by Earl Guen Quiñones Padayao
Modern students are digital natives – everyone’s online.
After two years in distance learning and slowly blending back to full in-person classes, one question should start piquing our interest: How do we balance a student’s right to speech and expression vis-a-vis schools’ disciplinary powers in the digital space? In other words: Are students’ right to speech and expression online within the disciplinary jurisdiction of their schools?
To push this inquiry further, what is the legal norm when online speech and expression are done through personal platforms, like one’s social media profile? Let’s say a post goes contrary to school values and principles. Is there a legal basis for sanctioning or disciplining a student where the digital space does not intimately and directly involve the school?
To illustrate, let’s have a hypothetical case: Juan Dela Cruz is currently enrolled in University XXX. Juan is an active social media user and posts his opinions. Juan is also a nudist. Juan posted lewd photos of himself on his publicly viewable Twitter account in multiple incidents. School authorities took notice of Juan’s lewdness on his online platform.
Without question, Juan’s photo nudism is an expression. Juan’s posts are forms of speech. In this case, may the school discipline or sanction Juan?
To my mind, this remains a grey area in existing statutes and jurisprudence. This issue is grossly uncaptured by outdated legal instruments which were not designed to respond to the uniqueness of the digital space or were passed in such a time that could not have expected the massive migration of education to the digital space.
University, college, or internal campus policies might be rich sources of law on these matters – as schools innovate on recent changes in education. Yet, with this, we have to beg the question: How can we guard students against potential overreach by academic rules and policies imposed by school officials?
If the schools are policing our online posts, we must go back to the adage: Who polices the police? Surely, at this point, this is not just about ‘what is in the law’ but also a question of ‘how the law ought to be.’ Alas, another question for the philosophers.
Interestingly, on the scope of schools’ authority, Atty. Joseph Noel M. Estrada wrote: “the general rule is that the authority of the school is co-extensive with its school grounds, so that any action taken for acts committed outside the school premises should, in general, be left to the police authorities, the courts of justice, and the family concerned.”
However, a ‘school ground’ is understood differently in the digital plane. Is the power of a school limited to its learning platforms, like the Silliman Online University Learning (SOUL) Website? Is the ‘school ground’ extended beyond the synchronous session platforms, like Zoom Video Calls and Google Meet? When a student commits certain faults on these platforms, may he be disciplined? How about platforms outside the aforementioned? May he be disciplined?
Again, the law is unclear. Jurisprudence discussed this matter rather unsubstantially.
On this, one interesting case comes to mind: Vivares v. St. Theresas’ College, where high school students were barred from joining the commencement exercises for sexy photos on their personal Facebook accounts. They sought relief from the courts through a writ of habeas data, alleging violations of their right to privacy. The Supreme Court said that online social network users have a responsibility “to exercise due diligence in their online dealings and activities and must not be negligent in protecting their rights.” They “cannot afford protection to persons if they themselves did nothing to place the matter within the confines of their private zone.” Continuing that such students should have been “mindful enough to learn the use of privacy tools, to use them if they desire to keep the information private, and to keep track of changes in the available privacy settings, such as those of Facebook, especially because Facebook is notorious for changing these settings and the site’s layout often.”
Ultimately, the Supreme Court upheld the decision of the lower courts, which dismissed the case filed by the parents of the minors involved. This is an interesting case because it says those who did not exercise due caution on their privacy settings on Facebook could not be given protection.
In another case, that of Malabanan, the Supreme Court explained that a student’s right to speech and expression is recognized both in and out of class, I quote: “A student’s rights, therefore, do not embrace merely the classroom hours. When he is in the cafeteria, on the playing field, or on the campus during the authorized hours, he may express his opinions, even on controversial subjects like the conflict in Vietnam, if he does so without ‘materially and substantially interfering with the requirements of appropriate discipline in the operation of the school’ and without colliding with the rights of others… But conduct by the student, in class or out of it, which for any reason — whether it stems from time, place, or type of behavior — materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.”
Reading the quoted portion passage, it could be easily said that students enjoy a wide latitude of rights, especially free speech, that students on campus enjoy, not only inside the classroom but in other areas of the school. Now, would this extend to our online posts?
Obviously, academic disciplinary norms concerning student expression in the digital space remain very unclear.
And if we are to prevent overreach while in the middle of this grave uncertainty, we could only call on our fellow students to be extra vigilant and rely on each other when the going gets tough.