, the coalition expressed concerns that AI-enabled student monitoring tools could foster discrimination against marginalized groups, including LGBTQ+ youth and students with disabilities. The Education Department’s Office for Civil Rights should issue guidance on the appropriate uses of emerging classroom technologies, the lawmakers wrote, and crack down on practices that run afoul of existing federal anti-discrimination laws. 

“While the expansion of educational technology helped facilitate remote learning that was critical to students, parents and teachers during the pandemic,” the lawmakers wrote, “these technologies have also amplified student harms.”&�Բ�����;

Lawmakers asked the Education Department’s civil rights office whether it has received complaints alleging discrimination facilitated by education technology software and whether it has taken any enforcement action related to potential civil rights violations. 

The letter comes in response to a recent national survey of educators, parents and students, the findings of which suggest that schools’ use of digital tools to monitor children online have based on their race, disability, sexual orientation and gender identity. The survey, conducted by the nonprofit Center for Democracy and Technology, found that while activity monitoring has become ubiquitous in schools and is intended to keep students safe, it’s used regularly as a discipline tool and routinely brings youth into contact with the police.

Findings from the CDT survey, lawmakers wrote, “raise serious concerns about the application of civil rights laws to schools’ use of these technologies.” Letter signatories include Democratic Reps. Lori Trahan of Massachusetts, Sara Jacobs of California, Hank Johnson of Georgia, Bonnie Watson Coleman of New Jersey and Adam Schiff of California. Trahan, who serves on the House Energy and Commerce Committee’s Innovation, Data and Commerce Subcommittee, has previously called for tighter student data privacy protections in the ed tech sector. 

The monitoring tools, such as those offered by for-profit companies GoGuardian and Gaggle, rely on artificial intelligence to sift through students’ online activities and flag school administrators — and sometimes the police — when they discover materials related to sex, drugs, violence or self-harm. 

Two-thirds of teachers reported that a student at their school was disciplined as a result of activity monitoring and a third said they know a student who was contacted by the police because of an alert generated by the software. 

Children with disabilities were more likely than their peers to report being watched, and special education teachers reported heightened rates of discipline as a result of activity monitoring. The findings, researchers argue, that entitle children with disabilities equal access to an education. Even beyond the technologies, students with disabilities are subjected to disproportionate levels of school discipline, including restraint and seclusion, when compared to their general education peers. 

Half of all students said their schools responded fairly to alerts generated by monitoring software, a sentiment shared by just 36% of LGBTQ+ youth. In fact, LGBTQ+ youth were more likely than their straight and cisgender peers to report that they or someone they know was disciplined as a result of monitoring. And nearly a third of LGBTQ+ youth reported that they or someone they know was outed because of the technology. 

More than a third of teachers said their school monitors students’ online behaviors outside of school hours — and sometimes on their personal devices. 

In a similar student survey, released this month by the American Civil Liberties Union, a majority of respondents expressed worries that the monitoring tools — despite being designed to keep them safe — could actually cause harm and a third said they “always feel” like they’re being watched. 

����Ӱ�� has reported extensively on schools’ use of digital surveillance tools to monitor students’ online behaviors, and the tools’ implications for youth civil rights. The company Gaggle previously flagged to administrators student communications that referenced LGBTQ+ keywords like “gay” and “lesbian.” The company says it halted the practice last year in the wake of pushback from civil rights activists. 

Given the survey findings, the lawmakers urged the Education Department to clarify “how educators can fulfill their civil rights obligations” as they develop policies related to artificial intelligence, whose rapidly evolving role in education more broadly — including students’ use of tools like ChatGPT — has become a topic of debate. 

“This research is particularly concerning due to linkages between school disciplinary policies and incarceration rates of our nation’s youth,” the coalition wrote, adding concerns that the tools can create hostile learning environments. 

Reeled in by deceptive, fear-based marketing and an influx of federal cash, school leaders have purchased and pervasively deployed student surveillance tools while failing to consider their detrimental consequences to young people’s civil rights, a new ACLU report concludes. 

In a youth survey accompanying the , a majority of students expressed worries that the tools — designed to keep them safe — could actually cause harm and a third said they “always feel” like they’re being watched. 

The 61-page report, titled “Digital Dystopia,” also offers an in-depth look at the rise of schools’ reliance on surveillance technology over the last few decades, arguing the tools have failed to improve campus safety while subjecting students — particularly students of color and those who are undocumented, LGBTQ or from low-income households — to discrimination. 

“The ed tech surveillance companies, after fanning the flames of fear, were making these broad statements about the efficacy of their products, about their ability to keep students safe” from threats like school shootings and suicide, despite a lack of evidence to back up their claims, report lead author and ACLU senior policy counsel Chad Marlow told ����Ӱ��. 

