Schools increasingly use various technologies to monitor and collect information about students. The COVID-19 pandemic, which led to a large number of school closures and a transition to online learning, has also raised alarming questions about student privacy. For instance, virtual software used during remote exams to monitor students can scan students’ bedrooms, collect data from the microphones and cameras of students’ computers, and discern students’ keystrokes. In her article, The Private Life of Education, Professor Fanna Gamal makes a noteworthy contribution to scholarship in the privacy law and education law fields by highlighting embedded assumptions and significant shortcomings in privacy law governing student data. In doing so, she advances existing debates on the legal conception of information privacy. Gamal argues that student privacy laws’ immoderate focus on nondisclosure of students’ data outside of the school context fails to effectively consider the various ways in which schools can serve as the primary perpetrators of student privacy violations. She further contends that schools’ data practices may have disproportionate negative implications for members of historically marginalized groups, such as disabled and low-income students.
Gamal expertly critiques the provisions of the Family Educational Rights and Privacy Act (FERPA). She argues that FERPA’s excessive focus on the prohibition of data disclosures outside of schools spuriously assumes that schools should, by default, receive treatment as privacy protectors that act in the best interest of students’ privacy. Gamal aptly acknowledges that FERPA’s heavy reliance on non-disclosure is not unique to American privacy law. However, after unpacking the legal conception of student data privacy, Gamal goes on to convincingly argue that student data privacy law also assumes that students do not have a significant privacy interest in “data creation, collection and recording.” (P. 1319.)
She posits that educational records contain data that “assumes an aura of [uncontestable] truth,” a truth that follows students indefinitely and can impact their lives well beyond the age of majority (P. 1319.) Gamal argues that there is a significant imbalance of power between students and schools. She contends that FERPA grants schools too much power to determine this truth and its life cycle while giving students and parents insufficient mechanisms to contest educational records that contain misleading or false truths. Gamal notes that even when parents have the ability to participate in hearings regarding students’ records, schools have excessive power in those hearings since parents and students have the burden of convincing the educational institution to amend educational records. Gamal suggests that privacy law unnecessarily shelters the internal data practices of educational entities from scrutiny, thereby permitting educational institutions to amass “power over the official archives that shape students’ lives” (P. 1318.) Educational institutions may use this power to infringe on students’ privacy.
Gamal perceptively highlights the impact of student privacy laws’ shortcomings on historically marginalized groups, such as disabled students. She convincingly argues that disability documentation is a “poor proxy for disability” and can further entrench pre-existing inequities (P. 1321.) Gamal admits that disability documentation may help to ensure special education resources go to students in need of such services, but she also notes that heightened documentation requirements may instead stem from “the fear of the ‘disability con,” that is, an irrational fear that some individuals may be dishonest about their disabilities (P. 1321.) She contends that the Individuals with Disabilities Education Act’s (IDEA) data disclosure requirements limit the ability of students who use special education services to obtain privacy from their educational institutions. In contrasting the educational records of non-disabled students and disabled students, Gamal observes that the records of disabled students contain data about their social, medical, physical, and mental diagnoses. Fear of the so-called disability con, Gamal contends, results in requirements that ignore the challenges individuals from marginalized groups may face, such as possible limited access to documentation providers. She also points out that students from racial minorities experience over-representation among special education groups and, as such, disproportionality fall subject to the heightened documentation processes required of students seeking access to special education services.
The well-written article concludes by offering a path forward. Gamal argues for expanding the concept of information privacy in the school setting via a collaborative process that gives voice to various stakeholders. She also proposes several amendments to FERPA, including correcting FERPA’s excessive reliance on non-disclosure outside of the school context, redefining the term “educational records,” and providing students and parents with better tools to amend and delete educational records. She also recommends limits on educational institutions’ power over their internal data practices. Gamal’s convincing description of the limits of the current legal framework regulating student privacy should capture the attention of privacy and educational law scholars interested in learning more about the ways in which narrow conceptions of information privacy can further cement institutional data practices that contribute to existing disparities.
