The Christian Science Monitor is calling it “an unusual alliance of Evangelical Christians and civil liberties groups who claim that the technology is an over-extension of technology into personal lives.”
In a move that is certain to rankle people fighting for civil liberties AND raise the hair on the back of Texas Governor Rick Perry’s neck, a Texas judge has ruled that the San Antonio Northside Independent School District (NISD) has the right to force students to wear locator chips when they are on school property. NISD is the fourth largest school district in Texas and serves 100,000 students.
The case was brought by Steve Hernandez, the father of Andrea Hernandez, when the school district told her she had to wear a tracking device while on school grounds or she would be expelled and transferred from a special magnet school to a high school in her neighborhood. Andrea, 15, is a sophomore in the NISD district, and was backed in federal court by The Rutherford Institute, a conservative non-profit Virginia-based policy center and civil liberties organization. Rutherford attorneys said that the requirement was a violation of Hernandez’s constitutional right to privacy and her family’s evangelical Christian beliefs, and that the school had no right to expel her for refusing to wear it.
On Tuesday, Reuters reported that U.S. District Judge Orlando Garcia ruled in a 25 page ruling that the lawsuit failed to assert the claims of federal and state civil liberties violations and that the school district has the right to expel Hernandez for refusing to wear the device. He said that the issue of school safety trumps the lawsuits five claims of federal and state civil liberties violations.
Expecting a lengthy court battle, the Hernandez family was asking that Andrea be allowed to continue attendance at Jay High School, a district magnet school for engineering and science, while her case goes through the federal courts system. Tuesday’s ruling ended that idea, reports My San Antonio.
The district’s emailed statement read “Today’s court ruling affirms NISD’s position that we did make reasonable accommodation. The family now has the choice to accept the accommodation and stay at the magnet program, or return to her home campus.”
John W. Whitehead, president of The Rutherford Institute, said “By declaring Andrea Hernandez’s objections to be a secular choice and not grounded in her religious beliefs, the district court is placing itself as an arbiter of what is and is not religious. This is simply not permissible.” (Source: Rutherford.org)
Radio Frequency Identification (RFID) technology is being tested as a pilot program at Jay High School and another San Antonio high school. The schools did not implement the program for safety reasons, but rather because they have struggled with poor attendance, which compromises their state funding. Texas school funding was cut by nearly $5 billion last year. By Texas law, attendance and number of students in the classrooms at the start of the day determine the amount of funding that a school receives from the state. Northside was losing $1.7 million per year because students weren’t in their seats when the morning bell rang.
If the pilot programs prove successful, the school plans to explore the idea of implementing the program at all of its 112 campuses. Administrators claim that they use it to identify students who are in the building and missed roll call in their first morning class. Prior to the tracking system, students were marked absent, even though they may have been in the school nurse’s office, loitering in the stairwells, or chatting in the hallways, says Pascual Gonzalez, a Northside spokesperson. (Source: Christian Science Monitor)
“People may think we have personnel sitting in front of a bank of monitors looking at the whereabouts of 3,000 kids,” he says. “That’s impossible. We don’t have the staff to do that, and we don’t have a reason to do that …. If we need to find someone, we can locate them, but nobody sits there and tracks their whereabouts.”
However, the devices can track students at any time of day. Every badge tracks and keeps an electronic history of students movements. According to Hernandez, students who refuse to wear the badge with the chip inserted don’t have access to the cafeteria and the library and aren’t able to buy tickets to extracurricular activities. Hernandez reported that teachers are even requiring students to wear the badges when they go to the restroom.
School officials offered to remove the tracking chip from Hernandez’s badge if she would agree to wear it to give the appearance of participation in the program. She refused on the basis that even wearing the badge would mean she is implying participation and therefore wearing the “mark of the beast,” and that she would still be “worshiping a false god.” (Source: Rutherford)
Gonzalez refuted these claims in an interview with Will Oremus, a tech blogger for Slate. He explained that students use the ID chips for a myriad of purposes, from checking in at the beginning of the day to voting for homecoming queen, but that Hernandez would still be able to do all of those things with the chip removed. “We were very explicit with her and her family that all of the access and services that she would have gotten with RFID would still be available via this non-RFID card,” Gonzalez told Oremus.
“We have to respect their religious beliefs,” he said. “So we said, ‘All right, if this is objectionable to you because it violates your religious beliefs, then we will not put the RFID technology in the card. But you still have to wear the ID card like every other student at school.’ Daddy said no, and the student said no.”
Judge Garcia pointed out a safety benefit of the devices.
“In today’s climate, one would be hard pressed to argue that the safety and security of the children and educators in our public school system is not a compelling governmental interest,” Judge Garcia wrote. “One could envision many different methods of ensuring safety and security in schools, and the requirement that high school students carry a uniform ID badge issued for those attending classes on campus is clearly one of the least restrictive means available.” (Source: My San Antonio)
This concern is reiterated by Gonzalez. He told the Christian Science Monitor that not only does the program help with attendance, but offers the bonus of a security measure. “This is not a tracking pilot, this is a locating pilot,” he says. “When there’s an emergency in the school, if we have to lock down the school or evacuate a school or whatever, we will be able to find a student as we need to by entering a randomly assigned number.”