Rather than making kids safe, Marlow said, the tools could be damaging to their development and well-being. “The harm is actually significant and, by not acknowledging the harms that are caused, there’s less incentive to look at other interventions,” he said.

Three-quarters of students worry about at least one negative consequence of student surveillance, which includes the widespread proliferation of digital tools that monitor their online communications for references to sex, drugs, violence or self-harm, according to the online survey. Commissioned by the ACLU, the polling firm YouGov queried 502 teens throughout the country in October 2022. Nearly a quarter of respondents said that digital monitoring tools limit the resources they feel they can access online while a similar percentage worried the information collected about them could be shared with the police or be used against them in the future by a college or an employer. Some 27% feared the tools could be used for disciplinary purposes.

As a result, students alter their behaviors due to fears that “deviating from expectations is punishable in the world that they’re growing up in,” Marlow said. “What does that tell them about innovation or exploring new ideas?”

Survey findings , released last month by the nonprofit Center for Democracy and Technology, which found that while a majority of parents and students still embrace digital tools that monitor students’ online behaviors, their support has dwindled over the last year. 

Both reports identified detrimental effects of digital surveillance that researchers said run counter to federal civil rights laws that protect students from discrimination based on race, disability, sexual orientation or gender identity. 

In the student survey conducted by the Center for Democracy and Technology, researchers found that while districts bought digital monitoring tools to keep students safe, they are used regularly as discipline tools that routinely bring youth in contact with the police. LGBTQ+ youth and those with disabilities were significantly more likely to experience the harms of surveillance. For example, 65% of LGBTQ+ youth said they or someone they knew got into trouble due to online activity monitoring, compared to 56% of their straight and cisgender peers. Meanwhile, nearly a third of LGBTQ+ students said that they or someone they know has been “outed” by the technology.

In the absence of rigorous, independent research on the efficacy of school surveillance tools to improve campus safety, the ACLU report argues that schools are left to make purchasing decisions based on what the group called fear-based marketing tactics. Security companies hype the risks of school violence and student self-harm while overstating the utility of their products, the report says. Security industry lobbying efforts, meanwhile, have successfully steered hundreds of millions of dollars in government school safety spending toward unproven technologies. 

“It would be like going to buy a car and the only source of information is the car salesperson,” Marlow said. “That’s probably not the best way to make a car purchasing decision, but that’s what’s happening with student surveillance.”&�Բ�����;

The Security Industry Association, a trade group that represents security companies and lobbies on their behalf, didn’t immediately respond to a request for comment. 

The ACLU survey results suggest, however, that students have a complicated relationship with school surveillance: While recognizing its potential harms, many also believe it serves its intended purpose. Specifically, 40% of students reported that surveillance technology makes them feel “safe” and 43% said it makes them feel “protected.” Meanwhile, just 14% said it makes them feel “anxious” and a fraction of respondents, 7%, said the tools made them feel “unsafe.”&�Բ�����;

Marlow said this support may be the result, at least in part, of successful marketing and a belief that few other options exist. 

“​​When you talk about keeping students safe, I think students are smart enough to realize that in too many places in this country, gun control is off the table,” he said. “Because of the dominance of money and power of the ed tech surveillance industry,” that’s used in marketing and lobbying, “the discussion is almost entirely centered around, ‘Do we use or do we not use student surveillance technologies?’ while alternatives like mental health screenings fail to receive similar consideration. “In that option, between a highly questionable, harmful protection or nothing at all, no one wants to pick nothing at all.”&�Բ�����;

While the report focuses largely on digital tools that monitor students’ behaviors online, it also questions the efficacy of surveillance cameras in creating physical safety for students in schools. Cameras have become nearly ubiquitous, with them in the 2019-20 school year, according to the most recent data included in a U.S. Department of Education report released last month. 

Meanwhile, just 55% of schools offered students mental health assessments, according to the most recent federal data, and 42% offered mental health treatment services. 

Despite a sharp rise in schools’ reliance on surveillance and other tools in the last two decades, the number of school shootings has grown. 

There were a record 188 school shootings resulting in injuries or deaths in the 2021-22 school year, according to the federal report. That’s twice as many shootings on campus than the previous record — set just one year earlier. Placing security cameras in schools, Marlow argues, has failed to deter the very crimes they were installed to prevent. In an ACLU analysis of the 10 deadliest school shootings in the last two decades, for example, researchers found that surveillance cameras were present for eight, including in Parkland, Florida, and Uvalde, Texas. 

Along with scrutiny from researchers and civil rights groups, schools’ use of digital monitoring tools has led to several lawsuits alleging they’re ineffective and violate students’ civil liberties. 

