AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF TENNESSEE PO. 80X120160 NASHVILLE, TN 3?212 [615] 691-7219 2 ?z c: :a 0 LI. AMERICAN CIVIL LIBERTIES UNION of TENNESSEE October 27, 2014 VIA EMAIL FIRST CLASS MAIL Dr. Mike Looney, Superintendent Members of the Board Williamson County Schools 1320 West Main, Suite 202 Franklin, TN 37064 RE: Policy 4.406: Acceptable Use, Media Release, and Internet Safety Procedures and Guideline Dear Superintendent Looney and Members of the Board: I am writing to you on behalf of the American Civil Liberties Union of Tennessee and the Electronic Frontier Foundation (EFF) to express our concern regarding Williamson County Board of Education Policy 4.406p? the Acceptable Use, Media Release, and Internet Safety Procedures and Guidelines (the ??Policy?). We were contacted by a concerned parent of Williamson County Schools and after a careful review of the Policy, and EFF urge WCS to immediately suspend the Policy. As currently written, the Policy infringes on students? fundamental constitutional rights. Of particular concern are the social media guidelines applicable to students when engaged in off-campus speech; (ii) the ?Bring Your Own Technology? guidelines, pursuant to which students are required to consent to suspicionless searches of their electronic devices ?at any time? for any ?school- related purpose?; and the network security and email guidelines, pursuant to which all data and communications of network users are subject to suspicionless monitoring. While the Policy may be the product of a well?intentioned effort to ensure student safety and network security, and to ensure that classrooms are not disrupted, the Policy goes too far and, as written, violates students? constitutional rights. It functions as a prior restraint on speech, allowing school of?cials to censor student speech in and out of school, and permits of?cials to conduct suspicionless searches of any electronic devices that students bring to school and (ii) all data and communications stored or transmitted on the WCS network. Dr. Mike Looney October 27, 2014 Page 2 of 10 In so doing, the guidelines overstep the school district?s authority and impermissiny burden the First and Fourth Amendment rights of WCS students. As the United States Supreme Court famously held in the landmark case Tinker v. Des Moines Independent Community School District, students do not ?shed their constitutional rights . . . at the schoolhouse gate.? 393 U.S. 503, 506 (1969). The Policy demonstrates a fundamental misunderstanding of the constitutional rights of WCS students. Requiring students to sign an agreement waiving constitutional protections in order to participate in fundamental school activities is not permissible. We ask that the Williamson County Board of Education (the ??Board?) take immediate action to correct this misunderstanding and modify the Policy to comply with the First and Fourth Amendment rights of WCS students. Factual Background ACLU-TN and EFF were contacted by the parent of a student at Williamson County Schools. The Policy was sent home with the student, and our client had immediate concerns that the Policy violated the Constitution. As a result of his refusal to sign the Policy on his child?s behalf, his child was denied the opportunity to participate in classroom activities using the school?s computers. Not wanting his daughter to be excluded ?'om meaningful educational experiences, our client ultimately signed the Policy, although his concerns remain. Legal Analysis A. The Policy Impermissibly Infringes 0n Students? First Amendment Rights Through Regulating Students? Off-Campus Speech. Section 5 of the Policy, entitled ?Social Media Use,? provides that ?[s]tudents participating in any social media site are not permitted to post photographs of other students or WCS employees without permission from a teacher.? See Policy, p. 3 (emphasis added). Section 5 ?irther provides that ?[p]ers0nal social media use, including use outside the school day, has the potential to result in disruption in the classroom? and ?