David P. Thompson, Ph.D.1Lest there be any doubt, technology has changed the enterprise of schooling in the United States and around the globe. One of the latest, albeit emerging, trends in technology manifests itself in the use of Radio Frequency Identification (RFID) to locate students while on school premises. Of course, as coined by Sir Issac Newton, “For every action, there is an equal and opposite reaction.”2 In reality, Newton could have been referring to the world of school law, because on the heels of a school district implementing RFID to locate students for, among other things, increasing funding by more accurately counting students in attendance, a lawsuit followed.
The purpose of this article, then, is to discuss the use of RFID in general and as a student locating technology specifically, chronicle the Northside Independent School District’s (NISD) (to date) “Student Locator Pilot” (SLP) project,3 discuss the legal response of a student plaintiff who has brought suit to stop the SLP, and examine issues related to the implementation of this technology.
RFID TECHNOLOGY
Radio frequency identification (RFID) technology has been around for some 40 years, and one of its earliest uses was for the tracking of large objects, such as livestock.4 According to the United States Department of Homeland Security, RFID “uses radio waves to identify people or objects.”5 A typical RFID system has two components: (1) an RFID tag, and (2) an RFID reader.6 The RFID tag is found on (or at least near) the person or object being identified, while the reader is used to retrieve and store data from the RFID tag.7 For example, drivers using the Westpark and Sam Houston Tollways in Houston (and similar toll roads in Texas) have on their windshield a sticker in which is embedded an RFID device that transmits data when their cars pass through the toll booth. The RFID reader reads the data from the tag, which consists of a multiple digit identification number tied to the account of the driver, and then transmits the data to a database, which then automatically debits the account of the driver in the amount it costs to pass through the toll booth. There are essentially two types of RFID tags: passive or active. Passive RFID tags lack their own power supply, and only become active when “stimulated by a radio signal from an external reader device.”8 On the other hand, active RFID tags have their own power supply, typically in the form of a small battery, perhaps lithium-ion, which enables them to continually transmit data.9 According to the Department of Homeland Security, RFID technology “is now part of our daily lives and can be found in car keys, employee identification, medical history/billing, highway toll tags and security access cards.”10 Current and future uses of RFID technology include systems that (1) enhance pet recovery, (2) permit location of newborn babies in hospitals in the event someone tries to kidnap a newborn, and (3) allow you to shop for items that have RFID tags, which will transmit items in your shopping cart to their respective manufacturers and to your bank, thereby permitting you to load up your cart, leave the store without going through checkout lines, and have the bill deducted from your bank account.11
With regard to students, RFID is being used as part of the student identification system, with the RFID fitted onto the student identification card. On the tag is stored a unique identification number (not the PEIMS identification number) that is linked to a district’s database of information for that student. Readers throughout the building can identify a student to a general area of the building in the vicinity of the closest reader. If the RFID tag is active, it will transmit the general location of the tag at regular intervals to the nearest reader, making it possible to locate the RFID tag (presumably attached to the student) to the nearest reader. Thus, it is possible to track the location of a student throughout the day, or at a point in time. In this way, it is possible for schools to locate students in the event of an emergency, such as a bomb threat; and to locate students who are not in class when attendance is taken for funding purposes, thereby increasing state funding for students who are attendance.
The use of RFID technology to locate humans has, of course, generated considerable controversy from privacy advocates, even before its use in schools. For example, a consortium of organizations concerned about individual privacy in 2003 issued and/or endorsed a position paper titled “Position Statement on the Use of RFID on Consumer Products,”12 which elaborated acceptable uses of RFID technology on consumer products. With regard to students, a consortium of organizations concerned about individual privacy has issued and/or endorsed/signed a “Position Paper on the Use of RFID in Schools,”13 stating that RFID technology should not be used to locate students without the “informed, express written consent” of both students and parents.14 To date, at least three school districts have implemented, with entirely different results, RFID identification for students. In 2005, the Brittan Elementary School District in Sutter, California, implemented an RFID system for its students.15 The implementation was met with resistance, for reasons of the district’s lack of transparency in announcing the program, privacy concerns, and ethical concerns related to the producing company’s monetary donation to the school district to compensate for “possible inconveniences caused by the test [project]).”16 The program was ultimately scrapped.17 In 2008, the Spring Independent School District phased in a similar project that was met with privacy concerns, but as of 2010 had expanded to more than one-third of its students, and to date has not been the subject of litigation.18 Shortly thereafter, the Santa Fe ISD also implemented a similar project, with much less publicity.19
Against this brief backdrop, then, we will turn to the implementation of the Northside ISD Student Locator Project (SLP) and the resultant litigation to date.
