Beware School Districts Bearing Gifts

Recently I received an email from my sons’ school telling me that the school district was going to give every middle and high school student their very own email account. The email read:

“In addition to streamlined communication between teachers and students, here are additional motivations for the District email initiative:

·Safe electronic communication system with protective internet filters.

·More effective enforcement of SVVSD Responsible Use Policy.

·Student access to digital communication tools, including instant messaging, real time document collaboration.

·Parent/Guardian access to their student s (sic) email account upon request.

Additional information about this email initiative is available on the District website where you can also access District policies concerning student Internet use. Parents and guardians who wish to exclude their student from this initiative are asked to complete the attached opt-out form and return it to your student s (sic) school by December 2nd.”

How nice, I thought.

Reading the Fine Print

But then, I wondered why would the district give children have a new email account when they know that most kids already have them? What’s in it for them? Safe internet access with protective filters. Great. More effective enforcement of the SVVSD Responsible Use Policy. Huh? What’s that? And why would the district give parents an opportunity to opt out? If it’s such a nice thing, they wouldn’t need to offer an opt-out, right?

NOTE: You can click the District’s link above to see the landing page which contains a link to the “Responsible Use Policy” page. That link takes you here: http://www.stvrain.k12.co.us/policies/E/EHC-E-2.pdf

On the last page of that policy was a statement that made the district’s new initiative make a lot more sense, That the things that I do using a school computer or network are not private and that my teachers and District staff may review my work and activities at any time.”

According to this policy, to which all students must agree or be barred from use, the district will have access all content of children’s email accounts—including their chats. Legally, that means that there is no privacy between the children and the school district, staff, and teachers. Anything children write in email or type into a chat, no matter when it’s written, at home or at school, no matter what it pertains to, personal or school-related, can be used as a statement against interest, criminally and civilly.

Did You Say Criminally?

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Yes! But the district’s policy doesn’t say that. It only says that if a student misuses school-owned technology that they’re at risk of suspension or expulsion. The district’s policy statement doesn’t say that kids could be prosecuted criminally or sued civilly, and that the content of their email can be used against them in court, with many of the due process protections of the Constitution waived by parents, inadvertently, by an act of omission—not opting out.

A quick background on children’s due process rights and the 4th amendment freedom from unreasonable search and seizure: kids don’t have the extensive protections against unreasonable searches that adults have. In fact, school officials need only a reasonable suspicion that a child is up to no good in order to search a locker or personal belongings. And a reasonable suspicion can be established by almost anything, and is quite a bit lower of a standard than the “probable cause” standard that applies to adults. Once a child is searched, any evidence found may be provided to police to prosecute the child in either a delinquency court or possibly in an adult criminal court. That makes sense. School officials need to do everything in their power to prevent violence and crime on school grounds and they should be able to search kids’ locker.

However, school-hosted email accounts are less private even than a kid’s locker, which is about as private as the trash left on your curb. The district’s stated goal is to better enforce the responsible use policy. It will not be long before the district discovers something in an email and hands it over to authorities as evidence against a child. The district needs no one’s permission to do that, has no obligation to consult with parents. The requirement for a reasonable suspicion has been waived along with the child’s right to be free of unreasonable searches.

Inadvertent Waiver

When we allow our children to email or chat on an unsecure, non-private email account for which we have unwittingly waived what few Constitutional rights they have, we put our children one dangerous step closer to “game over”. That is because the district’s opt-out policy skirts the prohibition against unreasonable searches in the 4th Amendment and 5th Amendment right to due process by obtaining parental consent to a search in advance.

Combined with the Zero Tolerance policy, the school district has an obligation to report and punish children for writing that is even remotely incriminating. Parents are waiving the regular rules of due process and evidence, which protect all of our rights, without even knowing that they’re making it easier for schools, police, and the DA to make a case against a child than the same would be against an adult.

That means that if we don’t opt out, we are handing our children over to schools and police, giving them power that extends far beyond the schoolhouse doors, into their personal lives outside of school, heretofore the province of parents alone. We give up our superior position as parents and abdicate our responsibility to discipline and guide our children—to the government—24/7. It also means that one little slip, and our child’s future could be over, and it is our own hand that will deliver them.

Picture this: Seventh grader who’s very expressive says something a little over the top to another student on a chat—as they’re wont to do. Teacher, who has a bone to pick with student, reads the chat thread and sees that little something. Teacher hands the transcript over to the principal, who may give that information to the Community Service Officer, who files a police report of harassment against the child. Never mind that the other child may not have even been phased by the communication, or perhaps even welcomed it.

The police have probable cause and evidence against the child. Child is arrested, released on bail, tried and the evidence admitted because the parent gave the district permission to invade the account in the first place. Remember that even one conviction can irreparably damage their school career as well as their prospects for college.

Without this email account, the school district, police, and DA have to go through the normal methods of building a case. They have to take statements, go through discovery, and subpoena the email or chat records to get that piece of evidence admitted—and defend motions to exclude evidence (motions in limine). With this ostensibly “public” email account, they can sidestep many of these due process procedures because of the parent’s waiver of their children’s access to constitutional protections.

You May Want to Waive Your Children’s Constitutional Rights

In all fairness, some parents may want their kids to participate in school-hosted and -regulated email, with the full understanding that they are waiving their children’s already limited freedom from unreasonable searches. Some parents know their kids are misbehaving and wish desperately for intervention from authorities. For those parents, by all means, do so. Just know what you’re doing consciously.

An anonymous member of the district told me yesterday that they don’t believe the district has any mal-intent in providing these email accounts and that they trust the district to not use email accounts against kids thought there are no assurances of that nor disclosure of the risks to children of criminal and civil liability in any of the district’s materials. Also the district member said, “behavior is always an issue in schools”. I agree. And I agree that the kids who are bullying, misbehaving, or worse should have to face the consequences of their actions. But I am not willing to hand my children over to the district or police if they make an error in judgment, which they will, that could easily be misunderstood or blown out of proportion, without the protections of the Constitution I have sworn to uphold and defend.

As a parent, I want my children to be afforded every protection the Constitution gives them, even if they make a bad choice. Especially if they make a bad choice. I will not waive their right to make a mistake and to recover from it. I may not bail them out of jail, but I won’t deliver them in handcuffs either—at least not by mistake anyway. And I’m not willing to leave it up to the goodness of the hearts of school officials to decide whether to prosecute my child or not. Because you know that the first time an incriminating email or chat comes up, the district is going to throw the book at the kid with all the firepower it’s got to make an example of him or her.

The district has an obligation to spell out exactly what the risks are so parents can decide based on proper disclosure. Every parent should make this decision with full understanding of what they’re doing. If you allow your child to utilize the school district’s email system, at this time, anything they say can and will be used against them in a court of law.

You be the parent. Keep control over your children and their online lives. Monitor them, teach them what is appropriate internet behavior. But don’t let the schools do it for you. Here’s the Opt-Out form:

http://www.stvrain.k12.co.us/news/201111140101.pdf

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