[s]tudents are subject to consequences for inappropriate, unauthorized, and illegal use of social media.? See id. (emphasis added). On their face, these guidelines apply to virtually all online communication by WCS students (including adults), regardless of whether the speech occurs on or off campus. The guidelines reach beyond constitutionally unprotected and unlawful behavior and proscribe extremely broad (and vague) classes of speech? Dr. Mike Looney October 27, 2014 Page 3 of 10 namely, all ?inappropriate? and ?unauthorized? social media speech, and any posts involving photographs of any other WCS student or employee, regardless of who took the photograph or where it was taken. In so doing, the Policy violates clearly established First Amendment rights of WCS students. Forty-?ve years ago, in Tinker v. Des Moines, the United States Supreme Court held that the First Amendment protects the free speech rights of students and teachers. 393 US. at 506. Indeed, three years later, the high court stated that the ?vigilant protection of constitutional freedoms is nowhere more vital than in the community ofAmerican schools.? Healy v. James, 408 US. 169, 180 (1972). In Tinker, the Supreme Court held that ?to justify prohibition of a particular expression of opinion,? school of?cials must demonstrate that ?the forbidden conduct would materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.? 393 US. at 509 (emphasis added) (quotation marks omitted). Tinker involved only an-carnpasl speech. Although courts are divided as to whether Tinker is substantial disruption test governs students? of?campus speech,2 it is undisputed that a school cannot restrict non-disruptive off-campus speech.3 Indeed, when ?school officials venture[] out of the school yard and into For purposes of this letter, the phrase ?on-campus? speech refers to speech communicated at school or at a school-sponsored event. 3 See Porter v. Ascension Parish Sch. Bd, 393 F.3d 608, 619 (5th Cir. 2004) (noting that some courts have applied the Tinker standard in evaluating off?campus student Speech later brought on-campus by persons other than the speaker, while other courts have found that off-campus speech is entitled to full First Amendment protection even when it makes its way onto school grounds without the assistance of the Speaker); see also J.S. ex rel. Snyder v. Blue Mountain School Dist., 650 F.3d 915, 937 (3d Cir. 201 1) (J. Smith, concurring) (collecting cases). 3 See Morse v. Frederick, 551 US. 393, 405 (2007) (?Had Fraser delivered the same speech in a public forum outside the school context, it would have been protected?) (citing Cohen v. California 403 US. 15 (1971) (holding that the State may not make a simple public display of a four-letter expletive a criminal offense)); id. at 434 (Stevens, ., joined by Souter and Ginsburg, JJ., dissenting) (pointing out without objection that speech promoting illegal drug use, even if punishable when expressed at a public school, would ?unquestionably? be protected if uttered elsewhere); see also Saxe v. State College Area School Dist, 240 F.3d 200, 216 n. 1 1 (3d Cir. 200]) (noting that ifthe school?s anti- harassment policy were interpreted to apply off-campus, it ?would raise additional constitutional questions?); Nuxoll 12. Indian Prarire School Dis, 523 F.3d 668, 674 (7th Cir. 2008) (school rule prohibiting derogatory comments ?probably would not wash if it were extended to students when they [were] outside of the school, where students who would be hurt by the remarks could avoid exposure to them?). Dr. Mike Looney October 27, 2014 Page 4 of 10 the general community where the freedom accorded expression is at its zenith, their actions must be evaluated by the principles that bind government of?cials in the public arena.? Thomas v. Bd. Of?ine, Granville Central School Dist, 607 F.2d 1043, 1050 (2nd Cir. 1979). The Board?s Policy violates the First Amendment by creating an impermissible prior restraint on WCS students? off-campus speech?even speech that does n_0t materially and substantially disrupt the functioning of WCS classrooms. See Layshock ex rel. Layshock v. Hermitage School Dist, 650 F.3d 205, 216*19 (3d. Cir. 2011) (holding that a school district did not have authority to punish a student for the off-campus creation of a lewd and offensive fake Myspace pro?le of his principal); see also Reno v. Am. Civil Liberties Union, 521 US. 844, 870, 885 (1997) (holding that the Internet is a free speech zone and striking down the 1996 Communications Decency Act, which sought to control indecent communications on line). Through conditioning WCS students? ability to participate in classroom activities involving computers or the Internet on their submission to such a policy, WCS violates clearly established constitutional law. The Policy also gives school of?cials unfettered discretion