All things excellent are as difficult as they are rare.


03 January 2012

Some Off-The-Cuff Legal Analysis

So it seems that the Illinois state legislature has gotten it into their head to pass a law that allows schools to expel kids for online behavior. Here's the summary from the legislature:
Provides that a school board (including Chicago) may suspend or by regulation authorize the superintendent of the district or the principal, assistant principal, or dean of students of any school to suspend a student for a certain period of time or may expel a student for a definite period of time if (i) that student has been determined to have made an explicit threat on an Internet website against a school employee, a student, or any school-related personnel, (ii) the Internet website through which the threat was made is a site that was accessible within the school at the time the threat was made or was available to third parties who worked or studied within the school grounds at the time the threat was made, and (iii) the threat could be reasonably interpreted as threatening to the safety and security of the threatened individual because of his or her duties or employment status or status as a student inside the school.

So there are several elements here, and I want to talk briefly about each.

1) There must be an explicit threat.
This is the most interesting, because the incident that is being reported as the catalyst for this law apparently didn't involve an explicit threat. The 2005 Oswego district incident was a student who apparently posted the phrase, "I'm so angry I could kill." Even if what was actually posted was something like, "I'm so angry I could kill Mr. X, that son of a (bleep)", that wouldn't be an actual threat. Maybe if it were said in Mr. X's presence, while you were holding a knife and twirling it menacingly... but then the bulk of the threat would be the knife twirling.

My suspicion is that this law is going to run into problems about what is and is not a threat, and that districts are going to have to resort to a "disrupts the school environment" defense for their expulsions, a la Tinker vs Des Moines and related cases. I predict that these attempts will be successful. In other words, I predict that the "explicit threat" requirement of this law is going to essentially be written out by judicial interpretation and that this will just be a law that extends the school's power over student speech on campus to govern speech on the internet as well -- but I'm a pessimist. Maybe the courts will actually enforce the statute as written and will require an explicit threat.

2) It must be against school-related personnel.
I'm not really sure what that means, other than employees and students -- maybe they're talking about PTA moms or something. Maybe they're talking about guest-speakers who come to campus? No real problems here.

3) It must be made on an internet website
I'm not an Illinois lawyer, but this might be problematic because there's much more to the internets than "websites", at least how that term is used in a technical sense. Presumably this is an easy thing for courts to ignore, though. If it's on the internet, I bet they'll consider it a "website" because it's a site on the web.

4) The site must be school-accessible:
This is an interesting requirement -- that someone at the school (even, presumably, office staff sitting at networked computers) -- must be able to access the website at the time the threat was made. There are three problems that I can see.

First, it's hard to determine when an online threat is "made". Is it when it is typed? When it is posted? When it is read? This isn't like me walking up to you and saying something, after all. What if a threat is posted to a secure website that is not school accessible, and is only accessible to certain non-campus IP addresses, but then those protections are removed? When was the threat made? There's probably case law on this sort of thing, which I'm too lazy to look up. But it seems like a thorny issue.

Second, I wonder if the access from school can count someone violating school policy. Let me explain what I mean. Let's say the threat is posted to a Facebook page that is only viewable by "friends". Let's also say that the school has a strict no-internet policy, but that some students violate that policy by bringing smartphones onto campus and using them. Does that count as a website "accessible within the school"? What if students are not supposed to use school computers for Facebook, but do anyway? Does a student have a right to rely on school policy to protect him from expulsion for making threats?

Third, I'd want to know what "accessible" means. If a page can be reached, but is password protected, is it "accessible"? Does it matter who knows the password? Does it matter that the password can be hacked, or that doing so is a violation of law?

I'm imagining that something like the following rule is going to be followed: if it shows up on someone's computer or wireless device, it must have been accessible. But you might think that a student should be able to tell whether his or her behavior is going to get him or her expelled before some super-hacker at school goes to work on the website in question.

5) The threat could be reasonably interpreted as threatening to the safety and security of the threatened individual because of his or her duties or employment status or status as a student inside the school.
I won't lie... this last bit has me confused.

Presumably, if we're taking the "explicit threat" portion of this proposed law seriously, there's already a requirement that the threat "threaten the safety and security" of the threatened individual. So that can't be what this section is about; the important part really has to be the "because" clause. But I have absolutely no idea what it means for someone's safety or security to be threatened because of their relationship to the school. The most common-sense interpretation is probably a sort of motive-analysis: is this threat being made because the threatened person is a student or employee?

But the answer to that is almost always going to be "no". Threats get made because people do things that make people angry, not because someone happens to be a student or a teacher. So is the real question whether the underlying antagonism had its genesis in the schoolyard, or in the principal's office? So maybe it's not OK to threaten the teacher online if you're threatening her because she gave you an F. But it would be OK to threaten her because she cut you off in traffic? That seems like a weird result. Would it matter if she cut you off in traffic on the way to school?

If a fellow student eggs your house, and you threaten him online, are you threatening him "because" of his status as a student? Well, on the one hand, no. He egged your house, and that's why you're threatening him. But on the other, he wouldn't have egged your house if you hadn't mouthed off to him in school the other day...

One could imagine that this provision is taken VERY literally, but then we get ridiculous situations where the only actionable threat looks like this:

"If you don't unenroll from school immediately, I'm going to box your ears in."

That's silly. No one makes threats like that. But I'm really at a loss to understand exactly what's supposed to be being required here.

So those are my thoughts on the specifics of the proposed law. I've got some more general concerns... like if this law is being passed because of concerns that off-campus online activity is currently protected by federal law, how is passing a state law going to change that, exactly? There's still this thing called the Supremacy Clause, and you can't take away federal protections through a state law. But I've gone on long enough for now.

I'll have some more abstract thoughts on this general topic in a day or two.


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