THE NISD STUDENT LOCATOR PILOT
On May 22, 2012, the Northside ISD (NISD) board of trustees voted to approve a pilot RFID project. The agenda item is found at XII (D), and that meeting’s agenda is posted on the NISD website.20 As reported in the May 22, 2013, issue of Inside Northside Board Talk (the report of the events at any particular board meeting),21 the board approved the project to be piloted at two of its secondary school campuses, John Jay High School, and one of its feeder middle schools, Anson Jones Middle School, as well as for use on its special education buses.22 As part of the “Student Locator Pilot” (hereafter referred to as SLP), NISD established a website23 to provide information, address “frequently asked questions,”24 publish letters to parents of both affected schools,25 and dispel what the district termed “myths” about the use of RFID technology.26 According to NISD, the SLP has three goals: “(1) Increase student safety and security, (2) Improve attendance accuracy (to increase attendance revenues from the state), and (3) Provide multi-purpose ‘Smart’ Student ID card”27 that will permit students to check out library books and purchase meals, with other features to be introduced during the year. In addition, the SLP will run for the 2012-2013 year, after which time it will be evaluated for possible future implementation.
The “Frequently Asked Questions” website provides responses from both NISD and the provider of the RFID technology (Wade Garcia & Associates [WGA]) to, well, frequently asked questions. Among the information found on this page is that the school district expended $261,000 on the SLP and predicts a $2 million revenue windfall due to increased accuracy in attendance reporting.28 Moreover, the two schools were selected because their attendance rates “were among the lowest in NISD29 and both principals were very eager to implement” the project.30 According to information provided by WGA in the FAQ document, the only data stored on the active RFID tag is a “tag number,” which is not the student’s school identification number.31 The RFID tag number is linked to each student, which ostensibly includes the student’s location for every transmission to readers located on campus, on the district’s internal server(s), which is “protected by the school district’s data encryption, firewall, and other security protocols.”32 Thus, the only information that could be accessed by a “cloned reader” would be the “tag number,” and not any information linking that tag number to the student33 (unless of course someone hacks into district servers). The FAQ document further addresses student privacy issues by asserting the tags do not constitute an invasion of privacy, as students have “no privacy interest in preventing the school from knowing where they are while on school property” and that there are no privacy concerns under the Family Educational Rights and Privacy Act (FERPA) because the only information contained on the RFID tags is the serial number, which is not an education record under the meaning of FERPA.34
Additional issues are addressed in the “RFID Mythbusters” document, published on January 24, 2013, after the federal district court issued its ruling on the case, including the issue of badge safety due to “emissions” from the RFID tag. According to this document, the RFID tag is “powered by two mercury-free lithium batteries similar” to those that are commercially available.35 The tags operate at a frequency of 433 megahertz (MHz), which is roughly one-half the frequency of cell phones and one-third the frequency of global positioning systems.36 In the SLP, 70 tag readers are deployed at Jay High School (enrollment of just over 2,900 students in 2010-2011) and 45 at Jones Middle School (enrollment of 1,162 students in 2010-2011).37 The readers are not deployed in restrooms, and only identify students within proximity of a particular reader and not to a specific location in the school. Interestingly, while the Frequently Asked Questions document specified that the district expects to receive a $2 million revenue increase resulting from increased accuracy in attendance reporting,38 the “Mythbusters” document appears to be a bit more conservative by noting that, “Depending on the number of found students, the additional funding will cover the initial investment ($261,000) in two to three years even with ongoing annual expenses.”39 Finally, the school district clarified its position on the use of RFID technology on school buses by noting that the technology is being tested, with no data being collected, on five buses during the 2012-2013 school year.40
Against this detailed backdrop, we will now turn to the litigation against the NISD SLP.
