After ACLU-DC Flags First Amendment Problems With Student Online Speech Rules, D.C. Public Schools Modifies Technology Policy
WASHINGTON – Two weeks after receiving a letter from the ACLU of the District of Columbia identifying several constitutional deficiencies regarding its policy governing students’ online speech, D.C. Public Schools has agreed to make substantial modifications to the policy. The ACLU-DC’s letter warned that the policy might chill students’ online speech and subject them to discipline for constitutionally protected expression.
“Tens of thousands of DCPS students are distance learning while schools are shut down and the stay-at-home order continues,” said Scott Michelman, Legal Director, ACLU of the District of Columbia. “We’re pleased DCPS has agreed to make meaningful changes to ensure that students can learn without the cloud of discipline for constitutionally protected speech hanging over their heads.”
Earlier this year, parents of DCPS elementary, middle, and high school students contacted the ACLU-DC about the DCPS Student Technology Responsible Use Agreement, which regulates students’ use of school-issued computers and tablets and the DCPS network.
On April 20, 2020, the ACLU-DC sent a letter DCPS General Counsel Scott Barash with a legal analysis of the agreement, which concluded:
- Two provisions reached beyond the school environment to ban constitutionally protected out-of-school speech;
- Several provisions imposed vague or unconstitutionally broad restrictions on student communications;
- One provision about online impersonation could prohibit some protected speech, including expression using a gender identity different from a student’s sex assigned at birth;
- One provision required students to report to teachers certain types of online speech by others.
An example flagged as problematic included one provision of the use agreement that required each student to agree that “I will not use social media, messaging apps, group chats, and other websites outside of school in a way that negatively impacts my school community.” As the ACLU-DC’s letter pointed out, this type of provision is constitutionally problematic both because of its vagueness and because it regulates student speech entirely outside of school without a showing of substantial disruptiveness to the school environment—which distinguishes what speech a school can constitutionally restrict and what it cannot.
“The ACLU-DC appreciates the need to ensure student safety in the use of any technology, and strongly supports DCPS providing all students the tools they need to ensure equitable distance learning,” said Nassim Moshiree, Policy Director, ACLU-DC. “However, we want to ensure that these policies are not so overly broad or vague that they could lead to biased disciplinary or other punitive action by school administrators for activities that do not pose a safety issue and are not disruptive of the school environment.”
On May 7, DCPS responded to the ACLU-DC’s letter by promising substantial modifications to its policy addressing each area of concern. All references to “out of school” speech will be eliminated, along with the vague phrases like “negatively impact the community.” DCPS also stated that it would clarify the anti-impersonation provision so as not to reach the types of speech that concerned the ACLU-DC and would make the teacher-reporting provision non-mandatory.
The ACLU-DC’s letter to DCPS and a redlined version of the changes the District will make to its technology use agreement can be found at: https://www.acludc.org/en/cases/dc-public-schools-student-technology-responsible-use-agreement
This press release can be found here: https://www.acludc.org/en/news/after-aclu-dc-flags-first-amendment-problems-student-online-speech-rules-dc-public-schools
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