Locker Room Surveillance Camera Violates Students' Constitutional Privacy Rights

The Sixth Circuit Court of Appeals in Cincinnati, Ohio, has recently released an opinion, Brannum v Overton County School Board, ___F3d___, 2008 WL 441436, that concerns the use of surveillance cameras in a school setting. The decision clearly states that there are limits on the use of video surveillance technology in the school setting.

In an effort to enhance safety and security, surveillance cameras were installed in a Tennessee middle school and the school district did not enact guidelines or written rules at any level to govern the usage of those cameras. The building principal and assistant principal made the decision to place some of the cameras in the boys and girls locker rooms. For six months the cameras recorded district students and visiting athletic team members dressing and undressing, and the images were stored. The recorded images were also accessible via an internet connection.

The plaintiffs alleged violations of their federal constitutional rights pursuant to 42 US Code § 1983 and the Court was asked to decide a motion for summary judgment. The school district argued that the officials named in the suit should be deemed to have governmental immunity and the case dismissed.

The Court held, in a strongly worded opinion, that video surveillance is inherently intrusive, and that the students' privacy rights were protected by the Fourth Amendment to the United States Constitution. The panel opined that there is a much greater expectation of privacy in a locker room than in a hallway. The Court also noted that there were no written rules to regulate the placement of the cameras or their operation, and that no notice had been given to students and their parents that videotaping was being conducted. No evidence was presented that the school officials had a well founded concern about the safety of students in the locker rooms. It was also noted that locker rooms are places specifically designed to offer privacy and that students have a, "universal understanding," that such locations are places of heightened privacy.

Turning to the officials who were being sued, the Court found that the superintendent/director of schools and school board members were entitled to qualified immunity from suit because they only decided to seek greater safety and security by having cameras installed and did not direct the locations where cameras should be placed. The principal and assistant principal who were delegated the authority to determine the locations of the cameras were deemed not to be immune and must now face trial.

Before a school district employs surveillance cameras in any locker or restroom facility, legal counsel should be consulted. There may be justification for the use of video technology in such places, but the facts must be examined and evaluated carefully. Consideration must also be given to notifying the students and parents of the need for and the scope of any such surveillance. Finally, written rules or regulations governing the use of the cameras and any recordings must be enacted.

[NOTE- The issue of whether a surveillance video recording of students qualifies as an "education record" under the Family Educational Rights and Privacy Act is discussed in the article "Students, FERPA and Videotape," by Brad Banasik, MASB Legal Counsel. The article is in the Winter 2008 edition of Council News, a biannual newsletter published by the Michigan Council of School Attorneys.