to determine if students" off-campus speech is ?inappropriate? or ?unauthorized? and thus subject to sanction. See County v. Nationalist Movement, 505 US. 123, 133 (1992) (holding unconstitutional an ?ordinance [that] contains more than the possibility of censorship through uncontrolled discretion?). The Policy?s exceedingly broad prohibitions run afoul of vagueness and overbreadth doctrines, which ensure that regulations of speech are ?carefully drawn or . . . authoritatively construed to punish only unprotected speech? and not ?susceptible of application to protected expression.? Goodz'ng v. Wilson, 405 US. 518, 522 (1972); see also Reno, 521 US. at 871?72 (1997) (?The vagueness of [a content-based speech regulation] raises special First Amendment concerns because of its obvious chilling effect on free speech?). It is immaterial that the Policy restricts speech solely as a condition of participation in the school?s computer and Internet program. As the Supreme Court has made clear, ?the Government may not deny a bene?t to a person on a basis that infringes his constitutionally protected . . . freedom of speech even if he has no entitlement to that bene?t.? Agency for Int '1 Dev. v. Allianeefor Open Soc ?y Int Inc, 133 S. Ct. 2321, 2328 (2013). Moreover, here, denial of participation in computer and Internet program does not merely deny students a bene?t, it denies them an equivalent education?to which they are unquestionably entitled. Indeed, experiences at school involving computers and the Internet are, in this modern world, fundamental to a complete education. Dr. Mike Looney October 27, 2014 Page 5 of 10 B. The Policy Impermissibly Infringes 0n Students? Fourth Amendment Rights To Be Free From Unreasonable Searches And Seizures. I. The Policy subjects all students to suspicionless searches of their BYOT devices without any rationale that justifies such a considerable intrusion. Section 4 of the Policy, entitled ?Student Participation in Bring Your Own Technology (BYOT) Program,? provides that ?[t]he school district may collect and examine any device at any time for the purpose of enforcing the terms of this agreement, investigating student discipline issues, or for any other school-related purpose.? See Policy, p. 2. This provision subjects students to searches of any BYOT devices brought to school, at any time and for any ?school-related? purpose, regardless of whether the school of?cial conducting the search has reasonable suspicion that the search will turn up evidence of wrong?doing. Through subjecting students to suspicionless?and limitless?searches of their BYOT devices for essentially any purpose and without any rationale that justi?es such a considerable intrusion, the Policy impermissiny infringes on WCS students? Fourth Amendment rights. The United States Supreme Court held in New Jersey 12. T.L.0. that the Fourth Amendment?s ?prohibition on unreasonable searches and seizures applies to searches conducted by public school of?cials.? 469 U.S. 325, 333 (1985). The Court held that for searches by school of?cials, ?a careful balancing of governmental and private interests suggests that the public interest is best served by a Fourth Amendment standard of reasonableness that stops short of probable cause.?4 Id. at 341. The Court thus applied ?a standard of reasonable suspicion to determine the legality of a school administrator?s search of a student.? Sa?ord Um??ed Sch. Dist. N0. 1 v. Redding, 557 U.S. 364, 370 (2009) (citing 11.0., 469 U.S. at 342, 345). According to the Court, ?[u]nder ordinary circumstances, a search of a student by a teacher or other school of?cial will be justi?ed at its inception? when there are reasonable grounds for suspecting that the search will 4 Although the Fourth Amendment ?right of the people to be secure in their persons . . . against unreasonable searches and seizures? generally requires a law enforcement of?cer to have probable cause for conducting a search, in TL. 0., the Court recognized that ?[t]he school setting . . . requires some modi?cation of the level of suspicion ofillicit activity needed tojustify a search." 469 U.S. 325, 340 (1985). Dr. Mike Looney October 27, 2014 Page 6 of 10 turn up evidence that the student has violated or is violating either the law or the rules ofthe school.? TL. 0., 469 U.S. at 341?42. Since TL. 0., the Supreme Court has established that suspicionless school searches may be justi?ed where the ?special need? of deterring drug use makes ?the warrant and probable-cause requirement impracticable.? Vernom'a Sch. Dist. 47J v. Acton, 515 U.S. 646, 653 (1995) (upholding a school district?s policy of subjecting student athletes to random, suspicionless drug tests); see also Bd. of Educ. oflndep. Sch. Dist. N0. 