Equity in Civic Technology, Privacy & Data
CDT Urges U.S. Department of Education to Protect LGBTQI+ Students from Discriminatory Data & Tech Use in Proposed Title IX Rules
On September 12, 2022, CDT, along with our partners at the Berkman Klein Center for Internet and Society, submitted comments on rulemaking by the U.S. Department of Education (ED) on Title IX, encouraging ED to protect the privacy and safety of LGBTQI+ students. With regards to education and technology, CDT is particularly concerned with schools’ increasing use of tools to monitor students’ online activities. Although some of these tools were first implemented during remote learning, they have stayed in place as students return to physical buildings. Schools have dramatically increased the number of devices they have provided to students and families, with 95 percent of teachers reporting that their school provided laptops and/or tablets to the students in the past academic year, as detailed in recent CDT research. With the increase in providing devices, schools have also increased their abilities to track what students are doing online, with 89 percent of teachers reporting that their school uses student activity monitoring software.
Unfortunately, this increased monitoring of students has led to harms that disproportionately affect protected classes of students. One area of particular concern is the targeted monitoring of LGBTQI+ students, which puts them at disproportionate risk of harm compared to their heterosexual, cisgender, and endosex peers. CDT submitted the following comments in response to the Notice of Proposed Rulemaking issued by ED to ensure that the use of data and technology does not harm the students that schools intend to help. Specifically, CDT urged ED to:
- Adopt the formal position that sex-based discrimination includes discrimination on the basis of sexual orientation and gender identity.
- Explain that schools are liable for discriminatory uses of technology.
- Clarify that Title IX applies to digital spaces, but schools do not have an active obligation to monitor or surveil students online.
- Underscore that Title IX provides critical privacy protections notwithstanding contrary state and federal laws, preempting discriminatory state laws and overriding FERPA when disclosures would create a hostile environment for LGBTQI+ students.