When school authorities insisted they could control what students publish in campus newspapers and yearbooks, the public largely accepted this incursion into the First Amendment with a shrug. When schools more recently began insisting they could also control what students say or write off school grounds, if the speech is intended to reach or affect the campus, there were a few ripples of dissent, but again, largely a shrug.
But school administrators may finally have pressed their ever-expanding quest for control over students’ lives into a frontier beyond which the public is unwilling to follow: e-mails sent between Facebook accountholders.
The case of Mississippi high school cheerleader Mandi Jackson, who has sued her school alleging that she was forced to divulge her Facebook password so that her coach could read – and publicly rebroadcast – her unpublished personal messages, has caught the imagination of the country. The case has been featured this week on National Public Radio and on Cable News Network, where CNN’s Kyra Phillips scornfully denounced what school officials are accused of doing: “We’ve all sent those e-mails that we probably wish we didn’t write, but hey, they’re private e-mails and it’s none of anybody else’s business.”
Schools’ notion that there is no privacy in any communication sent using electronic means is a gross oversimplification based on uninformed notions of the Internet and its limits. While a high school student cannot realistically insist that what she posts on the publicly accessible section of a Facebook page is private, the same cannot be said for the content of individual Facebook messages. Transmitting a message over the conduit of Facebook does not make its contents “public” any more than handing a letter to the postman means we assume that the postman will read it and share it with his friends.
There was a time not long ago when this same misperception applied to e-mail, and when companies informed their employees not to discuss any internal business or legal matter over e-mail because of the possibility of electronic interception of the messages. Today, sensitive personal and professional documents routinely are transmitted by e-mail with unreserved confidence in their secrecy.
The fact that school officials feel empowered to read – and make disciplinary decisions based upon – a student’s personal mail is a direct consequence of the schools-can-do-no-wrong attitude maintained by many judges. Because courts are increasingly accepting the notion that schools can discipline critical comments about school officials made on off-campus blogs on students’ personal time, schools’ authority is becoming completely untethered to their core mission of maintaining discipline and order on school grounds during the school day. Instead, schools are assuming free-floating “good citizenship authority” over what students say anywhere, anytime – which in the Jackson case, appears to have included punishing her for mildly gossipy conversations of the sort heard daily in the cafeteria.
Last month, the Supreme Court finally showed the gumption to second-guess an irrational over-reaction by a school official in the Redding student strip-search case. If the public and courts are finally waking up to the realization that students have constitutional rights, and that many school officials need a remedial lesson in boundaries, we can only hope that the public’s empathy for the Facebooking cheerleader extends equally to the crusading journalist.