" ... students do have extensive free speech rights off-campus. In fact, that’s where they’re most extensively protected by the Constitution."
As the use of cell phones, computers and other electronic communications devices (ECDs) have become ubiquitous, especially among students, educators are faced with an enormous challenge. On the one hand, they want to capitalize on the advantages that these devices offer and incorporate them more into teaching, learning and communicating. On the other hand, student use of ECDs can easily be abused: cyber bullying, sexting, and cheating on tests are but a few examples of misuse. So how can school administrators impose discipline while respecting students’ rights to free speech, especially when it comes to students using these devices away from school? This month we speak with Dr. Frank Kemerer, a national authority on educational policy and the law, who has developed model school district policies governing the use of ECDs. The following is an abridged version of our interview with Dr. Kemerer.
Q: Is there a difference between a school’s controlling the use of an ECD that it provides a student and the use of an ECD that the student owns?
Frank Kemerer: There is a significant difference. If the school provides the ECD, then the school owns it and that means that it can control it. An ECD that a student owns, that’s very similar to a student’s voice, in that it provides a means of communication and, of course, the control is much less extensive in that context.
Q: We want to focus on the legal aspects of the use of ECDs. You say that it is important to note that Constitutional rights of freedom of expression and privacy are different in a private school than in a public school.
Frank Kemerer: Generally speaking, constitutional rights exist only in the public sector; one does not have constitutional rights in the private sector. So that means, then, that private schools or colleges have a great deal of authority to regulate what students say, either face to face, orally, or through an electronic communication device. So, when it comes to private schools, the real question is, “What are the rules of the school with regard to the electronic communication devices used by either students or teachers?” And so they have a great deal of autonomy, as it were, to regulate these kinds of devices that is not true in the public sector.