THE LAWSUIT AGAINST NORTHSIDE ISD41
Facts and Procedural Background
Andrea Hernandez (as identified in court documents) is a sophomore in the Northside ISD who is zoned to attend William H. Taft High School. By virtue of her application and acceptance to the John Jay High Science and Engineering Academy, she began the 2012-2013 school year at Jay High School (JHS) in the magnet program. As such, she was required to participate in the SLP. In early August 2012, the district notified parents of students slated to attend JHS of the SLP. In early September, NISD received a letter from Andrea’s father, Steve Hernandez, which asserted a religious and privacy objection to the badge and which stated that Andrea would not wear the badge. Subsequently, the NISD deputy superintendent met “informally” with Mr. Hernandez to hear his concerns. At that meeting, Mr. Hernandez reiterated his religious objection to the RFID badge, terming it “the mark of the beast” as that term is used in the Biblical Book of Revelation42 and also claimed concern that emissions from the badge could lead to cancer in his daughter. As a result of this meeting, the deputy superintendent offered to permit Andrea to wear the badge without the RFID device. A day later, Mr. Hernandez responded by email in the negative, claiming that the accommodation would still require Andrea to wear a badge like her classmates, thereby signifying her support for and compliance with the SLP. Nearly two weeks later, the deputy superintendent followed up with a letter “urging” Mr. Hernandez and Andrea to accept the accommodation, and also informing them that her refusal to do so would result in her withdrawal back to her home campus. In early October 2012, Mr. Hernandez availed himself of the district’s grievance process, and was denied at the campus level. Mr. Hernandez sent another letter to the school district, again refusing the proffered accommodation, and the district held to its position and informed Mr. Hernandez by letter “on or about November 13, 2012” that Andrea would have to transfer back to Taft High School unless she agreed to wear the accommodated “chip-less” badge.
On November 13, 2012, NISD received a “demand letter” from the Rutherford Institute (RI), through which the RI noted that it was representing Andrea and her father, Steve, and through which it asserted the Hernandezes’ religious objection to wearing the RFID badge.43 In general, the letter reiterated the religious objections of the Hernandezes (who profess Christianity); claimed that the accommodation of the chip-less badge was not sufficient, as wearing the badge would still express Andrea’s support of the SLP; and demanded that Andrea be permitted to opt out of the SLP altogether.44 On November 21, 2012, the Hernandezes filed suit in state district court and received a temporary restraining order enjoining the school district from enforcing the SLP against Andrea and permitting her to remain in the magnet program. At the motion of NISD, the case was removed to federal court on November 27, 2012, and both NISD and the Hernandezes agreed to extend the TRO until the court could hear the Hernandezes’ motion for a preliminary injunction.
Simultaneously, Mr. Hernandez unsuccessfully pursued his grievance with the NISD central administration, with a hearing officer denying the grievance on December 4, 2012. Before the semester break, the Hernandezes amended their complaint, the parties filed their briefs, and the court held the preliminary injunction hearing. Meantime, NISD permitted Andrea to complete the fall 2012 semester at JHS irrespective of any decision that might be rendered before then.
The Court’s Decision
In their suit seeking preliminary injunctive relief, the Hernandezes asserted that the SLP violated their rights under five legal provisions: (1) the First Amendment’s free exercise clause, (2) the First Amendment’s free speech clause, (3) the Texas Religious Freedom Restoration Act,45 (4) the Fourteenth Amendment’s due process clause, and (5) the Fourteenth Amendment’s equal protection clause. In analyzing each of the claims, the United States District Court for the Western District of Texas employed a familiar analysis to determine whether the plaintiffs were entitled to the injunction, which the court termed as an “extraordinary remedy:”46 (1) whether the plaintiffs could establish “a substantial likelihood” of success on the merits of their claims, (2) whether they could demonstrate a “substantial likelihood of irreparable harm,” (3) whether “the threatened injury to [the Hernandez family] outweighs any potential harm to” the district, and (4) whether the injunction would serve the public interest.47
Free Exercise Claim. In denying relief on the free exercise claim, the court first held that because the RFID badge program was religiously-neutral and applicable to all students in the high school (i.e., a “neutral law of general applicability”), it need only have a rational basis to survive the challenge. In holding that the SLP met the rational basis standard, the court found that the program served many non-religious purposes, including providing students additional safety and security, and increasing attendance and funding. Addressing the student’s desire to wear her home school’s ID badge, the court credited the superintendent’s testimony that all students need to wear a uniform ID badge so that students could readily be identified as students belonging to a particular campus. Any infringement on the student’s religious beliefs was incidental, and was cured by the district’s offered accommodation. While not required to do so, the court also analyzed the claim under a “heightened scrutiny” standard, applicable when the state or a political subdivision “substantially burdens” a person’s free exercise of religion and whether it has a compelling reason to do so. Assuming without deciding that Andrea had a “sincere religious belief”48 in not wearing the RFID badge, the court held that she could not demonstrate a substantial burden on this belief, as the program neither influenced her “to act in a way that violates [her] religious beliefs,”49 nor forced her to “choose between…enjoying some…non-trivial benefit, and … following [her] religious beliefs.”50 In essence, the court held that, with the district’s accommodation, the student was not being required to do anything that she had not done previously. Further, even if the burden was substantial, it was justified by the district’s compelling interest in enhancing the safety and security of students and staff. Finally, the district’s proffered accommodation rendered her religious objection unavailing, as her objection was limited to wearing the badge with the RFID chip. Indeed, the court held that Andrea’s “objection to wearing a badge without a chip is not grounded in her religious beliefs.”51
Free Speech Claim. The court next considered the Hernandezes’ free speech claim that, by accepting the accommodation of the chip-less badge, she was compelled to speak in favor of the SLP. First, the court considered whether the required wearing of the ID badge (chipped or chip-less) was speech that was protected under the First Amendment. In finding that it was not, the court determined that wearing the badge did not convey a “particularized message” (i.e., support for the SLP) that would be understood by other students who viewed Andrea wearing the badge. Next, even assuming that the speech was protected, the court still held that, under the “intermediate scrutiny”52 test, the SLP: (1) furthered the district’s important interest in student safety and security, (2) was unrelated to suppressing student expression, and (3) “the incidental restrictions on First Amendment activities, if any, are not more than necessary to further that interest.”53
Texas Religious Freedom Restoration Act (TRFRA) Claim. The court next considered the TRFRA claim. Codified in Chapter 110 of the Texas Civil Practices and Remedies Code, the TRFRA prohibits a Texas governmental unit (including public school districts) from “substantially burden[ing] a person’s free exercise of religion”54 unless the burden furthers “a compelling government interest”55 (i.e., an interest that justifies overriding individual rights) and “is the least restrictive means”56 of doing so. For reasons quite similar to its First Amendment free exercise analysis, the count found that Andrea’s religious beliefs were not substantially burdened, particularly in her refusal to wear the chip-less badge, which the court found to be motivated by non-religious reasons. Further, the court noted that NISD’s interests in security and safety were sufficiently compelling to require the chipped badge, and the requirement was likely the “least restrictive means” for doing so. Most importantly, the court held that the district’s proffered accommodation of the chip-less badge or the option of returning to her home campus was sufficient to preclude any action under the TRFRA.57
Due Process Claim. In disposing of Andrea’s due process claim, the court held that she did not have a protected property interest in attending the John Jay Science and Engineering Academy, rejecting her argument that she had a “legitimate claim of entitlement” to attend the magnet school by virtue of going through the application and acceptance process. While the court recognized her property interest in a public education, the court relied on 5th Circuit precedent58 to hold that she did not have an interest in a specific educational program. Further, the court found that Andrea’s liberty interest would not be jeopardized, as there would be no disciplinary notation on her record if the district transferred her back to her home campus because she refused to accede to the SLP. Thus, as Andrea did not have protected property or liberty interests in attending the magnet school, the district did not owe her procedural due process.
Equal Protection Claim. In rejecting Andrea’s argument that she was “singled out”59 for disfavored treatment because she refused to wear the RFID badge, the court held that “neither [NISD’s] requirement [that she wear the badge (presumably chipped or chip-less)] nor the district’s conduct in response to [her] refusal has resulted in unequal treatment.”60 Again, the court noted that the SLP applied to all students, and the accommodation for Andrea obviated her religious objection, thereby permitting her to remain in the magnet program. That she (1) had to purchase a lunch in a line that took only cash, and not funds attached to the SLP; (2) was questioned when she attempted to check out a library book with her chip-less ID badge; and (3) allegedly was not able to vote for homecoming royalty, was a result of her own decision to refuse the chipped badge, and not due to any district action that might violate the Equal Protection Clause.
In sum, by finding that Andrea could not show a substantial likelihood of success on any of her five claims, the court concluded that she could not demonstrate irreparable injury, that the balance of harms in granting the injunction would weigh against NISD, and that the public interest would be served by granting the injunction. Thus, the court gave the Hernandez family until January 18, 2013, to inform NISD in writing of their decision whether to accept the chip-less badge accommodation, at which point the district would be able to exercise its discretion to transfer Andrea back to Taft High School if the accommodation was declined.
