WHAT IS THE RIGHT TO PRIVACY?
The right to privacy is a fundamental right protected by the U.S. Constitution. There are several Constitutional amendments that protect our freedom to make certain decisions about our bodies and our private lives without interference from the government - which includes public schools.
Basically, it’s the right to not have your personal business shared without your permission and the right to be left alone by the government.
Young people under the age of 18 also have privacy rights, but unless you are legally emancipated, your parents generally have a right to know what you’re up to. This document will point out when something is fully confidential (private) even from parents/ guardians and what isn’t.
PRIVACY IN SCHOOL
DO I HAVE A RIGHT TO PRIVACY WHEN I’M IN SCHOOL?
Yes and no.
- Public school: Most privacy rights apply to public school districts and charter schools because they receive federal and state funding.
- Private school: Private schools might also be bound by federal law if they receive federal funding, and students at private schools may have some protections under New Mexico law and their school policies, but generally there are even fewer privacy rights in private schools.
You have fewer privacy rights in school than outside of school. And many of the things you might think of as violations of your rights - such as searching your locker or planting undercover cops in the hallways - are usually legal.
ARE MY SCHOOL RECORDS PRIVATE?
Generally, yes, but not from your parent/ guardian.
The Family Educational Rights and Privacy Act (FERPA) prevents your public or charter school from sharing your personal information with others without your parent’s permission except in certain circumstances. This could be when you’re transferring to a new school, if you have a health emergency, or if you’re involved in the juvenile legal system.
FERPA also gives parents/ guardians the right to look at all educational school records. This includes records created by a school counselor or nurse. There are different rules for medical records created by a School Based Health Center or other medical provider, which will be discussed in the healthcare portion of this document.
At private schools, FERPA might not apply.
WHAT ARE MY RIGHTS IF A POLICE OFFICER STARTS QUESTIONING ME AT SCHOOL?
If a police officer approaches you at school and starts to ask you questions, you have the right to remain silent and you have the right to refuse to write a statement or sign anything. You can calmly say “I am exercising my right to remain silent,” “I will not answer any questions without a lawyer or my guardian,” or “I have the right to remain silent and I choose to remain silent.” Just give the police your name and address and say you want to speak to your parents and a lawyer.
If you do not invoke this right, anything you say, write, or sign can be used against you. If you choose to make a statement, ask to have a lawyer, parent, or guardian present before you are questioned.
WHAT IF A POLICE OFFICER WANTS TO SEARCH ME?
If a police officer asks if they can search you or your stuff, you have the right to refuse. You can calmly say “I do not consent to this search.” To consent is to give permission. Refusing to give permission probably will not stop the search, but this is the best way to protect your rights if you end up in court.
Usually, police must have a warrant signed by a judge in order to search you or your belongings (including your car or phone). Police always need a warrant to search your phone or to strip search you (unless you give permission—don’t give permission).
Police do not need a warrant to search you if they are arresting you or if you consent (give permission) to the search. Police also do not need a warrant or permission to frisk you (pat you down) if they believe you have a weapon. If they pat you down and they feel something that could be a weapon, then they can fully search you. If you’re driving your car, police need something called “probable cause” to search your car. Probable cause means they have some reason or evidence that you’re involved in criminal activity.
Some tips on interacting with the police:
- Stay calm. Don’t argue, resist, lie, run away, or otherwise interfere with the officer.
- Ask if you are free to leave. If the officer says yes, calmly and silently walk away. If the officer says “no” then you are being “stopped” or “detained.”
- Stay firm if they try to harass you or intimidate you into saying something or giving permission for them to search you.
- Know that police are allowed to lie to you or make false promises.
- If you think your rights were violated, write down everything you remember about the officer and the interaction.
- You can record interactions with police without their permission, but don’t be secretive about it. The officer may try to get you to stop or to delete it, but you cannot be charged with a crime for recording an on-duty officer in a public place.
For more information on interactions with police, go to https://www.aclu.org/know-your-rights/stopped-by-police.
WHAT SHOULD I DO IF A TEACHER WANTS TO QUESTION OR SEARCH ME?
You have the right to remain silent if you're questioned by a school official. If you think that a teacher suspects you of breaking the law, don't explain, don't lie, and don't confess, because anything you say could be used against you. Ask to see your parents or a lawyer and make it clear you do not consent to any searches.
School officials, unlike police, may search students without a warrant when they have "reasonable grounds for suspecting that the search will turn up evidence that the student has violated... either the law or rules of the school." This is called having “reasonable suspicion.”
But school officials may not search you unless they have a good reason to believe that you in particular -- not just "someone" -- broke a law or a school rule.
So, if a teacher thinks they saw you selling drugs to another student, she they ask you to empty your pockets and can search your backpack. But just because they think some students have drugs doesn't give them the authority to search all students.
