Change The Technology, Change The Outcome?

The Supreme Court is hearing argument this morning in an important case about schools' authority to regulate off-campus speech that disrupts the school environment. The briefs are superb and worth reading. Exemplars of good legal writing. https://t.co/InSfybSyDk

— Jameel Jaffer (@JameelJaffer) April 28, 2021

Responses to this case will be the usual either/or focused on the ability of students to speak in public, and the ability of public schools to respond to that speech.  What won’t be considered is the effect of a ruling in the school’s favor, on other schools.

The case is fairly simple on the facts.  After failing to make a select cheerleading squad, the failed candidate and her friends posted pictures of them raising a middle finger and using a number of choice Anglo-Saxon four letter words (a tradition we must uphold!) to express their support for their friend, and her disappointment.

The school was not amused, and banned her from all teams and extracurricular activities.  Which is an interesting response.  In the old days this kind of thing passed among friends; maybe other students heard about it.  And that was that.  Does technology really change that?

The school says it does, despite the fact the student was not on campus when she made the pictures or when she posted them.  Their argument, basically, is that on-line classes (thank you, Covid!) mean “artificial” distinctions based on physical boundaries/presence are now irrelevant.

Well, whatever.  That argument doesn’t interest me as much here as this question:  what will a ruling in favor of the school mean to other schools?

Consider:  today students all over the country are posting foolish and nasty things on the internet, and some parent somewhere is demanding the local school do something about it.  The school’s defense (the ones that want nothing to do with it, they have enough on their plates) is basically:  it didn’t happen on our property, and we can’t control students activities after school or not on school trips, etc.  Consider the student is arrested for drug possession, or reckless driving, or charged for a car crash they caused?  Is the school somehow responsible, somehow required to add to whatever punishment the law metes out?

No, of course not.  But this is using the school, or allowing the school, to provide extra-legal remedies.  Why stop at social media postings?  Why not punish the student for bad driving, or underage drinking?  And if schools do punish students for such actions, why not punish them for what they say to their friends, or about each other?

Bit of a slippery slope here, but school districts can face pressure from upset parents to punish students for being human beings.  And how far does “student” extend to persons obligated to attend public school, but who don’t reside on the campus of the school or have to meet certain standards to attend the school.  Private schools can expel students for misconduct off campus; so can public universities, who can restrict access to their schools just like a private school or university does.  But public schools are explicitly public.  And the question of this case is not only what authority does the state gain over the student because they are a student, but what responsibility does the school acquire over its students.

If the student is not on school property but is taking classes on-line, does that extend the “campus” to wherever the student and/or their phone is?  That puts quite a burden on schools to police the behavior of their students, far beyond banning them from extracurricular activities.  Is that what we want the schools to do?  If on-line teaching extends the school’s responsibility far beyond what they would have without on-line teaching, how long is it before schools abandon offering such classes?  It’s been a controversial response to the restrictions imposed to defeat Covid, but it has benefited some students across the country, and it should be a tool available to schools and students who find it helpful.

But if it creates a massive new responsibility for schools and students, or even a distinction between the responsibility for students who are in on-line classes and those who aren’t (and how is that policed?), what then?  Schools might quite reasonably decide not to take on assumed responsibility for what their students do anytime, anywhere.  (If the student posts objectionable material while on a family vacation in another state, does the school’s responsibility extend that far?  What if the student is overseas at the time?). And the only way to avoid that responsibility is to eliminate on-line teaching.

Would that be worth it, in order to uphold the punishment of this student in this case?  Would it be worth it just to add another burden on schools, a burden imposed solely because technology lets us all know what students have known for...well, since there have been schools?