By Ada Meloy
The advent of the Internet created a marketplace of ideas, the scope of which is unrivaled in all of human history. It also brought new methods of self expression and along with them, myriad legal issues. At the forefront of these issues is Facebook, an organization-turned-phenomenon that has come to dominate the Internet, social interaction, pop culture, and countless potentially productive hours in the lives of the average American worker. According to various sources, 93 percent of adult Internet users in the United States are on Facebook, one out of every eight minutes of time spent online is now spent on Facebook, and the average Facebook user now logs between 11 and 17 hours per month. Given the huge popularity of Facebook and its prevalence at postsecondary institutions, it has become the elephant in the room.
Pros and Cons
Some institutions and professors have begun making efforts to incorporate Facebook into their practices. Various innovative uses include posting social, university-sponsored events; having students engage in scholarly debate on the site; creating educational “apps;” and even expediting communication with students through a medium checked more frequently than personal email for some. Facebook has also served to help professors stay connected with their students, even after graduation, and has greatly advanced the process of professional networking, for both students and professors.
From a safety perspective, universities have often received advance warning about student behavior in the form of social media like Facebook. This has included students giving advance warning of danger to others or often times, themselves.
Facebook also serves as a conduit for free speech in a way unlike anything ever before. This has negative implications as well as positive ones. Facebook has given rise to a new generation of “cyberbullies,” increased possibilities of online stalking, and provided a new and effective forum for hate speech. Further, students may post comments about engaging in activities that are against university policy or against the law. All of these issues lead to serious questions for postsecondary institutions—and the answers are not simple.
Dealing With It
Given the various problems Facebook can cause, some postsecondary institutions are left scratching their heads. What rights do colleges and universities have to monitor and punish student speech that occurs on Facebook, but off campus? What about on campus? Should institutions try to monitor all of their students’ activities? Should specific social media policies be created to govern their students’ use of websites like Facebook? These questions are not easily answered and law governing them is not well-settled.
The issue of whether or not higher education institutions can punish students for comments made on Facebook, off campus, is still being debated by courts and policymakers alike. A recent Minnesota court of appeals decision came down in favor of the University of Minnesota’s disciplinary action against a student for her posts on the site.1 In that case, a mortuary sciences student made inappropriate comments about her supervisor and about taking out her stress on a cadaver in the lab. She also made ambiguous threats to an ex-boyfriend. The court upheld the disciplinary action of the university, holding in line with the U.S. Supreme Court’s decisions in Tinker2 and Morse3, that “schools may limit or discipline student expression if school officials reasonably conclude that it will, materially and substantially, disrupt the work and discipline of the school.”
Unfortunately, the Minnesota court’s decision does not clearly resolve the question of whether colleges and universities may discipline students for their off-campus Facebook posts. In applying the Supreme Court’s Tinker framework to a higher education institution, the Minnesota court’s reasoning seemed to run counter to a 2010 3rd Circuit decision which argued that Tinker should not apply to institutions of higher education.4 Given the disagreement among courts regarding what standards apply to off-campus student speech and the additional wrinkle posed by such speech on social media websites such as Facebook, there is little in the way of solid guidance on this issue.
What Do We Do?
The Internet and Facebook are simply too big to monitor effectively. However, there are several strategies colleges and universities may consider when contemplating how to deal with social media on their campuses.
The first step would be to craft or augment the official policy regarding student expression and specifically include a social media section. One way to start such an endeavor is by simply educating students on the social and legal consequences of their expression on Facebook and other similar sites; already, several institutions have implemented such programs. Colleges and universities can engage in discussion with students about how to represent themselves online in a way that is not detrimental to themselves or their institutions.
The next step is to re-read the institution’s conduct code to ensure that it takes into account activity on social media sites that may be detrimental to the institution or its students. Many codes encompass social media conduct in terms of generally expected conduct, but some careful refinement can be advantageous. Colleges and universities should be sure to distribute a list of rules, policies, and prohibited conduct to students and have students acknowledge their understanding of it, preferably through a signed document. Such a policy will provide a measure of protection to the university should some type of disciplinary action be required. Freedom of speech principles apply differently to public institutions as opposed to private institutions, so this is another consideration. While public institutions may be bound more tightly by the Constitution, private institutions have their reputation and potential donors to consider when crafting policies that may restrict the freedom of expression students are allowed to engage in.
Lastly, some colleges and universities and many organizations have designed full-blown social media policies. For those concerned with the specific types of activity that occur on social media, an official policy may be beneficial, so long as it recognizes the danger inherent in restricting freedom of speech. An institution has significant authority to monitor activity conducted on its own network, but that authority diminishes when the activity takes place off campus and not on the institution’s network. Difficult questions must be answered regarding what sort of activity can reasonably be believed to cause a substantial disruption to campus activities or discipline. There is no bright line rule that governs this, and courts have split on this issue.
The recent launch of Google+, which is expected to be a major competitor for Facebook, serves to illustrate just how quickly the technology behind social media is changing. Those concerned about the impact of websites like Facebook have a challenging task ahead of them. Following the rapidly advancing technology that is Web 2.0 and anticipating what issues might arise from it on campus are no small tasks.
Colleges and universities are encouraged to educate students on acceptable online interaction as well as to get the institution involved in social media through self-dedicated official pages. This will allow institutions a closer look at the activities of their students. As the law governing social media sites is still evolving to reflect the changes in technology, campuses are best advised to stick to their policies governing student conduct and to monitor the advancements of social media carefully.
Ada Meloy is general counsel for the American Council on Education. She gratefully acknowledges the assistance of Ananth Iyengar, law intern, in preparation of this article.
1 Tatro v. Univ. of Minnesota, A10-1440, 2011 WL 2672220 (Minn. C t. App. July 11, 2011).
2 Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).
3 Frederick v. Morse, 551 U.S. 393 (2007).
4 McCauley v. University of the Virgin Islands, 618 F. 3d 232 (2010).