This works until 'smart' kids figure out the trick of trading badges
The privacy community is up in arms this week about Texas student Andrea Hernandez “losing” a lawsuit which challenges her school district’s RFID-enabled “ student locator” program. She objected to John Jay School requiring students to wear ID badges with an RFID chip that allows them to be tracked at all times. It sounds like the legal thriller sequel to Cory Doctorow’sLittle Brother at first glance, but it’s not. The facts in the case are more complicated meaning that questions of privacy and whether students should be tagged and tracked like research animals aren’t being addressed by the court.
First off, Hernandez has not actually lost her case; it’s ongoing. A ruling from the West District of Texas Tuesday simply means that Hernandez can’t stay in the school sans badge while the case is ongoing, and will have to return to the non-magnet school that isn’t part of the “Student Locator” program. That may sound awful, but John Jay School has, in the judge’s opinion, done its best to accommodate Hernandez’s objections to the RFID chip in her badge by, primarily, offering to give her a badge without an RFID chip in it. She says that’s not good enough. Her lawyer, John Whitehead of the Rutherford Institute, plans to appeal the judge’s ruling to the Fifth Circuit.
Hernandez originally objected to the badge for privacy reasons — no one wants their teachers to know exactly how much time they spend in the bathroom — and for religious reasons — there’s a “Mark of the Beast” passage in the Bible which warns against letting the authorities mark every man with a number. (Time to renounce the Social Security system, y’all!) The privacy objections got thrown out the window fairly early on because the school offered to snip the chip. That’s a shame as there’s certainly a national debate that should take place about whether kids should be tracked this closely in schools. Unfortunately, that’s not the debate being had here.
Hernandez previously carried an ID badge around in the pre-RFID days, but refuses to do so now because she argues that it makes it appear that she supports the tracking program. “ She would not object to a regular ID,” says her lawyer John Whitehead. “But she doesn’t want a location badge that looks like everyone else’s but doesn’t have a chip.”
Judge Orlando Garcia wasn’t sympathetic to that line of reasoning. From his opinion:
[Hernandez] and her father have publicly voiced their objection to the entire pilot program, and her father believes that wearing the student ID badge without a chip would give the appearance of acquiescence. Mr. Hernandez testified that A.H.’s acceptance of the accommodation would “put a smiley face” on the pilot program. It would “make a statement that A.H. fell in line to support the program” and he would “look like a fool.” The First Amendment does not protect such concerns.
Unfortunately, the founding fathers left the “right to freedom from being played like a fool” out of the Constitution.
Hernandez’s arguments are not limited to religious and speech ones. She also says the school has segregated her due to her refusal to embrace the Beast badge. Whitehead says she was unable to vote for prom king and queen without the badge and is segregated in the lunch line — presumably because she has to go to a different register to pay in cash rather than by flashing her Beast mark. The judge doesn’t see that as a violation of equal protection; instead he lectures Hernandez on the privacy-convenience tradeoff:
[T]he District’s accommodation to remove the chip from the badge would remove Plaintiffs religious objection and enable her to remain on campus just like all other students. Because Plaintiff refuses to carry the Smart ID badge, she has to stand in a different lunch line for those who are not carrying their Smart card and must pay for lunch by other means. Plaintiff also alleges that she was questioned about her badge when she checked out a library book, and that she was unable to vote for the homecoming king and queen. Because the campus is now equipped for Smart cards, Plaintiff may be inconvenienced. But the inconvenience is the result of Plaintiffs own decision to refuse the Smart card. It is not the result of any action by the District, nor does it rise to the level of a constitutional violation.
So what this basically boils down to is whether the school’s decision to give her a chip-less badge as an opt-out is a reasonable accommodation. This judge has decided it is. But the case is not over yet.
“I think this case is important because these programs are spreading around the country and she just wants the right to opt out,” says Whitehead.
But hasn’t the school given her an opt-out in the form of a chip-less badge?
“It’s hard to understand if you’re not religious,” says Whitehead. “The family sees this as a satanic program, and they don’t want to be involved with it.”