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September/October 2008

MySpace, SchoolSpace: Is your computer safe?
by Laura Hemmer

Laura Hemmer is an associate attorney practicing school law with Teuth, Keeney, Cooper, Mohan & Jackstadt in Edwardsville, Illinois.

You have labored to ensure that your school is a safe place for students. Your district's crisis planning team has worked out the details of how to handle a disaster or other emergency situation. Proper security procedures keep unauthorized visitors, dangerous weapons and illegal substances out of the building. Effective supervision of students in the halls and on school grounds keeps harmful behaviors amongst the student body to a minimum. Maybe you even have strict ID requirements, metal detectors, security cameras and regular locker searches.

But as a school board, are you doing all you can to protect the safety of your students from ill-intentioned strangers, malicious group bullying and destructive harassment that enter schools through the Internet?

MySpace, Facebook, and other social networking sites may be virtual hang outs for students, but the harassment, threats, bullying, and other abusive and predatory behaviors that sometimes transpire in these environments pose very real safety concerns for schools.

Just ask the family and friends of Megan Meier about the reality of cyberbullying. As covered by the national media last year, Megan was a suburban St. Louis teenager, who, after a brutal exchange of comments in a social networking community, committed suicide. It was later revealed that some of the comments were from the fictional profile of a boy created by a classmate's mother in order to keep an eye on what Megan said about her daughter.

In another shocking case from Vermont, a teen committed suicide after harsh and relentless online teasing. The scope of the problem goes well beyond these isolated, extremely tragic incidents.

Predators and cyberbullying

Destructive social interactions on the Internet have led to violent incidents in classrooms and cafeterias across the country. In Illinois, school officials have reported in-school violence linked to, instigated by and/or plotted on social networking websites. For example, one case at an Illinois high school involved a mob-like fight that occurred at school after being organized and escalated through back-and-forth MySpace postings. Other recently publicized cases involved spreading vicious and harmful false rumors and "cyberwars" between groups of feuding students.

Given the faceless nature of online communication, the social and psychological harm caused by cyberbullying and online harassment arguably could even be greater than the harm of "traditional" bullying. Student speech on social networking websites can quickly become obscene and cruel in a way that face to face communications would not.

The Internet is always accessible to a bully, so that the victim cannot escape. Unlike other forms of communication, what is said online can spread rapidly, be easily manipulated and remain in cyberspace forever. Compounding the risks of harm and difficulties of prevention, cyberbullies are not as recognizable as their playground counterparts. With the mask of anonymity online interaction can provide, anyone — even a "good kid" — could be a bully online. The communication is hidden from adults, and harmful communications are vastly underreported.

School board policies have long tried to address the timeless threats of bullies and bad guys, but online relationships pose risks unlike traditional problems. How can local schools update their policies to address the problem of cyberbullying and online harassment?

Board authority

School leaders must examine both their responsibility and authority to take action against cyberbullying and other serious online risks to student safety. A board's authority to impose discipline to control these risks is not absolute. With an understanding of the extent to which a board may act, your board can develop comprehensive policies minimizing students' exposure to Internet safety risks and effectively address the safety concerns that do arise.

A school's authority to deal with cyberbullying amongst the student body is a matter of balance between students' rights and students' safety. On one hand, students have a Constitutional right to free speech, as the Supreme Court famously held in Tinker v. Des Moines Independent Community School District (1969). On the other hand, schools have an interest in maintaining the safety and integrity of the learning environment at school, which may involve restricting or punishing student speech.

The Tinker court addressed the tension between maintaining rights and maintaining order by noting that students' rights are limited in the school environment and not coextensive with the rights of adults. According to the Court, schools do have the authority to restrict student speech that causes (or is likely to cause) substantial and material disruption at school or speech that interferes with the rights of others to be secure at school.

Since Tinker, the Court further explained in Hazelwood School District v. Kuhlmeier (1988) that school-sponsored speech, such as an article in a student newspaper, may be restricted without violating a student's limited right to freedom of speech. In such cases, the school's interest in controlling speech that bears the imprint of the school for educational reasons outweighs the individual's right to speak freely without restriction.

These two cases, and others, outline the legal framework for what a school board may do to control and discipline speech made over the Internet. In the context of Internet policy, "school-sponsored" speech includes speech that occurs over school networks, on school websites or as part of school projects. Therefore, under the Hazelwood analysis, these school-sponsored communications may clearly be restricted by board policy. To ensure the district's maximum authority to regulate its network and Web pages, your policy should specifically identify that the school network is not a "public forum" but rather a school-sponsored curriculum tool.