EPILOGUE
On January 16, 2013, the Fifth Circuit denied the Hernandezes’ motion (opposed by NISD) seeking a preliminary injunction against NISD pending their appeal.61 As such, Andrea was transferred back to her home campus at the conclusion of the 1st semester of the current school year when she declined the district’s accommodation of the chip-less badge.62 In the plaintiffs’ advisory63 to the federal district court of February 14, 2013, the Hernandezes requested oral argument on NISD’s motion to dismiss the case (recalling that the judge only dismissed the motion for the preliminary injunction). They maintained that Andrea continues to suffer a “substantial burden” on her free exercise rights under the TRFRA, even with the accommodation, as evidenced by her decision to decline the proposed accommodation and return to her home campus. In contrast, in its court advisory64 of February 13, 2013, NISD asserted that the proffered accommodation rendered Andrea’s TRFRA claim moot; further, since Andrea did not lose her property interest under the Fourteenth Amendment by the transfer to her home campus, the court should dismiss the entire complaint. As of this writing, then, Andrea continues to attend her home campus of Taft High School while NISD’s dismissal motion is pending before the federal district court.
Partly in response to the controversy in Northside ISD,65 Texas legislators have filed three bills in the current session that seek to prohibit and/or limit school districts’ ability to use RFID technology to locate or track students. HB 102 (Kolkhorst, R-Brenham66) and SB 173 (Estes, R-Wichita Falls67) place outright prohibitions on the use of RFID technology to “identify student(s), transmit information regarding students, or track or monitor the location of students.”68 HB 10169 (Kohlhorst) permits school districts to use RFID technology, but only on a voluntary opt-in basis if authorized by a local district board of trustees in a resolution. Further, school districts adopting such a resolution would be required to provide an alternative means of student identification at the “timely written request of a student’s parent or guardian,” and could not “penalize a student using an alternative [identification] method…, including restricting or prohibiting the student from participating in school or district activities.”70 Each bill has been referred to its respective education committee, and the House Public Education Committee heard testimony on HB 101 on March 19, 2013.71 Andrea Hernandez testified at this hearing that she fell ill due to the radiation emitted from RFID badges used at John Jay High School, stating that, “It’s like being in an X-ray machine for eight hours…It’s going to make you sick.”72 As of April 19, 2013, HB 101 is the only one of the bills for which recent action has been taken, and has been substituted by C.S. (Committee substituted) H.B. 101, which permits school districts to use RFID technology as noted above if authorized by a board resolution, but which also permits parents to timely and properly opt their children out of such a program.73 C.S.H.B. 101 was favorably reported on April 9, 2013,74 and was sent to the Local and Consent Calendar committee on April 18, 2013.75 Thus, the bill is very much alive, even though it has yet to be scheduled for consideration by the full House.
ISSUES SURROUNDING RFID IN SCHOOLS
On the basis of a LEXIS-NEXIS search of all federal and state courts decisions using the search terms “radio frequency identification” and “school,” this case appears to be the first reported case documenting a student’s challenge to a public school district’s use of RFID technology as a means of locating or tracking students.76 Almost certainly, it will not be the last, as more school districts consider this technology as a means to increase attendance funding and to otherwise locate students when needs arise, especially where student safety is concerned. Since it appears to be the first case weighing the merits of RFID technology in schools, there are several things that can be learned from this case. First, courts are increasingly willing to defer to the judgment of school officials when providing for student safety, even when the judgment is met with a religious objection, as long as the program is implemented in a religiously-neutral, generally applicable manner. In both its Free Exercise and TRFRA analysis, the court termed the district’s interest in student and staff safety as “compelling,” following the lead of the United States Supreme Court in upholding random drug testing for voluntary participation in extracurricular activities77 as a means to enhance student safety. Second, the school district’s willingness to make good faith attempts to accommodate religious objections sat well with the district court and, in this author’s opinion, was the right thing to do. Third, while students in the 5th Circuit have the right to a public education, they do not have a right to a particular educational program that requires procedural due process78 should the school district transfer or withdraw the student from the program.79 Fourth, this court found that the requirement that Andrea wear the RFID badge did not constitute compelled speech protected by the First Amendment, and even if it was, the district’s interest in being able to locate students, applied in a uniform way not related to suppressing student expression, outweighs any First Amendment rights she might otherwise claim.
