By Attorney Thomas B. Mooney, Neag School of Education, University of Connecticut

The "Legal Question of the Week" is a regular feature of the CAS Weekly NewsBlast. We invite readers to submit short, law-related questions of practical concern to school administrators. Each week, we will select a question and publish an answer. While these answers cannot be considered formal legal advice, they may be of help to you and your colleagues. We may edit your questions, and we will not identify the authors. Please submit your questions to: legalmailbag@casciac.org.

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Dear Legal Mailbag:

We received a report that a student was posting unflattering pictures of teachers in class on Instagram, and we called him down to the office. We confronted him with our suspicions, and he twitched ever so slightly when he denied it. So I grabbed his I-phone and went right to Camera Roll, and sure enough there were a number of pictures of teachers in class, apparently unaware that they were being photographed. We asked him what he had to say for himself, and he reminded us that he wasn’t under oath when he responded to our question. Moreover, he said, this is a free country, and he claimed the right under the First Amendment to document his school day. Do we have to let our students photograph our teachers without their knowledge or permission?

Signed,
Camera Shy



Dear Shy:

Of course not. You can regulate private student “speech” under Tinker only when you forecast material disruption or substantial interference with the educational process (presuming that the student would otherwise be free to speak, such as between classes, etc.). However, the issue here is conduct, not speech. You can (and should) prohibit students from taking pictures in the school setting of anyone – teachers, other employees, students, parents, even administrators –without their permission. School is a place of business, and teachers, students and others should be able to be secure that they are not being surreptitiously photographed.

The situation is different, however, if the student has obtained the photograph without violating school rules. For example, if the student has permission from a teacher to take a photograph or if a picture is published in the Yearbook or the newspaper, how a student then captions that picture on Instagram, Twitter or Facebook is a matter of free speech. In such a case, any discipline of the student would be subject to the Tinker standard, and the burden would be on you to show that the student’s speech was disruptive of the educational process. Such would likely be the case if the speech involved a threat of violence. Comments that are merely insulting, however, are likely protected speech.