In one class-action lawsuit, filed this year in California, the parents of two students claim the student surveillance company and sold the information to targeted advertising vendors without their knowledge or consent. 

A separate federal negligence lawsuit, filed in 2021 in Oklahoma, of being ineffective at keeping kids safe from self-harm. The lawsuit, filed by the parents of a 15-year-old boy who died by suicide, accuses the surveillance company and the state’s third-largest school district of failing to act on warning signs that could have prevented the teenager’s 2019 death. 

The student submitted a “personal odyssey” essay in his freshman English class that was riddled with references to self-harm and suicide, but his teacher failed to act, the complaint alleges, giving him a grade of 100%. The district used Gaggle to identify and flag troubling student digital communications, including references to self-harm and suicide. Yet the lawsuit alleges the company “failed to notify school administration” about the student’s warning signs, including the essay titled “Running Out of Reasons” and an email with a classmate where the two contemplated a plan to “go out at the same time.”

A Gaggle spokesperson didn’t immediately respond to a request for comment. Securly spokesperson Josh Mukai called the lawsuit “baseless and uninformed.”

“Securly has never sold student data to third parties, nor have we ever used student data to target advertisements,” Mukai said in an email. “Securly’s suite of student safety solutions upholds the highest standards for student data privacy and complies with all international, federal and state privacy regulations.”

The law, known by many as the “divisive concepts” law after an earlier title, bars New Hampshire educators from teaching that a person in one protected class is inherently superior to another, inherently racist, or inherently oppressive, even unconsciously, and it prohibits teaching that an individual should be treated differently for one of those characteristics.

Supporters have said the law stops teachers from tailoring lessons against one race or gender. But teachers and public education advocates say it suppresses the ability to present nuanced lessons about history and could lead to unfair punishments, including the loss of educators’ credentials.

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Wednesday’s oral argument was the first in the lawsuit, in which the ACLU, the American Federation of Teachers of New Hampshire, the National Education Association of New Hampshire, and others are seeking to overturn the law in federal court.

Here’s what Judge Paul Barbadoro said in court – the U.S. District Court for the District of New Hampshire – and what it could mean for the future of the case.

A question of vagueness

At the crux of the case is vagueness: Plaintiffs argue the law is so vague that it is not possible to follow – and violates the 14th Amendment. Attorneys for the ACLU and the American Teachers Federation have said the law does not make clear what might be prohibited and what might not be – even with a frequently asked questions document released by the Attorney General’s Office last year.

The Attorney General’s Office argues that the guidance document – when combined with the statute – undermines the claims of vagueness.

The U.S. Supreme Court has held that some statutes can be so vague that they are unconstitutional. But exactly how far that principle applies to the “banned concepts” law could determine this case, Judge Barbadoro indicated Wednesday. Plaintiffs have chosen a high stakes strategy: They argue that the statute is “facially vague,” meaning that the statute is unconstitutional in all its applications and should be struck down entirely. They are not attempting to argue that it is vague “as applied,” a narrower standard.

“Facial challenges like this one are much harder to establish than an ‘as applied’ challenge,” Barbadoro told the court. It would be easier, he said, to decide that the law is unconstitutional if plaintiffs had brought a real case of a teacher facing discipline because of an inability to decipher the law. No decided cases so far exist, though the Attorney General’s Office that one charge is currently pending before the New Hampshire Commission for Human Rights.

“The plaintiffs cannot win merely by positing bizarre hypotheticals saying it might be vague in that context,” Barbadoro said.

But Barbadoro also appeared skeptical of the state’s argument that because the statute could be understood in one way, it was not unconstitutionally vague, citing an opinion by Justice Antonin Scalia  in the 2015 case

“A statute is not vague if it is vague in a single application that has no real bearing to the issues that the court addresses,” he said. “But it doesn’t have to be vague in all respects.”

One clause of the “banned concepts law came under particular scrutiny Wednesday. The law states: “That people of one age, sex, gender identity, sexual orientation, race, creed, color, marital status, familial status, mental or physical disability, religion, or national origin cannot and should not attempt to treat others without regard to age, sex, gender identity, sexual orientation, race, creed, color, marital status, familial status, mental or physical disability, religion, or national origin.”

Barbadoro brought up the fourth concept, asking for clarity.

An attorney for the state, Sam Garland, agreed that the “triple negative creates a problem.” He said that the clause is meant to prevent teachers from advocating that “colorblind” treatment of classes of people is not possible. But throughout the back and forth, the two at times became confused.

“(That) you and I are having so much trouble even communicating about the fourth concept may tell us a lot…,” Barbadoro said. “If we’re having this much trouble, do you think a person of ordinary intelligence (could interpret it)?”

