Acceptable Use Policies - Education Law
Acceptable use policies (AUPs) are sets of rules, regulations, rights, and responsibilities adopted by school officials (either in individual schools or at the board level), colleges, and universities designed to regulate and monitor the computer activity of students, staff, and visitors. AUPs are necessary to restrict the ability that students and staff have to access, store, and send sexual, violent, or otherwise unlawful material online.
AUPs generally apply both to the Internet and the general use of personal computers, computer networks, and other audiovisual communication equipment owned and controlled by school boards. This entry describes typical content and related legal issues.
Codes of Conduct
AUPs extend traditional codes of conduct to electronic media and serve to educate members of school communities about appropriate conduct in cyberspace. AUPs should not be enacted merely for disciplinary monitoring and punishment. The best AUPs are implemented with education in mind, allowing computer users to learn about technology generally and to understand their rights and responsibilities as well as the rights and responsibilities of others.
AUPs should offer sets of “do’s” and “don’ts” for computer users. At a minimum, Acceptable Use Policies should prohibit use of the Internet for non–school-related activities and note, strongly, a prohibition of computer use for personal business that might be a professional conflict of interest for the user. In addition, AUPs should prohibit malice, recklessness, invasion of privacy, theft, harassment, bullying, copyright infringement, lewd and vulgar expression (in words, pictures, videos, or sound), and violation of other applicable laws, regulations, or institutional policies.
Like any code of conduct, AUPs face legal challenges from multiple perspectives: First Amendment freedom of expression, Fourteenth Amendment due process, Fourth Amendment privacy, other privacy claims, and copyright, as well as issues of harassment, bullying (including cyberbullying), and liability. For the most part, the law that applies to the face-to-face school community also applies to the cyberspace community, making the law related to AUPs not all that different, despite the significant difference in medium and forum.
Related Legal Cases
Not surprisingly, school officials retain authority over the electronic forums that they provide for students and staff. So, while students and staff do not “shed their constitutional rights to freedom of expression at the schoolhouse gate” (Tinker v. Des Moines Independent Community School District, 1969, p. 506), AUPs generally prohibit personal speech and other conduct that disrupts the rights of others or materially and substantially interferes with the work of the school. The most applicable First Amendment principles that apply to the enforcement of Acceptable Use Policies are those prohibiting lewd and vulgar expression, including that of a sexual nature (Bethel School District No. 403 v. Fraser, 1986) and those permitting school officials to exercise editorial control over the content and style of student and staff expression in school-sponsored activities such as school district Web sites or online newspapers (see Hazelwood School District v. Kuhlmeier, 1988). School officials are permitted and encouraged to install filtering software on their computers to prevent computer users from accessing unwanted material. Such software does not violate the free speech rights of students, staff, and visitors.
Due process is an important concern in the implementation of AUPs, just as it is for all codes of conduct. With respect to student discipline, for example, suspension and expulsion from school implicates both liberty and property rights under the Fourteenth Amendments. Any provision of an AUP that subjects violators to such punishment should be spelled out with great clarity in terms of the nature of the infraction and the nature of the punishment. Most often, computer use at school, particularly for students and visitors, is a privilege and not a recognized constitutional right. In such cases, the due process obligations on the part of the school are far less.
Privacy, bullying, and harassment matters in cyberspace are a huge concern today, in light of the prominence of such sites as MySpace and Facebook. Schools are encouraged to limit access to these and other similar sites on school computers. In addition to restricting access, Acceptable Use Policies ought to prohibit posting of items to Web sites, as well. Cyberspace bullying and online harassment carry with them the same legal, policy, and liability obligations as bullying and harassment in face-to-face encounters do. Therefore, it is important that school officials enforce antibullying and antiharassment policies online, as well. Failure to respond to known harassment and bullying, wherever it occurs, will subject schools to monetary damage liability. With respect to copyright infringement, schools—as Internet service providers for students and staff—can limit or eliminate their liability for the infringing activities of students and staff if they promulgate and enforce codes of conduct for computer use and offer education on copyright law to computer users.
Patrick D. Pauken
See also Children’s Internet Protection Act; Copyright; Cyberbullying; Digital Millennium Copyright Act; Electronic Document Retention; Fourteenth Amendment; Free Speech and Expression Rights of Students; Internet Content Filtering; Plagiarism; Privacy Rights of Students; Privacy Rights of Teachers; Sexual Harassment, Peer-to- Peer; Technology and the Law; Title IX and Sexual Harassment; Virtual Schools
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