Education Law Publications

The firm publishes a monthly "Issue of the Month" on current issues or matters of interest in the education law area.

If you want more information about our education law practice or a copy of any of our articles, contact David Duff at dduff@ddtwb.com

SCHOOL LAW
"ISSUE OF THE MONTH"
June 2006

THE INTERNET AND PUBLIC SCHOOLS:
MySpace.com and Similar Websites Pose New Challenges for School Officials

As summer is in full swing and school employees are enjoying a much-deserved break from the daily school routine, administrators are grappling with the question of how to respond to challenges posed by the increasing popularity of social-networking Internet sites such as “MySpace.com” and “Facebook.com.”  These sites provide an opportunity for individuals, including students and school employees, to create their own webpage or weblog (“blog”) on which they can share personal information and post or receive comments to/from other Internet users. In addition to raising broader safety concerns, most districts have learned that webpages have the potential to disrupt the school environment and/or adversely affect the morale of students and school employees.

Schools around the country, including those in South Carolina, have dealt with a number of incidents concerning the improper use of Internet sites.  While some incidents have involved district-owned computers, the majority involved conduct that took place off campus and through the use of personal computers.  For example, in Libertyville, Illinois, after several students posted threatening comments about other students on the Internet during off-school hours on their home computers, the school board amended its student code of conduct to ban “illegal or inappropriate” behavior involving threats against students on the Internet, and subjecting violators to disciplinary action.  In Missouri, several male high school students were suspended for 10 days after they posted on the Facebook Website, from their home computer, derogatory comments about female students attending their school.  A high school senior in Pennsylvania also was suspended from school after he posted an unflattering parody of his school principal on MySpace.  Finally, school officials in Winthrop, Massachusetts, suspended and recommended the expulsion of a student who had posted a “hate list” of other students on his MySpace page, along with a photo of a masked person carrying guns.

In addition to the problems posed by student use of the Internet, the proliferation of MySpace pages also has created new challenges in the area of school personnel.  For example, in one South Carolina school district, a principal  learned that one of her teachers had posted suggestive comments in response to student photographs on a student’s MySpace page. 

In considering how schools may legally respond to these and other instances of Internet misuse, school officials should keep in mind their broad authority to implement rules governing student conduct, whether that conduct occurs on school grounds and/or during school hours, or away from the school campus.  Section 59-63-210 of the South Carolina Education Code authorizes school trustees to expel, suspend, or transfer any pupil, not only for “the commission of any crime, gross immorality, gross misbehavior, persistent disobedience, or for violation of written rules and promulgated regulations” but also when “the presence of [that student] is detrimental to the best interest of the school.”  This statutory authority permits a school to impose disciplinary sanctions where a student engages in inappropriate off-campus conduct, such as posting online comments which harass or threaten other students or staff members, or which otherwise negatively impacts the school environment.  In such cases, the student may argue that the school has no authority to discipline for off-campus behavior, or that his/her actions are protected by the First Amendment.  However, provided the school can demonstrate that the student’s off-campus conduct has resulted in a material disruption of the school environment, the school may lawfully discipline the student for such behavior.

To ensure students and parents understand that districts may impose disciplinary sanctions for off-campus behavior involving inappropriate use of the Internet, districts should implement Computer/Internet Acceptable Use Policies. These policies should not only put students on notice concerning the appropriate use of District-owned technology, but also advise students that posting harassing, threatening or otherwise inappropriate comments on MySpace, Facebook, or other such Websites, is disrupting to the school, and may lead to disciplinary action.

Concerning a district’s right to discipline school employees for off-campus computer activity, districts should keep in mind both the provisions of the S.C. Teacher Employment and Dismissal Act setting forth the grounds for which certified employees may be dismissed, as well as the school board policies that enumerate the expectations for employee conduct.  The Employment and Dismissal Act provides that a certified employee may be dismissed for conduct evidencing an “unfitness for teaching,” which includes, among other things, “willful violation of rules and regulations of district board of trustees . . . conviction of a violation of the law of this State or the United States, gross immorality, [and] dishonesty . . .”   Districts should implement staff conduct policies which clearly place employees on notice that, while their personal life generally is not the concern of the district, any conduct, including off-campus behavior,  which results in a school disruption, or otherwise negatively impacts on theemployee’s credibility, can serve as the basis for discipline, up to and including termination.  In addition, all employees should be required to sign a Computer/Internet Acceptable Use policy which notifies employees that off-campus computer use which adversely affects the school environment can result in discipline.

The Internet, with all of its information-gathering abilities, is a useful tool for students and school employees that no school district would want to eliminate.  However, it also can present challenges in maintaining a safe and secure school environment.  Provided districts take precautionary steps to minimize potential problems, the Internet and a secure school environment need not be mutually exclusive.

Past Issues of the Month may be accessed at www.ddtwb.com.