School District to Monitor Students' Online Activities

School District to Monitor Students' Online Activities

by Michelle Kaminsky, Esq., December 2009

A suburban Chicago school district's decision to monitor its students' Internet postings has angered students, parents, and free speech advocates alike. The district will require that all students taking part in extracurricular activities, about 80% of the 3200 students, sign a pledge acknowledging that the school may take disciplinary action for "illegal or inappropriate behavior" found on the Internet. Although the Community High School District Number 128 says it won't regularly control student postings in web logs (blogs) or in social networking groups like,, and, it will investigate tips from a parent, student, or community member about improper postings.

Fight for your Right to Blog

Can the school district legally do this?

Simply reading the posts, investigating them for improper information, is not a violation of the First Amendment-students must remember that the posts are viewable by about 42 million other people as well. The real freedom of speech question would arise if the school district decides to take action against a student because of a post.

How much control can a school exert over their students' online activities?

This isn't the first time that schools have faced this question. For the past few years, courts have seen numerous claims of students who allege freedom of speech violations by their schools, and in many instances, students-and the freedom of speech-are winning. The general issue of free speech on the Internet has gained so much in popularity that there is now a group based in San Francisco that advocates for "digital rights." The Electric Frontier Foundation (EEF) even has a section called the "Bloggers' FAQ on Student Blogging."

Social Networking Groups

First of all, for those who don't know about social networking groups, they are websites such as those listed above that provide a space for students to congregate online. Students can sign up for membership, create a profile, post pictures, and join groups of friends-often creating a kind of cyber-school version of the students' actual one. In addition to these sites, many students also maintain a blog, a kind of online journal and discussion board. How school districts handle the issue of online patrol could potentially affect a large number of students, as one study suggests that 19% of those between the ages of 12-17 (about 4 million) keep a blog and 38% read them.

Next, we must draw a distinction between private and public schools. Students in private schools do not enjoy First Amendment protections for their online activity because there is no state actor involved. Public schools, public colleges, and private universities that receive some government funds, however, must abide by First Amendment protections.

Blogging You Need to Worry About

Also, note that posts containing physical threats against someone, which may be criminal, are not protected speech. In cases where students have been punished for online content, it is nearly always because of criminal or criminal-like threats, such as three Chicago students that suggested a particular teacher should be "slit like a ... chicken."

The History Behind Tinker

What about ranting about the biology teacher that picks on you? Can you call her names? Even vulgar ones? Probably yes, unless the posts "materially disrupt" school activities. This standard comes from the 1969 United States Supreme Court case, Tinker v. Des Moines Independent Community School District, in which the Court found that the First Amendment protected the students' right to wear black armbands in protest of the Vietnam War. Tinker is still the go-to authority regarding students' First Amendment rights with its proclamation that students don't "shed their constitutional right to freedom of speech or expression at the schoolhouse gate."

In Tinker, the Supreme Court ruled that schools can limit students' speech only when it "materially disrupts or involves substantial disorder or invasion of the rights of others." Note that this standard is far different than Community High School District Number 128's phrase "inappropriate behavior," slippery words not defined in the district's statement.

But Tinker came long before the Internet. Does it apply here? Indeed, courts that have been faced with student online censorship have based their analyses on it and come down on both sides based on facts. A federal court in Missouri ruled that a student's website, which used vulgarity in criticizing the school and faculty members, was protected speech because it did not "materially disrupt" the school. On the other hand, the Supreme Court of Pennsylvania, applying the same standard, found that a school could censor a student's website, which featured a teacher's face transforming into Hitler's, an image of the teacher decapitated with blood dripping from the head, and a request for donations to hire a hit man;this, the court concluded, was materially disruptive.

Courts may also consider whether school funds or computers were used in the creation of the online material. In 2000, a federal court in Washington State heard the case of a student who ran a website entitled "The Unofficial Kentlake High Home Page." As a class assignment, students were instructed to write their own obituaries, but the student and his friends diverged from the task and posted a creative obituary of a classmate on the site as well. The court relied on the fact that neither the school's computers nor funds were used in creating the website and ruled that the school could not punish the student for the site, concluding that even though "the intended audience was undoubtedly connected to Kentlake High School, the speech was entirely outside of the school's supervision or control."

"Practicing Your Netiquette"

First Amendment issues surrounding the Internet are not going away any time soon, so it is best if school districts decide on a uniform, constitutional response. In lieu of bold threats to read students' online postings, school districts should seize the opportunity to educate their students on "netiquette," as at least one middle school in Virginia does at the beginning of the year. This particular school experienced a "cyberbullying"-related student suicide. The subject of blogs, online journals, and Internet social networking offers the perfect springboard, with real life applicability so often lacking in middle and high school instruction, to teach students the basic tenets of American constitutional law, i.e., their rights and privileges as citizens.

Besides, it is never too early for children to realize that their words and actions - including what they post on the Internet - have consequences.