School officials do not have a right to strip search you. And no matter what, the search must be conducted in a "reasonable" way, based on your age and what they're looking for.
Lockers and backpacks: In New Mexico, school property such as lockers may be searched with or without students present unless a local school board or administrative authority says otherwise. When students are not present for locker searches, another authorized person shall serve as a witness when possible. Schools can search your backpack but only if they have “reasonable suspicion” that searching you will turn up evidence that you violated a school rule or law.
WHAT'S THE DEAL WITH DRUG TESTS OR ALCOHOL TESTS?
A drug or alcohol test is a type of search, but is treated differently than other kinds of searches. The law doesn’t say much about which students can be tested for drugs, but the law is clear that student-athletes can be tested.
If a drug test is positive, students may be banned from playing sports or engaging in extracurricular activities for a certain amount of time. The school can, and likely will, report the drug test result to a student’s parent/ guardian. Otherwise, schools are not allowed to report the drug test results to the police or any type of legal office. This means that students cannot be legally prosecuted if their drug use is only discovered by school officials.
DO I HAVE TO TELL THE SCHOOL IF I AM UNDOCUMENTED?
No. You have the right to go to school regardless of immigration status. Schools are not allowed to require students or a parent to document their immigration status or provide a social security number. It is against the law for a school to report that a student is undocumented.
PRIVACY IN HEALTHCARE
Even when a young person can consent (give permission) to health care services without a parent or guardian’s involvement, that doesn’t mean that the health care services will be confidential (fully private). The sections below will note when a parent/ guardian is required to give permission or to be notified about something. But even when there are no such requirements, someone in your household could find out about the private services you are getting if you use your parent’s health insurance to pay for the services. Some family health care providers might also mention something to a parent without understanding that you did not want them to know.
If you want something to be kept especially private, talk to your health care provider about it and consider getting services at low-cost or free clinics.
Mandatory reporting: If any person knows or has reasonable suspicion that a young person under the age of 18 is abused or neglected, they must report it. They may report it to police, NM Children, Youth, and Families Department, or Tribal police or social services. The report will be investigated, and this will affect the privacy of the young person and their family. While privacy is very important, it is most important to make sure that young people are safe. Additionally, someone under the age of 13 cannot legally consent to sexual activity. So, you absolutely should seek healthcare if you need it, but know that the healthcare provider will likely screen you for sexual assault and likely will have to report. And you can always ask questions about your privacy, medical options, and other resources.
WHAT ARE MY RIGHTS IF I AM PREGNANT OR HAVE A CHILD?
Regardless of age, you have the right to make your own decisions about sexual and reproductive health care: including what to do if you are pregnant or want birth control. You do not need anyone’s permission and you do not have to tell anyone if you don’t want to.
Public schools, and all schools that get money from the federal government, are not allowed to treat pregnant students or students who are parents differently from anyone else in a negative way. For example, a school cannot pressure a pregnant student to drop classes, quit activities, or to change schools. Instead, schools must give pregnant students the same assistance that students with other medical conditions get, including letting them make up missed classwork, take time to go to the doctor, and take time off to give birth. Schools are not allowed to punish students who choose to get an abortion or reveal a student's private medical information. If you’re pregnant you get additional time off to manage your medical appointments and needs.
Some schools provide birth control supplies; find out if yours does. School-based health centers provide a broad range of primary and preventive health services on-site to almost one million students, often at no cost to the students or their families.
WHAT ABOUT STI TESTING AND TREATMENT?
You have the right to get tested and treated for a sexually transmitted infection (STI) without anyone’s permission. Parents/ guardians of minors are allowed to see the test results if they request to do so. If someone under the age of 13 is tested, they will also be screened for potential sexual violence.
If you are asked by your school to take an HIV test, you have the right to refuse.
DO I NEED MY PARENT/ GARUDIAN’S PERMISSION TO GET MENTAL HEALTH CARE?
If you are 14 years or older, no. You have the right to consent (give permission) to get mental health services like therapy and counseling, and the information you give will be confidential (kept private), even from your parents. As long as you are over 14 years old, only you can give permission for that information to be shared with anyone.
If you are under 14 years old, you can give permission to start therapy, but after 2 weeks, your parent/ guardian must give their permission in order for the therapy to continue.
A person 14 years of age or older can consent to psychotropic medications like anti-depressants or anti-anxiety medications on their own, but the doctor must notify the parent/ guardian about this.
DO I HAVE TO TELL THE HEALTH CARE PROVIDER IF I AM UNDOCUMENTED?
No. You do not have to tell a health care provider your immigration status. You do not have to say if you are undocumented or that you do not have a social security number. If they ask you about insurance, tell the staff that you do not qualify for insurance or ask about self-pay options for patients.