Education Law

How Can Schools Regulate Off-Campus Internet Speech?

We'll do a little mail today as I have a couple a need to get to (I try to be pretty responsive to reader requests or questions as much as I can without practicing law, so feel free to contact me):

A reader from Michigan writes in with a question/musing:

"How is it a school district thinks it has a right to scan students' Facebook pages and assign consequences to those that express dislike for certain teachers or use profanity in any way."

This is an excellent, excellent question and I want to address this in two parts, the legal part and then the ethical part.

First, legally, what the courts have done is establish a mechanism by which schools can reach outside of the four corners of the school and regulate off-campus behavior. Here is the mechanism: (1) the court looks for a "nexus" (connection) with the school district. This can literally be anything and the courts have been pretty liberal in establishing this nexus. When the Internet was still new, courts were more reluctant, but now we are seeing them permit quite a bit of regulation of the net. (2) Once the nexus is established, then we run through the traditional student speech analysis. (a) Is it speech? - Is it meant to convey an idea? If yes, continue, if no - regulate. (b) Is it lewd, vulgar, plainly offensive? Here is where your profanity comes in and school authorities feel comfortable regulating. (c) Does it promote illegal activities, such as drug use. Yes = regulate. No = continue. (d) Does it cause a disruption? This is the biggie. There is a lot of legal history here establishing what is and is not a disruption, but the administrator's perception will usually get quite a bit of deference. Typically, if you have a nexus, you probably have a disruption - as the disruption is the nexus.

Anyway, that's the legal standard that courts consider. As you can probably tell, it is pretty broad and gives schools quite a bit of leeway in regulating off-campus student speech.

Second, though, I want to talk about the ethical issues here. I addressed the legal "how," but there is a second "how did it get to this point?" type question embedded in the musing, so I also want to address that. How it got here is a complex deal, but let me throw some motivating factors out there. (1) Columbine. The effect that incident, and the other school shootings in that period, had on schools is so profound that I think we are just now starting to come to grips with it. One major effect though was to make schools much more proactive in regulating everything related to students. Before Columbine we did not think our students would kill us or others, after Columbine, we were not so sure anymore. (2) Bullying and Cyberbullying. The Columbine events also woke us up to bullying issues and especially those bullying issues that occured online. A Secret Service report concluded that bullying was a substantial motivating factor in these incidents and that woke up the national conscious to this issue. States responded with anti-bullying statutes and some, like Kentucky, even created online harassment misdemeanors to punish kids who bully. (3) Sexual predators & Porn. In the late 90's and early 2000's adults really had no idea what was going on online. In fact, one can make a pretty cogent argument that most adults still don't 'get it.' When people don't understand something, they fear it - and we feared the Internet for a long time and possibly still do. All a lot of average American's hear about the Internet is the bad things, like predators and porn. (4) Lots of other factors from teacher facebook incidents to the rise in smaller, private school administrator preparation programs which spend all their time telling "war stories" and scare the heck out of future school administrators. 

All those factors combined to create an environment where school regulation of off-campus speech was not just allowed by courts ... but it was encouraged by society and school boards. At some point administrators thought it was their job to regulate off-campus speech - which, in my opinion, it isn't their job nor has it ever been. But, at some point we crossed a threshold where the bounds of the school were extended beyond the four corners of school property. We sort of put schools in charge of student discipline all the time, not just between 8 and 3. How long this will continue I don't know. Certainly questions like yours show indications of a push-back, where school personnel start to say, "what a second ... why am I regulating what kids do at home?"

Full post as published by Edjurist on April 10, 2009 (boomark / email).