92 of Pottawalomie County v. Earls, 536 U.S. 822 (2002) (holding that schools could conduct random, suspicionless drug tests of any student who participated in competitive extracurricular activities so long as participation was conditioned on consent to such drug testing). In both Vernonia and Earls, the Court balanced three factors: (1) the scope of the students? legitimate expectation of privacy; (2) the nature of the intrusion; and (3) the need for, and the effectiveness of, the intrusion in furthering a governmental interest. Vernonia, 515 U.S. at 664?65; Earls, 536 U.S. at 830?37. And in both cases, the Court found that the searches were narrowly tailored and conducted for a compelling purpose?deterring drug use by students involved in certain extracurricular activities. See Vernom?a, 515 U.S. at 661 662 (noting that the drug-testing policy was directed ?narrowly to drug use by student athletes? and stating, ?[t]hat the nature of the concern [deterring student drug use] is important?indeed, perhaps compelling?can hardly be doubted?); Earls, 536 U.S. at 834 (relying on the ?limited uses to which the [drug] test results are put? in concluding that the tests did not signi?cantly burden students? privacy and ?nding that ?the national drug epidemic makes the war against drugs a pressing concern in every school?). Policy goes far beyond Vernom?a and Earls and fails to meet constitutional scrutiny for a number of reasons. first, nothing in the policy limits the sc0pe or purpose of searches of students? BYOT devices. Instead, the Policy permits a search of any BYOT device at any time for any ?school-related? purpose, whether or not the interest underlying the search is important or compelling. The Policy also places no limits on the type of data that can be extracted from the device during the search or how the data can be used. Subjecting students to such ?full-scale, suspicionless searches eliminates virtually all of their privacy,? and the Policy here does so without any rationale ?that would justify so considerable an intrusion.? See Doe v. Little Rock Sch. Dist, 380 F.3d 349, 352?53 (8th Cir. 2004) (holding that a school district?s policy of conducting random, suspicionless searches of students? belongings violated the Fourth Amendment). Moreover, through employing purposefully vague language ?school-related?) and through failing to put limits on the scope of BYOT searches, the Policy invites the arbitrary and abusive use of such searches. Dr. Mike Looney October 27, 2014 Page 7 of 10 Second, the authorized searches are highly intrusive?129., searches of a student?s electronic devices, including ?smart? cell phones, which contain a signi?cant amount of data about the student and, quite likely, the students? family. See Riley v. California, 134 S. Ct. 2473, 2488?89 (2014) (?Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse. . . . The term ?cell phone? is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone?). 1mg, the Policy applies to all WCS students, not merely a subset of students who ?voluntarily participate in school athletics? or competitive extracurricular activities. See Vernonia, 515 US. at 657; Earls, 536 US. at 831. Because the entire student body?including those over the age of 18?is subject to the Policy as a condition of participating in fundamental educational programming, it simply cannot be said that the students are ?voluntarily? making a tradeoff between their right to privacy and the privilege of using computers or the lntemet at school. See Doe, 380 F.3d at 354 (rejecting the argument that students had ?made some voluntary tradeoff of some of their privacy interests in exchange for a bene?t or privilege? where the entire student body was subject to the challenged search). 2. The Policy subjects all students to suspicionless searches of their network data and communications without any rationale that justi?es such a considerable intrusion. Section 6 of the Policy, entitled ?Network Security,? provides that ?