nor so wide as a church door

Legal Intern Alexandra Rhodes contributed to this blog post. 

EFF filed an amicus brief urging the Arizona District Court to protect public school students’ freedom of speech and privacy by holding that the use of a school-issued laptop or email account does not categorically mean a student is “on campus.” We argued that students need private digital spaces beyond their school’s reach to speak freely, without the specter of constant school surveillance and punishment.  

Surveillance Software Exposed a Bad Joke Made in the Privacy of a Student’s Home 

The case, Merrill v. Marana Unified School District, involves a Marana High School student who, while at home one morning before school started, asked his mother for advice about a bad grade he received on an English assignment. His mother said he should talk to his English teacher, so he opened his school-issued Google Chromebook and started drafting an email. The student then wrote a series of jokes in the draft email that he deleted each time. The last joke stated: “GANG GANG GIMME A BETTER GRADE OR I SHOOT UP DA SKOOL HOMIE,” which he narrated out loud to his mother in a silly voice before deleting the draft and closing his computer.  

Within the hour, the student’s mother received a phone call from the school principal, who said that Gaggle surveillance software had flagged a threat from her son and had sent along the screenshot of the draft email. The student’s mother attempted to explain the situation and reassure the principal that there was no threat. Nevertheless, despite her reassurances and the student’s lack of disciplinary record or history of violence, the student was ultimately suspended over the draft email—even though he was physically off campus at the time, before school hours, and had never sent the email.  

After the student’s suspension was unsuccessfully challenged, the family sued the school district alleging infringement of the student’s right to free speech under the First Amendment and violation of the student’s right to due process under the Fourteenth Amendment. 

Public School Students Have Greater First Amendment Protection for Off-Campus Speech 

The U.S. Supreme Court has addressed the First Amendment rights of public school students in a handful of cases. 

Most notably, in Tinker v. Des Moines Independent Community School District (1969), the Court held that students may not be punished for their on-campus speech unless the speech “materially and substantially” disrupted the school day or invaded the rights of others. 

Decades later, in Mahanoy Area School District v. B.L. by and through Levy (2021), in which EFF filed a brief, the Court further held that schools have less leeway to regulate student speech when that speech occurs off campus. Importantly, the Court stated that schools should have a limited ability to punish off-campus speech because “from the student speaker’s perspective, regulations of off-campus speech, when coupled with regulations of on-campus speech, include all the speech a student utters during the full 24-hour day.” 

The Ninth Circuit has further held that off-campus speech is only punishable if it bears a “sufficient nexus” to the school and poses a credible threat of violence. 

In this case, therefore, the extent of the school district’s authority to regulate student speech is tied to whether the high schooler was on or off campus at the time of the speech. The student here was at home and thus physically off campus when he wrote the joke in question; he wrote the draft before school hours; and the joke was not emailed to anyone on campus or anyone associated with the campus.  

Yet the school district is arguing that his use of a school-issued Google Chromebook and Google Workspace for Education account (including the email account) made his speech—and makes all student speech—automatically “on campus” for purposes of justifying punishment under the First Amendment.  

Schools Provide Students with Valuable Digital Tools—But Also Subject Them to Surveillance 

EFF supports the plaintiffs’ argument that the student’s speech was “off campus,” did not bear a sufficient nexus to the school, and was not a credible threat. In our amicus brief, we urged the trial court at minimum to reject a rule that the use of a school-issued device or cloud account always makes a student’s speech “on campus.”   

Our amicus brief supports the plaintiffs’ First Amendment arguments through the lens of surveillance, emphasizing that digital speech and digital privacy are inextricably linked.  

As we explained, Marana Unified School District, like many schools and districts across the country, offers students free Google Chromebooks and requires them to have an online Google Account to access the various cloud apps in Google Workspace for Education, including the Gmail app.  

Marana Unified School District also uses three surveillance technologies that are integrated into Chromebooks and Google Workspace for Education: Gaggle, GoGuardian, and Securly. These surveillance technologies collectively can monitor virtually everything students do on their laptops and online, from the emails and documents they write (or even just draft) to the websites they visit.  

School Digital Surveillance Chills Student Speech and Further Harms Students 

In our amicus brief, we made four main arguments against a blanket rule that categorizes any use of a school-issued device or cloud account as “on campus,” even if the student is geographically off campus or outside of school hours.  

First, we pointed out that such a rule will result in students having no reprieve from school authority, which runs counter to the Supreme Court’s admonition in Mahanoy not to regulate “all the speech a student utters during the full 24-hour day.” There must be some place that is “off campus” for public school students even when using digital tools provided by schools, otherwise schools will reach too far into students’ lives.  

Second, we urged the court to reject such an “on campus” rule to mitigate the chilling effect of digital surveillance on students’ freedom of speech—that is, the risk that students will self-censor and choose not to express themselves in certain ways or access certain information that may be disfavored by school officials. If students know that no matter where they are or what they are doing with their Chromebooks and Google Accounts, the school is watching and the school has greater legal authority to punish them because they are always “on campus,” students will undoubtedly curb their speech. 

Third, we argued that such an “on campus” rule will exacerbate existing inequities in public schools among students of different socio-economic backgrounds. It would distinctly disadvantage lower-income students who are more likely to rely on school-issued devices because their families cannot afford a personal laptop or tablet. This creates a “pay for privacy” scheme: lower-income students are subject to greater school-directed surveillance and related discipline for digital speech, while wealthier students can limit surveillance by using personal laptops and email accounts, enabling them to have more robust free speech protections. 

Fourth, such an “on campus” rule will incentivize public schools to continue eroding student privacy by subjecting them to near constant digital surveillance. The student surveillance technologies schools use are notoriously privacy invasive and inaccurate, causing various harms to students—including unnecessary investigations and discipline, disclosure of sensitive information, and frustrated learning. 

We urge the Arizona District Court to protect public school students’ freedom of speech and privacy by rejecting this approach to school-managed technology. As we said in our brief, students, especially high schoolers, need some sphere of digital autonomy, free of surveillance, judgment, and punishment, as much as anyone else—to express themselves, to develop their identities, to learn and explore, to be silly or crude, and even to make mistakes.