Do schoolchildren have rights?

My eye was caught recently by this article on the BBC News channel. It seems some, no doubt well-meaning,* Head thought it a good idea to create what was in effect a league table of pupils’ ability by displaying their names and photos on a classroom wall along with how they ranked based on academic performance. It seems from the article that without doing this they felt they would be unable to provide individual support to allow pupils to improve. Who am I to argue with that?

Whilst it seems a large number of parents and pupils, possibly I suspect those in the relegation zones, thought this was inappropriate and possibly counter-productive no-one seems to have queried** whether the school had a right to do this. This intrigued me because it had parallels with a blog post I wrote a couple of years ago but seem to have forgotten to publish. More of that later.

Clearly the school is processing personal data. There is no suggestion that this has been done by consent of the pupils. I will skip over whether there is a breach of confidentiality involved as that is rather a difficult topic. But data protection law is rather easier.

Was what the school did fair? A significant number of those involved appear to think not, which is usually a good indicator. A pity perhaps that the school was not in Clapham (it’s in remotest Northumberland) then we could cross check to see how many of the objectors went to school by bus to clinch the question. If not fair Data Protection Principle 1 is breached.

What condition in Schedule 2 of the Data Protection Act can the school pray in aid of their actions in the absence of consent? I can ignore the unknown factor of any attempt to imply consent from the school’s prospectus or terms here as that would not be freely given informed consent. The only possibility is the well worn condition 6. Let us set it out – my emphasis:

The processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject. [note singular case]

The school clearly has a legitimate interest in raising standards. For argument’s sake let us give them the benefit of the doubt that they have sufficient evidence that “transparent communication” works to do that at a school level – although personally it seems a bit flaky and I would like to know more about how and when (timing seems to be relevant) it was done in those schools were it was said to have been a successful strategy.

What is far more doubtful is whether it is “necessary” to do this. The stated aim is to ensure pupils are “aware of their relative-ability levels prior to entering examinations”. If that is true I have little doubt it could be achieved in another way. The necessity test fails and this would be a data protection breach.

I strongly suspect however that the stated aim is a euphemism for the true aim which is hard to state in a PC world. I strongly suspect that children are pretty well aware of their relative standing (they certainly were in my class!). No the point here is that awareness is not enough. We need to name and shame and embarrass them into pulling their socks up. If that is the true aim perhaps necessity falls into place – although fairness still seems iffy. And if it works for Charles and Charlotte the means may be justified by the end and the processing is possibly not unwarranted. But will it work for everyone? Probably not and that causes a fundamental difficulty. Condition 6 (and probably many other parts of the law) requires the school to consider the position of each data subject affected. If this exercise has the opposite effect of demotivating or causing other difficulties for any pupils then, considering those pupils, surely the processing is unwarranted. Or perhaps we are in Spock’s realm of the needs of the many outweighing the needs of the one. I’m not convinced data protection is meant to work that way, particularly where children are concerned.

In summary I think that there is a strong argument that what this school did was in breach of principle 1 – unfair and no schedule 2 condition satisfied. Anyone care to tell the distressed kids, they may have a claim for damages?

My other post, which must await another day as I have gone on far too long, was about exam results.

*I can tell they were well-meaning because they us all the right words like “innovative strategies”, “group-learning classroom***” and “transparent communication****”.

** Apologies if this has been picked up on the DP twitter-sphere which I am currently gracing with my absence.

*** Better for kids than solitary-learning cells.

**** (running out of star space soon) Presumably they previously communicated in code without giving out the code-book.

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