Nonprofit Groups Say ED Must Address Inequitable Harms of Student Online Activity Monitoring

Call to Action Follows New Study Showing Marginalized Groups Are Disproportionately At Risk of Discrimination, Civil Rights Violations

• By Kristal Kuykendall
• 08/03/22

In an open letter this week to U.S. Department of Education Assistant Secretary for Civil Rights Catherine E. Lhamon, 15 education, technology, and civil rights nonprofits called for the department to put schools and online activity monitoring providers on notice that such monitoring must not result in discrimination or violation of students’ civil rights and liberties.

The letter, dated Aug. 2, 2022, was published Wednesday alongside new research from the Center for Democracy & Technology showing that student activity monitoring is used for discipline — including by law enforcement — far more than it is used for student safety or wellness as promised. The research further showed that marginalized student groups are disproportionately affected.

The organizations behind the letter are American Association of School Librarians, American Civil Liberties Union, American Library Association, Center for Democracy & Technology, Civil Rights Corps, Common Sense Media, Data Quality Campaign, Electronic Frontier Foundation, The Freedom to Read Foundation, InnovateEDU, LGBT Tech, National Center for Learning Disabilities, Next Century Cities, People’s Economic & Environmental Resiliency Group, and State Educational Technology Directors Association.

“While stakeholders are optimistic that student activity monitoring will keep students safe, in practice it creates significant efficacy and equity gaps,” CDT wrote in its newest research report, Hidden Harms: The Misleading Promise of Monitoring Students Online.

The report is based on surveys of a nationally representative sample of 1,606 parents of students in grades 6–12, 860 students in grades 9–12, and 1,008 teachers of grades 6–10, conducted in May and June of this year, CDT said. All respondents are stakeholders schools that use student activity monitoring services, the research report said.

The letter to ED cited alarming trends in how student activity monitoring software — which allows schools to view students’ screens, record their browsing and search histories, and scan their messages and documents stored online or on school devices — is actually being implemented, summarized as follows in the CDT research report:

• Monitoring is used for discipline more often than for student safety;
• Teachers bear considerable responsibility but lack training for student activity monitoring;
• Monitoring is often not limited to school hours despite parent and student concerns; and
• Stakeholders demonstrate large knowledge gaps in how monitoring software functions.

“The increasingly prevalent use of student activity monitoring software threatens to undermine” the rights LGBTQ+ students, students of color, and students with disabilities, the letter stated. “Such software, which monitors students’ most sensitive online activity, culminating in disciplinary actions, “outing,” and interactions with law enforcement, is often used in ways that discriminate against protected groups of students.”

The organizations behind the letter urged ED’s Office for Civil Rights to “issue a policy statement that clarifies the intersection of civil rights laws and student activity monitoring, condemns uses of student activity monitoring that run afoul of students’ civil rights and civil liberties, and states OCR’s intent to take enforcement action against violations that result in discrimination, especially against historically marginalized groups of students.”

The letter to ED noted that monitoring software’s routine practice of sharing information with law enforcement and officials outside campuses is particularly dangerous given the recent increase in state-level policy actions targeting LGBTQ+ students’ privacy and actions curbing students’ access to literature, scholarships, and other resources regarding LGBTQ+ and Black histories, identities, and stories.

“With its insights into students’ online lives, student activity monitoring is primed to become a key mechanism in that policy apparatus,” the organizations wrote. “ These developments underscore the urgency and necessity for OCR to act to protect students from widespread harms, primarily affecting the groups of students that civil rights laws are intended to protect.”

The letter cited the following civil rights laws as actively being violated by student activity monitoring software:

• Title VI: Exacerbating disproportionate discipline and law enforcement interactions for students of color.
• Title IX: Targeting LGBTQI+ students for “outing,” discipline, and criminal investigations.
• Americans with Disabilities Act and Section 504 of the Rehabilitation Act: Harming students’ expression and mental health.

Also emphasized was the disparate treatment of students experiencing poverty and students of color, as they rely more heavily on school-issued devices that are more likely to be monitored around-the-clock than personal devices, the letter said.

“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. At minimum, this environment causes disparate impact and — to the extent that monitoring software is expressly coded to flag words related to protected classes — may constitute disparate treatment,” the letter said.

Key Findings of CDT’s Research on Online Activity Monitoring

Among teachers surveyed, 78% percent reported that students at their school have been flagged by the software for violating disciplinary policy, while only 54% said the monitoring software has been used to refer students to a counselor, therapist, or social worker for behavior-related interventions, despite these kinds of interventions aligning more closely with stated monitoring goals of student well-being.

LGBTQ+ students are experiencing nonconsensual disclosure of sexual orientation and/or gender identity (i.e., “outing”) due to student activity monitoring, CDT’s report said.

• 51 percent of parents and 57 percent of teachers agree that student online activity monitoring could have unintended consequences such as outing LGBTQ+ students.
• 13% of student respondents said they or another student they know who is LGBTQ+ has been outed because of student activity monitoring.
• 29 percent of LGBTQ+ student respondents said they or another student they know who is LGBTQ+ has been outed because of student activity monitoring.

More than half of LGBTQ+ students, 56%, reported that they or another LGBTQ+ student they know got in trouble with the teacher or school for visiting a website or saying something inappropriate online, while just 44% of non-LGBTQ+ students reported such an experience.

• 31% of LGBTQ+ students reported that they or another LGBTQ+ student they know were contacted by a police officer or other adult due to concerns about them committing a crime, while 19% of non-LGBTQ+ students reported such an experience.

The disparity between how online activity monitoring impacts students of differing racial and ethnic backgrounds was also noted by the CDT report:

• 55% of Hispanic students reported they or another student had gotten into trouble as a result of something the monitoring software flagged.
• 48% of Black students reported they or another student had gotten into trouble as a result of something the monitoring software flagged.
• 41% of White students reported they or another student had gotten into trouble as a result of something the monitoring software flagged.

Learn more or download the full report at CDT.org.