Another interesting aspect of this case is how the RFID program was not challenged. As the court observed, even though Andrea testified that the RFID badge “invades your privacy,”80 the challenge did not assert privacy violations, perhaps under the First (association) or Fourth (unreasonable search) Amendments. It is possible, then, that future challenges may be brought on privacy grounds, as the CASPIAN position paper81 referred to earlier clearly asserts that the required use of such identification threatens the privacy of students.
All of this said, schools are very likely in the infancy of litigation in this matter. To be sure, the use of RFID locating with students is one of those issues that unite objectors from across the political and ideological spectra. The issue has attracted the attention of Christian conservative advocacy groups such as the Rutherford Institute and civil rights advocacy groups like the American Civil Liberties Union, members of each group who are often thought not to agree on many issues. Thus, school districts choosing to implement RFID locating of students are apt to be met with across-the-spectrum objections, much like Governor Perry’s 2007 Executive Order mandating the HPV vaccine as a requirement for females prior to entering the sixth grade,82 prior to its repeal by the Texas Legislature.83
In fact, school districts seeking to implement RFID technology for all students would be prudent to examine the CASPIAN position paper as part of its decision-making and, if applicable, implementation processes. The organizations authoring and/or endorsing this position paper strongly recommend the following84 to school districts:
Subjecting the RFID technology to a “safety, technology, and privacy impact assessment” which includes the involvement of district stakeholders, “including parents and students.”
Abiding by “Principles of Fair Information Practice,” including:
a. “Public Warning/Openness,” which includes clearly identifying both readers and tags.
b. “Awareness/Purpose Specification,” which includes informing stakeholders “about how RFID systems work and the implications of having RFID systems deployed in schools…”
c. “Choice/Consent,” which argues that school districts should use RFID technology on those who opt in by their “informed, express written consent,” which can be revoked at any time.
e. “Collection/Use Limitation,” which limits collection of information “to that which is necessary for the purposes at hand.”
f. “Access/Participation,” which argues that school districts must provide access about information that is collected by those who participate in an RFID project.
g. “Security Safeguards/Integrity,” which asserts that “schools should implement redundant managerial and technical measures to ensure the accuracy, security, and integrity of RFID systems and data.”
h. “Accountability,” which argues that school districts provide participants with “a simple and effective way for individuals to address any grievances with” RFID locator projects.
Prohibiting RFID technology where students and/or staff do not consent, where tags and readers are hidden, or where data are shared without participants’ knowledge.
CONCLUSION
Two of the most important issues facing schools today are funding and student/staff safety. Thus, it is possible that RFID technology can enhance both. The case law on this topic is in its infancy, as are policy responses at both the local and state levels. Clearly, other jurisdictions will look to this case when considering similar legal challenges, and local school boards and state legislatures will likely weigh in. Ultimately, this is a highly political issue, and one that will engender heartfelt and well-meaning debate on all sides, including advocacy groups external to school districts. For school boards considering or making the decision to implement RFID for students, transparency about the entire process, including the financial gain that can be realized, along with obtaining broad-based support, is paramount. Finally, as learned from the Northside ISD case, flexibility in offering accommodations to objecting students is probably necessary, but not necessarily sufficient, to avoid legal challenge.
Endnotes
1. Professor, Department of Educational Leadership & Policy Studies, The University of Texas at San Antonio; Member, Legal Digest Editorial Advisory Board.
2. The Physics Classroom, Newton’s Third Law of Motion, http://www.physicsclassroom.com/Class/newtlaws/u2l4a.cfm, last visited April 1, 2013).
3. See, in general, Northside Independent School District, Welcome to NISD’s Student Locator Program, http://www.nisd.net/studentlocator/, last visited April 1, 2013.
4. Kevin Bosner and Wesley Fenlon, “How RFID Works,” http://electronics.howstuffworks.com/gadgets/high-tech-gadgets/rfid.htm (last accessed April 1, 2013).
5. U.S. Department of Homeland Security, “Radio Frequency Identification (RFID): What is it?” http://www.dhs.gov/radio-frequency-identification-rfid-what-it (last accessed April 1, 2013).
6. Consumers Against Supermarket Privacy Invasion and Numbering, Electronic Privacy Information Center, & Privacy Rights Clearing House, Position Paper on the Use of RFID in Schools (August 21, 2012), http://www.spychips.com/school/RFIDSchoolPositionPaper.pdf (last visited April 1, 2013).
