Uncharted Waters: Using Social Media in Educational Institutions’ Decision-Making
Sunday, July 28, 2019 at 11:18PM
David H. K. Nguyen

The Internet has drastically changed the way individuals in society interact with each other. As social media sites are evolving, they are increasingly used around the world, and millions of individuals engage in online activity daily. While some use social media to stay connected with world news, others use social media as a platform for expression, sharing photos, videos, and communicating ideas with others. Social media has become so integral to society that the US Supreme Court ruled unanimously in 2017 in Packingham v. North Carolina that access to social media is a fundamental right protected by the First Amendment under the free speech clause. As one of the first cases that addressed the connection between the Internet and the First Amendment, the Justices claimed that cyberspace, and specifically social media sites, are public spaces where ideas should be communicated and freely exchanged. More recently, the United States Court of Appeals for the Second Court, ruled unanimously that the First Amendment prohibits officials using social media for official government purposes cannot exclude people from online dialogue. 

With the rise in social media use, especially among teenagers and young adults, more educational institutions are requesting access to social media usernames and passwords. While the majority of college staff and prospective students believe that using social media in admissions decisions is “fair game,” many others claim viewing students’ social media and using the information to rescind acceptances is an invasion of privacy. In the name of privacy protections, at least sixteen states have created and passed social media privacy laws to protect students from educational institutions requesting access to their username and/or password for personal social media accounts. Students using social networking sites may “expose them to legal liability or the loss of a degree, job or scholarship” and can cause complications if universities attempt to discipline based on social media postings.

While accessing social media may be a fundamental right as ruled by the United States Supreme Court and privacy of online content is protected in some states, posting online has not proven to be free of consequences. Most recently in June 2019, Harvard University used information obtained from online and social media sites to review and rescind an admission offer to a well-known Parkland school shooting survivor citing racist posts as the rationale to rescind admission. The prospective student claimed he changed, and what he posted a year prior does not indicate who he is as a person as he looks to transition to college. This is not the first time an admissions office has used online posts to rescind offers. Harvard has previously withdrawn acceptances from other students based on online behavior. Additionally, another student’s admission was revoked when a social media postexposed a web of lies used to gain acceptance to the University of Rochester. 

Questions concerning individuals’ First Amendment rights in concern with social media continue to rise. As courts have yet to face issues all-encompassing of free speech and social media, a review of previous court rulings will be important. Bradenburg v. Ohio confirmed that speech that does not present a clear danger should not be prohibited or penalized. Open dialogue, including social media postings, even with those that one most disagrees with is within the spirit and protection of the First Amendment’s freedom of speech clause. While many school officials may not find online social media posts in good taste or supportive of a welcoming campus environment, students’ have a right to access social media and speak freely. However, while prohibiting or punishing individuals’ based on speech for public institutions is not allowed, private educational institutions, as are the institutions above, have different abilities to preclude individuals from enrolling based on moral character established in social media posts. Public or private, educational institutions should craft clear policies on social media and students’ behavioral expectations to prepare for a new era of online public forums, the First Amendment, and challenges to campus civility. 

This guest post was authored by Jamie Storey, Interim Associate Director of Academic Advising and Assistance and doctoral student in Educational Leadership at Central Michigan University. 

Article originally appeared on Highereducationlaw.org (http://www.highereducationlaw.org/).
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