October 27, 2014 | By Nate Cardozo and Jamie Williams

EFF and ACLU of Tennessee Team Up to Challenge Unconstitutional School District Policy

School districts across the country are grappling with how to deal with their students’ use of technology and social media. All too often, in an attempt to protect students, they end up implementing technology polices that give administrators too much power and go too far in restricting what students can do online. Williamson County Schools, a public school district in affluent Williamson County, Tennessee, is one such school district. Recently, a concerned parent, Daniel Pomerantz, brought the policy to the attention of EFF and the ACLU of Tennessee (ACLU-TN). Mr. Pomerantz was right to be concerned.

Earlier today, EFF and ACLU-TN sent a letter to the board on behalf of our client detailing our concerns. As we outline in our letter to the school board, the school district’s technology and Internet policy is troubling in a number of ways. Indeed, the policy violates the First and Fourth Amendment rights of 35,000 Williamson County students across the district's 41 schools. We teamed up with ACLU-TN to demand that the Williamson County School Board immediately suspend the unconstitutional policy.

First, the policy’s social media guidelines impermissibly restrict students’ constitutionally protected off-campus speech. Notably, the policy requires that students get a teacher’s permission before posting photographs of other students or school employees to any social media site. This applies regardless of who took the photo or where the photo was taken.

The policy also vaguely threatens that “[s]tudents are subject to consequences for inappropriate, unauthorized, and illegal use of social media.” Again, this applies to social media use both on and off campus. But the school district does not have authority to punish off-campus speech that is merely “inappropriate” or “unauthorized.” In fact, a district may only punish speech that materially and substantially disrupts the functioning of classrooms. Such off-campus speech is protected under the First Amendment, and the policy violates the First Amendment by threatening to punish social media posts that don’t cause material disruption to the classroom. A student who wanted to steer clear of violations would naturally face pressure to self-censor her posts and the First Amendment’s restrictions on state power are designed to resist exactly those chilling effects.

Second, the policy’s technology guidelines require students to consent to suspicionless searches of any electronic devices they bring to school “at any time” for any “school-related purpose.” This applies regardless of whether or not a school official conducting the search has even “reasonable suspicion” (the very lowest standard) to believe that the search will turn up evidence of wrongdoing. But according to the U.S. Supreme Court, under the Fourth Amendment, suspicionless searches of students are allowed only in very limited circumstances. The policy’s “any time” for any “school-related purpose” language goes far beyond what the Fourth Amendment permits.

Third, the policy’s network security and email guidelines subject students, at all times, to searches of any data and communications they store or transmit on the school district’s network. As above, this applies whether or not the students are even suspected of wrongdoing. The law is clear; students have a reasonable expectation of privacy in their communications and the suspicionless searches authorized by the policy unconstitutionally infringe on this expectation of privacy, again violating the Fourth Amendment.

As we state in our letter to the Williamson County School Board, “Requiring students to sign an agreement waiving constitutional protections in order to participate in fundamental school activities is not permissible.”

Now that the Williamson County School Board is aware of the shortcomings of its technology policy, we hope that it will act swiftly to suspend the policy and replace it with one that respects the constitutional rights of its students. We urge the school board to discuss our letter during its next policy committee meeting on November 3, 2014 and at its next full session meeting on November 17, 2014. Live streaming of the November 17, 2014 board meeting will be available here.


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