Two Houston school districts have used RFID technology with reported success in revenue for increased attendance. The San Antonio district paid $261,000 for the technology and is hoping to receive $1.7 million dollars in additional state funding this year based on increased attendance numbers. (Source: Christian Science Monitor)
Texas Education Agency spokeswoman DeEtta Culbertson has said no state law or policy regulates the use of such devices and the decision is up to local districts. This was also noted in Judge Garcia’s Tuesday ruling when he said “the courts should not lightly interfere with the daily operation of school systems.”
At last month’s hearing, Steven and Andrea Hernandez testified they consider the tags to be the “mark of the beast,” with Steve Hernandez saying “In this case, Northside is the Antichrist.” (Source: My San Antonio)
“We firmly believe that it is our Hell Fire Belief that if we compromise our faith and religious freedom to allow you to track my daughter while she is at school it will condemn us to hell,” Hernandez wrote in a September 4 letter to district officials and quoted in Garcia’s ruling.
“It’s a rather sensitive topic in various school districts and communities,” says Ronald Stephens, executive director of the National School Safety Center. But he notes the potential benefits such as being able to locate students in an emergency and tracking where violence or crimes occur in schools. “A lot of this is about a fine balance, about the technology that is there and creating the kind of environment you want on the campus,” says Stephens. (Source: Christian Science Monitor)
The badges can potentially cause numerous religious freedom concerns in addition to privacy concerns. Rutherford says that Hernandez’s religious objection “derives from biblical teachings that equate accepting a personalized code—as a sign of submission to government authority and as a means of obtaining certain privileges from a secular ruling authority—with a form of idolatry or submission to a false god.”
The district’s policy has also been criticized by conservatives who consider it an example of “big government” and Big Brother further intruding into the privacy of individuals and eroding their liberties and privacy rights.
“The school staff is full of assurances that they are not using the monitoring to actually spy on people, but only to make sure they are in class when the bell rings. This seems like a really expensive and intrusive substitute for taking attendance. And it only makes sense that these new technologies will not be full abused overnight. First, some minimal and non-threatening excuse must be developed so that the technology is implemented. Then, either publicly or secretly, the use of the technology can be widened. The only way to realistically stop from becoming a slave in a Big-Brother system is to keep the Big-Brother tools from ever being used.”
The American Civil Liberties Union opposes the district’s use of Radio Frequency Identification (RFID) chips. “We don’t want to see this kind of intrusive surveillance infrastructure gain inroads into our culture,” Jay Stanley, ACLU senior policy analyst told Reuters. “We should not be teaching our children to accept such an intrusive surveillance technology.”
The use of tracking devices “desensitizes students from an early age to privacy violations,” says Khaliah Barnes, law council at the Electronic Privacy Information Center, a Washington-based nonprofit public-interest group.
Lois Kolkhorst, a Republican lawmaker in the Texas House of Representatives, has spent eight years trying to introduce bills that either ban RFID technology from schools or allow parents to opt out with no repercussions. “I don’t like this technology being used with our children,” Representative Kolkhorst told Christian Science Monitor. “This should be vetted publicly.”
The Register notes that even an individual who appeared to be representing internet activist group Anonymous stood up for Hernandez. Twitter user @RemainSilentz, whose profile reads “Governments breach ALL privacy laws, put a stop to it, and act fast. Owner of Remain” issued the following Tweet and later clarified that the School District’s site was down.
The Rutherford Institute will continue to fight Hernandez’s case to protect her religious beliefs.
“The Supreme Court has made clear that government officials may not scrutinize or question the validity of an individual’s religious beliefs,” said John Whitehead, Rutherford’s president. “By declaring Andrea Hernandez’s objections to be a secular choice and not grounded in her religious beliefs, the district court is placing itself as an arbiter of what is and is not religious. This is simply not permissible under our constitutional scheme, and we plan to appeal this immediately.”
“The future of privacy is at stake,” Whitehead finished.
In an earlier article covering this case, blogger Will Oremus makes the point that:
“No doubt Whitehead is right that we’re likely to see more battles over RFID in schools in the years to come. But in the broader national debate over technologies that make government surveillance easier and more pervasive than ever, the religious-freedom issue is a red herring. These tags aren’t the mark of the beast—they’re the mark of a society grappling with troubling tradeoffs between convenience, security, and privacy.”
So it seems that the appeal, too, will focus on religious beliefs rather than privacy concerns. That’s a shame, because the privacy issues around the use of RFID chips in schools (and elsewhere) are far more interesting. Let’s hope they get a thorough airing—somehow, somewhere—before the technology becomes so pervasive that we take it for granted.
I am an unapologetic member of the Christian Left, and have spent a lot of time working with “the least of these” and disadvantaged and oppressed populations. I’m passionate about their struggles. To stay on top of topics I discuss, subscribe to my public updates on Facebook, follow me on Twitter, or connect with me via LinkedIn. I also have a grossly neglected blog. Find me somewhere and let’s discuss stuff.