The Williamson County School District with violating the constitutional rights of students. Getty Images
A school board in Tennessee is being accused of violating the constitutional rights of students over a policy that allows school officials to search any electronic devices students bring to campus and to monitor and control what students post on social media sites.
The broadly written policy also allows schools to monitor any communications sent through or stored on school networks, which would essentially allow the school to read the content of stored and transmitted email.
The policy (.pdf) is intended to “protect students and adults from obscene information,” “restrict access to materials that are harmful to minors” and help secure the school’s network from malware.
But parts of the policy are so broadly written, they constitute clear violations of the First and Fourth Amendments, according to the American Civil Liberties Union of Tennessee and the Electronic Frontier Foundation. They say the policy oversteps the school’s authority and exhibits “a fundamental misunderstanding of the constitutional rights” of students.
Disciplinary actions for failing to follow the rules are also problematic, the groups say. Under the policy, failure to comply can result in “loss of network privileges, confiscation of computer equipment, suspension … and/or criminal prosecution.”
The Tennessee policy would allow authorities to seize and search a device for no compelling reason.
The groups note that denying students access to school computers and networks that are needed for their education essentially denies them the right to an equivalent education that other students obtain. Requiring students to sign an agreement essentially waiving their constitutional rights is also not permissible.
The two groups sent a letter (.pdf) today to the Williamson County Board of Education after parent Daniel Pomerantz complained that he was forced to agree to the policy. He initially refused to sign the policy at the start of the school semester, but relented after the school prohibited his 5-year-old daughter from using the computers at Nolensville Elementary School without the agreement.
Daniel Pomerantz is accusing the Williamson County School District with violating the constitutional rights of students. Pomerantz Family
“The first time they were using the computers [in her classroom], they told her she had to go sit aside and do something else and she started to cry and complain,” Pomerantz told WIRED. “It was not a pleasant experience as a family. They told her it was all because of me, that [because] I wouldn’t do this was why she couldn’t learn on computers with all the other students.”
There are 41 schools in the Williamson school district, and the policy affects all 35,000 students.
The policy contains a number of points that on their face seem designed to protect the privacy and safety of students. For example, students must provide consent before their photo, name or work can be posted on a school web site or in a school publication. Students are also required to report any “electronically transmitted attacks” made by others.
But the sections pertaining to the school’s Bring Your Own Technology policy and other parts go too far, the civil liberties groups say. Students in grades three through twelve are allowed to bring their own electronic devices to school—smartphones, laptops, tablet computers, and eReaders—as long as they’re used for educational instruction purposes and the students use only the school’s Wi-Fi network to access the internet with the devices. Students in classes below the third grade are not allowed to bring computers, but are provided computers in class and still need to have their parents sign the agreement.
In the case of students who do bring devices to school, the policy allows the school to collect and examine any of the devices at any time for purposes of enforcing the policy, investigating student discipline issues, and “for any other school-related purpose,” a term not clearly defined in the policy. This would essentially force students to submit to “suspicionless searches” of their property.
The policy also gives school officials authority to determine if a student’s off-campus speech is “inappropriate.”
Courts have ruled that a school can conduct a search when there are reasonable grounds to suspect a student has broken the law or the rules of the school and when the search is narrowly tailored and conducted for a compelling purpose, such as deterring drug sales and use on campus. But the Tennessee policy would allow authorities to seize and search a device for no compelling reason. Searches, particularly of smartphones, can contain a lot of private and sensitive information not only about a student but about his or her family, opening students to embarrassment. The policy, however, does not define a “school-related purpose” nor does it specify whether authorities can extract data from the phone or how extracted data can be used.
Under the policy’s rules for using social media, students are not permitted to post any photos of other students or employees of the school district without permission from a teacher. But the policy also gives school officials authority to determine if a student’s off-campus speech is “inappropriate.”
Nolensville Elementary School. Handout
“Personal social media use, including use outside the school day, has the potential to result in disruption in the classroom,” the policy notes. “Students are subject to consequences for inappropriate, unauthorized, and illegal use of social media.”
But this policy amounts to prior restraint of speech by “allowing school officials to censor student speech in and out of school,” the ACLU of Tennessee and EFF note. The groups cite a Third Circuit Court ruling from 2011 that found that a school did not have the authority to punish a student for creating an off-campus MySpace profile of his principal that was considered lewd and offensive.
A section of the policy that pertains to network security provides that the school can monitor all network activity, and that student email accounts “are filtered for content and monitored by authorized personnel.” Furthermore, it says that a “mobile device management (MDM) client may be installed on their personal device for the purpose of managing the device while on the WCS network.”
“We want the schools to recognize that there are limits on their powers to search or monitor.”
This policy incorrectly assumes that “students have no reasonable expectation of privacy to data and communicates stored on or transmitted” through the school’s network, the civil liberties groups say. They cite a 2006 ruling involving a woman in the Navy, which found she had a reasonable expectation of privacy in emails she sent over a government server even though a banner advised her that she had no expectation of privacy and that her use of the government network was subject to monitoring.
Tom Castelli, legal director for the ACLU of Tennessee, says it’s possible the school district didn’t intend to over-reach and just made a mistake.
“We hope this was just a case of they wanted to create a comprehensive policy and what they inadvertently created was something that covers more than maybe they intended,” he told WIRED. “That’s our hope that once we bring it to their attention that they’ll work with us to create a policy that fits what they need [while] not infringing on the rights of the students…We want the schools to recognize that there are limits on their powers to search or monitor…so they’re not thinking it’s okay to do these things.”
Castelli went on: “We want to nip an infringement in the bud before it happens.”
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