Supervising Cyberspace: A Simple Threshold for Public School Jurisdiction Over Students' Online Activity

Abstract

This Note addresses the much-debated problem of identifying and limiting the authority that a public elementary or secondary school has over the online expression of its students. In recent years, there have been an increasing number of First Amendment lawsuits brought against schools by students whom the schools disciplined for their online expression. This Note proposes that, before engaging in a First Amendment analysis of the student’s expression, courts engage in a threshold inquiry to determine whether a school has any authority to discipline a student for the expression at issue. This Note argues that courts should apply a “control and supervision” test, derived from the analysis used in negligent supervision cases and Title IX cases for student-on-student sexual harassment, to determine whether a school has the authority to discipline a student for his or her online speech.