Online communications that occur off of school property, after school hours, and with personal computers or cell phones, however, fall into a gray area where the authority — and the responsibility — of the school to monitor and restrict student communications is not entirely clear. While schools do not want to become the Internet police, school officials concerned about risks posed by Internet activities want the authority to act in some situations. In these off-campus cases, according to the Tinker analysis of student speech, the school must be able to prove substantial disruption (or likelihood of such) or interference with the rights of others to be secure in the school environment.

What constitutes a substantial disruption allowing a district to restrict a student's right to free speech? Courts have sided with the school district in the cases where the district can show clear evidence of a likelihood of disruption from the online speech. If a school can document on-campus disruption caused by the student's off-campus behavior, student discipline could be justified. Examples of sufficient on-campus disruption may include documented classroom interruptions, students who report fear or fail to attend school, or interference with the staff's ability to operate the school because of the online activity, or a significant likelihood that the online activity would have similar effects.

The board's policy on student discipline must be created (and followed) with an eye toward these Constitutional considerations. Although a bill has been proposed in the Illinois legislature which would explicitly allow suspension or expulsion of students for certain Internet postings under particular conditions, the bill would not overrule the Constitutional limitations on discipline. In any case, House Bill 0038 has not yet been presented to the General Assembly and may not progress out of committee. Therefore, the Constitutional limitations are the major restrictions on a school official's ability to address Internet safety issues with student discipline, and board policies must be designed accordingly.

The 'Acceptable Use Policy'

With the discipline limitations in mind, every district's approach to Internet safety should begin with a solid and effective Acceptable Use Policy (AUP) governing student access to and use of school networks and e-mail. A good Internet policy, consistently enforced, is a school safety issue. Minimally, the AUP should incorporate the restrictions of federal and state law. Federal law, through the No Child Left Behind Act, requires all schools receiving federal assistance for technology to have both a policy on safety as well as a technology protection measure in place which prevents access by minors to "visual depictions" that are considered "obscene," "child pornography," or "harmful to minors."

Similarly, the federal Children's Internet Protection Act requires schools to adopt and implement Internet safety policies addressing access by minors to inappropriate matter on the Internet in order to qualify for certain service benefits. (The statute specifically leaves the determination of what matter is inappropriate for minors up to the local school board.) Additionally, a policy on Internet safety is required in order to receive federal funds under the Enhancing Education through Technology provision of the Elementary and Secondary Education Act.

Many school boards, however, go beyond the minimum statutory requirements to address the problem. Some schools impose a total ban on access to social networking sites at school, while others merely restrict use of school networks to limited purposes and certain conditions. An outright ban on such networks may seemingly be easier to enforce, but it may also prevent some educational use of certain interactive sites or fail to address something objectionable. Additionally, students often avoid and circumvent filters to access restricted websites. Your board should weigh these considerations along with the age of the students affected, the types of use permitted, and the filtering technology available, in order to develop the most effective AUP for your students.

Other board considerations

Your AUP, however, is not the only board policy that has a role in Internet safety. Last year the General Assembly passed a set of bills recommending that your curriculum contain an Internet safety component. The two new School Code provisions, Section 27-13.3 and Section 27-23.7, address the Internet and bullying. The General Assembly amended School Code Section 27-23.7 by requiring school boards to adopt bullying prevention policies and training in all grades. Although this newly revised statute does not reference cyberbullying specifically, intimidation or harassment through the Internet certainly would be contained within the scope of general "bullying" prevention.

The extracurricular code of conduct is another policy option for addressing Internet safety. Although a school board is limited in imposing regular discipline for off-campus conduct as explained above, a board may consider tying the privilege of extracurricular participation to appropriate online behaviors both on- and off-campus. Just as 24/7/365 and drug testing provisions are common aspects of an extracurricular policy, the board may choose to add specific language addressing online social behavior to its student activity handbooks.

Designing durable policies

Knowing the risks, policy options and legal limitations, what is the next step in making your school environment safe from Internet threats?

  • As a preliminary matter, consider what your board policies already provide regarding cyber-risks, and where the gaps in safety lie.
  • As with any safety issue, ongoing discussions and threat assessment with the board, administrators and others regarding how to handle cyber-threats are critical to being ready to intervene in dangerous situations.
  • Preventative measures, like student and parent education, are also important components of a comprehensive approach to addressing Internet safety.

As you work through this process, know that the ways students will be using technology 10 years from now are probably not yet even imagined. Our schools have a role in helping students to understand that tool, including the risks it presents.

As technology and its social impacts continue to change, the policies your board establishes should be comprehensive for today and flexible enough to adjust to tomorrow's situations. We can only guess that future Internet safety concerns will have their roots in the same bullying and risky behaviors that have posed threats to our students in many other forms in the past.

Changing technology means the new safety risks are arriving faster and traveling farther than before, and boards are challenged with the task of ensuring their policies can keep pace.

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