A missing ‘scienter’ requirement

Meanwhile, the state’s case could be complicated by one one missing phrase from the “banned concepts” law: a “scienter” clause, Barbadoro said.

Nowhere in the new anti-discrimination law does the statute state that a teacher must have violated the statute “knowingly,” “intentionally,” “recklessly,” or in any particular state of mind. That type of clause, known as scienter clause, is often added to criminal statutes in order to set a standard for “mens rea”: the mindframe of the defendant, which can then determine whether they’ve violated the statute.

The “banned concepts” law is not a criminal statute, but without the clause, a teacher could be found in violation of teaching one of the banned concepts without directly meaning to or having any awareness of it, Barbadoro said. The absence of the clause, he added, makes the case that the statute is too vague slightly stronger.

“The Attorney General’s Office is saying to educators, or people who offer sensitivity trainings, that if you do something that implies that a banned concept is true, you could be disciplined for violating the statute,” Barbadoro said. “That’s how the attorney general interprets the statute, and that seems to broaden it quite expansively, especially when there is no scienter requirement.”

Barbadoro said that educators could be potentially avoiding advocating a banned concept but find themselves afoul of the law anyway.

“That’s where my core concern is,” he said.

A lawyer for the Attorney General’s Office pushed back, arguing that the “frequently asked questions” make it clear to teachers which types of lessons can and cannot be taught.

A teacher’s right to speech

Plaintiffs are also attempting to argue that the “banned concepts” law violates a teacher’s freedom of speech. On that point, Barbadoro said, they may have an uphill battle.

The success of the First Amendment argument could hinge on Barbadoro’s reading of , a 2006 Supreme Court case that held that public employees do not have First Amendment rights for speech they give during their official duties. In that case, the Supreme Court ruled that a California prosecutor did not have a First Amendment protection after he was transferred to a different position after criticizing a sheriff’s deputy’s search warrant affidavit.

On its face, that and other cases would seem to bind teachers’ free speech rights in the classroom, Barbadoro said.

“The school board at the local level and DoE at statewide level have unlimited ability to impose any restriction on teaching, as long as it serves a legitimate pedagogical purpose,” Barbadoro said, addressing the state’s attorney.

Barbadoro said that case law has afforded “academic freedom” to professors and teachers in higher education, but that that principle is much more limited when it comes to elementary and secondary school teachers.

But Barbadoro also noted that there are limits to teachers’ official duties. Citing a Supreme Court decision this year, , in which the court held that a school should not have fired a high school football coach who led his players in prayer after games, Barbadoro noted that the court had drawn lines around conduct seen to be outside the educator’s official school role.

“I don’t think they lose that right entirely,” he said, speaking about the First Amendment. “They can’t teach what the curriculum says they can’t teach. But outside of the classroom, it’s entirely different.”

Severability

At one point in the hearing, Garland, with the Attorney General’s Office, raised a little-discussed piece of the “banned concepts” legislation: the severance clause.

“If any provision… is held to be invalid, the remainder of such sections, and their application to any other persons or circumstances shall not be affected thereby,” the bill that contains the law, , states.

The proposal – and the state’s mention of it – raises the possibility that the law could be abridged by a future court decision, and made narrower.

Barbadoro blocked the suggestion from being discussed, arguing it would not be fair to the plaintiffs.

“We may have to confront severance later down the road,” Barbadoro replied. “But I don’t feel like the plaintiffs have to respond to this.”

But elsewhere during oral argument, Barbadoro was skeptical of the notion that his ruling should help interpret the statute to make it workable.

“A judge can’t and shouldn’t try to save the statute,” he said. “…It’s either vague or it isn’t. I just have to say what it means. If I said that it meant only conduct that expressly advocates and not anything by implication, it would be a far narrower statute and of far less concern to the plaintiffs. But that’s not what the statute says.”

Next steps

Wednesday’s hearing is only the start in a potentially years-long process. The plaintiffs are requesting that the judge grant a full hearing and limited discovery. The Attorney General’s Office is pushing for the motion to be dismissed before that can happen.

In his closing remarks, Barbadoro noted his heavy workload, and said his decision would come sometime between 60 and 90 days. If he grants the motion to dismiss, the plaintiffs may appeal. If he denies the motion to dismiss, Barbadoro said he would intend to set up a short discovery period so the hearing can happen relatively quickly.

For the plaintiffs, that discovery could prove key: At a press conference after the hearing, attorneys for the ACLU said it could provide more information into how the law is being interpreted and enforced by the five bodies that can take up complaints: the Department of Education, the Department of Justice, the Department of Labor, the New Hampshire Commission for Human Rights, and the Superior Court system.

