Ihre Papiere or GTFO: Micro-tracking students in Texas survives legal challenge

by Eileen | 5:18 pm, January 9, 2013 | 1 Comment

Some of you are perhaps aware of a case in San Antonio, Texas where a student, a minor at a public school, refused to wear an ID tag embedded with an RFID chip.  With her parents’ support, she sued, taking the interesting legal angle that such a requirement violated her religious freedom.  Specifically, Andrea Hernandez felt the tracking device is (and I am not making this up) The Mark of the Beast.

Marked by the beast she will remain, after a federal judge ruled today that her religious freedom was not violated.

In her father’s words, “it is our Hell Fire Belief that if we compromise our faith and religious freedom to allow you to track my daughter while she is at school it will condemn us to hell.“  A tad strong maybe, but this nation is founded on our inalienable right to hold strong opinions.  And before we get carried away tittering at the Hernandez family, let’s recall that a state wanting to treat citizens like animals is a severe problem whereas devotion is a personal choice.

Actually, though, her evangelical plea may not have been as daft as one might think.  Shame on us, but we don’t give minors the same privacy rights as adults.  I am not talking about a parent’s right to know what her child is doing, but about a state that acts as if a fundamental civil liberty doesn’t kick in until 18 years after birth.  When you’re 15, your mother is allowed to want to know where you are at all times.  Your P.E. teacher needs to go get a life (or a cold shower).  Existing precedent on a student’s privacy within school grounds is not auspicious for a case such as Miss Hernandez’s.  Unannounced locker searches, random drug testing, and requirements that students disclose prescription meds to the school nurse all fly.

Simply, schools treat children like cattle when it comes to privacy and the people who point this out don’t often win.  So, if Miss Hernandez made a seemingly halfbaked and worryingly evangelical argument on grounds of religious freedom, a First Amendment matter, rather than on warrantless and suspicionless searches of students, a Fourth Amendment matter, she may have been acting under rather smart legal advice.  Indeed, her suit claimed her rights had been violated under the First and Fourteenth Amendments and the Texas Religious Freedom Act, but she did not refer to the Fourth.  Case documents explicitly note, “…Plaintiff insists that she is not bringing a cause of action for invasion of privacy.”  Ah, well, better to win on a loony strategy than lose on the tried and true road.  Not that it matters, as she lost.

In introducing the tracking system, the school district argued it was a necessity to monitor tardy and absent students as their federal funding is tied to attendance.  What won’t the public schools do for more money these days?   And what won’t the government use as a cudgel to compel obedience?  San Antonio schools also claimed to need such a granular level of monitoring to protect students (awww).  Given that the particular school in question already has upwards of 200 cameras on the grounds and more in the school buses, this is overkill at best and a Panopticon at worst.  As the RFID chips contain each student’s SSN and are unencrypted, it’s quite clear they increase students’ vulnerability.  Let’s not even start in on how ineffective the plethora of NCLB benchmarks have been.  Actually…no…let’s do just that.

Current state funding to public schools is tied much more to output than outcome.  Administrators have a ‘check box mentality’ when it comes to compliance.  They fill out the forms, drag students through whatever tests and programs are mandated from on high, and line up for more money.  The government hasn’t delivered educational reform that stresses student outcomes, so the public schools aren’t focusing on that.  Asked for attendance above some minimum point, schools resort to the asinine and the undignified.

San Antonio isn’t even pretending to be using this program to educate students.  The chips can pinpoint any given chip’s location, so the school knows who’s in class and who’s loitering elsewhere on campus.  Yet they count students ‘in attendance’ if the student is anywhere on school grounds.  In other words, they get daily funding to educate students regardless of whether students go to class or get high in a the parking lot.  Beyond making sure students stay on school grounds long enough to get the money, the district doesn’t care what they do.  In fact, the district really only cares about the where a student’s tag is.  Drive to school, drop your tag under the shrubbery, go play until 3:00.  Or give it to your buddy to squire around for the day.  This entire hackneyed scheme amounts to busy work and privacy violations with neither hope nor expectation of any benefit for students.

And that’s the charitable reading, in which we presume public school districts are merely desperate for money and too incompetent to put forward a real plan.  However, training children to accept the legally enforced constant wearing of a tracking device has horrific overtones.  Even if that weren’t the intention, RFID chips on students, like many other government programs, have the consequence of inculcating acquiescence to state surveillance of the citizenry.

Maybe that Mark of the Beast stuff wasn’t wide of the mark, after all…

Miss Hernandez’s school is willing to let her remove the RFID chip from her tag, so long as she wears the tag itself.  Unfortunately, by arguing that the RFID chip itself rather then the entire tag was the problem, she opened the door to this one.  If she doesn’t like it, she may transfer to another school.  Yet, the momentum in favor of tracking students will likely just catch up with her.

Now, if we consider that lots of companies require ID badges, sans-RFID (for now) of their employees, is it so bad?  Well, I think it is.  For one thing, a highschool isn’t a corporate HQ, a secure floor, or a government agency.  By agreeing to allow Miss Hernadez to skip the RFID if she still wears an identifying tag, the school has just admitted that having real-time monitoring capabilities of all students isn’t vital, after all.  Forcing a student to admit defeat and shuffle around marked like livestock, however, is.  By the way, did you know the strict meaning of ‘hubris’ is the act of taking pleasure in other people’s humiliation?

In siding with the school district, Judge Orlando Garcia echoed the idea that privacy violation isn’t a harm, opining, “there has been no harm to Plaintiff, and there is no foreseeable harm to Plaintiff in the future…“  Taking that as a given, any individual’s privacy cannot be a proper concern in assessing any policy.  This is well-trod ground in civil rulings placing state interests over citizen privacy.

Elsewhere in the ruling, circular reasoning (the real AntiChrist, if you ask me) rears its ugly head.  Seeking justification for the RFID chips, the school district reconfigured every system it could to require a scannable ID.  Students now can’t buy lunch, check our books, purchase prom tickets, vote for the student council, or cheer on the team without their little chip.  Having needlessly linked these programs to the RFIDs, the district then argued it must be allowed to use the RFIDs…so as not to inconvenience students.  And the judge agreed.

It’s a tremendously unsettling ruling and Miss Hernandez’s case on grounds of religious freedom was weak, but she may not have fared better had she made her case on privacy grounds.  The Rutherford Institute, who represented her, say they will appeal to the 5th Circuit.  My advice on that?  Lose the extended quotes from Revelation and substitute some good old Warren and Brandeis.

Comments