Cyberlaw Clinic Files Comment for CDT Urging the U.S. Dept. of Ed. to Protect LGBTQI+ Students from Discriminatory Tech

On September 12, 2022, the Cyberlaw Clinic filed a comment on behalf of the Center for Democracy and Technology in response to a Notice of Proposed Rulemaking issued by the U.S. Department of Education (Department), encouraging the Department to protect LGBTQI+ students from their schools’ use of surveillance technology.

The Department’s proposed rule aims to clarify that Title IX’s prohibition on sex discrimination in schools includes discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity. The proposed rule also attempts to broaden the scope of education programs or activities covered by Title IX to include “[federal financial assistance] recipients’ education programs or activities serving students in elementary schools, secondary schools, and postsecondary institutions.”

The Cyberlaw Clinic and CDT’s comment urges the Department to take specific measures to protect LGBTQI+ students from the harm they face due to surveillance technology used by their schools. As schools around the country shifted to virtual classrooms at the beginning of the pandemic, schools began providing students with laptops and tablets to be used at home, with 95% of teachers reporting that their school provided laptops and/or tablets to the students in the past academic year, according to a recent CDT report. These devices came equipped with a wide array of tools that allowed schools to monitor their students’ activities online, anywhere from the content on their Google accounts to the messages they were sending to friends. The use of such monitoring software is widespread: 89% of teachers reported that their school uses student activity monitoring software, according to CDT. While the justification for such monitoring centered around ensuring the safety of the students, this increased monitoring has had a slew of unintended consequences, leading to harms that disproportionately affect protected classes of students.

One area of particular concern is the targeted monitoring of LGBTQI+ students. CDT’s report details the extent to which student activity monitoring tools have subjected LGBTQI+ students to increased discipline and disproportionate interactions with law enforcement compared to their peers. It has also increased the risk of students being outed to their families without their consent.

While students have largely returned to in-person school, the use of surveillance tools has continued. With the increase in “Don’t Say Gay” laws and abortion bans around the country, these surveillance technology poses an even greater risk to students protected under Title IX. A 20XX survey conducted by CDT showed that student information collected by student surveillance companies is regularly shared with law enforcement agencies. Thus, criminal charges can be filed against students caught researching and sharing information related to reproductive health or gender-affirming care.

The comment urges the Department of Education to take specific measures to protect LGBTQI+ students from further harm from digital surveillance by:

• Formally adopting the position that sex-based discrimination includes discrimination on the basis of sexual orientation and gender identity;
• Explaining that schools are liable for discriminatory uses of technology, including technology that is provided by third-party contractors;
• Clarifying that Title IX applies to digital spaces, but schools do not have an active obligation to monitor or surveil students online;
• Underscoring that Title IX provides critical privacy protections that preempt discriminatory state laws and overrides FERPA when disclosures would create a hostile environment for LGBTQI+ students.

Read the full comment here.

The Cyberlaw Clinic thanks Fall 2022 Teaching Fellow Arabi Hassan and Summer 2022 Intern Hiba Ismail for their assistance with these comments.