School Internet Policies Head to Courts for Resolution

Published December 30, 2011

Several cases involving punishment of school children for creating harassing Web sites or leaving malicious comments about school administrators, teachers, and other students are about to appear before various circuit courts and even the Supreme Court. The cases will determine whether school officials are responsible for protecting students and teachers from online harassment and whether students’ First Amendment rights may be limited by school enforcement of harassment and cyberbullying policies.

Steven Titch, a policy analyst at the Reason Foundation whose work focuses on telecommunications, information technology, and municipal broadband issues, says he is inclined to side with the students’ rights to express themselves.

“You would prefer that the Internet be a more civil place,” Titch said. However, he added, “Punishing the students for what they say online sets us on a slippery slope. If you lie about someone online, then that’s a problem, but you can’t grade them down, expel them, or ban them from extracurricular activities for something they do outside of the school,” he said.

“Of course the troublemaking kids will always get into more trouble for what they do, and this will lead to selective enforcement. Part of the problem today is that we should be promoting politeness and civil discourse on the Internet, but the schools collectively have fumbled with their zero-tolerance policies. They tend to overreact on everything. Disciplining students every time this happens creates too many other problems,” Titch explained.

Punishing Off-Campus Behavior
David Roland, director of litigation at the libertarian Freedom Center of Missouri, says the most important point involved in these cases is determining whether the offenses occur on campus or on private property.

“The Supreme Court has previously said that students do not relinquish their First Amendment rights by entering the school house,” Roland said. “In fact, the Court has ruled that they do have First Amendment rights—but with limits.”

For example, Roland says if a student disrupts the functioning of the school, he or she could be disciplined by the government actor. “However, when it’s social media, then this is outside of the school’s jurisdiction. What right do school administrators have to control what [children] do outside of the school? I would argue that discipline outside the school belongs to the parents,” said Roland.

‘A Matter of Geography’
Alan Howard, a First Amendment expert at Saint Louis University Law School, notes there have already been a few lower court decisions. Thus far they have disagreed on whether schools have jurisdiction beyond school property, he said.

“Some courts have said it’s a matter of geography,” explained Howard. “If the speech occurs outside of the school, then they may not regulate. Other courts have said that if a student’s speech is disruptive to the functioning of the school, then they do have jurisdiction,” he said.

“As an example,” Howard continued, “imagine a junior in high school receives a pop quiz in his history class. The teacher says the students may not discuss the quiz with other students since she plans on administering the same test the next day to another class. The junior talks to some other students who will take the test tomorrow and tells them how many questions will be on the test and even [reveals] some of the questions. Later that night he sends emails to his other friends that will take the test. I don’t think it should matter if the student was in the confines of the school or outside if he facilitated cheating,” said Howard.

“Some courts have drawn a bright line in the sand where the speech is occurring,” Howard added. “Other courts have said it doesn’t matter. Eventually the Supreme Court will have to rule on this. I think they are biding their time until enough of these cases have occurred. I suspect they’re waiting for more of these cases to appear in the lower courts before they hear one of the appeals. When they finally do, they will then have to apply either a geographical test or a disruption test.”

His prediction? “I do not see them adopting a geographical test,” he said.
Kenneth Artz ([email protected]) writes from Dallas, Texas.