Drunk Photos and Facebook

Well, Facebook just continues to generate educational law news ... or in this case buzz. Andrew Paulson over at Board Buzz has an interesting account of students being disciplined and questions over photos of them on Facebook which showed them partying with alcohol. The incident even generated a walkout by some students at the school.

Andrew's questions in the BoardBuzz post are interesting, however, and worth an examination. Here is the quote:

"Is it the job of the administration to look at Facebook regularly and
be the Internet police for the students in their school? ... Or is it a matter of free speech since the photos were taken off
school property and parents should be aware of what their children are
posting on Facebook and they should handle discipling their children for underage drinking?"

First, the easy question ... free speech. Likely, in these cases of photos being posted on Facebook or other social networking sites, there will not be a First Amendment issue because the speech does not amount to an expression that has meaning (See, Jarman v. Williams, 753 F.2d 76 (1985)). Now, that is not to say that all Facebook posts do not amount to expression, certainly some can, but they must convey a clear meaning that is likely to be understood by a third party and it is hard to see how drunk photos do that.

Now, the harder question ... should school authorities consider it part of their job to search Facebook? First, the law considers Facebook (and the Internet in general) to be a public space (even if student's hold to the misconception that it is private) so the old rules of reasonable, individualized suspicion probably don't apply in a legal sense. So, can school authorities legally search Facebook? ... sure. Okay, with that out of the way, we can consider the "should" question. Should school administrators randomly be searching Facebook on their students? Here is the advice I have been giving when asked this question. Even though the traditional rules of reasonable, individualized suspicion probably don't apply to Internet and Facebook searches ... pretend that they do. What I absolutely don't want is a principal spending 4 hours a day randomly searching the net. While I promise that if they search in this manner they will find things to punish students for, they have far more important things to do like improving curriculum and evaluating teachers. But, if there is an individualized suspicion of a student that is reasonable, why not take 5 min. and see if that student has a Facebook page and run a few Google searches? If you find what you are looking for, go ahead and proceed with disciplinary action. If you find some other transgression in the process that you were not looking for, such as pictures of students drinking, well ... use your discretion - there is no rule saying you have to punish everything you see. The law gives principals discretion because we want them to use it. There are lots of bad things and lots of good things happening on the net, just as in classrooms. After a couple hundred years of education in this country we have determined that a reasonable, individualized suspicion standard is a good standard for searching in classrooms, so I don't see why it should be any different for the Internet. The Internet is becoming part of our schools, whether we like it or not. We can't just try to block everything all the time because students will always find ways around the boundaries we erect (again, this is no different than classrooms). We need to be honest with students and establish clear precedents regarding the school administration's relationship with the Web. I think a good standard that both school authorities and students can live with is a reasonable, individualized suspicion standard. Students should know the Internet and Facebook are not private places immune to searching by school authorities, but students should also know that school authorities are not "out to get them" and that they will only be searching the Net for information on their students if there is a reason to do so.     

Also see Mike Tully's recent entry at the Gate about the settlement of a facebook dispute in Ohio after the school overreacted and didn't use their discretion wisely.

Comments

[Myra Key]

We are going too far. It isn't an administrator's responsibility to monitor student activity that takes place outside of the school or school sponsored activity. When are we going to force parents to be parents? Parents should stop letting computers be babysitters, it was once television, it is know computers. Parents need to monitor what their kids post on the internet, and monitor the sites they visit. Parents should have the username and password to every site their child is a member of, or not allow them on the internet. As long as other segments of the community continue to take on parental responsibilities, parents will continue to neglect their responsibilities.

[Robert Hamm]

This is a simple one, PARENTS TAKE RESPONSIBILITY! It gets more and more ridiculous that parents and society puts more and more responsibility on the school system. My 14 year old daughter is required to supply me with her password so I can check her MySpace account. Even that is not enough because kids are smart enough to have multiple accounts. Parents need to familiarize themselves with the lastest technology and what is relevant to students today. Another method is for parents to purchase a software program that tracks what sites have been visited and what is being typed. I do understand that parents need to allow their children to become independent and give them some privacy but with things like online bullying and pornography, parents are doing their students a dis-service not checking on them. Administrators do not have the time to commit to monitoring student Facebook and Myspace accounts. Not to mention all the other sites that we may not know about that are gaining popularity. Let administrators run schools and let parents raise their children.