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Our eyes may be open — but what about our minds?

Almost every state in the U.S. has now passed laws impacting how schools deal with harassment, intimidation or bullying in public schools among students. Faced with these new laws and increased pressure in their respective communities, many schools are quick to adopt zero, or very low, tolerance policies for conduct occurring off-campus – conduct usually involving the use of technology or social media sites in some fashion.

Sometimes a school’s motivation in creating such policies is to address perceived rampant “cyberbullying” or “sexting.” This is usually when I get involved to assist a school.  Based on my experience, I can say that the hearts of most school staff are almost always in the right place to protect students when we work together.

However, while the intent to protect students is laudable, a school’s assertion of authority to regulate off-campus social media or communication/conduct poses a legal trap for the unwary.  This is because, despite the passage of these new bullying laws, school administrators are still subject to other older laws, in particular the 1st Amendment and the 4th Amendment to the U.S. Constitution, governing freedom of speech and the right to be free from unreasonable searches respectively.

When a school elects to go off-campus or outside of school to regulate conduct, usually by disciplining involved students, they run the risk of invading the private affairs of students, or punishing students for what may be free speech.

Now, I am not saying that taking action is inappropriate.  Clearly there are certain circumstances–for example threats, substantial disruption on-campus or of school activities—that merit attention by the school and, where appropriate, discipline.  I am right there on the bandwagon under such circumstances – I’ll even crack the whip on the horse team pulling it.

But first such a decision needs to be made knowingly and with appreciation of the implications and, sadly, the state of the law.

Realistically, much of the definition of off-campus behavior legally subject to discipline, including social media, is untested and inexact. Concepts of school campus boundaries are in flux due to new hybrid and virtual school models.  As a result, I see varied responses among schools.  Some of the discipline that is handed down to students for violating a school rule falls within accepted social norms for a community and, as a result, does not result in litigation or even push-back by distraught parents.

In other communities, even within the same state, there may be little deference and lawsuits can arise for the same discipline for the same conduct.  There must be a give and take between personal freedoms and the need for our schools to regulate and address off-campus conduct of concern impacting students.  Determining the balance between the two may be more arduous than some would like.   In light of this, I remain an advocate for non-disciplinary response options – educational options – to supplement discipline under the right circumstances.  They can serve a crucial role in future prevention.

In supervising students, it is axiomatic that schools must keep their eyes open.  Still, with schools now being called on to respond to off-campus conduct, including off-campus use of technology, and with the law still evolving, we need to keep our minds open as well.

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Charles Leitch is a Founding Principal of Patterson Buchanan Fobes Leitch & Kalzer, Inc., P.S., a law firm with offices in Washington and Oregon.  His practice focuses on representation of school districts and public entities.  Mr. Leitch also provides guidance, trainings and orientations on technology supervision, social networking, bullying and cyberbullying, and exploitation prevention throughout the United States and internationally, including specific formats for teenagers, parents, law enforcement, employees, and administrators.  He is a member of multiple work groups and advisory boards nationally on technology supervision and best practices.

Categories: Legal Issues

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