Last week I wrote a little bit about a proposed law governing online threats made off-campus, pointing out what I thought were some ambiguities and incoherencies (is that a word?) in the statute's language. Today I just wanted to rattle off a few brief thoughts about the notion of schools' exercising control of their students' lives while off-campus in general. My apologies... this is sort of jumbled and confused, and I'm too lazy to tighten it up.
What I find really interesting about the thinking behind the move to regulate students' off-campus behavior is that it often coupled with the mindset that schools should be tolerant and welcoming of all cultures, and shouldn't be in the cultural missionary/assimilation business. Yet it seems to me that if you are going to make a moral (as opposed to a legal) argument for being able to punish students for off-campus behavior, you have to accept that one of the missions of a school is to shape its students into a certain type of person, with a certain type of values.
Some of you reading this are probably thinking to yourself, "Of course school is about shaping values. Duh!" But not everyone agrees with this; some reject it vehemently. Still others think they disagree, but what they really think is that schools shouldn't attempt to instill values that they don't believe in themselves.
A private school can kick a kid out for off-campus behavior, because they can have a code of conduct that says, "If you want to be at this school, there's to be none of behavior X, period." (There may be difficulties in enforcement, but that's another matter.) The key difference between a private school and a public school, of course, is that the family is (usually) paying for the student to attend the private school. Attending is an option.
Attending public school is also an option, in the strict sense. But it's also often the only "costless" alternative to meeting a state mandate that your child be formally, officially observed during business hours. In other words, for many families the choice is send the kid to public school or go to jail/pay fines under truancy laws. And that's the reason, I think, that some people -- especially people on the left -- get intellectually or emotionally bothered when public schools get into the character-moulding business: there's no easy way to escape it. The normative commands of the public school are, ultimately, the normative commands of the state, which has a monopoly on force.
In other words, when the public schools can tell you that there's no making online threats, it's really the government telling you that there's no making online threats. And that's probably not a big deal, as long as we're talking about threats, right? I mean, threats are bad, right?
Yet people could reasonably be worried that if a school can ban online threats, then it can expel a student for not going to Mass, or not saying his five daily prayers. Now, you might say, "Wait a second... that's a first amendment issue!" But threats are a first amendment issue, too, and many of the sorts of "threats" that get kids suspended and expelled these days in no way pass the true threats doctrine, which is the test for determining when speech can be regulated by the government because it's a threat. (Typically, a threat is only a true threat if the “speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals" and "objective observers would reasonably perceive such speech” to be a threat.) Most incidences of fiction-gone-wrong and online venting about teachers and principals aren't really intended as a "serious expression of an intent" to work violence.
"But we can't be too careful in this post-Columbine world," some people say. Well, yes, actually -- for the purposes of the First Amendment you can be too careful. And it's especially egregious when the speech in question isn't even occurring on campus. The student didn't make a statement on campus; the fact that other students are disrupting the school environment by using their phones and computers to access the students' writing isn't grounds for punishing the student.
My point is just this: either you think that schools are in the character business, or not. And if you do, either you think that the First Amendment actually matters, or you don't. Unfortunately, I think that there are a lot of people out there on the left who claim that schools shouldn't be in the character business, but really think they should, and a lot of people on the right who think that the First Amendment matters, but are willing to toss it under the bus when it doesn't fit their policy agenda.