In this age of electronic communication, social media has added
another dimension to the array of issues schools must address in
order to maintain the integrity of the learning environment while
also preserving the rights of students and employees. The courts
are faced with numerous lawsuits arising out of school discipline
for conduct such as cyber-bullying, harassment, or threats of
danger, usually originating off-campus.
The schools are faced with balancing their need for order and
discipline against students' and employees' rights of
self-expression. How much can a school do to address off-campus
activity that can impact the school environment? The answer depends
upon whether you are a public or private institution.
Issues for Public Schools
As arms of the government, public schools are subject to the
restrictions and protections provided in the U.S. Constitution.
Disputes most commonly reported relate to the rights of students
and teachers under the First Amendment, which protect the freedom
of speech and privacy rights guaranteed by the Fourth
Amendment.
When faced with a claim that a school has violated these (or
other) rights, courts will weigh the individual's rights
against the school's interest in maintaining order and a
positive learning environment on its campus. The courts have
recognized that there are "special characteristics of the
school environment" that warrant treating speech or other
conduct at a school differently from conduct that takes place in a
public forum outside of the school context.
The Background
Court decisions relating to public educational institutions often
apply the guidance set out in a 1969 Supreme Court opinion
addressing students' rights to wear expressive clothing (black
armbands) in protest of the Vietnam War. In that decision (Tinker
v. Des Moines School District), the Court established the framework
relied upon by later courts dealing with modern forms of expression
via electronic media.
The Tinker Court noted that students are
"persons" entitled to the protections afforded by the
Constitution, even if they are not adult citizens. The Court
decided that students are entitled to express their opinions unless
the expression materially and substantially disrupts the operation
of the school or invades the rights of others.
Recent Decisions
Last year, in the case of Nixon v. Hardin County Board of
Education, a federal court in Tennessee applied the reasoning of
the Tinker decision to determine whether or not a county school had
violated the constitutional rights of a student (referred to as,
"A.N.") by suspending her for forty-five days (during
which time she would attend an alternate school) as a result of a
conversation on Twitter. In the conversation ("tweeting")
A.N. said she would help her friend "shoot [another student]
in the face." Later in the conversation, A.N. said that she
hated the other student and that she would kill her. When the
school investigated the incident, A.N. professed that she was only
joking, but she conceded that an outsider would not have known from
the texts (tweets) that she did not actually intend to harm the
other student. The school moved for dismissal of A.N.'s claims
on several grounds.
The Court summed up the status of the law in the area of
students' First Amendment rights as yielding different
analyses, depending on the nature of the conduct at issue: 1)
schools are entitled to prohibit, categorically, "vulgar,
lewd, indecent, or plainly offensive" student speech; 2)
schools have limited authority to censor student speech on
campus or at school-sponsored events, as long as the censorship is
done "in a manner consistent with pedagogical concerns;"
and 3) as to all other speech, the Tinker standard applies, and
schools can regulate it only if the school reasonably believes that
the speech will "substantially and materially" interfere
with schoolwork or discipline.
Applying these standards to off-campus, online student speech,
the Nixon Court found that the student's First
Amendment claim should proceed because the school
had not shown that the tweets caused a disruption of
school activities or impacted the school environment in a way to
warrant dismissal of the student's claim.
The Court also was not persuaded by the school's argument that
it had to act as it did because of the tweet's reference to an
illegal activity (murder). The message from these public schools
cases is to tread carefully and obtain clear advice before
proceeding when dealing with off-campus speech, whether online or
not.
What About Private Schools?
Private schools enjoy considerable latitude in their ability to
regulate student conduct, since the school is not a governmental or
public entity. Therefore, the U.S. Constitution does not apply to
the school's actions. However, given the contractual
relationship that schools have with parents and students, other
concepts do apply to govern the school's actions. In that
regard, courts apply a fundamental fairness test to determine
whether a school's imposition of serious disciplinary action
(including expulsion) is appropriate under law.
Fundamental fairness requires that the school have written
policies outlining conduct expectations and potential disciplinary
action for violations; that the school appropriately investigates
alleged violations of the policy; that it provides the student with
an opportunity to be heard before making a final decision; that it
follows its own policies; and that it acts consistently with regard
to the application of the policy to other student actions as
well.
Thus, a private school can be very clear in its policies that a
student may not use the school's resources to access social
media (on or off campus); that students may not use their own
electronic devices on campus to access social media; and that the
school may inspect anything and everything brought onto campus,
including electronic devices (to determine if its policies have
been violated). In addition, as to both off and on campus,
the school can outline appropriate restrictions regarding bullying,
harassment, hazing, or other unkind behaviors utilizing social
media and declare that it will take appropriate action when such
behavior is brought to the school's attention that makes the
victim uncomfortable at school or otherwise impairs the
victim's ability to receive full enjoyment of the school's
education.
The difficulty in most situations involving alleged inappropriate
social media postings is the investigation. These issues are often
dropped into the school's lap by an unhappy parent. In such a
case, the first thing the school should do is to decide whether the
issue is a "school issue" or a "parent
issue." If there is no impact on the student at school
and the behavior is occurring off campus, then the issue is likely
a parent issue that one parent should resolve with the other
parent. If, however, the issue involves actions at school or
discomfort at school due to the off-site postings, then it may
implicate the bullying or harassment policies. In such case,
the school must investigate.
Unfortunately, as many schools have learned, the school has
limited ability to dig into the postings where such postings are
behind privacy settings. In such a situation, the school should
make clear to the offended individual that it is their obligation
to provide the administration with the offensive information so the
school can evaluate and investigate it. In addition, most schools
find that investigation of social media issues takes a substantial
amount of time and requires cooperation of a lot of different
individuals.
Private schools should also be mindful of the rights that
its employees may have under civil rights and labor laws.
These include the right of employees to engage in protected,
concerted activity to discuss terms and conditions of employment
with other employees on social media or otherwise. This right is
protected under Section 7 of the National Labor Relations Act. Some
social media policies could violate an employee's rights if
drafted too broadly to inhibit these rights or if the policy is
enforced without careful consideration of the facts of each case.
Areas to be watchful and to seek advice are when employees are
complaining about pay, hours, change in conditions, reduced
benefits, supervisory actions they deem unfair or other similar
concerns.
Finally, some states (i.e., Rhode Island, Tennessee, and
Wisconsin, to name a few) have enacted laws prohibiting employers
from requiring applicants and employees to turn over their social
media passwords (with limited exceptions). Those laws would apply
to schools as well. Thus, before aggressively investigating or
disciplining for these postings or discussions, the school should
get advice from its education or employment lawyer.
Moving Forward
Social media is here to stay. Schools need to be careful in
drafting and enforcing social media policies, in investigating
violations, and in imposing discipline for violation of such
policies. When in doubt, be sure to contact your employment or
education law attorney to avoid the pitfalls of a poorly drafted
policy or a hasty disciplinary decision.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.