December 28, 2007

Students and Youtube

A Palm Beach County middle-school student has been expelled from a magnet school after recording her teacher in class with a digital camera and posting a satirized form of it on Youtube. In Palm Beach as in many other districts, students are not generally allowed to have electronic devices on during the school day, but according to the article she had been allowed to use it for the yearbook. So in almost all other cases, the issue would be cleaner-cut: the student violated the prohibition on electronic devices without clear cause for it (such as catching a crime in process).

Florida's laws on electronic privacy provide another wrinkle: under Florida Statutes (934.03 to be precise), it is illegal for private individuals to record someone else who has an expectation of privacy. (There are exceptions for law enforcement recordings and for public meetings, obviously.) I don't know whether a classroom provides that expectation of privacy for teachers (one Panhandle prosecutor dropped a case in 2001 against a student who had recorded her chemistry teacher's lecture), but I worry about the recording of other students.

The question of what is public behavior is also behind the question that Morse v. Frederick (aka the Bong Hits 4 Jesus case) left open: how much can schools respond to behavior that is off school grounds, especially when it concerns speech? Most analysis hinges on the question of disruption, arguing that schools can respond to student behavior off campus that disrupts the educational environment. Disruption is so vague, however, that it could cover all sorts of ground, and there is no bright-line standard for it. Like disrespect, the term is a conclusion rather than a description of concrete behavior.

We could begin to draw bright lines by defining disruption as behavior that either constitutes a "true threat" (see Virginia v. Black, 2003, for a definition: hat tip), encourages the breaking of bona fide school rules, or targets individuals as individuals in a context where they could expect some privacy. Spreading rumors about other students as individuals clearly falls in that definition, as does spreading rumors about teachers' or other school officials' private lives.

But in the public sphere, such protections start to fall away. If a student has the right to disagree with school policy or public conduct (something I think most courts would support), she or he also has the right to parody school officials' public conduct under the umbrella of such criticism, even if the parody is harsh. While I am not a lawyer, I suspect many cases of online behavior will hinge on whether the student is addressing such public behavior.

But what counts as public conduct? Behavior in a class of 25 or 30 isn't that private, and certainly not if you look at sites such as Teachers in elementary, secondary, and college classes are at a structural disadvantage because we cannot ethically discuss the behavior of individual students, and the inevitable response to public comments about classroom events has to be, "I cannot respond, because doing so would violate the confidentiality of individual students."

Here is the reasonable tradeoff: we know students will have the freedom to criticize what educators do, as long as it does not meet a fairly strict definition of disruptiveness, if teachers are insulated from outside pressures that could endanger academic freedom. My students are going to talk about my teaching, but as long as my institution avoids ad-hoc investigations and I have academic due process, I can live with the apparent paradox. Or, to put it in another way, if students can suddenly turn my work into a fishbowl environment, the right response is not to cover the fishbowl but to make the glass unbreakable.

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Posted in Academic freedom on December 28, 2007 5:20 PM |