“We’re gonna be looking for complaints and how they’ve been adjudicated and the nature of the Department of Education’s involvement,” said Gilles Bissonnette, legal director of the ACLU of New Hampshire.

is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. New Hampshire Bulletin maintains editorial independence. Contact Editor Dana Wormald for questions: info@newhampshirebulletin.com. Follow New Hampshire Bulletin on and .

Late Thursday, Chief U.S. District Judge Mark Walker issued a preliminary injunction in a suit challenging the employer portion of Florida’s Stop W.O.K.E. Act, suspending enforcement of the law in the workplace. The Obama-nominated judge wrote in his Honeyfund v. DeSantis : 

“In the popular television series Stranger Things, the ‘upside down’ describes a parallel dimension containing a distorted version of our world. Recently, Florida has seemed like a First Amendment upside down. Normally, the First Amendment bars the state from burdening speech, while private actors may burden speech freely. But in Florida, the First Amendment apparently bars private actors from burdening speech, while the state may burden speech freely.”

A separate lawsuit filed Thursday morning challenges the portion of the law that applies to colleges and universities.

A federal lawsuit filed Thursday charges that a Florida law designed to “fight back against woke indoctrination” by limiting classroom discussions of race and gender violates the constitutional free speech rights of college students and professors.

Florida’s Stop Wrongs Against Our Kids and Employees (Stop W.O.K.E.) Act took effect July 1. It prohibits workplaces and schools from requiring training or instruction that may make some people feel they bear “personal responsibility” for historic wrongdoings because of their race, gender or national origin.

But Jerry Edwards, staff attorney with the ACLU of Florida, one of the legal organizations behind the case, said the law unconstitutionally censors the free expression of higher education students and educators.

“The Stop W.O.K.E. Act is a shameful result of propaganda and fearmongering,” he said in a statement. “A free state does not seek to curtail the inalienable right to free expression in its college and university classrooms.”

The Florida Department of Education did not respond to multiple requests for comment.

Florida is one of 17 states that have sought to restrict how educators cover topics related to race and gender, according to a . 

However, it’s the only state that applies its censorship law to higher education, said Leah Watson, senior staff attorney with the American Civil Liberties Union’s Racial Justice Program.

“There is a longstanding history in the Supreme Court and courts across our country of recognizing the freedom of professors, lecturers and educators in higher education to determine what to teach and how to teach it,” she told ����Ӱ��. 

Seven Florida professors and one undergraduate are named as plaintiffs, represented by the national ACLU, ACLU of Florida, NAACP Legal Defense Fund and the law firm of Ballard Spahr. The suit names the state university system’s board of governors and several other officials as defendants. It requests an injunction seeking an immediate halt to enforcement of the bill in colleges and universities.

Plaintiff Russell Almond is an associate professor teaching statistics at Florida State University and covers how to use race as a variable in empirical research. Provisions in the Stop W.O.K.E. Act that prohibit educators from presenting “colorblind” ideologies as racist put his teachings in jeopardy, the lawsuit charges.

Another professor, Dana Thompson Dorsey, will teach a course in “Critical Race Studies: Research, Policy and Praxis” at the University of South Florida this school year. She fears that explaining how racism is embedded in American institutions — a central aspect of the scholarly framework — could put her in violation of the law. While the Sunshine State does not explicitly ban Critical Race Theory, Gov. Ron DeSantis’s office has said the law is intended to .

“In Florida, we will not let the far-left woke agenda take over our schools and workplaces. There is no place for indoctrination or discrimination in Florida,” DeSantis said after he signed the bill into law in April.

The act forces many educators to present foundational principles of their disciplines in a “false light,” presenting them as “disputed when it’s honestly not,” said Watson. 

Plaintiff Johana Dauphin, a senior at Florida State University, worries that she will be ill prepared for graduate school if the law interferes with her professors’ ability to convey key understandings that students in other states receive.

“I fear that this law will cause my professors to avoid discussing race and gender altogether, which will result in my perspective and lived experience as a Black, female student being effectively minimized and erased in the classroom,” said Dauphin. “As a student, I deserve to see myself and the issues that impact me — including issues around race and gender — reflected in my classroom discussions.”

Thursday’s filing marks the third lawsuit the ACLU has brought against a statewide censorship law. Similar cases in Oklahoma and have yet to be decided.

A previous legal challenge seeking to prevent the Stop W.O.K.E. Act from taking effect was dismissed by a federal judge in June. Chief U.S. District Judge Mark Walker clarified in a 23-page order that he was not “determining whether the challenged regulations are constitutional, morally correct or good policy.” Rather, the four plaintiffs — two professors, a student and a diversity, equity and inclusion consultant — .

