August 1, 2000

Recent Lawsuits Highlight Need For Student E-Mail And Internet Policies

Holland & Knight Newsletter
Paul G. Lannon

Imagine that you have just received a call from a student who claims to have received a threatening message on her student e-mail account. Does your institution have in place a policy to deal with such situations? Does your technology permit you to identify the sender? What if a non-student sent the message? Or what if the communications took place on a Web site developed by a student at home? A recent spate of lawsuits highlights the urgent need for schools and colleges to adopt and publish clear policies governing students’ use of e-mail, Internet access and computer networks provided by their schools and colleges.

Students Harassing Other Students

In Massachusetts, a major university faced a situation where one student was e-mailing to another student anti-gay slurs and threats of violence. The victim dropped out of his classes and sought support from the university. The incident became public when the student newspaper published an expose. The university must now determine how to better protect its students from such threats and what level of punishment such misconduct deserves.

In another Massachusetts case, a public high school student received death threats over the school’s e-mail network. The school responded by expelling the student who sent the e-mails and suspending every students’ access to Yahoo and Hotmail. In this case, the e-mail was sent from school computers but could not be traced. The school plans to install new e-mail accounts that allow messages to be traced when necessary.

Another secondary school recently learned of Internet abuse, not from the targeted student, but from the college to which the student and her harasser had been accepted. The offensive messages were posted on an Internet bulletin board maintained by the college. Compounding his offense, the harassing student sent the messages under the name of a fellow student. The college demanded an explanation from the students and their school and ultimately withdrew the acceptances of both of the students who had participated in the incident. Because of the severity of the offense, the secondary school expelled the harassing student, a second semester senior, and refused to confer a degree.

Free Speech and Privacy Rights

Sometimes, however, a student’s free speech or privacy rights may trump the concerns of the school or college. For example, a federal judge in Washington temporarily restrained a school district from punishing a high school student who created a website from his home outside of school hours. The Web site featured mock obituaries of some of his fellow students. Although the Web site did have a disruptive effect on the school, the federal judge held that the student had a First Amendment right to maintain his private Web site, at least in the absence of actual threats or manifest violence. Such cases may turn on the severity of the disruption at school, following the principles enunciated in the 1969 Supreme Court case, Tinker v. Des Moines Independent Community School District.

Guidelines for E-Mail and Internet Policies

These cases provide valuable insights for drafting e-mail and Internet policies. Effective policies should make clear that:

  • The e-mail system and computer networks are owned by the school and are intended exclusively or primarily for academic use;
  • Normally, e-mail and other electronic messages are neither private nor anonymous; they will be stored in back-up files and be periodically monitored as necessary;
  • Students are required to identify themselves (by sign in, login or otherwise) before using student e-mail accounts or computer networks;
  • Students (and faculty and staff) are prohibited from sending or disseminating messages or information which would violate school policies if they were spoken orally or distributed in hard copy; in other words, the same rules of conduct for written or face-to-face communications should apply equally to electronic communications; and
  • Violations of these policies may subject students (and faculty and staff) to disciplinary action, including but not limited to probation, suspension or expulsion.

Such policies are ineffective unless they are communicated plainly and regularly to all students, faculty and staff. Punishments must be consistently applied. It is also advisable to set forth specific examples of what responsible users may or may not do. By taking time to draft, communicate and enforce comprehensive e-mail and Internet policies, schools and colleges will better protect their students and lessen their own exposure.

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