Midwest Education Law

Missouri lawmakers yesterday began the process of revising the controversial "Facebook law" that a judge recently enjoined from going into effect.  Acting during a special session Wednesday, the Senate Education Committee unanimously passed a revised version of SB54.  The revised bill eliminates the contentious provision regarding communications between teachers and students on social networking websites like Facebook.  In its place, the new bill provides that school districts must have a social media policy in place by March 1, 2012, including "the use of electronic media and other mechanisms to prevent improper communications between staff members and students." 

Continue to check this blog to follow the progress of the revised bill.

The U.S. Court of Appeals for the Eighth Circuit today affirmed the trial court's grant of summary judgment in favor a school district and against tenth grade student who was suspended for sending "instant messages" to various friends in which the plaintiff talked about bringing a gun to school and committing acts of violence.  The case, D.J.M. v.  Hannibal Public School Dist., can be found here. 

The messages in question were sent by DJM through his home computer to various friends (who were also using their home computers), including messages to a female student, CM. Although CM initially believed DJM to be joking, she became concerned at the increasingly threatening nature of DJM's messages and alerted a school administrator, who in turn contacted police. DJM was taken into juvenile custody and later suspended for the balance of the school year.  DJM and his parents sued the School District under Section 1983, alleging that the School District had violated the First Amendment because the instant messages in question were not "school speech."

Rejecting this claim, the court held that true threats are not protected by the First Amendment and here the school district was given enough information that it reasonably feared DJM had access to a handgun and was thinking about shooting specific classmates.  In light of the district's obligation to protect its students and reasonable concerns created by other school shooting incidents, the district did not violate DJM's First Amendment rights by notifying the police about the messages and subsequently suspending him after he was placed in juvenile detention.  The action was also appropriate under the school's authority to prevent a "substantial disruption" of school activities.  The court also found that the district court did not abuse its discretion in remanding DJM's state law claim for administrative relief to Missouri state court after it dismissed his Section 1983 claims.

In part due to the rapid rise in popularity of social networking cites like Facebook, new questions have emerged about the extent of a school district's authority to regulate student speech that occurs off-campus. Up to now,  the prevailing view has been that schools may discipline off campus speech which bears sufficient relation to the school environment, even if that speech does not cause “substantial disruption”under Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). However, this may no longer be the case following two recent decisions by the U.S. Court of Appeals for the Third Circuit.

Last week, in two closely followed cases , the Third Circuit ruled that school districts may regulate off-campus student speech only where the speech poses a “poses a significant threat of substantial disruption.” Affirming its earlier ruling in one case and reversing in part the other, the court found that the schools in each case exceeded their authority and violated the First Amendment when they disciplined students for postings made on social networking sites.

InSnyder v. Blue Mountain School District,the district court originally upheld a school’s 10-day suspension of a14-year-old for her creation of a “profanity-laced” mock profile of her middle school principal on the social networking site MySpace.  Reaching the opposite result, the lower court inLayshock v. Hermitage School District found that another school district’s discipline of a 17-year-old student for a similar posting on MySpace violated the student’s First Amendment rights. The MySpace postings in both cases were created after school hours, off campus and using non-school computers. On appeal, both cases where affirmed,prompting the Third Circuit to hear the case a second time en banc to resolve the panel split.  

Using Tinker as a guidepost, the majority opinion in Blue Mountain found that school districts may discipline students for off-campus behavior only if it presents a significant likelihood of causing substantial disruption. The court found there was no such likelihood because the website parody was viewable only to a select number of the student’s friends and that, although “indisputably vulgar,” the student’s speech was nonetheless protected by the First Amendment. Similarly, in Layshock, the court found that the school district failed to show that the offensive internet posting created any on-campus disruption, concluding that “[i]t would be an unseemly and dangerous precedent to allow the state, in the guise of school authorities, to reach into a child’s home and control his/her actions there to the same extent” that it can when the child “participates in school sponsored activities.”

The many advantages and disadvantages of social networking sites and other electronic communications are now well-documented. While these technologies can be employed for great educational benefit, they can also create unintended liability for a teacher or a school district. You can read more about those issues here. There is a growing on-line resource, however, which may allow educators to communicate electronically with students while avoiding some of the pitfalls of Facebook, Twitter, MySpace and texting. The resource is not a cure-all for every electronic problem, but it may be worth reviewing to see if your district could benefit.