In “Digital Discipline,” Martha Derthick and I briefly explore the increasingly controversial issue of whether schools can punish students for off-campus speech. Given the availability of other legal remedies for truly threatening or libelous speech, I suspect the Supreme Court will be inclined to limit school officials’ authority when it eventually addresses the issue.
But one of the cases we reference raises more difficult questions. Austin Carroll was expelled from his Indiana high school for repeatedly tweeting F-bombs on his Twitter account during a late-night bout of insomnia. His tweets weren’t directed at anyone but instead seemed designed to show how that particular vulgarity was amenable to multiple syntactic uses.
The school maintained that he used his school issued computer and the school network. Carroll maintains that he was not using the school computer or network. The school argues that that ultimately doesn’t matter because he accessed his Twitter account on the school network or computer after the F-bomb outburst and even that violated school policy. All students sign an “Respectable Use Policy” where they pledge not access or distribute “inappropriate” content using school resources.
While the courts might decide that the school overreached in this particular case, it is unimaginable that they would rule that officials cannot restrict what students can access and disseminate with school resources. Public employees are, after all, not free to visit any sites they wish using government networks and computers so it would be rather odd to grant such a right to high school students. As well, in Hazelwood v. Kuhlmeier (1988), the Supreme Court ruled that schools could censor school-sponsored speech such as student newspapers. But monitoring the use and access of private Twitter and Facebook accounts launches school officials into something much more intrusive than controlling what articles appear in the student newspaper.
The courts then are undoubtedly going to be called upon to draw lines which will inevitably have some appearance of arbitrariness. And since what counts as inappropriate will also always seem arbitrary schools will likely opt to limit their exposure to litigation by placing ever stricter limitations on student use of school resources. Much like the thoughtless “zero tolerance” policies for weapons and drugs, the default will be to tell students that they can only use school resources for school activities. Of course, that won’t completely eliminate the problem, since what students can access for class projects will still generate controversy, but it would provide at least the comforting illusion of consistency.