Virtual Schools, Student Rights, and the First Amendment: Adjusting the Schoolhouse Gate to the 21st Century

December 20, 2015

The advent of virtual schools has created uncertainty for school officials seeking to discipline students for speech. This uncertainty is fueled partly by the ostensibly omnipresent nature of virtual speech and partly by the fact that the United States Supreme Court has never ruled on the free speech rights of students in virtual schools. This Article analyzes the current First Amendment student speech jurisprudence in order to determine whether school officials have censorship authority over students’ virtual on-campus speech as well as students’ virtual off-campus speech. To further this analysis, it is important to understand the nature of virtual schools. Therefore, the Article presents an overview of virtual schools, the instructional methods used in virtual schools as well as virtual schools’ regulation of student behavior through acceptable use policies (“AUPs”) and student codes of conduct. In addition to analyzing the quartet of United States Supreme Court student-speech cases, decided in the context of on-campus speech, for language that could provide censorship authority over virtual speech, the Article examines how lower courts address virtual students’ speech rights. It also discusses how courts distinguish on-campus virtual speech from off-campus virtual speech. Additionally, the Article presents guidelines for virtual schools to avoid unconstitutional exercise of censorship authority over student speech. Pursuant to this, the Article examines virtual schools under the public forum doctrine as well as the government speech doctrine. Finally, the Article discusses the First Amendment status of virtual school AUPs that censor offensive student speech on the basis of race, gender, or sexual orientation.