Cyberlaw for Schools
The Limit of a School’s Authority—Off Campus and After-Hours Challenges
When a school disciplines a student for creating a website or profile, posting a message online, or sending a digital communication (text messaging, instant message, e-mail, etc.) off school grounds and outside school hours, it is treading on very dangerous legal ground.
The websites and messages vary from school/administration/teacher/student bashing, to cyberbullying and harassment of fellow students or teachers, to fights being broadcast online on MySpace or YouTube, to sending vulgarities and threats, to encouraging others to hurt or kill someone, or threatening to do it yourself. Sometimes the students are just behaving badly, or are rude and hurtful, and sometimes they are committing serious crimes, including hacking, identity theft, vandalism, assault and battery, and targeting victims for attacks by hate groups and predators.
In the United States, cases have challenged the school’s authority in many states and federal jurisdictions under Constitutional and procedural grounds. Although the decisions conflict, there is some guidance from the U.S. Supreme Court on free speech issues in schools and schools have been given more leeway recently. The last definitive line of cases were largely decided during the Vietnam War. (The more recent Supreme Court case has given some vague guidance, but nothing definitive.)
Most other issues will be resolved by lower courts and the law will vary depending on the state or federal district or circuit in which the school is located. So, before taking action, it is essential that the school district seeks advice from knowledgeable counsel in this field. The normal school district lawyer may not have the requisite level of expertise to advise on this, and a Constitutional or cyber free speech lawyer may have to be retained.
There are a few generalizations we can provide which can give some general guidance to schools as to where they have authority. However, these cases are very fact-specific and the facts in your case may differ from those in the cases already determined in your jurisdiction.
- Clear threats: If there is a clear-cut threat (one that is seen by both the person making the threat and those who have seen it or received it), the school is generally entitled to take action, including suspension and expulsion.
- Clearly disruptive of school discipline: If the school had proof that the speech has or will disrupt school discipline, the school has a better chance of succeeding. Ungrounded fear or speculation is not sufficient to support the school’s burden.
- School activities: If the student is bringing in print-outs of the website, or promoting other students in school to visit the site, text-messaging during school hours, or if the student accesses the website while at school or creates or works on the website from school, there is a greater likelihood that the actions will not be deemed out-of-school activities and would fall within the school’s authority.
- School-sponsored activities: If the website belongs to the school or is created as a school-sponsored project, it will probably fall under existing U.S. Supreme Court decisions permitting school authority. (A school group on Facebook created by students would not qualify here.)
- On-premises activities: If a student targets another student using interactive technologies or the Internet, there is almost always an in-school activity related to the cyberbullying. Privacy-invading e-mails and harassing messages are often printed out and distributed in school and on school grounds. In addition, cyberbullying typically creates a disruption in school; the victim is afraid, may seek counseling or miss school, their grades may be impacted, and friends may get involved. Any proof of an in-school student impact will help support a finding of school authority. You should note, however, that some courts have not extended the school’s authority to offline and off-premises actions in a cyberbullying case when the cyberbully himself did not bring the printed materials into the school. Others doing it may not be attributable to the cyberbully, without independent action and intent.
- Cyber staff harassment: If the school can demonstrate that the student’s website or harassment has had a real impact on the staff, the school has a greater likelihood of success in upholding its authority. If the teacher or staff member quits in reaction to the harassment or takes a leave of absence or seeks medical treatment to help deal with the emotional implications of the student’s actions, the courts tend to be more sympathetic and are more likely to give the school the authority to discipline the student. Without this, the courts tend to lean towards leaving the staff member to other legal recourse.
Schools are also attacked (often successfully) when they fail to follow their own procedures. Sometimes pressured by angry staff members, parents, and fear of the problem growing out of control, they fail to adhere to their own written rules. They fail to give the requisite notice, in the requisite manner, and allow the requisite response period to lapse before calling a hearing. They sometimes fail to notify the parents and give the student’s family a chance to respond. This is not a time for shortcuts or acting without careful planning.
Sometime the schools over-reach in their policy, attempting to prohibit speech too broadly. These policies are generally knocked down unless the school can demonstrate a practice that limits an overbroad reach and clarifies what is prohibited and what isn’t for the purposes of the policy and school rules. One school even reserved the right to examine any home computer of their students to determine whether a cybercrime or abuse has taken place using that computer.
The schools have a valid concern and legal obligation to maintain discipline and protect students while in their care. But in this tricky area, especially when damages for infringing on the students’ rights can exceed the annual salary of much-needed teachers and other educational resources, schools cannot afford to guess. Until the law becomes better settled, or unless a local cyberbullying law giving schools extended authority exists in their jurisdiction, the schools need to be careful before acting, seek knowledgeable legal counsel, plan ahead, and get parents involved early.
Public Schools vs. Private or Parochial Schools
Private and parochial schools have more leeway than public schools since they are not deemed “governmental” and not subject to First Amendment restrictions. Note that while some state laws may apply by extending free speech protections to private institutions, this is the exception, not the rule. Even then, schools have always had more legal wiggle room when students’ safety, the educational atmosphere, and well-being are implicated.
School Liability and Insurance
Most schools and school districts have risk managers who consult with them on insurance and liability issues. They are a good resource to turn to when issues regarding limitations of liability, jurisdiction, and risks are involved with cyberbullying and other cyberabuse issues. By addressing these issues in a manner recommended by someone of Parry Aftab, Esq.’s professional stature, you may be able to convince them to lower premiums or provide greater protection for the same money.
Just as adding a burglar alarm to your house or car will reduce your home owner's or car insurance premiums, adding risk management best practices to your programs may help reduce the premiums here as well. They may also have funding or resources you can use to address some of these issues.
When your annual renewal comes up, think in advance of ways you can pitch your newly enhanced safer practices as something that reduces risks and premiums at the same time.