In New Hampshire, failing to report hazing can end an educator’s career.
Public schools may get some relief in the future when it comes to their responsibilities for watching what students and school district employees do on the internet. It goes without saying that social media has changed the fabric of American culture, and is here to stay. According to “checkfacebook.com,” more than 167.5 million Americans have Facebook accounts. That’s over half the population, and two out of every three Americans over the age of 14. For the most part, the explosive growth of social media in the U.S. has rarely translated into good news for public schools.
A simple Google search reveals countless examples of kids misusing technology and social media to cheat on tests, bully other students, transmit inappropriate pictures, arrange illegal drug sales, and the list goes on. The adverse consequences on the children are enormous; including suicides, sexual assaults, drug use, child pornography, and depression. The stories are not limited to the kids. Adults – sometimes parents, sometimes teachers – have also been both victim and perpetrator of untold wrongs, using social media and the internet. The harmful aspects of social media have increased public pressure on schools to watch what its teachers and students are doing on the internet in order to protect kids from dangerous predators, bullies, and illegal activity.
For school administrators, the veritable chaos that is social media has created more questions than solutions. Should schools ban use of social media in order to make sure that sites like Facebook do not become a tool to hurt children? Could a school ban social media if it wanted to? Should schools embrace social media and teach responsible use of the internet? Do schools have to be proactive and police social media in order to protect the kids from predators and cyber-bullying? Is there a practical and effective way to do so? Are there clear cut answers to any questions about the internet?
Some of the questions have been answered. Schools do have to report cyber-bullying when it comes to the school’s attention. Schools also have a fair amount of authority to regulate traffic over their own computer system. Schools have a reasonable level of authority to regulate the use of outside technology when it is on the school grounds. Very little else is clear when it comes to the legal rights and obligations of schools regarding social media and the internet.
For the most part, there are no statutes or court cases that clearly define what schools could or should do, and spell out what schools could not, or should not do. Without clear guidance, schools do not know for sure whether to respect a student’s privacy and right to free speech, or whether it is more important to aggressively go looking for cases of cyber-bullying. Similar competing interests come into play when a school district tries to monitor what teachers and staff members are doing on the internet.
However, there is one trend in social media that may bring some answers. In many states across the U.S., employees and college students are beginning to push back against the employer’s and university’s efforts to monitor online activity. Where some employers and some colleges began to require job applicants and college students to reveal Facebook passwords, legislatures are beginning to prohibit the practice. In July 2012, Delaware passed the Higher Education Privacy Act, which prohibits university officials from forcing students to disclose digitally protected information. A similar measure is proceeding through the legislature in California. State Senator and author of the California Bill, Leland Yee, indicated that “California is set to end this unacceptable invasion of personal privacy.”
In a parallel development, Maryland and Illinois passed laws protecting employees from bosses’ demands that the employees allow the employer to log in to social media sites and view the employee’s postings. Also, two U.S. Senators have asked the Department of Labor to investigate and determine whether employers’ demands violate any federal laws.
The clear trend is that employees’ and college students’ right to privacy and first amendment free speech is winning out over employers and colleges that want to monitor the internet activity of its employees or students. Although the trend has yet to dip into the K-12 public schools, there is evidence that the trend may head in that direction. The bill that eventually became Delaware’s Higher Education Privacy Act originally included language that would have applied to K-12 schools in that state, and the bill’s author is intent on introducing another bill to protect the privacy of K-12 students in the next legislative session.
By now, you’ve probably begun to consider what this trend could mean for schools, if it continues. A prohibition that blocks schools from getting access to Facebook and Twitter accounts would be the first clear indication of a public policy that schools do not have an obligation to police students’ use of the internet. If the trend took hold in New Hampshire, it could mean that schools could regard students’ out-of-school online activities as a legally protected private concern, and only respond when wrongful online activity is brought to the school’s attention. This would reverse recent pressure on schools to seek out bullying incidents on the internet and would proactively prevent students from abusing other students through electronic media.
For school administrators who may have felt that they were being held to an impossible standard, knowing the boundaries of their responsibilities may come as a relief. Even more so, administrators may find relief in the idea that its responsibilities may be returning to the familiar limits of the school day and the school property, instead of extending around the clock and anywhere that the internet goes.
On the other hand, placing privacy and free speech above safety and security of the children may compromise an important opportunity to keep kids safe. There has never been a statute that required schools to police the internet, however, at the same time, there has never been a prohibition against it, either. In a landmark case from 1985, the U.S. Supreme Court wrote that “the preservation of order and a proper educational environment requires close supervision of schoolchildren, as well as the enforcement of rules against conduct that would be perfectly permissible if undertaken by an adult.” This statement by the court was used to explain why a school could search a student’s purse for cigarettes. Two legal principles from this 1985 case continue in effect today:
1. Schools have a legitimate interest in the preservation of order and a proper educational environment.
2. The school’s interest, in appropriate circumstances, can displace a student’s right to privacy and free speech.
The conduct in 1985 that the court was considering was a student’s possession of cigarettes, which were discovered by school officials who searched the student’s purse. Today, instead of cigarettes, the student behavior might be possession of a cell phone used to send offensive, bullying text messages, or to transmit photography that should never have been taken. Whether the issue is cigarettes, or evidence of cyber bullying contained on a cell phone, the applicable law is the same – schools can take reasonable actions to preserve order and a proper educational environment, even when that action encroaches on constitutional rights.
Time will tell whether this legal trend will continue to spread. Advocates that seek to limit employers as well as colleges and universities are confident that the privacy protections are the right thing to do, and that it will continue spread across the country. Delaware is the state to watch to see if the privacy trend crosses over into the K-12 public schools and, if so, what impact it has on that state’s schools.
