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ACLU and EFF Protest the Constitutionality of Williamson County Schools’ Technology Policy

Commentary First Amendment Fourth Amendment
By Michelle Goldring – Edited by Jesse Goodwin Letter from ACLU and EFF to Williamson Cnty. Sch. Dist. (Oct. 27, 2014) (letter hosted by Williamson County Schools Technology Policy The American Civil Liberties Union of Tennessee (“ACLU”) and Electronic Frontier Foundation (“EFF”) wrote a letter to the superintendent and board of Williamson County Schools (“WCS”) in response to its new technology policy, protesting certain provisions and asking the board to alter those terms. In the letter, the ACLU and EFF raise concerns about specific portions of the policy that would limit students’ right to freely use social media even when outside the school and which would permit students’ devices to be searched with very few restrictions. In particular, they argue that these portions of the policy offend students’ First and Fourth Amendment rights, respectively. The Washington Post and The Tennessean provide overviews of the ACLU and EFF’s concerns.  Wired includes some additional factual background. EFF also released its own summary of the letter. After WCS adopted the new technology policy, a parent sent it to the ACLU and EFF. In its argument regarding First Amendment rights, the ACLU and EFF note that the policy explicitly states that it applies to students’ actions on social media even when they are not in school, violating the students’ free speech rights. They also argue that the policy does not make clear what conduct would violate it, which may itself violate the “vagueness and overbreadth doctrines” typically upheld in the courts. In addition, the letter notes that signing the policy is mandatory in order for the student to complete computer activities in school. The ACLU and EFF rely on applications of Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 509 (1969), to conclude that “a school cannot restrict non-disruptive off-campus speech” such as normal use of social media. The ACLU and EFF also object to the policy on Fourth Amendment grounds. The policy provides that the school may take and look at a student’s electronic device for a “school-related purpose.” However, the Supreme Court has held that searches are normally acceptable only if a “student has violated or is violating either the law or the rules of the school,” New Jersey v. T.L.O., 469 U.S. 325, 341–42 (1985), unless the searches are properly restricted, Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 664–65 (1995); Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie Cnty. v. Earls, 536 U.S. 822, 830–37 (2002). As such, the ACLU and EFF argue that implementation of the school’s less restrictive policy will likely constitute unreasonable search and seizure. In particular, they note that the policy does not limit “the scope or purpose of searches of students’ [bring-your-own-technology] devices,” nor does it restrict application of the policy to only those students who have reason to be searched and the option to opt-in to activities that might require it. They also object to a section of the policy that allows for searches of network activity without these restrictions. The response to this policy will be instructive for schools facing the challenge of dealing with students in an increasingly technological world, particularly when troubling behaviors that play out on school grounds are conducted on the Internet. Whether the school district revises its policy or ultimately chooses to defend it, the outcome will likely impact how other districts choose to compose their own policies. Michelle Goldring is a 3L at Harvard Law School.