Yet another in a string of legal cases that will shape how we think about student speech rights in the online age has surfaced in Minnesota.
This latest litigation, filed by American Civil Liberties Union last week, alleges that the 1,100-student Minnewaska Area school system violated a 12-year-old middle school student's right to privacy by asking for the login and password to her Facebook account.
The district contends that it did so only to "prevent disruption" after a complaint from a parent that the girl had a conversation of a sexual nature with another student, according to a story on MSNBC's website.
And as Education Week school law specialist Mark Walsh noted in January, the Supreme Court's refusal to take up appeals of cases involving schools imposing discipline based on student speech on the Internet leaves some uncertainty.
In one appeal the Supreme Court refused to review, a federal court of appeals upheld rulings in two cases in favor of students that had posted derogatory Web content directed at faculty in two Pennsylvania school districts. In the other, a different federal appeals court upheld the right of a West Virginia school district to discipline a student for engaging in cyberbullying of a schoolmate outside of school.
The main point at issue in Minnesota, as well as many other cases involving students' right to privacy online, is in the potential for students' Internet speech to lead to "substantial disruption" at school. (According to the MSNBC story, there are other disputed facts, such as whether the school district had parental consent to search the student's profile, and whether the district has taken similar measures with other students, but let's leave those for now.)
In a review of free speech law as it pertains to student use of their own "electronic communication devices," or ECDs, part of an ongoing project on the legal implications of allowing student-owned devices at school out of the University of San Diego, author Frank Kemerer writes that threats of violence at school are in no cases protected speech, nor are messages and images advocating drug use or drug trafficking at school-related activities.
But in cases where those circumstances aren't present, "the linkage between student misuse of their own ECDs off campus and the legitimate interests of the school must be clearly established," Kemerer writes. Further, he said, a 1969 First Amendment Supreme Court decision often known as "Tinker" in law circles ruled that schools must be able to show "reasonable foreseeability" that the speech would cause disruption.
So is there a need for the Supreme Court to interject itself again?
Many litigants think so, including those on both sides of the Pennsylvania case, though they told Education Week in January they disagreed about whether that particular appeal was the correct one for the Supreme Court to review. (The ACLU has also represented the students in the two Keystone State cases.)
But given recent decisions in lower courts, perhaps "reasonable foreseeability" hinges upon the age of the target of Internet speech outside the classroom. In other words, while Pennsylvania faculty may be expected to continue working effectively and professionally amid the creation of derogatory, but not threatening, student-authored Web speech, the same may not be true of a fellow student. If so, the key to this particular case may stem from the nature of the conversation between the students, and whether there was just cause to believe that conversation extended to cyberspace.