7. Id.
8. Id. at 2.
9. Id.
10. See note 5, supra.
11. See note 4, supra.
12. Consumers Against Supermarket Privacy Invasion and Numbering (CASPIAN) Privacy Rights Clearinghouse, Position Statement on the Use of RFID on Consumer Products (November 14, 2003), http://w2.eff.org/Privacy/Surveillance/RFID/RFID_Position_Statement.pdf (last visited April 1, 2013).
13. See note 6, supra.
14. Id. at 5.
15. Kim Zetter, “School RFID Plan Gets an F” (February 10, 2005), http://www.wired.com/politics/security/news/2005/02/66554 (last visited April 1, 2013).
16. Id.
17. Jennifer Radcliffe, “Tracing Devices in School Badges Raise Concerns” (October 11, 2010), Houston Chronicle, October 11, 2010, http://www.chron.com/default/article/Tracking-devices-in-school-badges-raise-concerns-1716571.php (last visited April 1, 2013).
18. Id.
19. Id.
20. https://leaderboard.nisd.net/agenda/summary/id/127 (last visited April 3, 2013).
21. Northside ISD Communications Department, Inside Northside ISD Board Talk (May 22, 2012), https://leaderboard.nisd.net/boardtalk/boardtalk-20120522-127.pdf (last visited April 3, 2013).
22. Id.
23. NISD, Welcome to NISD’s Student Locator Program, http://www.nisd.net/studentlocator/ (last visited April 3, 2013).
24. NISD, Frequently Asked Questions Northside ISD Student Locator Project, http://www.nisd.net/studentlocator/faq (last visited April 3, 2013).
25. NISD, Letter to Parents NISD Student Locator Program, http://www.nisd.net/studentlocator/letters-parents (last visited April 3, 2013).
26. NISD, RFID Mythbusters NISD Student Locator Program, http://www.nisd.net/studentlocator/rfid-mythbusters (last visited April 3, 2013).
27. See note 23, supra.
28. See note 24, supra.
29. According to John Jay High School’s 2011-2012 Academic Excellence Indicator System (AEIS) Report, the school’s 2010-2011 attendance rate was 93.6%, which was a bit higher than the average for the school’s comparison group (93.3%) but well below the state’s average of 95.7%. For Jones middle school, the respective 2010-2011 attendance rates were 94.0%, 95.9%, and 95.7%. See generally Texas Education Agency, Academic Excellence Indicator System, http://ritter.tea.state.tx.us/perfreport/aeis/2012/index.html (last accessed April 3, 2013).
30. See note 24, supra.
31. Id.
32. Id.
33. Id.
34. Id.
35. See note 26, supra.
36. Id.
37. See note 28, supra.
38. See note 23, supra.
39. See note 26, supra.
40. Id.
41. In this section, unless otherwise noted, all facts are taken from A.H. v. Northside Indep. Sch. Dist., 2013 U.S. Dist. LEXIS 4182 (W.D. Tex. Jan. 8, 2013).
42. See http://vref.me/nas/re13.16-17 (New American Standard Version) (last visited April 13, 2013).
43. Letter from John W. Whitehead, President, The Rutherford Institute, to Brian Woods, Superintendent, Northside ISD (Nov. 13, 2012), https://www.rutherford.org/files_images/general/11-13-2012_Hernandez_Letter.pdf (last visited April 3, 2013).
44. Id.
45. Tex. Civ. Prac. & Rem. Code § 110.001 et seq.
46. 2013 U.S. Dist. LEXIS 4182 at *20.
47. Id.
48. Id. at *29.
49. Id.
50. Id.
51. Id. at 33.
52. The intermediate scrutiny test has previously been used by the 5th Circuit to uphold a Louisiana school district’s uniform policy (Canady v. Bossier Parish Sch. Dist., 240 F.3d 437 [5th Cir. 2001]) and a Texas school district’s “standardized dress” policy (Palmer v. Waxahachie Indep. Sch. Dist., 570 F.3d 502 [5th Cir. 2009]).
53. 2013 U.S. Dist. LEXIS at *38.
54. Tex. Civ. Prac. & Rem. Code § 110.003 (a).
55. Tex. Civ. Prac. & Rem. Code § 110.003 (b) (1).
56. Tex. Civ. Prac. & Rem. Code § 110.003 (b) (2).
57. See Tex. Civ. Prac. & Rem. Code § 110.006, which precludes an action by a person whose substantial burden of free exercise “has been cured by a remedy” of accommodation.
58. Nevares v. San Marcos. Consol. Indep. Sch. Dist., 1997 U.S. App. LEXIS 14955 (5th Cir. 1997).
59. 2013 U.S. Dist. LEXIS 4182 *43.
