INTERNET AND E-MAIL POLICY

EOL 469

Student Free Speech Topics

Leonard H. Fretzin

While there is little debate that student Internet access enhances learning opportunities, there is a serious controversy brewing in regards to how student free speech and cyber-conduct coincide. Legislative regulations for student cyber-misconduct are quite recent, yet there are several cases that help predict outcomes by courts around the country. The Supreme Court has ruled on student speech in the past, stating students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate" Tinker v. Des Moines Independent School District, 393 U.S. 503 (1969). Throughout the cases discussed here, the courts have attempted to weigh student free speech and cyber-rights in schools.

A district policy must be established in each district to generate acceptable use rules that will notify parents and students of the parameters and boundaries of allowable use of technology by students and afford protection from lawsuits. The acceptable use policy needs to outline proper student conduct in Internet use and the discipline procedures to be followed when violations of the policy occur. Parental permission and student acquiescence to the policy must be obtained by written signature of both parties. The language of the policy needs to be general enough to cover unforeseen circumstances or unspecified misconduct by students, yet specific enough to stand up to federal court scrutiny. If a policy is considered to be too vague, it may be viewed as not providing users “fair warning” about what is inappropriate use. In addition, anything considered to be too broad may encroach on some free speech principles upheld by the constitution and could cause questions about student free speech rights during litigation. Statements of unacceptable use, such as the one from St. Charles below, gives specific examples of inappropriate use prefaced with a qualifying statement that gives the district some room to interpret appropriate use:

Unacceptable use of technology includes, but is not limited to:

a. participation in any activity which is in violation of federal state law or District 303

b. interference with or disruption of computer or network services or equipment

c. participation in the acquisition, creation or distribution of materials which are obscene, pornographic, abusive, or prejudicial in nature...etc...

Copyright laws and their requirements needs to be part of the acceptable use rules and code of conduct, and students need to be taught the basics of copyright protection as many materials easily downloadable from the Internet are, nonetheless, protected by copyright.

Among the policies that must be enforced are the security and maintenance of hardware and software, the proper use and misuses of passwords, the protection of privacy and the forbiddance of the practice of "hacking".

A district or school website can publish student-generated material only with the explicit written permission of the students' parents or legal guardians. It is generally recommended by authorities on acceptable use policy that the last name of students, their home address, phone numbers, and their pictures be excluded from any publications on the school website. Responses to the website concerning the specific work of a student must be sent only to the e-mail school address of the teacher in charge of the students' assignments. The student’s e-mail address should not be published.

Schools need to be careful about allowing teachers or other school personnel to create their own web sites without a formal clearance procedure by a designated official of the district or school. The policy should disallow the separate publication of course-related websites by enterprising teachers without district examination and approval. The district may, alternatively, require all such sites to be published only on the school website, again, after receiving scrutiny and approval by a designated district employee (usually the webmaster or technology director).

School districts are wise to restrict linking or allowing unsupervised websites from appearing on the school's official website. Linked sites from the district website cannot be controlled by anyone in the district. Ideally it would be safest to disallow site linking from the district website, but since many links have bona fide academic relevance they must undergo a review and approval process by the delegated district employee (webmaster) who oversees the school website. It may be important at this point to indicate on the web page that the school district does not endorse the content of the linked site.

The webmaster of the district or other designated employee can exercise editorial control over the content and style of student speech in any school-related activities, whether purely academic or otherwise. In Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 273 (1998) the Supreme Court gave schools the authority to prohibit expression that was poorly written, researched, expressed, biased, prejudiced, vulgar, profane, or obscene.

In Bethel School District v. Fraser, 478 U.S. 675 (1986), the Court held that a school may discipline lewd, profane, or uncivil student speech that occurs in school because it goes against the school’s mission. Similarly, a school may discipline a student for in-school computer use, which may be considered lewd, profane or uncivil. It is easiest for a school to take away computer/Internet use as punishment, if the district has stated explicitly that the use of it is considered a privilege, not a right, and can be revoked at any time for inappropriate use.

Filtering software can be used to eliminate porno graphical, racist or other hate sites, or any which the school district considers unsuitable for minors, based on previous case law (cf. Board of Education, Island Trees Union Free District #26 v. Pico, 457 U.S. 853 1982) which allowed schools to limit the materials in their libraries and classrooms to those of legitimate pedagogical value. Teachers, likewise, may be restricted in speech to the "legitimate pedagogical concerns" of minors as related to the conditions of their employment.

