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Youth Violence Prevention: Balancing Student Surveillance, Privacy and Equity

February 9, 2021


According to a Tampa Bay Times article from November 2020, the sheriff’s office in Pasco County, Florida, maintains a “secret list” of students that research suggests may be more likely to engage in criminal activity. The list includes kids with poor grades, students who regularly miss class, and children who have witnessed household violence or experienced it themselves.

The desire to predict and prevent violence by young people is understandable and valid, particularly in the wake of school violence tragedies like Columbine, Parkland, and Sandy Hook. Just this week, a teenager made national news when he shot and killed his entire family. Communities do have a valid interest in identifying its members who are more likely to perpetrate violence, even when those perpetrators are children. However, that interest must be carefully balanced with the equally important competing interests of privacy and equity.

Research suggests that certain factors predict future violent or criminal behavior. For example, adolescents who have already engaged in violent behavior are more likely to repeat it, as are teens who use drugs or join gangs. Hyperactivity and low academic performance are risk factors for later violence. Chronic truancy is associated with delinquency, drug use, and adult criminality. Children of mothers who are victims of interpersonal violence are more likely to engage in alcohol or drug use. The Office on Women’s Health states that boys who witness interpersonal violence against their mothers are ten times more likely to abuse their female partners. Children who witness interpersonal violence using a weapon are more likely to commit a crime using a weapon. While much of this research seems compelling, sharing very sensitive data with law enforcement in the absence of a credible and present threat is problematic. Research also shows that lack of sleep and early school start times are associated with a variety of negative outcomes for teens, including delinquency and drug use. Would we draw the line at allowing law enforcement to track students’ sleep?

But the research may be highlighting a chicken-and-egg question: do these factors cause criminality in young people, or (more probably) are young people driven to criminality by life circumstances that tend to co-exist with these factors? That is, does truancy itself make a teen more likely to behave criminally, or do the circumstances that surround his absence from school (caring for a parent with substance use disorder, needing to make money to pay rent, never seeing role models that overcame circumstances through education) cause the chronic stress, hopelessness, and poverty that lead to crime? If it’s the latter, then policy approaches to prevent youth violence and crime should target their true underlying causes: poverty and racism. 

The Future of Privacy Forum’s Amelia Vance, in her remarks to the Federal Commission on School Safety in 2018, noted that some level of school surveillance is important to protect students, but that it can also harm students if “guardrails” are not in place to protect student privacy and equity. According to Vance, states such as Florida and Texas passed laws that allow continual surveillance of students’ social media profiles and sharing with law enforcement and social service agencies to profile students who are “threats.” While surveillance of students’ public social media profiles to prevent credible threats of violence can be valid, such policies must be applied equitably. Student surveillance (like school discipline, as Black students are three times more likely to be suspended or expelled than white students) is almost certainly applied disproportionately against students of color.  These approaches may reinforce the so-called “school-to-prison pipeline” and perpetuate the harmful, well-established cycle of law enforcement mistrust and loss of a sense of community ownership. Student surveillance can also create a permanent record that can limit students’ future opportunities.

Surveilling students’ sensitive health, academic, and behavioral data not only violates notions of civil justice, but it also teeters on the outer limits of federal privacy law. The Family Educational Rights and Privacy Act (FERPA) generally prohibits the disclosure of information from a minor student’s education records without parental consent, unless an exception applies. According to guidance from the Department of Education (ED)’s Student Privacy Policy Office, the “health or safety emergency exception” to FERPA’s general consent requirement requires that data sharing be “limited to the period of the emergency and generally does not allow for a blanket release” of identifiable student information. Rather, data sharing must be related to an “actual, impending, or imminent emergency.”

Arguably, continued surveillance and sharing of personally identifiable student information to identify students at risk for general, future criminal behavior would not meet this standard. However, other exceptions may allow interagency data sharing among schools, law enforcement, and social service agencies without parental consent. For example, FERPA allows disclosures in compliance with a state statute concerning the juvenile justice system (§ 99.31(a)(5) and § 99.38); however, these disclosures must be designed to “effectively serve the student whose records are released.” Also, schools may disclose information from “law enforcement unit records,” such as data maintained by School Resource Officers, because FERPA specifically exempts records that law enforcement units within schools create and maintain for a law enforcement purpose.

Given the complexities of FERPA, further ED guidance is needed on what information can be shared in the face of a credible threat to health or safety; but even more pressing is the need for guidance related to continued surveillance of students for risk factors that may make them more likely to engage in criminal behavior. What student information can be shared and when? Are attendance records held to a different standard than mental health or medical information maintained by school nurses? Can schools share records related to adverse childhood experiences and history of abuse with law enforcement, even when the child has demonstrated no behavioral problems?

Civil rights and student privacy dictate that data collection and sharing be targeted at the most serious and tangible threats to school safety, but ongoing surveillance of student data without their knowledge seems to fall outside the realm of tangible. Thoughtful consideration must be given to the interplay of violence, crime, poverty, and racism, and how law and policy can contribute to better solutions that protect both safety and privacy.

This post written by Kerri McGowan Lowrey, J.D., M.P.H, Deputy Director and Director of Grants and Research, Network for Public Health Law – Eastern Region Office. 

The Network for Public Health Law provides information and technical assistance on issues related to public health. The legal information and assistance provided in this post do not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state.

Support for the Network is provided by the Robert Wood Johnson Foundation (RWJF). The views expressed in this post do not represent the views of (and should not be attributed to) RWJF.