly relate to a student, for example, if school officials use the video for a disciplinary action involving a specific student or if it shows the student getting injured. School-related videos maintained by school officials are educational records and cannot be turned over to law enforcement without written consent or unless there is a health or safety emergency. Also, if law enforcement officials have a judicial order or a subpoena, a video might be shared. However, if law enforcement officials maintain the school’s surveillance video for law enforcement purposes, the videos would then not be considered educational records and would not be subject to FERPA.

Conclusion

At one time, there was public distress that using fingerprints to identify people invaded their privacy. The use of facial recognition raises new concerns, and there is not a lot of legal guidance on the matter. There is also the much larger question related to whose interests this new technology serves and at whose expense. If a school district adopts this technology, it will be necessary to ensure safeguards are in place to address the issues discussed. At the same time, school officials, courts, and policymakers need to strike the right balance in determining how this evolving technology will be used in schools.


Beth Godett, EdD, JD, is an adjunct professor at Indiana University, Rider University, and Fairleigh Dickinson University. She is a former school principal and superintendent. Suzanne E. Eckes, PhD, JD, is a professor at Indiana University in Bloomington, IN. She is also a co-author of Principals Avoiding Lawsuits and a past president of the Education Law Association.


References

Complaint, American Civil Liberties Union v. U.S. Dept. of Justice, No. 1:19-cv-12242 (D. Mass. Oct. 31, 2019).

34 C.F.R. § 99.3 (2019).

Government Accountability Office (2017, Mar. 22). Face recognition technology: DOJ and FBI need to take additional actions to ensure privacy and accuracy. GAO-17-489T, www.gao.gov/products/gao-17-489t.

Hamann, K. & Smith, R. (2019). Facial recognition technology: Where will it take us? ABA, www.americanbar.org/groups/criminal_justice/publications/criminal-justice-magazine/2019/spring/facial-recognition-technology.

Harwell, D. (2018, June). Unproven facial-recognition companies target schools, promising an end to shootings. The Washington Post, www.google.com/amp/s/www.washingtonpost.com/business/economy/unproven-facial-recognition-companies-target-schools-promising-an-end-to-shootings/2018/06/07/1e9e6d52- 68db-11e8-9e38-24e693b38637_story.html%3foutputType=amp.

S. B. A6787C, 2019-2020 Leg. Sess. (N.Y. 2020).

Steketee-Fox, A., & Solomon, J.D. (2019, Feb.). Surveillance cameras in school. District Administrator, https://districtadministration.com/surveillance-cameras-in-school.

St. Vincent, S. (2019, June 21). Facial recognition technology in U.S. schools threatens rights. HRW.org, www.hrw.org/news/2019/06/21/facial-recognition-technology-us-schools-threatens-rights#.

Weinstein, M. (2020, Jan. 1). School of surveillance: The students’ rights implications of artificial intelligence as K–12 public school security. North Carolina Law Review, 98(2), 438–479.