There are numerous examples of schools punishing students for seemingly innocuous online activity. In 2012, after a Minnesota student wrote a Facebook post saying a hall monitor was “mean” to her, she was forced to turn over her Facebook password to school administrators—in the presence of a sheriff’s deputy. The school made an out-of-court settlement with the student, who was represented by the ACLU.
In other recent cases, student banter that would have gone unnoticed in the pre-digital era has drawn swift punishment. In Kansas, a high school class president was suspended for a Twitter post making fun of his school’s football team. In Oregon, 20 students were suspended over a tweet claiming a female teacher flirted with her students. And just a few days ago, also in Kansas, a student was suspended for a tweet that made the principal “uncomfortable” (in the wording of the school’s disciplinary incident notification).
“We cannot allow the hard-fought battles for student speech rights to be eroded in the digital age,” says Lee Rowland, an ACLU staff attorney specializing in speech, privacy, and technology. “School officials aren’t permitted to listen in on chatter at students’ private gatherings with friends, or rifle through their private videos and photo albums. Nor should we permit them to do so simply because those conversations or images are digital.”
No one disputes the fact that students can be cruel online. Chip Douglas, a 10th grade English teacher in North Carolina, resigned after students created a fake Twitter profile that portrayed him as a hyper-sexualized drug addict. But some First Amendment advocates believe a subsequent law enacted by the North Carolina legislature in December 2012, the first of its kind, has gone too far. Intended to protect teachers from cyber-bullying, the law prohibits students from making any online comments meant to “intimidate or torment” a school employee.
Such broad language creates two big First Amendment problems. First, schools can punish any speech as long as they can cite “intimidation.” Second, schools can punish students for comments made after school hours, in the privacy of their own home.
“You can’t equate online speech created on personal time with in-class speech, and it’s dangerous to try,” says Frank LoMonte, director of the Student Press Law Center. “Schools are so prone to censor and intimidate whistleblowers who complain about school conditions on school time. Students absolutely must have some safe space where they can complain when schools are dirty, dangerous, or overcrowded, without fear that the long arm of school discipline will reach out and grab them.”
Student speech—often in defiance of administrators—has helped keep schools transparent. In September, students writing for an Ohio high school newspaper looked at public records and discovered that what their high school’s administration had called an “alleged assault” by a student was actually an alleged rape. In November, students at a Staten Island high school broke a story about how the answers to Department of Education standardized tests were posted online before the test was administered.