Other lawsuits challenging the Florida law remain undecided. At an early August hearing, Walker appeared to arguments leveled against the state by several businesses, including a Ben & Jerry’s franchise. The federal judge emphasized the vagueness of a particular section that labels training discriminatory if it causes an employee to believe a person of “one race, color, sex, or national origin cannot and should not attempt to treat others without respect to race, color, sex or national origin.”

“Apparently, I’m a person of below-average intelligence, because I have no idea what that means,” said Walker.

John Ohlendorf, an attorney representing the state, defended the provisions: “The state of Florida has a compelling interest in preventing employers from forcing employees to listen to speech that suggests one race is inherently superior to another.”

The case brought Thursday is “framed differently” than prior challenges, Watson said. It has yet to be assigned, but it’s possible Walker could be the one to review it. Should that happen, the ACLU hopes for a speedy ruling, as he has moved in a matter of weeks on previous decisions around the bill. 

“We’re confident the Stop W.O.K.E. Act unconstitutionally infringes upon academic freedom and students’ right to learn,” said Watson. “I’m not able to comment predicting what the court may say.”

Since the pandemic began, Baltimore City Public Schools officials have with GoGuardian, a digital surveillance tool that promises to identify youth at risk of harming themselves or others. When GoGuardian flags students, their online activities are shared automatically with school police, giving cops a conduit into kids’ private lives — including on nights and weekends.

Such partnerships between schools and police appear startlingly widespread across the country with significant implications for youth, according to . Nearly all teachers — 89% — reported that digital student monitoring tools like GoGuardian are used in their schools. And nearly half — 44% — said students have been contacted by the police as a result of student monitoring. 

The pandemic has led to major growth in the number of schools that rely on activity monitoring software to uncover student references to depression and violent impulses. The tools, offered by a handful of tech companies, can sift through students’ social media posts, follow their digital movements in real-time and scan files on school-issued laptops — from classroom assignments to journal entries — in search of warning signs. 

Educators say the tools help them identify youth who are struggling and get them the mental health care they need at a time when youth depression and anxiety are spiraling. But the survey suggests an alternate reality: Instead of getting help, many students are being punished for breaking school rules. And in some cases, survey results suggest, students are being subjected to discrimination. 

The report raises serious questions about whether digital surveillance tools are the best way to identify youth in need of mental health care and whether police officers should be on the front lines in responding to such emergencies. 

“If we’re saying this is to keep students safe, but instead we’re using it punitively and we’re using it to invite law enforcement literally into kids’ homes, is this actually achieving its intended goal?” asked Elizabeth Laird, a survey author and the center’s director of equity in civic technology. “Or are we, in the name of keeping students safe, actually endangering them?”

Among teachers who use monitoring tools at their schools, 78% said the software has been used to flag students for discipline and 59% said kids wound up getting punished as a result. Yet just 45% of teachers said the software is used to identify violent threats and 47% said it is used to identify students at risk of harming themselves. 

The findings are a direct contradiction of the stated goal of student activity monitoring, Laird said. School leaders and company executives have long maintained that the tools are not a disciplinary measure but are designed to identify at-risk students before someone gets hurt.

The Supreme Court’s recent repeal of Roe v. Wade, she said, further muddles police officers’ role in student activity monitoring. As states implement anti-abortion laws, that data from student activity monitoring tools could help the police identify youth seeking reproductive health care. 

“We know that law enforcement gets these alerts,” she said. “If you are in a state where they are looking to investigate these kinds of incidents, you’ve invited them into a student’s house to be able to do that.”

A tale of discrimination

In Baltimore, counselors, principals and school-based police officers receive all alerts generated by GoGuardian during school hours, according to by The Real News Network, a nonprofit media outlet. Outside of school hours, including on weekends and holidays, the responsibility to monitor alerts falls on the police, the outlet reported, and on numerous occasions officers have shown up at students’ homes to conduct wellness checks. On , students have been transported to the hospital for emergency mental health care. 

In a statement to ����Ӱ��, district spokesperson Andre Riley said that GoGuardian helps officials “identify potential risks to the safety of individual students, groups or schools,” and that “proper accountability measures are taken” if students violate the code of conduct or break laws.

“The use of GoGuardian is not simply a prompt for a law enforcement response,” Riley added.

Leading student surveillance companies, including GoGuardian, have maintained that their interactions with police are limited. In April, Democratic Sens. Elizabeth Warren and Ed Markey warned in a report that schools’ reliance on the tools could violate students’ civil rights and exacerbate “the school-to-prison pipeline by increasing law enforcement interactions with students.” Warren and Markey focused their report on four companies: GoGuardian, Gaggle, Securly and Bark. 

