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Saturday, August 21, 2010

Seattle public schools extend off-campus speech policies to online activity

As reported by local Seattle media outlets, the Seattle School Board — with oversight for public schools in a district serving 46,000 students — voted last week to adopt an update to its student Code of Prohibited Conduct, which among other provisions will now apparently apply to student-authored content posted online such as on social networking sites. The intent appears to be to try to prevent students from posting messages or other information about other students or teachers that could result in a disruption to school operations. The newly enacted rules seem to extend those already in force related to off-campus behavior, notably including a provision declaring the "District will respond to off-campus student speech that causes or threatens to cause a substantial disruption on campus or interference with the right of students to be secure and obtain their education." In a Seattle Post-Intelligencer article calling the policy controversial, a school board representative is quoted emphasizing the school board's focus on student safety and the desire by the board to be able to respond to any disruptive behavior. The district's policy defines a substantial disruption as "significant interference with instruction, school operations or school activities, violent physical or verbal altercations between students, or a hostile environment that significantly interferes with a student’s education."

Initial objections to reports of the policy's enactment for the coming school year have unsurprisingly questioned the rules in light of free speech protections under the First Amendment. The language in the school district code of conduct — specifically its use of significant disruption of school activities — would seem to be an explicit and intended reference to legal principles established by the Supreme Court in 1969 in Tinker v. Des Moines Independent Community School District, the foundational judicial precedent covering student expression. In Tinker, the Court ruled that student expression (including speech, although the "speech" in question in the case was actually wearing armbands to protest the Vietnam War) could not be censored unless the speech "materially disrupts classwork or involves substantial disorder or invasion of the rights of others." This broad endorsement of free speech rights on campus served for almost 20 years to protect student speech in many forms, notably including student-authored content in school publications such as student newspapers. In 1988 however, the Supreme Court chose to constrain student free speech rights (or more accurately, to extend school administrative abilities to censor student speech) in Hazelwood School District v. Kuhlmeier, which affirmed the right of school administrators to censor content in student newspapers. A key distinction in Hazelwood is whether the speech appears in a public forum, as opposed to a school-sponsored ones such as school newspapers and yearbooks (and presumably websites). Since sites like Facebook and MySpace are clearly non-school-sponsored and also clearly generally available to the public, school administrators cannot claim the right to censor student speech in these environments. However, to the extent the speech is not just disagreeable to the school district, but might actually be disruptive to school operations or constitute threats, hazing, or other proscribed speech or behavior under existing school policies, administrators would appear to be on solid legal ground if they choose respond to student speech expressed outside of the school environment.

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