By Attorney Thomas B. Mooney, Neag School of Education, University of Connecticut

The “Legal Mailbag Question of the Week” is a regular feature of the CAS Weekly NewsBlast. We invite readers to submit short, law-related questions of practical concern to school administrators. Each week, we will select a question and publish an answer. While these answers cannot be considered formal legal advice, they may be of help to you and your colleagues. We may edit your questions, and we will not identify the authors.

Please submit your questions to: legalmailbagcasciacorg.
 
 

 
Dear Legal Mailbag:

My district encourages teachers to use GoGuardian to limit and monitor students’ online activity during class. A few parents have recently asked IT leadership to turn on a GoGuardian feature that would email them a daily report that shows all of their child’s online activity while logged onto a district-issued device. The report would list all sites the student visited as part of their planned instruction, their research, and their recreational browsing.

These parents argue they have the “right” to know what their child is doing in school. What legal argument could be made for and against the automatic and heightened surveillance of all of our students’ online activity?

Signed,
Ed Tech
 

Dear Ed:

Legal Mailbag thanks for you a great question. However, the answer to that great question will not be decided through legal arguments “for and against the automatic and heightened surveillance” that your school district can make available to parents. Rather, whether your district activates the requested feature in GoGuardian is a policy judgment for your district to make.

In overseeing the education of their children, parents do have important rights. Those parental rights start with the fundamental decision whether to comply with the mandatory attendance laws by enrolling their children in the public schools or whether they wish to make other arrangements by showing “that the child is elsewhere receiving equivalent instruction in the studies taught in the public schools.” Conn. Gen. Stat. § 10-184. When parents choose to send their children to the public schools, they vest in the public school authorities the right to establish the curriculum.

There are some limits for school officials as to the curriculum. Parents retain the right under Connecticut law to require excusal of their children from the following specific areas of the curriculum:

• Family life education
• HIV education
• Firearm safety instruction
• Dissection
• Sexual abuse and assault awareness
  

Upon simple written request, parents can require that their children not participate in these areas of the curriculum, and children so excused will be given an alternative assignment during instruction in these topics.

Significantly, when parents enroll their children in the public schools, parents do not have the right to demand excusal from other areas of the curriculum. A leading case in this area of the law was decided right here in Connecticut in 2003. A parent in Fairfield asked that his son be excused from health education. The district responded by granting the requested excusal as provided by law, i.e., from the course segments on family life education and AIDS, but it denied the broader request for excusal from the health curriculum as a whole. When the student then received a failing grade for not attending, his father sued in federal court, claiming a violation of his First Amendment right of free exercise and of his Fourteenth Amendment right to due process. The Second Circuit, however, rejected these claims, affirming a lower court ruling that the district’s mandatory health curriculum was reasonably related to legitimate educational objectives. Leebaert v. Harrington, 332 F.3d 134 (2d Cir. 2003).

That said, parents have the right to review curriculum materials in the public schools. Under the Protection of Pupil Rights Amendment (the “Hatch Amendment”), 20 U.S.C. § 1232h (described HERE), parents have the right to inspect “instructional material, excluding academic tests or academic assessments, used by [a school district] as part of the educational curriculum for a student.” Parents in Connecticut have similar rights under the Freedom of Information Act, Conn. Gen. Stat. § 1-200 et seq., as well.

As your district considers this request, Legal Mailbag offers an analogy. School officials welcome parent involvement in the education of their children, and if a parent wants to visit a class, school districts will typically accommodate that request and permit the parent to visit. But school officials would not permit a parent to visit every day; that would be unreasonable and disruptive. Similarly here, Legal Mailbag wonders if sending a daily report to parents through GoGuardian of “all sites the student visited as part of their planned instruction, their research, and their recreational browsing” could be intrusive and distracting. Presumably, use of this technology is intended to permit teachers to supervise students’ online activities in school more efficiently and effectively, but its purpose is not to report to parents on their child’s every online move in school. As a policy matter, your district may decide not to activate this feature of GoGuardian. As a legal matter, your district has every right to decline to do so.