Last Updated on March 17, 2021 by Michelle Ball
Students frequently post things online, make snarky comments to friends, and feel protected posting in “private” online forums, such as Snapchat, Facebook, Twitter, Instagram or otherwise. However, these posts can come back to haunt them when they are called in and suspended or placed up for expulsion. Even great kids can post something wrong sometime–and “get away with it,” but how long can their luck last? For some- the answer is not long enough.
In recent months, I have seen more and more kids up for expulsion or suspension for posts or comments in electronic media. This is really disturbing as some of the things I see students being punished for really do not support school discipline. Schools also seem to now be lumping student groups together for punishment, rather than looking at individual culpability. Staff are choosing to punish all student members of a private group where posts were made regardless of whether they actually committed a suspendable or expellable act themselves. This is disturbing to say the least, for students and families across California.
So, I thought a review would be helpful so parents can review this with their kids prior to it being “too late.”
The California Education Code now extends jurisdiction for student acts far beyond the school doors and the school day. This really began in full force when the bullying discipline rules were developed, as outlined in section 48900(r). These rules allow punishment for bullying activities, including “electronic acts.” This punishment may be okay if the traditional rules of jurisdiction applied limiting schools in the scope of their punishment to student acts going from/to school, at school or school events, etc. which has previously been a limiting factor.
However, the legislature now allows electronic acts to support school punishment for bullying, intimidation, harassment, etc and define “electronic act” (Ed 48900(r)(2)(a)) as:
““Electronic act” means the creation or transmission originated on or off the schoolsite, by means of an electronic device, including, but not limited to, a telephone, wireless telephone, or other wireless communication device, computer, or pager, of a communication…” [underline added]
Well, this has opened the floodgates to jurisdiction, as now schools can reach internet or phone posts at home, on weekends, or any other time posted. This coupled with schools labeling all negative comments on line as “bullying,” “intimidation” or “harassment,” when they are negative about a group, person, or school staff member, even if private or only told to a small group of students, has resulted in a boom of student punishments. Parents, who have never before encountered the school discipline machine are being called and told that what their child did online was bullying and they are out. With the limited investigations being performed, this can be fast and terrifying for student and parent alike.
Some examples of what schools are punishing students for nowadays (some valid, some invalid) include:
1) Posts involving criticism of students or staff.
2) Posts discussing acts that are hypothetical (e.g. harming a student with no real intent).
3) Jokes or funny pictures.
4) Posts with weapons and/or threatening someone.
5) Comments about racial groups, disabled students, or just students in general whether actually bullying them or not
6) Comments about the opposite sex and sexual matters
7) Anything the school sees as “negative” and can squeeze into the bullying, harassment, intimidation, etc. category
8) So many other things—-
Schools will also use any data gleaned to develop “reasonable suspicion” to then investigate a student for e.g. drug sales, or other inappropriate activities.
Parents of kids who made an offhand comment on a private chat, or otherwise, are now faced with their children being suspended or even expelled for their comments or jokes. The executioner- the school- doesn’t really care about First Amendment rights, but rather care about getting any perceived threat out so they can cover themselves.
These rules and their application to everything people say on line if comments somehow relate to the school setting or someone who is involved with the schools, chills free speech. I imagine someday, some large civil rights group may try to challenge the application of these policies to try to limit them, but for now, we are faced with having to stop our kids from posting anything that anyone under the sun could misinterpret as offensive, harassing, bullying, intimidating, inappropriate, discussing race, sexual relations, or otherwise being interpreted as wrong. How are kids to do this? It can be tough to not make a 5 second offhand comment online which later someone says was inappropriate.
And, one large rule to remember here: NO ELECTRONIC POST, PICTURE, OR PRIVATE GROUP IS REALLY PRIVATE. If a student posts something privately and one other student or parent reports it- it is no longer private. Even in Snapchat where supposedly pictures are gone forever- people take screenshots of negative posts and turn them in to the schools frequently.
Parents, I hate to be the bearer of bad news, and I don’t agree with the long arm of the schools now in place. However, for now, parents, please discuss this speech-chilling situation with your kids and advise them to be cautious in what they post, and perhaps, to ask themselves prior to posting or joining a group where inappropriate comments are made: “If my school principal saw this post/group what would he/she say?”
Education Attorney for Students
LAW OFFICE OF MICHELLE BALL
717 K Street, Suite 228
Sacramento, CA 95814
Please see my disclaimer. This is legal information, not legal advice and no attorney-client relationship is formed by this posting. This blog may not be reproduced without permission from the author and proper attribution of authorship. This blog may not reflect the current state of the law.