Scott Uhler is a partner and Greg Smith an associate with Klein, Thorpe & Jenkins, with offices in Chicago and Orland Park. The firm represents school districts and other local governments. The authors would like to acknowledge law clerk Michelle R. Green for her assistance.
As Internet-based communications and interactions by and between students and school staff become more prevalent, an appreciation of existing school rules for student behavior is important.
Students carry electronic devices, sending and receiving communications inside and outside school, so two key questions exist regarding search and seizure of such devices:
What are the limits on a school’s authority to search or seize student property relative to sexting and/or cyberbullying?
To what extent can a school regulate off-campus sexting and cyberbullying when it relates to students?
Foundational legal principles in this area were established by the U.S. Supreme Court decades ago in Tinker v. Des Moines, when the court confirmed that students enjoy certain constitutional protections while at school. When investigating potential student misconduct relative to sexting and cyberbullying, schools must still operate within the parameters of the Constitution regarding student due process, free speech, and search and seizure rights.
When the seriousness or shocking nature of a student’s misconduct online affects other students or school staff, it makes the misconduct difficult to ignore. But certain limits exist on school authority to regulate off-campus behaviors or to conduct lawful searches, and those may impact a school’s response to inappropriate online conduct.
Schools are charged with addressing bullying or harassing behaviors (including cyberbullying) under recent amendments to the Illinois School Code. And according to a “Dear Colleague Letter” from the U.S. Department of Education’s Office of Civil Rights (OCR) dated October 26, 2010, a school that does nothing (if it has the authority to act) could run afoul of the civil rights laws that OCR enforces.
The Illinois Legislature also has created new statutes imposing criminal sanctions for cyberstalking and prohibitions on sexting by minors.
This means schools need to balance both the need to understand students’ rights and protections in this area, while taking reasonable, lawful steps to assure that students and staff are not being victimized by harassment or bullying caused or exacerbated by electronic communications by other students.
Schools’ authority
Following a school rule violation, administrators likely will conduct a good-faith investigation of the facts surrounding the incident of sexting or cyberbullying. A proper investigation generally includes a search of those items or areas that contain the most relevant information about the student’s misconduct.
The question is: Can a school search a student’s private electronic device for evidence?
While the Supreme Court has not yet addressed this directly, lower courts that have dealt with this have employed the standard previously articulated by the Supreme Court in New Jersey v. T.L.O. In T.L.O., a student was found smoking in the school bathroom and brought to the principal’s office for questioning. After she denied smoking, the principal searched her purse and found cigarettes and cigarette rolling papers. The principal also found marijuana and evidence of marijuana dealing.
T.L.O. claimed that the search of her purse violated her Fourth Amendment rights. But the Court held that, although the Fourth Amendment does apply in the context of student searches, T.L.O.’s Fourth Amendment rights were not violated, thus setting the legal standard to determine the constitutionality of student searches by school officials: whether the search was justified when it began, and whether the search was reasonable in its scope.
A federal court in Pennsylvania recently applied this standard to a school official’s search of a student’s cell phone. In that case, a teacher confiscated a student’s cell phone because the student displayed it during school hours in violation of school policy. Although there was no evidence or reasonable suspicion of additional misconduct using the phone, the assistant principal checked the phone itself for further evidence of wrongdoing. He identified a number of students who may have been called, using this phone, during school hours.
The assistant principal then used the phone to call nine other students to determine whether they were also violating school policy. The assistant principal also accessed the student’s text messages and voice mail, and used the phone to hold an “instant message” conversation with the student’s brother without identifying himself as anyone other than the student. The student whose phone was searched and used by the assistant principal subsequently sued the school district, alleging several federal and state claims, including violations of his Fourth Amendment rights.
The court applied the standard from T.L.O. and held that seizure of a student’s phone is justified if the student is using it in violation of school rules. The court went on to hold that further search of the phone is only justified if there are reasonable grounds for believing that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. Thus, in this case, the school properly took the phone, but improperly searched it. The improper search was held to be a violation of the student’s Fourth Amendment rights.
Although not a precedent in Illinois, this court opinion provides greater focus for the proper legal analysis in the application of the T.L.O. standard for schools to consider when searching a student’s electronic device(s).
In separate litigation brought by the ACLU, a different Pennsylvania school district was sued for straying into private areas of a student’s cell phone. In that instance, a school district confiscated a student’s phone when she was improperly using it in school, against the rules.
The school then searched the phone and discovered semi-nude pictures of the student stored on the phone. The school then punished her for storing semi-nude pictures of herself on the phone. After discovering the images, the school also referred her case to the district attorney’s office. The school only found the nude images after searching the phone thoroughly after it was seized, without any suspicion that such images were present.
After being sued by the student, the school district denied any wrongdoing, but ultimately settled the matter for $33,000.
One of the keys in searching a student’s electronic device is to recognize that there can be many private “areas” within an electronic device. The principle related to student searches is that if a school has reasonable suspicion that a violation of school rules has occurred, a school may search those areas where evidence of such misconduct is likely to be found.
However, if a school were looking for a bottle of alcohol, a search of a student’s pants’ pockets (if unrelated to the alcohol violation) would likely not be permissible. To search an “area” of an electronic device (e.g. photos, phonebook, texts, emails, etc.), there should be a reason to suspect that evidence of misconduct will be found in that particular part of the electronic device.
Off-campus actions
Another question regarding misconduct in cyberspace is: Where does the ability of a school district to address “private” student behavior begin and end?
To determine when a school district can or is required to regulate off-campus or private cyberbullying, sexting or other electronic harassment, school officials should begin with the standard established by the Supreme Court in Tinker v. Des Moines.
