Privacy for Alternative Educators

Anecdotal evidence suggests that most alternative educators and home educators favor protection of personal and family privacy from intrusion by local, state, and federal governmental entities.

Some American home educators believe they have a right of privacy derived from, or implicated in, the First, Third, Fourth, Fifth, Sixth, Ninth, Thirteenth, and/or Fourteenth Amendments of the United States Constitutions. Often privacy is thought to be intertwined with other components of liberty, such as association, expression, religious exercise, protection from unreasonable searches, protection against self-incrimination, and so on. In addition, some state constitutions have provisions explicitly protecting privacy. Some countries besides the United States also have constitutional protection for privacy rights, or equivalent legal protections.

Other American home educators reject the notion of a constitutional right of privacy, because the word “privacy” does not appear in the explicit text of the United States Constitution. Nonetheless, anecdotal evidence suggests most of these home educators still support protection of privacy as a matter of sound public policy (particularly relative to alternative education), and that they advocate state constitutional provisions, common law principles, and/or state or federal statutes which would operate to protect many aspects of familial privacy.

Some government officials question the need for privacy, often by asserting that honest citizens have nothing to hide and therefore have no reason to worry about protection of privacy. But this argument ignores at least two justifications for privacy that have nothing to do with criminality or protecting criminals: maintaining limited government power and protecting personal security.

Since information is both a form of power and a means to acquiring other forms of power, limited government is predicated upon limited possession of information by the government. Without such limitations, government officials can consolidate power by using information to eliminate political enemies, intimidate political opponents, harass target demographic minorities, manipulate elections, facilitate economic graft, maximize networks of political patronage, and derogate personal dignity.

Personal security also is predicated upon privacy. Sensitive information can be used to exploit another person without that person’s knowledge, by surreptitiously misleading the subject, appropriating the identity of the subject, manipulating the subject and the subject’s environment, or conducting harassment or intimidation efforts against the subject. Note that most “sensitive” personal information has nothing to do with criminality; sensitive information often involves financial behavior, health conditions, social affiliations, religious regimen, travel patterns, security measures, living arrangements, educational pedagogy, diet, energy consumption, employment, daily regimen, and other lawful aspects of personal life which if known to third parties would increase the vulnerability of an individual to abuse.

Unfortunately, public schools have a long history of violating student and family privacy, often for the economic or political gain of politicians or other third parties. As one example, Leon Whitney utilized Massachusetts school records as part of his secret 1928 Shutesbury Eugenics Study. With modern internet and computer systems, public schools can create centralized relational databases linking student name, social security/identification number, longitudinal records of school history, schools attended, disciplinary records, physical or emotional disabilities, sexual orientation, standardized test results, emotional history, participation in gifted and talented or remedial programs, transfer to or from a private or home school, military service, and residence in mental health or correctional or detention facilities. See, e.g., Janet Bingham, Student Database Called Orwellian: Colo. Plan a Threat to Privacy, Critics Say, Denver Post, June 30, 1996, at 1A.

Comprehensive databases of this kind could be (and often are) used to facilitate “electronic exchange of records among schools, social services, health and law enforcement agencies, colleges, the military and even employers." Id. The databases also allow very powerful individual "mosaic" composite profiling to be performed by pieced together numerous bits of information. The United States government will not permit disclosures of its own information when such disclosures might facilitate mosaic breaches of national security. E.g. Kasza v. Browner, 133 F.3d 1159, 1166 (9th Cir. 1998) (denying plaintiff’s case because of concern about the "mosaic" technique, in the context of a secret military facility in Nevada known by UFO enthusiasts as "Area 51"). Although protection of national security and personal security obviously differ in many respects, the mosaic principle underpins both concerns.

History has demonstrated that home educators are particularly susceptible to privacy violations by government officials. Unfortunately, many educators and government officials have violated the privacy of home educators by, for example, conducting improper searches and seizures, making unreasonable demands for family educational information, conducting unreasonable medical testing or collection of family medical information, asserting false claims of educational abuse or child abuse, and encouraging neighbors, school officials, clergy, and law enforcement officers to spy upon alternative educators.

Alternative education and home education is not only a pedagogical innovation, but also a creed and a social and political movement. Alternative education also serves as a way for many people to live their religious beliefs. Although alternative educators are diverse in many ways, the vast majority of them share some important basic ideals in common. Their need for familial privacy far outweighs any legitimate countervailing state interest in monitoring the private family realm. Additionally, society's need to protect free association and expression far outweighs the desire of some government officials to chill the activities of alternative educators.

Available evidence does not support the notion that registration or inspection helps alternative educators or advances any state interest. Therefore, it is a violation of the liberty protected by the United States Constitution, as interpreted by the United States Supreme Court, for public educators or government officials to compel home educators to register, submit information for databases, forsake anonymity, or otherwise cooperate with officials’ efforts to assemble tools designed to derogate First Amendment association, First Amendment expression, and familial privacy. See, e.g., McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995)(freedom to publish anonymously is protected by the First Amendment, and extends beyond the literary realm to the advocacy of political causes); Brown v. Socialist Workers '74 Campaign Comm., 459 U.S. 87 (1982)( First Amendment prohibits a State from compelling disclosures by a minor political party that will subject those persons identified to the reasonable probability of threats, harassment, or reprisals); Shelton v. Tucker, 364 U.S. 479 (1960)(state statute requiring every teacher, as a condition of employment in a state-supported school or college, to file annually an affidavit listing every organization to which he has belonged or regularly contributes deprives teachers of their right of associational freedom protected by the Due Process Clause of the Fourteenth Amendment); Bates v. Little Rock, 361 U.S. 516 (1960)(compulsory disclosure of the membership lists of the National Association for the Advancement of Colored People disallowed because it would work unjustified interference with the members' freedom of association); N.A.A.C.P. v. Alabama, 357 U.S. 449 (1958)(compelled disclosure of National Association for the Advancement of Colored People's membership lists disallowed because it would likely constitute an effective restraint on its members' freedom of association, in violation of the First and Fourteenth Amendments). But see Whalen v. Roe, 429 U.S. 589 (1977)(database on prescription drug users constitutionally permissible).

Alternative educators do not have an obligation to cooperate when they are targeted for search or seizure through the use of registration, inspection, or anonymous tipsters. In the United States, searches and seizures may only be permissibly conducted with a warrant, with genuine voluntary consent, or pursuant to some specific and narrow exigent circumstances which have been identified in United States federal court Fourth Amendment cases.

Statutes should protect, not eliminate, the privacy of alternative educators. States should refrain from enacting or enforcing registration laws, curriculum-inspection laws, or other legal schemes designed to target alternative educators. The relationship between legal privileges, familial privacy, First Amendment rights, and other liberties should be constantly appreciated.