Monitoring students off campus – is it legal?

We’ve had two recent cases of school administrators wanting to reach into students’ private, off-campus lives if their behavior has a negative effect on student learning. Oak Harbor School administrators want to be able to check students’ cell phones messages, and Seattle Schools changed its student handbook enabling them to discipline kids for disruptive messages through Facebook or other social media.

Are schools going too far as they try to deal with serious cases of student bullying, harassment and intimidation?

“What we’re seeing is legislatures and school boards all across the country rushing – sometimes hastily rushing, and sometimes not hearing from all sides rushing – to adopt policies that allow schools to reach into students off campus, private, personal lives,” says Frank LaMonte, executive director of the Student Press Law Center. The group is a national advocate for student First Amendment rights.

I told you last week about the Seattle School Board’s changes to its “Student Rights and Responsibilities” handbook. Click through this 45 page document and you’ll see changes highlighted in yellow on pages 7, 16, 23, 29, 31 all deal with “off campus speech.” Page 16 mentions Facebook and MySpace specifically. That example:

The District retains the right to respond to off campus student speech that includes using electronic means to set up or arrange a fight, such as, but not limited to, texting, Facebook, MySpace or other social Internet sites, if the fight occurs or is to occur on school grounds, or just before or after the school day.

The board passed the changes unanimously, with no discussion and only one comment from board member Harium Martin-Morris, who said, “We haven’t really changed much from last year to this year.”

Martin-Morris tells me today what they’ve done is “clarify” a right the district has always had to deal with off campus behavior if someone complained about another student’s action.

LaMonte says school boards like to put controversial policies in place over the summer months when, “students are away, they often times aren’t paying attention, and their student newspapers aren’t in business so they can’t provide coverage of this.”

Is it legal for schools to hold students responsible for their off campus behavior? LaMonte says legal experts are watching the Federal Appeals Court in Philadelphia for an answer.

“There are actually two cases before the 3rd Circuit, both of them involving students who did MySpace pages ridiculing their school principals using purely off campus resources and purely off campus personal time,” he says.

These cases are also interesting because the only behavior schools try to “police” off campus tends to be related to free speech. When a student commits a crime, schools are usually the first to distance themselves and say they had no idea the student was in trouble with the law.

“Students’ social behavior or their sexual behavior, all of that we accept is the province of the parents and the families to figure out,” says LaMonte. “There shouldn’t be a rule that speech is an uniquely unprotected activity because it’s the only one that is specifically mentioned in the constitution.”

It’s likely the U-S Supreme Court will be asked to make a ruling on whether schools can check out kids’ off campus Facebook pages and text messages.

Attorneys with the ACLU in Seattle are reviewing the Seattle School District’s policy regarding off campus speech, and will have a response by mid-September.

Martin-Morris says the problem with bullying in schools is so bad that it’s more of a concern than the possibility of stepping on student rights. He says some estimates show 60 percent of girls are subjected to off-campus bullying that impacts them at school.