The rise of social networking sites, such as Facebook, has created new forums to interact and share information. Some school districts and/or individual schools have already created Facebook pages to publicize curricular and extracurricular programs, operations, activities, finances and events. The following are a few issues a school board should consider before creating or approving a Facebook page devoted to school district business.
First and foremost, any school board contemplating the creation of a Facebook page for school district business should carefully consider how the page will be administered. Will the page be "read-only" and have content posted solely by the school board or its designated employees? Or will the school board allow "fans" of the page to post comments and opinion? The level of access granted to the general public may have a profound impact on the board's control of its Facebook page.
The First Amendment to the United States Constitution, which guarantees freedom of speech and press, protects the rights of members of the public to speak in any "public forum". Traditionally, courts have held that a public body does not create a public forum by inaction or by permitting limited discourse. Rather, the public body must take some action to intentionally open a non-traditional forum for public discourse in order for a public forum to be created.
To date, no court has addressed whether a school board establishes a "public forum" by creating or approving a Facebook page that is devoted to school district business and that allows the general public to post comments and opinions. An argument could be made that such a forum would be similar to a school board creating a public forum by allowing public comment at its school board meetings. In both forums, the business of the school district is discussed. In both forums, the public is given an opportunity to comment.
If a public forum is established by a school board creating, approving or directing its employees to post content on the school district's Facebook page that is open to public comment, the board generally may not restrict access to that forum except for reasonable regulations as to time, place and manner in which the forum is used. This generally means that a school board may not regulate the content of a fan's speech on the Facebook page based upon his/her ideas, opinions or statements. Likewise, if the Facebook page is deemed a public forum, the equal protection clause of the Fourteenth Amendment may prohibit a school board from restricting speech on account of the identity of the speaker or any groups he/she may represent.
A conceivable example of a potential public forum/free speech issue may play out as follows. A school board creates or approves a school district Facebook page that allows "fans" to comment. The school board post information on the Facebook page concerning an upcoming levy. Fans of the page post comments urging support for the levy. However, some "fans" begin to post their opinions on why the levy should fail. In addition, noted members of anti-tax groups submit fan requests seeking to be granted access to the page. If a school board is found to have created a public forum, the board may be restricted in removing a fan's opinions that are critical of the levy. Likewise, the board may not have the right to deny a fan's request to be granted access to post on the Facebook page due to their affiliation with groups known to be adverse to the levy.
Therefore, if a school board creates or approves a Facebook page that is open to public comment, it should be prepared to entertain widely divergent viewpoints on school district business. If considered a public forum, a school board may be constrained in editing or removing a "fan's" post based upon the content of the speech. And unlike a board meeting where a member of the public may make a brief, verbal statement, a fan's written comments on a Facebook wall may remain accessible for a much longer duration.
Public Records Law
Ohio's Public Records Act ("PRA") defines a public record as any record that serves to document the organization, functions, policies, decisions, procedures, operations or other activities of the public body. This definition includes electronic communications. If public records are maintained or created by another entity that is performing a public function for a public office, such records may be “under the public office’s jurisdiction” for purposes of the PRA.
With this in mind, is the school board in the previous example creating a public record by posting data and information about its upcoming levy on its board-approved Facebook page? If public records are created, what obligation (if any) does the school board have to archive or maintain these records pursuant to its records retention and disposal schedule? To date, no court or agency has rendered a decision clarifying these issues. Nonetheless, a school board may consider policies or procedures to preserve or archive content posted by the school district on its Facebook page that are consistent with its records retention and disposal schedule.
Open Meetings Law
Most of us are aware that Ohio's Open Meeting Act ("OMA") requires that all deliberations and communications leading to official board action be conducted in open meetings unless specifically recognized as a permissible topic of discussion in executive session. To that end, at least one Ohio court has held that a public body violates the OMA when it conducts several "round-robin" or "serial" meetings between small groups of members, which, when taken in aggregate, constitute the discussion of public business by a quorum of the public body.
It is conceivable that three or more individual board members could post comments or opinions on the school district's Facebook page on issues up for board consideration. Depending upon the specific facts of each case, there is a risk that such communications, when taken in aggregate, could constitute a prearranged discussion of the public business of the board by a majority of its members in violation of the OMA. This specific issue has yet to be addressed by the courts. Nonetheless, a school board contemplating using Facebook to publicize the business and operations of its school district should consider policies and procedures to address individual board members posting on the page.
Confidential Student and Health Information
Both state and federal law strictly limit the disclosure of personally-identifiable student information. Likewise, the Health Insurance Portability and Accountability Act of 1996 ("HIPPA") prohibits the disclosure of protected health information for both students and employees. A school board can protect the confidentiality of such information when it posts content on Facebook. However, members of the general public who are permitted to post on the site may not be aware of these protections or may simply chose to ignore the law.
Since "fan" postings on Facebook are in real-time, it would not be reasonable to have an employee or agent of the school board monitoring the Facebook wall at all times. Whether the school board has an affirmative duty to promptly remove confidential student or protected health information posted on the board's Facebook page by persons not affiliated with the school board is unclear. However, the Board should consider procedures to monitor and respond to such content should it allow the general public to freely post on its Facebook page.
If granted access, student "fans" of the school board's Facebook page could potentially post content that is controversial, harassing, disrespectful or otherwise not tolerated in a school setting. However, can a school board discipline a student whose Facebook post arguably violates the board's student code of conduct, or is this speech protected by the First Amendment?
In Ohio, a student code of conduct may apply to misconduct that occurs off school premises if the misconduct is connected to activities or incidents that have occurred on district owned or controlled property, or the conduct is directed at a district official or employee or the property of a school official or employee. Oftentimes courts deciding school discipline cases involving off-campus student speech require some nexus between the offending conduct and school district activities or operations. This usually requires the school district to prove either the offending content was created or accessed on school property, or the speech created a material or substantial disruption to school district operations or the educational environment. Without such nexus, a school district may not have the legal authority to discipline a student for such off-campus speech.
Nonetheless, a school board would have the authority to remove speech on its Facebook page that is vulgar, lewd, indecent, racist, obscene or otherwise inappropriate in a school setting, irrespective of whether the school board can discipline the student for such speech.
If administered correctly, Facebook is a valuable tool to disseminate information and keep the school community apprised of the educational programs, district operations, school finance, student achievement, employee awards, and other information to promote the school district. However, a school board should strongly consider the legal and policy implications of approving or creating a Facebook page that allows members of the general public to freely post comments and opinions.© 2013 Dinsmore & Shohl LLP. All rights reserved.