60. Id.
61. A.H. v. Northside Indep. Sch. Dist., No. 5:12-cv-01113-OLG (Document 28) (5th Cir. 2013).
62. See, e.g, The Rutherford Institute, “School Officials Reject Request for Accommodation, Kick Andrea Hernandez Out of Magnet School Over Religious Objections to RFID Tracking Program” (January 18, 2013), https://www.rutherford.org/publications_resources/Press%20Release/school_officials_reject_request_for_accommodation_kick_andrea_hernandez_out/ (last visited April 5, 2013).
63. A.H. v. Northside Indep. Sch. Dist., Plaintiffs’ Status Advisory, No. 5:12-cv-01113-OLG (Document 34) (W.D. Tex. 2013).
64. A.H. v. Northside Indep. Sch. Dist., Defendants’ Advisory to the Court, No. 5:12-cv-01113-OLG (Document 33) (W.D. Tex. 2013).
65. Francisco Vara-Orta, “Legislators Push Ban on Student Tracking System,” San Antonio Express News, January 23, 2013, http://www.mysanantonio.com/default/article/Legislators-push-ban-on-student-tracking-system-4215486.php (last visited April 8, 2013).
66. http://www.texastribune.org/directory/lois-kolkhorst/ (last visited April 6, 2013).
67. http://www.texastribune.org/directory/craig-estes/ (last visited April 6, 2013).
68. Senate Bill 173, 83rd Texas Legislature, http://www.capitol.state.tx.us/tlodocs/83R/billtext/html/SB00173I.htm (last visited April 6, 2013).
69. House Bill 101, 83rd Texas Legislature, http://www.capitol.state.tx.us/tlodocs/83R/billtext/html/HB00101I.htm (last visited April 6, 2013).
70. Id. The Hernandez’s complaint asserted that because she wore the chip-less badge, Andrea was unable to participate in such activities as voting for homecoming royalty, purchasing lunches in the same line as other students, and was questioned about her chip-less ID when checking books out of the library.
71. http://www.capitol.state.tx.us/BillLookup/Actions. aspx?
LegSess=83R&Bill=HB101 (last visited April 6, 2013).
72. Lindsay Kastner, “Student Says RFID Tags Made Her Sick,” San Antonio Express News, March 29, 2013, http://blog.mysanantonio.com/education/2013/03/student-says-rfid-tags-made-her-sick/ (last visited April 6, 2013).
73. http://www.capitol.state.tx.us/tlodocs/83R/billtext/html/HB00101H.htm (last visited April 19, 2013).
74. http://www.capitol.state.tx.us/BillLookup/Actions.aspx?
LegSess=83R&Bill=HB101 (last visited April 19, 2013).
75. Id.
76. In fact, these search terms returned only seven cases, and only two involved challenges to the use of RFID technology. In addition to the instant case, the other case involved an unsuccessful challenge to the state of Michigan’s voluntary decision to use RFID technology to enforce the federal government’s National Animal Identification System, a program used to, among other things, contain diseases such as bovine tuberculosis. Included among the challenges were federal and state free exercise challenges. In essence, because the state’s use of RFID technology to comply with the NAIS was voluntary, the court dismissed federal free exercise claim and held that the claims against the state were barred by 11th Amendment Immunity. See, Farm-to-Consumer Legal Defense Fund v. Vilsack, 636 F. Supp. 2d 116 (D.D.C. 2009).
77. See, Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 661, the state’s interest in deterring drug use among its youth “is important—indeed, perhaps compelling…”; Bd. of Educ. v. Earls, 536 U.S. 822, 834 (2002), “The health and safety risks identified in Vernonia apply with equal force…”
78. See note 58, supra.
79. Nevares v. San Marcos. Consol. Indep. Sch. Dist., 1997 U.S. App. LEXIS 14955 (5th Cir. 1997).
80. 2012 U.S. Dist. LEXIS 4182 at *22.
81. See note 6, supra at 3-4.
82. Office of Governor Rick Perry, RP65 – Relating to the immunization of young women from the cancer-causing Human Papillomavirus, http://governor.state.tx.us/news/executive-order/3455/ (last visited April 5, 2013).
83. HB 1098, 80th Texas Legislature (2007), http://www.capitol.state.tx.us/tlodocs/80R/billtext/html/HB01098F.htm (last visited April 5, 2013).
84. Id. at 6-7.
