EFF to Arizona Federal Court: Protect Public School Students from Surveillance and Punishment for Off-Campus Speech

"His mother said he should talk to his English teacher, so he opened his school-issued Google Chromebook and started drafting an email. The student then wrote a series of jokes in the draft email that he deleted each time. The last joke stated: "GANG GANG GIMME A BETTER GRADE OR I SHOOT UP DA SKOOL HOMIE," which he narrated out loud to his mother in a silly voice before deleting the draft and closing his computer."

"Within the hour, the student's mother received a phone call from the school principal, who said that Gaggle surveillance software had flagged a threat from her son and had sent along the screenshot of the draft email. The student's mother attempted to explain the situation and reassure the principal that there was no threat. Nevertheless, despite her reassurances and the student's lack of disciplinary record or history of violence, the student was ultimately suspended over the draft email-even though he was physically off campus at the time, before school hours, and had never sent the email."

"Public School Students Have Greater First Amendment Protection for Off-Campus Speech Most notably, in Tinker v. Des Moines Independent Community School District (1969), the Court held that students may not be punished for their speech unless the speech "materially and substantially" disrupted the school day or invaded the rights of others. Decades later, in Mahanoy Area School District v. B.L. by and through Levy (2021) in which EFF filed a brief , the Court further held that schools have less leeway to regulate student speech when that speech occurs off campus."

A Marana High School student drafted and repeatedly deleted joking threats in a draft email on a school-issued Chromebook while at home. Gaggle surveillance software flagged a screenshot of the deleted draft and the school principal contacted the student's mother. The student was suspended despite being off campus, before school hours, never sending the email, and having no history of violence. The Supreme Court in Tinker requires a material and substantial disruption to justify punishing student speech. The Court in Mahanoy held that schools have reduced authority to regulate off-campus student speech.

Read at Electronic Frontier Foundation