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Published in Print: February 18, 2015, as Schools Weighing Access to Social-Media Passwords

Schools Weigh Access to Students' Social-Media Passwords

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State lawmakers and school district officials are again wrestling with questions about schools' authority to access and monitor students' social-media accounts.

But their attempts to proactively address such issues as cyberbullying and student safety have been more likely to result in controversy and complaints than any clear resolution.

Take, for example, the Triad Community Schools, located in southwestern Illinois. In response to the recent passage of two state laws, schools in the 3,700-student district sent home a letter last month stating that "your child may be asked to provide his or her password for [social media] accounts in certain circumstances." The letter provoked an uproar among some parents.

"There are 50 states and 50 ways to screw [this issue] up," said Luke J. Stedrak, an assistant professor of education at Seton Hall University in South Orange, N.J. "There is no consensus, and the inconsistencies create problems for practitioners."

In the past two years, similar controversies have erupted around the country. In Minnesota, a student won a $70,000 settlement in March of last year from the 1,100-student Minnewaska Area school district after being forced to give school officials access to her Facebook account; in California, the 29,800-student Lodi Unified district came under harsh criticism for a policy that allowed school athletic coaches to suspend athletes for inappropriate postings made via social media; and in Alabama, the 23,000-student Huntsville City schools came under scrutiny following reports that it paid a security firm to monitor students' public social-media posts.

Sonja H. Trainor, the director of the Council of School Attorneys for the Alexandria, Va.-based National School Boards Association, said schools should be wary of stepping onto a slippery legal slope.

"This is generally not an authority that school districts want to have, or that school attorneys would advise them to use very often at all," Ms. Trainor said.

Administrator Action

The recent controversy in the Triad Community district had its roots in Illinois' Right to Privacy in the School Setting Act, which became law in January 2014.

The statute requires K-12 schools to notify students and parents that schools have "the right to request or require a student to provide a password or other related account information" in order to access a student's social-media account—if the school has "reasonable cause" to believe such an account "contains evidence that the student has violated a school disciplinary rule or policy."

A subsequent law required schools to outline a procedure for investigating reported incidents of cyberbullying to determine if the school environment was being disrupted—whether or not the alleged incidents occurred on school grounds or via school-owned digital devices.

Problems such as online threats "certainly do affect our school day," said Leigh A. Lewis, the superintendent for the Triad district. "Kids are on social media, and there are times when administrators have to get involved."

Historically, Ms. Lewis said, students have voluntarily shared problematic online and social-media material with school administrators. Now, though, those officials also have the authority to demand passwords. It was important—and legally required—to let parents know of that change, the superintendent said.

Education Policy Trouble Spots

Recent incidents in states across the country have renewed questions about schools' authority to access and monitor students' personal social-media accounts.

ALABAMA: The Huntsville city school district drew criticism after reports that its hiring of a firm to monitor students' public social-media postings led to the expulsion of a disproportionately high number of African-American students.

CALIFORNIA: The Lodi Unified school district was forced to scrap a policy that called for student athletes and club members to be punished for inappropriate or offensive social media behavior.

ILLINOIS: Some parents protested when the Triad Community School District No. 2, responding to new state laws, sent home a letter saying that schools may ask children for their social-media passwords.

MINNESOTA: The Minnewaska Area school district agreed to pay a former student damages and rewrite its social-media policy after a 6th grader was forced to provide her Facebook password to school officials.

But Bradley S. Shear, a social-media and digital-privacy lawyer based in Bethesda, Md., is among those who believe parents in the district had a right to be upset.

"I think the way the Illinois law is written raises some serious constitutional issues," Mr. Shear said.

Demanding personal passwords could violate students' free-speech rights under the First Amendment, as well as their Fourth Amendment protection from unlawful searches and seizures, he argued.

Mr. Shear also raised the notion of the "slippery slope," asking what might happen, for example, if a school found evidence of illegal activity by a student's family member while searching the student's social-media account.

"Where do you draw the line?" he said.

Legislative Movement

Louisiana, Maine, Michigan, Rhode Island, and Utah have recently passed legislation related to a school's right to access students' social-media accounts. Generally, those statutes have sought to limit or prohibit requests for student passwords by educational institutions, although the details of those laws vary considerably, and many contain significant exceptions and exemptions.

"I think [the issue] is definitely gaining traction," said Mr. Stedrak, the Seton Hall professor. "But you're not going to see consistency across the nation."

States have also been active in crafting laws to address similar questions regarding employers' authority to demand access to their employees' social-media accounts and passwords, as well as the rights of colleges and universities to request such information from prospective students.

The question of K-12 schools' rights and responsibilities when monitoring students' social-media accounts, meanwhile, has received comparatively little legislative attention.

That could change, though, in the event of more publicity around related incidents, such as that surrounding the Huntsville, Ala., school district last fall.

In November, AL.com reported that the city school system had paid a security firm $157,190 to "oversee security improvements, including the investigation of social-media activity of public school students."

According to that report, the investigation led to the expulsion of 14 students, 12 of whom were African-American. Because just 40 percent of the district's students are black, some local officials and activists questioned whether black children were being disproportionately targeted and disparately impacted by the social-media-monitoring policy.

Related concerns were raised during the 2013-14 school year in California, where the 25,400-student Glendale Unified school district came under criticism from the American Civil Liberties Union and others for paying a third-party vendor to monitor students' social-media accounts. The company's tactics included searching public posts for signs of everything from suicidal expressions to evidence of substance abuse to harassing comments and use of obscenities, according to the Los Angeles Times.

In September, California Gov. Jerry Brown, a Democrat, signed into a law a statute placing limits on such practices, including parental notification requirements and prohibition on the use of collected information for unintended purposes.

Related Blog

For school lawyers, the concerns extend beyond just possible infringements on students' privacy and constitutional rights, said Ms. Trainor of the Council of School Attorneys.

"Once you get into the business of monitoring, then you're potentially taking on liability for the things you might see," she said.

"Any policy around student social media needs to be very, very cautious."

Vol. 34, Issue 21, Pages 1,12-13

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