Originally appeared in the CAS Weekly Newsletter
Dear Legal Mailbag:
At our high school, we have opened a gender-neutral bathroom that has three floor-to-ceiling stalls and a separate sink area. All of our bathrooms have monitors that sign kids in out in the hallway. Since opening this space, we have encountered more reports of vaping and other inappropriate behavior than you could imagine. This has consumed resources as we conduct investigations and searches. These illicit activities have also resulted in creating a space that some students do not want to access.
There is space (like they have in the bathrooms at some fancy events, minus the mints and hot towels) to move the monitor into the gender-neutral bathroom so the monitor can deter vaping and make sure that more than one student does not go into the same stall. However, we do not know whether there are any laws that would prohibit our taking this step, given there is a reasonable expectation of privacy in bathroom spaces, we are a school, and it is a gender-neutral space.
Would Legal Mailbag weigh in on whether we can move the monitor into the gender-neutral bathroom? Much obliged!
Keeping Kids Safe
Legal Mailbag applauds your creativity as well as your sensitivity to student rights. In this case, you have the right to proceed with your plan.
You correctly identify the privacy concerns of students as a concern. However, respecting those privacy rights in our schools is a judgment call. There are no statutes authorizing school officials or prohibiting school officials from entering student bathrooms. While student privacy rights must be respected, the safety of students is the first priority for school officials, and sometimes it is necessary for teachers and others to enter the bathroom to intervene in student misconduct or otherwise assure that students are safe. Reasonably exercising that supervisory control over students is permissible, even in student bathrooms.
In the specific situation you describe, it is appropriate to reset our expectations as to the scope of student privacy expectations. Legal Mailbag understands that teachers of one gender being stationed in the bathroom designated for the opposite gender would raise legitimate privacy concerns, because the premise of bathrooms identified by gender (“Girls” and “Boys”) is that students and others may use those facilities without encountering persons of the opposite gender in that space. Even in such cases, however, Legal Mailbag would not expect any pushback if a teacher of the same gender found it necessary to enter either the “Boys” bathroom or the “Girls” bathroom to intervene in student misconduct, because the teacher would be conforming to the expectation that the space is limited to persons of the same gender.
The premise of gender-neutral bathrooms is different. Gender-based privacy concerns are not addressed by who may enter the bathroom, but rather are addressed, as you describe, by floor-to-ceiling stall separators. In a gender-neutral space, persons of either gender are free to enter the bathroom, and their gender-based privacy interests are limited to the stalls that they may enter to use the facilities. Accordingly, Legal Mailbag concludes that it is permissible for administration to move the monitor’s station into the bathroom, irrespective of the gender of the monitor.
Given the variety of circumstances in which privacy interests of students must be balanced against the compelling need to assure that students are safe, Legal Mailbag is grateful that the General Assembly has not seen fit to regulate such matters by statute. Rather, striking the balance is left to the reasonable judgment of school officials. By contrast, there is a law prohibiting employers (including boards of education) from monitoring employee bathrooms by electronic means. Conn. Gen. Stat. § 31-48b is entitled in relevant part, “Use of electronic surveillance devices by employer limited,” and subsection (b) of that statute provides:
b) No employer or agent or representative of an employer shall operate any electronic surveillance device or system, including but not limited to the recording of sound or voice or a closed circuit television system, or any combination thereof, for the purpose of recording or monitoring the activities of his employees in areas designed for the health or personal comfort of the employees or for safeguarding of their possessions, such as rest rooms, locker rooms or lounges. (Emphasis added).
Significantly, this restriction in the employment context is limited to electronic surveillance, and there is no statute that prohibits employers from entering bathrooms for legitimate reasons.
In sum, you and your colleagues in the high school administration have the discretion to use your reasonable judgment in supervising students to keep them safe, even as may involve bathrooms. Given the revised privacy expectations applicable to gender-neutral bathrooms, Legal Mailbag does not see anything wrong with your plan.