In , Gaggle executives said the company contacts law enforcement for wellness checks if they are unable to reach school-based emergency contacts and a child appears to be “in immediate danger.” In on the company’s website, school officials in Wichita Falls, Texas, Cincinnati, Ohio, and Miami, Florida, acknowledged contacting police in response to Gaggle alerts.

In some cases, school leaders ask Securly to contact the police directly and request they conduct welfare checks on students, the to lawmakers. Executives at Bark said “there are limited options” beyond police intervention if they identify a student in crisis but they cannot reach a school administrator. 

“While we have witnessed many lives saved by police in these situations, unfortunately many officers have not received training in how to handle such crises,” in its letter. “Irrespective of training there is always a risk that a visit from law enforcement can create other negative outcomes for a student and their family.”&�Բ�����;

In its , GoGuardian states the company may disclose student information “if we believe in good faith that doing so is necessary or appropriate to comply with any law enforcement, legal or regulatory process.”&�Բ�����;

Meanwhile, survey results suggest that student surveillance tools have a negative disparate impact on Black and Hispanic students, LGBTQ youth and those from low-income households. In a letter on Wednesday to coincide with the survey’s release, a coalition of education and civil rights groups called on the U.S. Department of Education to issue guidance warning schools that their digital surveillance practices could violate federal civil rights laws. Signatories include the American Library Association, the Data Quality Campaign and the American Civil Liberties Union.

“This is becoming a conversation not just about privacy, but about discrimination,” Laird said. “Without a doubt, we see certain groups of students having outsized experiences in being directly targeted.”

In a youth survey, researchers found that student discipline as a result of activity monitoring fell disproportionately along racial lines, with 48% of Black students and 55% of Hispanic students reporting that they or someone they knew got into trouble for something that was flagged by an activity monitoring tool. Just 41% of white students reported having similar experiences. 

Nearly a third of LGBTQ students said they or someone they know experienced nonconsensual disclosure of their sexual orientation or gender identity — often called outing — as a result of activity monitoring. LGBTQ youth were also more likely than straight and cisgender students to report getting into trouble at school and being contacted by the police about having committed a crime. 

Some student surveillance companies, like Gaggle, monitor references to words including “gay” and “lesbian,” a reality company founder and CEO Jeff Patterson has said was created to protect LGBTQ youth, who face a greater risk of dying by suicide. But survey results suggest the heightened surveillance comes with significant harm to youth, and Laird said if monitoring tools are designed with certain students in mind, such as LGBTQ youth, that in itself is a form of discrimination. 

In its letter to the Education Department’s Office for Civil Rights Wednesday, advocates said the disparities outlined in the survey run counter to federal laws prohibiting race-, sex- and disability-based discrimination. 

“Student activity monitoring is subjecting protected classes of students to increased discipline and interactions with law enforcement, invading their privacy, and creating hostile environments for students to express their true thoughts and authentic identities,” the letter states. 

The Education Department’s civil rights division, they said, should condemn surveillance practices that violate students’ civil rights and launch “enforcement action against violations that result in discrimination.”

Lawmakers consider youth privacy

The report comes at a moment of increasing alarm about student privacy online. In May, the Federal Trade Commission announced plans to crack down on tech companies that sell student data for targeted advertising and that “illegally surveil children when they go online to learn.”&�Բ�����;

It also comes at a time of intense concern over students’ emotional and physical well-being. While the pandemic has led to a greater focus on youth mental health, the May mass school shooting in Uvalde, Texas, has sparked renewed school safety efforts. In June, President Joe Biden signed a law with modest new gun-control provisions and an influx of federal funding for student mental health care and campus security. The funds could lead to more digital student surveillance.

The results of the online survey, which was conducted in May and June, were likely colored by the Uvalde tragedy, researchers acknowledged. A majority of parents and students have a favorable view of student activity monitoring during school hours to protect kids from harming themselves or others, researchers found. But just 48% of parents and 30% of students support around-the-clock surveillance. 

“Schools are under a lot of pressure to find ways to keep students safe and, like in many aspects of our lives, they are considering the role of technology,” Laird said. 

Last week, the Senate designed to improve children’s safety online, including new restrictions on youth-focused targeted advertising. The effort comes a year after a showing that the social media app Instagram had a harmful effect on youth mental well-being, especially teenage girls. One bill, the Kids Online Safety Act, would require tech companies to identify and mitigate any potential harms their products may pose to children, including exposure to content that promotes self-harm, eating disorders and substance abuse.

Yet the legislation has faced criticism from privacy advocates, who argue it would mandate digital monitoring similar to that offered by student surveillance companies. Among critics is the Electronic Frontier Foundation, a nonprofit focused on digital privacy and free speech. 

