I am a social media user. This blog is one form of social media (you are invited to comment), I use both Twitter and LinkedIn professionally and Facebook personally. Often I post videos of my children on a private YouTube page so that my parents in Florida can see them. There are many positive uses for social media. Unfortunately there can be many negative uses of social media and as a school district, student use of social media for negative purposes has become one of the most common and difficult things that we deal with.
A few weeks ago we had several young ladies make poor decisions at the high school which led to a fist fight. Within several hours of the fight occurring someone had posted a video of the conflict on YouTube. I viewed it on my cell phone that evening. (We contacted YouTube and they removed the video promptly)
This weekend a student at one of our high schools created a Facebook page for the sole purpose of insulting others at the school. Parents became aware of the page and were outraged. (As were we!) When our school principal contacted Facebook to ask for the page to be removed they declined our request. (We were very disappointed in this, but have had this happen to us in the past so we were not surprised.)
From a school standpoint this type of speech between our students is disappointing. We are working hard as a school district to implement a K-12 student driven anti-bullying campaign. We talk often about treating one another with respect and we seek to create both a physically and emotionally safe school environment.
Several of the parents who contacted us in regards to this Facebook page demanded that the school take disciplinary action against the page creator and anyone who posted negative comments. While we might like to have that authority our ability to discipline students for their speech outside of school is a tricky subject.
In 1969 The United States Supreme Court issued its first major decision involving the speech rights of public school students, in Tinker v. Des Moines Independent Community School District. Tinker did not involve abusive tweets or defamatory posts, but students who were suspended for arriving at school wearing black armbands to protest U.S. involvement in the Vietnam War. The U.S. Supreme Court decision that followed established a rule that, 44 years later, confounds and confuses lower courts, school districts, administrators, and lawyers when considering the proper regulation of off-campus internet speech.
The Tinker rule is simple in expression, but slippery in today’s internet practice. It recognizes that students have a First Amendment right to express themselves in public schools — even controversially — unless the school can show among other things that the speech will cause a “substantial disruption” of the school’s environment or violate the legal rights of others. Fast forward from students wearing black armbands in 1969 to students making fake and harmful social media profiles that are created off campus in 2012. While both are “speech” examples, you can see the difference.
The students of ’69 actively and purposefully crossed the schoolhouse door, bringing their armband “speech” inside. The students of 2012 who make fake and harmful social media profiles create them off campus, outside of the schoolhouse doors. Whether they intend the speech to “cross” the door’s threshold is a matter of interpretation. Yet, people who understand the dynamics of technology realize that these harmful social profiles, tweets, texts, and jpegs not only cross the schoolhouse door, they cross that door with reckless abandon. When litigation ensues against the public school districts, who do you think sues the schools? All Sides!
Public school districts can face lawsuits for failing to protect those who have been cyber bullied by someone who has created harmful social media off-campus, claiming that the cyber bullying behavior has not just harmed the bullied individual, but created a “substantial disruption” inside of the school. And public school districts can face lawsuits by the alleged cyber bullies, claiming infringement upon their First Amendment free speech rights that originated off campus.
The results of these cases seem to offer no concrete guidance to public schools. Sometimes the cyber bullies loses. Sometimes he wins. Sometimes the school district wins. Sometimes it loses. Sometimes the divergent results occur within the same jurisdiction! (See United States Court of Appeals for the Third Circuit: Layshock v. Hermitage School District [Punishment of student for creating off-campus MySpace profile of principal violated student’s First Amendment rights] and Snyder v. Blue Mountain School District [Punishment of student for creating off-campus MySpace profile of principal did not violate student’s First Amendment rights.
The Layshock and Snyder cases were two of the three cases where the involved parties sought review by the United States Supreme Court. The third case was Kowalski v. Berkeley County Schools, where the United States Court of Appeals for the Fourth Circuit found that a student created an off-campus MySpace page to create “an orchestrated attack” on a classmate in a manner that caused a substantial disruption on campus. But the U.S. Supreme Court declined to review these three cases, on January 17, 2012.
So where are we, legally? One answer is that we are left with a 1969 U.S. Supreme Court case, Tinker, which may or may not be properly equipped to serve as a consistent guide for legal cases that arise from technology and the information age. Remember that Tinker, as well as the cases that followed for 20 years, dealt with speech that occurred “on campus.” Today, we seek answers regarding how to respond to cyber speech that begins outside of the schoolhouse doors but is brought through the schoolhouse doors with the push of a “post” or “send” button.
Without the U.S. Supreme Court weighing in, the National School Boards Association released new guidelines in May 2012 on how to combat bullying and uphold free speech. In Harassment, Bullying and Free Expression: Guidelines for Free and Safe Public Schools, the NSBA advises its members as follows:
“Student expression occurring outside of school should be subject to school action only, if at all, upon a clear showing of disruption, or a violation of the rights of school administrators and officials, teachers and other school employees, or students.” Of course, and as the NSBA recognized in its guidelines, “The authority of school officials to discipline students for off-campus speech, and the liability for doing so, is currently in dispute in the state and lower federal courts.” Undoubtedly, the time will come when the U.S. Supreme Court will answer this red-hot First Amendment question. Until that time, look for enormous struggles to create clear, consistent and just decisions regarding off campus internet speech that has the ability to cause so much harm.
In the meantime Worthington School Administrators will partner with parents to make certain social media is used for positive means. It is important that parents monitor their children’s social media activity and important that negative activity is reported to school officials and when appropriate, local law enforcement. There will be times when even negative social speech does not reach the bar set in Tinker of substantial disruption. However, we will still act. We will contact parents, talk with students and work tirelessly to create a safer school community.
Legal Credit: www.agatstonlaw.com