In 1965, a group of high school students were suspended for wearing black armbands to school in protest of the Vietnam War. This sparked the landmark decision Tinker v. Des Moines, in which the Supreme Court declared that students do not shed their constitutional rights at the schoolhouse gate. Tinker was focused on free speech, but what about privacy rights for students?
While the Constitution does not explicitly include a right to privacy, the Supreme Court has inferred a right to privacy from various parts of the Bill of Rights: the First Amendment right of association; the Third Amendment prohibition against quartering soldiers in a home; the Fourth Amendment right to be secure in one’s person, house, papers and effects; the Fifth Amendment right to not surrender anything to one’s detriment; and the Ninth Amendment right to not deny or disparage any right retained by the people.
Minors, though still in school, have the right to equal protection under the law—meaning every child is entitled to the same treatment at the hands of authority regardless of race, gender, sex, disability, or religion. Today, the question of minors’ privacy rights largely comes up in the context of LGBTQ+ students, where there is a conflict between a minor’s right to privacy and parental rights and parental notification. Throughout the country, lawmakers have been introducing bills that require teachers to “out” students who request to be referred to by a name or pronoun that does not match their birth certificate. Five states have successfully passed this legislation. Under these laws, when a student makes such a request, the school employee must tell the student’s parents.
The constitutional right to privacy includes the right to avoid the disclosure of personal matters. Several circuit courts have held that personal sexual matters, such as sexual orientation, should be protected within this constitutional right. The question is whether this applies to the disclosure of a child’s information to the child’s parents. The Supreme Court has not decided this question and the circuit courts are split.
In 2000, a federal appeals court held that threatening to disclose private information violates the student’s rights to privacy. In that case, a police officer threatened to disclose a teenage boy’s suspected sexual orientation to his grandfather. Upon release from custody, the boy committed suicide. Following this tragedy, the Third Circuit held that the boy’s sexual orientation was an intimate aspect of his personality entitled to privacy protection. The Fifth Circuit has also considered the issue of a student’s right to privacy regarding sexual orientation and decided differently. When a mother sued two school employees for disclosing her daughter’s sexual orientation, the court held that there was no clearly established constitutional right that was violated.
In Arizona, a bill that would have required schools to inform parents about a student’s request to use different pronouns was vetoed by the governor. The refusal to honor a person’s chosen pronouns is often based on religious beliefs regarding the rigidity of sex and gender. Laws requiring authorities to disclose a student’s identity are particularly dangerous for children who do not feel safe telling their parents. Even in households that aren’t abusive, disclosing a child’s sexual orientation or gender identity before they are ready robs them of the freedom to consider their sexuality privately in their own way and on their own terms.
Besides the fact that students’ right to informational privacy is unclear, another problem is that students in school do not have the same constitutional rights as adults out in the world. For example, even though students have the Fourth Amendment right to be free from unreasonable searches and seizures, what’s “reasonable” is a much lower threshold for a teacher searching a student’s backpack than for a police officer searching my purse. According to the United States Supreme Court, the students’ expectation of privacy must be balanced against the needs of school authorities to maintain a safe learning environment. While this affects all students (and “reasonable” searches contribute to the school-to-prison pipeline), it also may pose special concerns for LGBTQ+ students.
Consider this hypothetical: A student is accused of having illegal drugs in her backpack. Needing only reasonable suspicion, the principal searches the student’s bag and finds not illegal drugs, but syringes and medication necessary for hormone treatment. From this search, the principal has learned that the student is transgender, something the student was very private about before.
There have been some decisions since Tinker that grant minors rights even when they conflict with their parents’ wishes. For example, in 1979, the Supreme Court held that a child cannot be committed to a mental institution based on the parents’ decision alone. And in 1990 the Supreme Court held that due process does not require the state to accept the substituted judgment of close family members for a vegetative patient absent substantial proof that their views reflected those of the patient.
Under federal law, the Family Educational Rights and Privacy Act (FERPA) protects the privacy of students’ education records. However, the privacy rights provided by FERPA are primarily given to parents, not students. Parents have the right to inspect and review their student’s educational records and request that the school not release certain records to anyone else. These rights only transfer to the students when they turn 18 or attend a school beyond the high school level. So the only time a minor is considered “an eligible” student with rights to privacy in their records is when the minor graduates high school and starts their continuing education before turning 18.
Arizona puts much emphasis on the rights of parents in school, even codifying a parents’ bill of rights in Arizona Revised Statute 1-602. But the state has done little to protect children’s rights when the needs of the child conflict with the parents’ beliefs. The governor’s veto of the parental notification bill is a band-aid on what is ultimately a bigger issue.
Our governments could and should be doing more to protect the rights of minors in our schools. For one, the United States should ratify the United Nations Convention on the Rights of the Child. The Convention, which focuses on the child’s best interests and protects against all forms of discrimination, has been ratified by every other country in the world. The United States is the only country that has not joined, arguing that ratification would limit U.S. sovereignty or cause unlimited interference in family life. However, because of its widespread acceptance, the Convention has become customary international law thus applicable to the U.S.
The Convention on the Rights of the Child requires parties to the treaty to take all appropriate measures to ensure that the child is protected against all forms of discrimination, including discrimination or punishment on the basis of their parents’ or family members opinions or beliefs. This could be interpreted as protecting children from their parents when their beliefs conflict with the child’s beliefs. Parties must also recognize that children have their own speech rights and should not be subjected to interference with their own privacy. The privacy and speech rights of the child become stronger as the child ages.
Local governments and schools should also have proactive measures to combat bullying and harassment of LGBTQ students. Arizona law requires schools to have policies and procedures to stop students from bullying other students at school, on school buses, and at school activities or events. The law allows school districts to come up with their own definitions of harassment, intimidation, and bullying. A more robust law would put special obligations on schools to prevent bullying and harassment against LGBTQ students. There are 22 states with laws that prohibit bullying on the basis of sexual orientation and/or gender identity, but Arizona has no such law protecting LGBTQ students.
Arizona also fails to have a general law protecting LGBTQ students from discrimination, in contrast to 20 states that have laws that prohibit discrimination in schools on the bases of sexual orientation and gender identity. These laws protect LGTBQ students from things like being unfairly denied access to facilities, sports teams, or clubs on the basis of their sexual orientation and/or gender identity.
Minors absolutely have rights and are their own people—not just extensions of their parents. But these rights can and should be better protected, particularly for LGBTQ youth. The state of Arizona and our local school boards both need to be doing more for our students.
Adriana Clark is a recent law school graduate and legal fellow with Secular AZ.