“The answer to our lack of privacy isn’t more tracking,” the . The legislation “is a heavy-handed plan to force technology companies to spy on young people and stop them from accessing content that is ‘not in their best interest,’ as defined by the government, and interpreted by tech platforms.”&�Բ�����;

Attorney Amelia Vance, the founder and president of Public Interest Privacy Consulting, said she worries the provisions will have a negative impact on at-risk kids, including LGBTQ students. Students from marginalized groups, she said, “will now be more heavily surveilled by basically every site on the internet, and that information will be available to parents” who could discipline teens for researching LGBTQ content. She said the legislation could force tech companies to censor content to avoid potential liability, essentially making them arbiters of community standards. 

“When you have conflicting values in the different jurisdictions that the companies operate in, oftentimes you end up with the most conservative interpretations, which right now is anti-LGBT,” she said.

On Oct. 19, a group of educators and civil rights groups backed by the ACLU sued the state of Oklahoma over , alleging that the law violates students’ and teachers’ right to free speech by tamping down on classroom discussions of race and gender. 

“There is a pretty good chance that students can show their First Amendment rights have been violated,” Frank LoMonte, director of the University of Florida’s Brechner Center for Freedom of Information, told ����Ӱ��.

The Oklahoma law, which took effect in May, prohibits teaching that anyone is “inherently racist, sexist or oppressive, whether consciously or unconsciously,” or that students should feel “by virtue of his or her race or sex, (he or she) bears responsibility for actions committed in the past.” Observers described the rule as an “.”&�Բ�����;

Though the bill text does not expressly mention critical race theory, the state legislature quickly took up and passed the law while a wave of similar legislation swept through Republican-held statehouses nationwide, some of which did explicitly prohibit CRT. 

Critical race theory is not an ideology, but a lens of thinking that considers how political institutions may perpetuate structural inequities, experts previously explained to ����Ӱ��.

As a result of the law’s approval, according to the ACLU, school districts in the state have told teachers to avoid using terms such as “diversity” and “white privilege” in their classrooms, and have removed To Kill a Mockingbird, Raisin in the Sun and other seminal books from reading lists.

When schools restrict academic content, it can amount to a First Amendment violation if the court concludes that the censorship was politically motivated, said LoMonte, referencing a 1982 Supreme Court precedent in a case over . The ruling established students’ right to receive information, he explained, but also gives school boards some latitude in choosing to pull books.

“If the complaint is right, that classic books like To Kill a Mockingbird are being removed from the curriculum for no reason other than political ideology,” said the legal expert, “then that is a First Amendment injury to the students.”&�Բ�����;

Bill sponsor Oklahoma Rep. Kevin West, however, does not believe that H.B. 1775 contributes to classroom censorship.

“The law ensures that all history is taught in schools without shaming the children of today into blaming themselves for problems of the past, as radical leftists would prefer,” he wrote in an email to ����Ӱ��. “The legal complaint is full of half-truths, and in some cases blatant lies.”

West did not specify which of the case’s arguments he considered inaccurate, and did not respond to questions asking whether he had intended for the bill to result in book bannings.

Plaintiff Regan Killacky, a public school teacher in Edmond, a city on the northern edge of the Oklahoma City metropolitan area, said he was instructed to steer clear of certain concepts and phrases in his curriculum, and is no longer allowed to engage his students in educational conversations on race and gender.

“H.B. 1775 limits my ability to teach an inclusive and complete history within the walls of my classroom, ultimately restricting the exact type of learning environment all young people deserve — one free from censorship or discrimination,” said Killacky.

Discussions on race in Oklahoma schools are especially important, advocates say, because of incidents of racial violence in the state’s past, including the 1921 Tulsa Race Massacre. In a larger effort to grapple with “hard history,” Tulsa Public Schools began teaching that episode more comprehensively last spring, weeks after H.B. 1775 was signed into law.

In addition to free speech claims, the ACLU lawsuit also argues that the state has committed a 14th Amendment violation because of the vagueness of the legislation. Innocent misunderstandings, says the legal team, can place teachers’ jobs in jeopardy. 

“H.B. 1775 is so poorly drafted — in places it is literally indecipherable — that districts and teachers have no way of knowing what concepts and ideas are prohibited,” said Emerson Sykes, staff attorney with the ACLU Speech, Privacy, and Technology Project.

including Oklahoma have enacted laws to restrict teaching on race and gender, according to a tracker from Education Week, many using near-identical wordings.

With similar legislation in force across the country, LoMonte doubts the case against the Sooner State will be the last of its kind.

“I’m sure more lawsuits are coming,” he said.