In Tinker, upon learning of the possible intentions of a group of students to wear armbands to school in protest of the Vietnam War, and fearing that the armbands would provoke disturbances at school, the school district adopted a policy prohibiting the display of such armbands in school. When the five students subsequently wore them, the principals of the Des Moines school district told the students to remove the armbands or they would be suspended. The students refused and were suspended.
The U.S. Supreme Court found such suspensions to be unlawful, reasoning that neither students nor staff shed their Constitutional rights at the schoolhouse gate and that:
“Any variation from the majority’s opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk; and our history says that it is this sort of hazardous freedom — this kind of openness — that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.”
For a school to lawfully prohibit such expression of a particular opinion, the court concluded, the school “must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.”
The court found that the suspension violated the students’ First Amendment rights, as the display of the armbands was constitutionally protected “pure speech.” In doing so, a foundational legal standard was established that schools may limit students’ First Amendment rights only when the students’ conduct causes (or the school can reasonably forecast) a material or substantial disruption in the orderly operation of the school. Put another way, if a student’s conduct, on or off campus, causes a material or substantial disruption to the school’s operations, the school can impose discipline.
While there have been refinements to this touchstone principle of school disciplinary authority, those more recent “standards” for school discipline in other contexts (school authority to regulate in-school expression that is lewd, vulgar, indecent, or plainly offensive; school authority to regulate school-sponsored speech, where a reasonable observer would view expression as school’s own speech; and speech at a school — sponsored activity that promotes illegal activity), the courts always return to the fundamental Tinker standard to determine to what extent a school has the ability to address student misconduct which does not occur “on campus.”
Because the “material or substantial disruption” rule was created in 1969, it does not conveniently apply to emerging situations involving sexting or cyberbullying. But the courts have begun to analyze varying student and school district rights in this area.
Two cases heard in the Third Circuit Court of Appeals serve as an example. Layshock v. Hermitage School District and J.S. ex rel. Snyder v. Blue Mountain School District were decided on the same day and by the same appeals court, but came to opposite conclusions regarding what schools may do to regulate off-campus cyberbullying behavior.
In both cases, the issue was whether a school violates a student’s free speech rights by punishing that student for creating, on their own time and using their own computers, electronic material that mocks or insults school officials or classmates.
In Layshock, the student set up a fake MySpace profile of his school principal. He created the profile on his grandmother’s computer at his grandmother’s house, and referred to the principal as a “big steroid freak,” a “big fag,” and a “big whore” who stole a “big keg” and smoked a “big blunt.” The school suspended the student for 10 days.
In Snyder, the student created a fake MySpace profile of the school principal with a friend on her parent’s computer. The fake profile did not state the principal’s name, but included a picture of the principal from the school district’s website. The profile included profane statements disparaging the principal’s wife and son and suggesting that the principal was a pedophile. The school in this case also suspended the student for 10 days.
Perplexingly, the Third Circuit Court of Appeals upheld the 10-day, out-of-school suspension of the student in Snyder (agreeing that the school could reasonably forecast likely disruption to the work and discipline of the school based on such conduct, noting in particular the assertion that the principal was “a pedophile”), but it found that the 10-day, out-of-school suspension in Layshock violated that student’s First Amendment free speech rights and overturned the suspension (finding no substantial disruption, nor reasonable forecast of such based on such conduct).
Both cited Tinker v. Des Moines and acknowledged that school authorities may regulate students’ off campus expression if it met the Tinker standard. But even employing the same analysis, the two appellate court panels came to opposite conclusions. These decisions highlight the uncertain state of the law regarding regulation of off-campus cyberbullying.
In June 2010, the full Third Circuit Court of Appeals heard a combined argument on these two cases and issued new opinions on both cases in June 2011. In both, the court once again cited the Tinker standard, but found that there was no substantial disruption to the school environment or a reasonable forecast of such a disruption in either case.
The court noted that “general rumblings” (minor classroom disturbances as students discussed the profile and some cancelled meetings as administrators dealt with the issue) did not rise to the level of a substantial disruption to the school’s activities.
However, the court also held that any forecast of substantial disruption by the school was not reasonable as the profile was so outrageous that no one could have taken it seriously and that no one in fact did.
Schools may be wise to continue to use the Tinker standard with regard to sexting and cyberbullying situations. However, a different analysis may apply where a student’s conduct, even if originating from his or her own computer during the student’s private time, involves a threat against students or staff which is considered legitimate.
As the recent progression of the Snyder and Layshock decisions make apparent, it is not always clear how the courts will apply the “material or substantial disruption” standard to new technologies.
Court cases
Tinker v. Des Moines, 393 U.S. 503 (1969)
New Jersey v. T.L.O. , 469 U.S. 325, 205 S.Ct. 733 (1985)
Bethel v. Fraser , 478 U.S. 675 (1986)
Hazelwood School District v. Kuhlmeier , 484 U.S. 260 (1988)
Klump v. Nazareth Area School District , 425 F. Supp. 2d 622, 640 (E.D. Pa. 2006)
Morse v. Frederick , 551 U.S.393 (2007)
Layshock v. Hermitage School District , 2011 WL 2305970 *7 (3 rd Cir. June 13, 2011)
J.S. ex rel. Snyder v. Blue Mountain School District , 2011 WL 2305973 *1 (3 rd Cir. June 13, 2011)
References
Robert L. Baker, “Tunkhannock Area settles in ‘sexting’ case,” Thetimes-tribune.com, September 16, 2010
“Dear Colleague Letter,” Assistant Secretary for Civil Rights, October 26, 2010, http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.html
Public Act 095-0849 (cyberstalking)
Public Act 96-1087 (prohibitions on minors regarding dissemination of indecent visual depictions of another minor)