Welcome to today's online discussion on the legal landmines related to the new technologies being used in our schools today. Let's get started!

That's a big, thorny question to start with, so the short answer is: 1. There may be other issues when a student secretly tapes a teacher without the teacher's permission. Some courts have held that schools were justified in disciplining students for this kind of thing, quite apart from the 1st Amendment issue. 2. For off-campus expression like you describe, courts often take a dim view of school intervention. A school generally has to show that the expression was a threat or had enough connection to school to warrant intervention. Courts often set a high bar for this -- even really outrageous things about school personnel may be protected, although courts sometimes are more sympathetic to safety concerns. School boards should think through, with their attorney, what conduct will be prohibited in the student handbook so students are on notice.

It's true that some of these questions per-date the technology and the latest versions just have changed the platform. But there are practical differences. For example cyberbullying, unlike playground bullying, can reach a vast audience, can be more anonymous, and can remains online permanently. As for restrictions of electronic devices, there may be other legitimate considerations, like distractions, cheating, privacy violations with cameras. But on the other side of the scale are the ubiquity of the technology, its powerful potential for learning and student engagement, and question about whether schools would do better teaching responsible use than cracking down.

Generally speaking, the law is paying catch-up with technology, just like the rest of society is. If online comments rise to the level of legal violations, there may be criminal law implications or private liability like libel, quite apart from school disciplinary questions. There are ways to track the IP address of the source computer, lawyers can subpoena the info. It seems to me courts will continue to be very protective of free speech but there may be more leeway over time, at least as to some questions like safety, cyberbullying, etc., as schools become more sophisticated about deciding when to intervene and articulating and documenting their reasons for doing so.

First, a word of explanation about the "new regulations." New rules for how federal court cases are litigated place a stronger emphasis on electronically stored information and the obligations to save it and produce it in a dispute -- this is an example of the law catching up with the reality that so much information now is electronic. But state public records laws were around before these "e-discovery" rules were adopted and may already have addressed electronic documents, or, more than likely, simply not have differentiated between paper and electronic when the bottom line really is what information is contained in the document, not form it's stored in. The first point of reference is your state public records law. My sense is that not every conceivable item of information related to schools is a public record -- think student essays, projects, worksheets, etc. As to the e-discovery rules, they do have a provision carving out an exception if producing the info would be extraordinarily difficult or costly -- we don't yet know how that will be construed, and it seems likely that courts will construe it narrowly, but your example might be the kind of thing that would fit the bill. More importantly, it is not the case that e-discovery rules require the permanent preservation of every conceivable bit and byte of info from now until the end of time, world without end, Amen.

There are such laws still on the books, although many are specific to pagers. These harken back to the day when the thought was pagers = drug dealing, and all the state lawmakers felt the need put the rules in the state education code. As cell phones became cheaper and ubiquitous and more parents wanted their kids to have them, some states recognized that this should be a local decision and repealed the laws. There a very strong case to be made that technology questions like these are best decided locally -- as with so many education policy issues, if something's not working in schools, you can bet your school board will be getting an earful about it very quickly. The board might be able to address the issue at its next meeting. Compare that turnaround to how long it take to get a response from, say, a state legislature that may convene only every other year, or Congress, which appears now to have figured out that there are some things that need adjusting in No Child Left Behind but which may or may not get them done this year.

In many cases that may be true, and courts have been pretty unforgiving when they see schools overreaching. But remember that in the wake of Columbine and other shooting incidents, much of the discussion centered around becoming better attuned to warning signs. With so much student expression online, that's become one tool many schools use. These are very tricky judgment calls. A recent court case from Georgia, I think, about an essay that seemed threatening framed it well. It said, essentially, just imagine if the school had not intervened and a shooting had, in fact occurred? You can't joke about bombs in an airport, and students need to know the same thing applies in school. That said, there are a range of options schools can use to ensure safety without jumping right to disciplinary action that may implicate more constitutional interests and legal complications. Even if the expression isn't a threat, it may have enough impact or foreseeable potential impact on the school that the school is justified in intervening. One thing that came out of the "Bong Hits 4 Jesus" case was the Supreme Court's recognition that the old conception of school being defined by four walls doesn't work in the 21st Century.

Broadly speaking, it seems to me courts are going to be more tolerant of school and law enforcement actions that relate to safety concerns. This may or may not get beyond threats to things like cyberbullying, but cyberbullying is a topic that has generated a lot of pressure for schools to do more and interest from state and federal politicians. I think you can make a strong case about cyberbullying having enough nexus to school, especially given research that shows how being bullied can prevent a child from learning.

But there's a liability tradeoff for school boards to talk through with their lawyers. In other legal contexts, a school's "deliberate indifference" to harassment can make the school liable. In a recent case in Idaho, a student sued under Title IX for a school's alleged failure to protect her from bullying including some online postings. The court found the school lacked the "control" over the situation that Title IX requires for there to be liability. A school that asserts its authority to intervene off-campus has to eye what obligation it may incur as to off-campus conduct. One warning I've given advocates of much more vigorous action against cyber-bullying is that the one way to guarantee schools will run completely the other way is to try to sue them for not intervening. We're out of time for today. Thanks for your questions. If I didn't get to yours, I'm at thutton@nsba.org.