Disciplinary actions against students based on information made available on Facebook have spurred debate over the legality and ethics of school administrators' gathering such information especially in relation to “free speech”. The sites allows users to create profile pages with personal details, it also allows for misrepresentation in that users can create fictitious accounts as there are no ways of verifying the information given. The implications for administrators in this regard can be life changing. Not only do they stand the chance of public humiliation, but loss of jobs and legal battle tops the list.
Facebook's current Terms of Use stipulate that "the website is available for your personal, noncommercial use only," misleading some to believe that administrators and law enforcement may not use the site to carry out investigations and disciplining students. Facebook representatives have however made clear that, "Facebook is a public forum and all information published on the site should be presumed available to the general public, school administrators included".
Recent case rulings have left mixed signals as to what administrators may legally do if a student creates a slanderous MySpace or FaceBook profile. There’s no clear rule on what constitutes free speech online and much can be interpreted from the 1st Amendment. As schools begin to regulate off-campus student speech on the internet, lawsuits continues to bombard the courts; all this while the U.S. Supreme Court still have not adequately addressed the limit of online speech. In fighting the battle on students’ free speech rights in the digital world, the courts are interpreting the First Amendment through a Supreme Court case of Tinker vs. Des Moines (1969). This has led to contradictory legal opinions on whether public schools can punish students for their off-campus posts about their administrators on Facebook, MySpace and other online setting. My issue is that the courts are applying old legal principles to new situations and has only left more questions than answers for school Administrators.
This point can be brought home in looking at the two Pennsylvania cases which had very similar facts decided on the same day, where a federal appeals court issued two opposing opinions on the topic. In the first case Layshock vs. Hermitage School District (2005) a Pennsylvania high school student was suspended 10 days after creating a fake MySpace profile of his principal. The profile said the principal did drugs and kept beer at his desk. A federal judge overturned the suspension; ruling in 2009 that the fake profile was not created at school and did not create a “substantial disruption” at school.
In a similar case Snyder v. Blue Mountain School District (2009) rulings went against a 14-year-old junior high student who was suspended for 10 days after she ridiculed her principal with a fake MySpace profile that suggested the principal was a sex addict and pedophile. A three panel judge ruled that the action whether off campus threatened to cause substantial disruption and suggested that simply because the disruption to the learning environment originates from a computer located off campus, does not mean the school should be left powerless to discipline the student. Evidently, the both cases although very similar in nature had two different results. This has left School officials questioning what legal ground they can stand on when it comes to punishing students for their online, off-campus speech.
Many districts are struggling to set workable policies around social networking, while at the same time, trying to integrate Facebook and other similar tools into their educational program. Johnston County School district like many others now has specific policy on use of social networks by teachers and students in schools. Under the current policy, any use of technology that publishes in any way false or defamatory information about a person or organization in prohibited. The policy also strongly discourages communication between students and teachers on any internet forums such as MySpace and Facebook. At the school level, access to these websites are blocked for both students and educators and strong warning is given each year that the computers are school property and should be used for school related purposes. What astonishes me is that the students continue to find ways to bypass the blockage and access the websites on campus just the same.
With no clear guidelines and contradictory rulings from the high courts, technology and its use in online "free speech “continues to be a legal minefield and as such school officials need to be cautious about addressing students who create these malicious accounts on or off campus. It is indisputable that a student can more effortlessly humiliate and significantly injure the reputation of teachers and school administrators with crude and obscene language via the internet than by any other mean. School officials need to remember that the administrators of these websites reserve the right to shut down presumably inappropriate and fictitious accounts and they have a right to utilize the option. The best legal path in these cases is to treat young people posting ugly and potentially slanderous content the way we would adults. If the content is illegal or threatening, charge them. If the content is libelous, sue them, as some teachers and principals have done and if the content is neither criminal nor libelous, accept a provocative posting for what it is, “free speech”.
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