[a]ll network users may be monitored at any time by authorized personnel for the purpose and inspection of compliance to these guidelines.? See Policy, p. 5. Furthermore, Section 13 of the Policy, entitled ?E-mail,? provides that student e- mail accounts5 ?are ?ltered for content and monitored by authorized personnel.? Id. at p. 6. These provisions subject students, at all times, to searches of their data and communications stored or transmitted on the WCS network?whether or not they are suspected of wrongdoing. Through subjecting students to suspicionless searches of their network data and communications, the network security and email guidelines?like the guideline regarding BYOT searchesrimpennissibly infringe on WCS students? Fourth Amendment right to be free from unreasonable 5 The Policy indicates that WCS students in grades 3 through 12 will be issued e- mail accounts ?for the purpose of completing school work.? See Policy, p. 6. Dr. Mike Looney October 27, 2014 Page 8 of 10 searches and seizures, in this case, unreasonable searches and seizures of their data and communications stored or transmitted on the WCS network. Policy incorrectly presumes that students have no reasonable expectation of privacy to data and communications stored on or transmitted through network. Just as government employees using a government network, however, students d_o have a reasonable expectation of privacy in their network data and communications. See United States v. Long, 64 M.J. 57, 59?60 (C.A.A.F. 2006) (?nding that a member of the Navy had a reasonable expectation of privacy in the emails she sent over the government?s server notwithstanding a banner advising her that she had no legitimate expectation of privacy and that her use of the network was subject to monitoring); see also People v. Wilkinson, 20 Misc. 3d 414, 421 (NY. Co. Ct. 2008) (holding that police of?cers had legitimate and reasonable expectation of privacy in their police department computers). As such, the monitoring of such data and communications constitutes a search and must comply with the requirements of the Fourth Amendment. As explained above, the Fourth Amendment permits suspicionless ?special need? student searches only in limited circumstances. Here again, Policy goes far beyond the circumstances under which suSpicionless student searches are justi?ed. First, students have a strong privacy interest in the data and communications stored or transmitted on the WCS network. Indeed, such data and communications may contain sensitive and private information. Second, the Policy is r_1_o_t limited in scope or purpose, authorizing limitless searches of potentially sensitive and private information for essentially any reason. The Policy thus permits highly invasive searches without any rationale to justify such a considerable intrusion. Furthermore, the Policy applies to a_ll students, not a mere subset of the student population who voluntarily participate in some speci?c extracurricular activity. The Policy therefore does not pass constitutional scrutiny. Conclusion The Board?s Policy fails to withstand the most basic First and Fourth Amendment scrutiny. The Policy oversteps the school district?s authority, impedes on the constitutional rights of WCS students, and reveals a fundamental misunderstanding of students? rights. We ask that the Board act swiftly to modify the Policy?in addition to any other WCS policies in which the constitutionally Dr. Mike Looney October 27, 2014 Page 9 of 10 in?rm provisions discussed above appearbmto comply with the constitutional rights of WCS students. We appreciate your swi? attention to resolving this matter. If you have any questions or would like more resources regarding the constitutional rights of students. lease feel free to contact me directly at either (615) 320-7142 or #80 that we can discuss a timely resolution of the issues addressed in this letter. Sincerely, Thomas H. Castelli Legal Director ACLU of Tennessee Nate Cardozo Staff Attomey Electronic Frontier Foundanon Jamie Williams Frank Stanton Legal Fellow Electronic Frontier Foundanon cc: PJ. Mezera. Board Chairman,? Dr. Beth Burgos, Board Vice-Chairman, Kenneth Peterson, Board Member, - Dan Cash, Board Member,? Paul Bartholomew, Board Member,? Gary Anderson, Board Member,? . . . . . For example, the WCS Computer Guidelines include the unconstitutional network and e-mail monitoring provisions discussed in detail above. Dr. Mike Looney October 27. 2014 Page 10 of 10 Jay Galbreath. Board Member? Mark Gregory. Board Member.? Robcrt Board Member?? Candacc Emerson. Board Member. Rick Wimberly, Board Member,? Susan Curios, Board Member.?