Forums with unrestricted public expression should not be allowed. If a web site is allowed for free and open public debate it may not be governable by the school board or their appointed representatives, but rather be considered by the courts as a legitimate forum of free expression, and therefore, protected by the U.S. Constitution ( cf. Board of Westside Community Schools v. Mergens, 109S.Ct. 3240 (1990). The content of such a site, which may take the form of a web board or a real time chat group, is difficult if not impossible to control, and its content can easily become inappropriate for minors. The courts may likely approve of the free expression published on an open forum website (cf. Beussink v. Woodland R-IV School District, 1:98CV93 RWS; U.S. District Court for the Eastern District of Missouri December 28, 1998, temporary injunction). In the Beussink case it is important to mention that the student created the website that degraded the school on his own time with his computer at home. According to Mark Williams in his article at techlearning.com in his statement Your School Web Page and Free Speech, the court of appeals maintained that student material created on school computer equipment is subject to school control School equipment was not used to create this website Boucher v. School Board of the School District of Greenfield (1998). The student did not mean to cause disruption at school which leads back to Tinker in which the court held that school districts could regulate behavior on school property if it causes substantial disruption. The viewing of the student’s website at school did not cause substantial disruption. The school administration was not happy with the website but it was not disruptive.

Any type of forum must be closed to the general public, and limited, again to employees of the school district. Password protection is a technology feature that can be useful in such cases. Care should also be taken to limit student access to such sites since the weight of conducting supervision and due vigilance which may be excessive and likely to falter on occasion, opening the way to charges of negligence.

I recommend that e-mail accounts located at a district server be prohibited. If students are allowed their own e-mail accounts they again need to submit written permission from themselves and their parents or guardian agreeing to allow designated district officials to monitor their electronic mail. Students, staff, and parents should be informed that email messages stored on the school’s computers can be monitored. The Electronic Communications Privacy Act makes it a criminal offence to monitor e-mail while it is in transit. It has subsequently been adjudicated in Bohach v. City of Reno that the city of Reno was permitted to read stored electronic messages of its employees without violating the act. Recent court proceedings have also allowed employers to monitor the e-mail messages and internet usage of their employees. Although no apparent case law has been established for schools that parallels employer/employee relations in this regard, the similarity is transparent.

The reason I recommend that students not be allowed e-mail accounts through the district server is that it is especially burdensome for a school district to shoulder the responsibility of examining the daily e-mail communications of its many students. Because of this a case could arise of psychological or physical damage that can be tied to a student's e-mail which was 'missed' by the school district webmaster or technology director. Providing email to students with the school’s computers definitely opens up more risks for viruses to enter the system. This may be considered negligence and afford an avenue of tort which is best closed by simply not offering e-mail addresses at the district site to students.

Many students will learn of the availability of free e-mail at such URLs as hotmail.com or yahoo.com, and may even be advised by the school to go there for an e-mail address. This alternative source for student e-mail is probably a good way of eliminating district liability or burdensome administrative duties in this area of technology.

Teachers should be encouraged to have a district e-mail address, but must abide by the district's policies disallowing vulgarity, threatening, obscene, or otherwise inappropriate e-mails. The use of district e-mail for commercial ventures or enterprises, or for political campaigning should likewise be banned for students and all district employees using district and school computers.

Some attorneys have advised school districts to notify all parents at the beginning of the school year of the potential risks involved in the use of the Internet and other educational technology by students instead of requiring that signed consent forms be obtained. I guess that these would have to be sent by certified mail, return receipt requested. The district should consider and make a decision which alternative would be best suited to protect the district from accusations of negligence. Some lawyers advise that both direct notification and signed consent forms be obtained from parents. Armstrong Township High School requires a signed consent form from the student and parents.

Compliance to the school district policies regarding the use of technology and the Internet should be made part of the student code of conduct and spell out the penalties for student violation of the code.

The following information comes from the Armstrong Township High School acceptable use policy.

All student use of the Internet should be consistent with the school district’s goal of promoting educational excellence by facilitating educational resource sharing, electronic communication, and improving methods for learning and research. The purpose of providing computer, network and Internet access in the school environment is to provide access to a new means to gather information, provide research experiences, and to teach responsible us of computers, networks, and the Internet. To that end the district reserves the right to limit student access to those sites which are appropriate to educational activity and research. In order to keep the policy broad, the policy states: The computer/network/Internet Use Agreement does not attempt to state all required or proscribed behaviors by users.

School districts should be careful in what they state in Internet use policies. Things that can’t be done or are exaggerated or not completing some task that helps enforce the policy must be avoided. An example of this occurred in the Exeter Regional Cooperative School District where the acceptable use policy stated that, “All access to the internet is monitored using a firewall. This firewall will immediately contact us if any students or staff access undesired sites.” The firewall in the district kept logs of the data transfer to and from the net, but not content. The school district could look at these logs and tell if violations of the policy had occurred. The problem for the school would be not checking these logs and then denying a parent’s request to view the logs. (“Acceptable-use policies are useless unless strictly enforced,” eSchool News online; November 1, 2000.) This should remind school districts to review their acceptable use policies and update and/or remove sections that need changed. Schools should check to see if they are following the guidelines that were set in the policies.