Schoolhouse Gate: In Which Tinker, Hazelwood, et al, Are Ignored
An Illinois school board voted two nights ago to add a provision in the student code of conduct allowing the schools to take disciplinary actions against students for illegal or inappropriate behavior posted to students' personal sites.
Yes, that's right: these schools now have given themselves the right to punish students--and because it's a school, no courts or any of the rights of due process juveniles have in the court system--for not only illegal but "inappropriate" behavior, as defined by the schools, that occurs off campus.
I'm reminded of a passage in the Phantom Tollbooth, in which the protagonist Milo is arrested, tried, convicted, sentenced, and jailed all by the same person on literally no evidence. Throughout Milo protests that "only a judge can try someone," "only a jury can convict someone," and "only a jailer can put someone in jail." Officer Shrift, the arresting officer, responds with "Quite so. I am also the judge" to the first protestation, and is similarily the jury and the jailer.
Except now the schools can also make the rules. And their jurisdiction, apparently, is limitless.
Alex makes a valid point at One And Four, and again at the Age of Reason:
"From a simple picture posted online of a student holding a beer bottle it would be impossible to tell whether the bottle is full or empty, whether that student had been consuming it or not, whether the student is in the presence of parents which would make the situation legal, or whether the student is overseas in a country where consuming alcohol is legal. For such reasons a picture posted online is not sufficient evidence for adults to be prosecuted for similar crimes, and should not be used to punish students.
"Regardless, schools attempting to punish students for actions done outside of school is a dramatic overreaching of school authority. No longer do schools seem concerned with the education of students, but rather are now going to extreme measures to control behavior both in and out of school – territory best left to parents."
And another point, this one from the distinguished case 484 U.S. 260, aka Hazelwood v. Kuhlmeier, from the syllabus. (Yes, I'm lazy and stopped reading about where I found the point.) To sum up, a student newspaper wanted to include two articles, one about "school students' experiences with pregnancy" and the other "discussing the impact of divorce on students of the school." The school's principle deleted the articles, the first because he was afraid that the pregnant students would be identified, and the second because one student's real name was in the article and she complained about her father (he thought that the parents should be able to respond or consent to the publication before the paper was published, and there wasn't enough time).
Although the former students lost the case because the paper was school-produced, as part of a journalism class, the ruling still set positive precedents.
"(a) First Amendment rights of students in the public schools are not automatically coextensive with the rights of adults in other settings, and must be applied in light of the special characteristics of the school environment. A school need not tolerate student speech that is inconsistent with its basic educational mission, even though the government could not censor similar speech outside the school. Pp. 266-267.
(b) The school newspaper here cannot be characterized as a forum for public expression. School facilities may be deemed to be public forums  only if school authorities have by policy or by practice opened the facilities for indiscriminate use by the general public, or by some segment of the public, such as student organizations. If the facilities have instead been reserved for other intended purposes, communicative or otherwise, then no public forum has been created, and school officials may impose reasonable restrictions on the speech of students, teachers, and other members of the school community. The school officials in this case did not deviate from their policy that the newspaper's production was to be part of the educational curriculum and a regular classroom activity under the journalism teacher's control as to almost every aspect of publication. The officials did not evince any intent to open the paper's pages to indiscriminate use by its student reporters and editors, or by the student body generally. Accordingly, school officials were entitled to regulate the paper's contents in any reasonable manner. Pp. 267-270.
(c) The standard for determining when a school may punish student expression that happens to occur on school premises is not the standard for determining when a school may refuse to lend its name and resources to the dissemination of student expression. Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, distinguished. Educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns. Pp. 270-273.
(d) The school principal acted reasonably in this case in requiring the deletion of the pregnancy article, the divorce article, and the other articles that were to appear on the same pages of the newspaper. Pp. 274-276."
Note the last sentence of point a and the first sentence of point c--"A school need not tolerate student speech that is inconsistent with its basic educational mission, even though the government could not censor similar speech outside the school....The standard for determining when a school may punish student expression that happens to occur on school premises is not the standard for determining when a school may refuse to lend its name and resources to the dissemination of student expression." Now, if the government cannot censor similar speech--in other words, speech the school considers inappropriate, though not necessarily illegal--outside of school, but can inside of school (if it's "inconsistent with its basic educational mission"), then what restrictions can a school place on Internet speech by its students?
I'm not a lawyer, but it seems like the most a school could do about, say, a blogger's photograph of someone with an empty beer can, is determine if the photograph was taken on school campus, or if the photograph was on a website hosted by the school, and leave the rest to the police.
Which makes sense, to me. Schools can moderate behavior on their campuses, or at school functions, to a degree (I, personally, think it should be as long as the behavior materially disrupts the educational process; but "consistent with its basic educational mission" is not much broader as I see it), but unless it's the school's business, it's not the school's business. (Student rights in a tautology.) To clarify: if something happens on school campus or at a school function that materially disrupts the educational process, it's the school's business; if something illegal happens that doesn't materially disrupt the educational process, on or off-campus, it's the police's business; if something that is both illegal and materially disrupts the educational process happens on-campus, then it may be the school's business, or the police's, or both, depending on the context; but if something off-campus happens that the school deems "inappropriate," who cares? If it's illegal, then tip off the police, but frankly I can't think of anything anyone can do off-campus that is both legal and yet somehow materially disrupts the educational process.
So if a Vernon Hills High School student posts a picture of himself apparently smoking a cigarette off-campus, then the police can deal with it, decide if it's enough evidence for court, whatever; and then the school might get involved, to the tune of "sorry no more athletics (or band, or whatever, I guess) for you, mister, you have a police record" if that's provided for in the student code. Or if a Libertyville High School student posts pictures of herself in "sexually suggestive" poses, then either it's porn (remember the girl who got charged with possession and distribution of child pornography [which as I recall made some kind of legal sense] plus child exploitation [which as I recall made me really wonder if the state could plead temporary insanity on appeal]?), or it's just "inappropriate," and the only way I can think of that those photos would disrupt the functioning of the school is if students (or faculty, or administration) were so distracted by the photos they shouldn't be able to access on school computers that they couldn't think straight. And then whose fault is it, especially since it isn't porn?
Remember not shedding "constitutional rights to freedom of speech or expression at the schoolhouse gate"?
Now you can shed them at login.