The Intersection of Parental Rights Proposals and Edtech: Liberty and Freedom or Civil Rights Erosion

by CDT Intern Hank Elmajian

CDT research shows that parents want to be more involved in decision-making about how their school uses data and technology (EdTech) to educate their child, but schools fall short in providing opportunities for parents to give meaningful input. At the same time, parents are demanding more visibility and rights to determine how school administrators interact with and administer all educational services, not just those related to edtech. Recently, this demand has culminated in the introduction, and sometimes the passage, of federal and state parental rights bills.  

CDT wanted to understand if these proposals to expand parental rights include increased opportunities for parental oversight when it comes to determining whether and how technology is used in schools. We analyzed a federal parents rights bill as well as 30 bills from the 2022-23 and 2023-24 sessions of state legislatures with a variety of partisan compositions. These bills resulted in a range of outcomes, including those that were vetoed, died in committee, are currently in committee, and became law.

Most bills that purport to increase parental rights provided limited opportunities to expand parental oversight to mitigate the harmful effects of edtech platforms. Instead, many propose parental rights that undermine student privacy through the use of technology that tracks student demographics, particularly related to gender expansive students (e.g. transgender, intersex, and non-binary students). 

Limited Focus on EdTech Transparency and Student Activity Monitoring

Of the bills and laws reviewed, the majority did not specifically address ethical data and privacy practices within edtech. To the extent they were addressed, the legislative proposals reflected three general trends: 

• Reinforce existing rights of parents to access and control student data; 
• Increase in control of monitoring on school-issued devices; and
• Mandate timely notification of data breaches.

Reinforce existing rights of parents to access and control student data

As summarized below, a few states, as well as the federal parental rights bill, reinforced a parent’s right to opt out of surveys collecting data on sensitive, non-academic topics like, political and religious affiliations, legally recognized relationships, and family income. This reiterates a parental right provided by the federal Protection of Pupil Rights Amendment (PPRA) that has been in place since 1974. In addition to emphasizing this long-standing right, states have expanded the type of information collection for which parents can opt out to include biometric information that could be “used for the purpose of electronically identifying that person with a high degree of certainty.” 

In addition to reinforcing opt out rights, many parental rights proposals reiterated a parent’s right to inspect, review, and correct their child’s education records; this long-standing right (again established in 1974) was initiated by the Family Educational Rights and Privacy Act (FERPA). Although these are largely not new rights afforded to parents, it is possible that including them in parental rights proposals could lead to more parents choosing to exercise them, making it even more important that schools follow all applicable student privacy laws.

Increase in control of monitoring on school-issued devices 

A few proposals recognized the harms that arise from online monitoring of school-issued devices and have enacted laws to try and minimize the risks. Under these bills, a school district or technology provider could not electronically monitor or access the location tracking features of a school-issued device; audio or visual receiving, transmitting, or recording features of a school-issued device; and student interactions with a school-issued device, including keystrokes and web-browsing activity. 

These bills include exceptions allowing the monitoring or access of one or more of these features of school-issued devices in certain circumstances. For example, Ohio state legislators would impose a requirement to notify parents when a banned feature of the school-issued device was monitored/accessed and which exception was triggered, like when monitoring is granted through judicial order or when monitoring is deemed reasonably necessary to respond to an imminent threat to life or safety. Rhode Island and Minnesota, on the other hand, would only require this notification if there is an imminent threat to life or safety.  

Mandate timely notification of data breaches

One significant proposal that is only included in the federal parental rights bill is the right of parents “to timely notice of any major cyberattack against their child’s school that may have compromised student or parent information.” This would grant parents a degree of transparency they do not currently have. This is especially relevant as in 2023, 954 data breaches were reported in U.S. schools and colleges, resulting in 4.3 million records being exposed. This trend seems destined to keep on increasing as it has over the past decade, and thus states should include similar provisions within their proposals.

Parental Rights that Undermine Privacy of Gender Expansive Students

Where bills that aim to increase parental rights do address student privacy issues, and the relevant technology that collects individual-level student information, they specifically target gender expansive students (e.g., transgender, intersex, and non-binary students).[1] They do so in two main ways: 

• Forced disclosure or “outing” policies of students; and
• Criminalizing support of gender expansive students.

Forced Disclosure or “Outing” Policies

Forced disclosure or “outing” policies require schools to notify parents if a child asks to be addressed using a name/pronoun different from the name/pronoun in the school-maintained education record, regardless of whether the student gives their permission. These proposals primarily affect gender expansive students. This not only implicates these students’ privacy, but also the technology in which this information is maintained, which is almost certainly managed through a web-based student information system. Some of the proposals utilize broad language, resulting in instances where notification would be required if a school employee merely suspects a gender/pronoun change. 

This broad scope, in conjunction with school monitoring, could result in a gender expansive student being outed to their family without their consent even if they are just curious and exploring their gender identity. This can occur when student activity monitoring software flags queries related to gender and transitioning; for example, under a South Carolina bill, any school employee who suspects or learns that a student is questioning the gender they were assigned at birth would have to notify the parents of the students, so any flags generated by student activity monitoring that indicate that a student is gender expansive would result in notification being sent home. Previous CDT research shows that nineteen percent of all students whose school uses student activity monitoring report that they or someone they know has been outed. To the extent these policies result in gender expansive students being treated differently by outing them, they could implicate civil rights protections and result in a claim of disparate treatment under Title IX, which protects against discrimination on the basis of sex.

Criminalizing Support

Related to forced disclosure policies are proposals that would punish teachers and school administrators for refusing to “out” gender expansive students to their families. This could occur if they do not notify parents when their child requests a name/pronoun change, even allowing parents to bring a cause of action against a school administrator or teacher if they refuse to comply with the name and/or pronoun set for the student by the parent. These proposals would make it incredibly difficult for teachers or school administration to provide support to gender expansive students as it would subject them to adverse employment actions or even civil litigation if they refuse to disclose a requested name/pronoun change to parents. 

Given the ubiquity of educational records in today’s schools, the existence of an electronic paper trail and how it could be used to enforce these bills would give rise to a very real concern for many school employees. Oftentimes this trail can be as simple as email or other electronic communications between the teacher and the student where the student is addressed by their preferred name/pronouns. As these policies would tend to create hostile learning environments for gender expansive students, they could implicate civil rights protections and result in a claim of hostile learning environment under Title IX.

Conclusion

The increased legislative attention on parental rights in K-12 schools has not focused on ethical data practices in edtech but instead on student privacy (and related technology) of gender expansive students. Parents want to play a greater role in informing whether and how data and technology are used in schools, so policymakers should heed those voices instead of putting forth policies that would violate certain students’ privacy and potentially their civil rights.

Bills and Laws that Increase Parental Rights

*Connotes a state law instead of a bill

[1] Bills and Laws that Increase Parental Rights