Can Universities Take Adverse Actions Against Students Based on Their MySpace Profiles?
It Depends In Part on Whether the University Followed its Own Code of Conduct

Would-be teacher Stacy Snyder was informed on the eve of her graduation from Pennsylvania's Millersville University that rather than receiving her Education degree, she was being given an English degree instead. The reason? A photo on her MySpace profile page.

The photo - reportedly bearing the caption "Drunken Pirate" -- showed Snyder wearing a pirate's hat, while drinking from a plastic "Mr. Goodbar" cup.

Ms. Snyder now works as a nanny, because she is unable to get certification from the Pennsylvania State Board of Education to work as a teacher. She says this is due to Millersville's refusal to confirm that she satisfactorily completed her student teaching requirements. She is suing Millersville, a public state university, seeking damages and also a court order requiring the university to grant her an Education degree.

In this column, I will discuss Snyder's claims, and explain why I believe her lawsuit will be successful. I will also explain, however, why students need to face the fact that their social networking pages are not as private as they think they are, and can lead to adverse consequences. Moreover, in some cases, courts will deem universities to be within their rights in imposing those consequences.

The Basis for Snyder's Termination

In her complaint, Snyder alleges that she received "superior" or "competent" ratings on her final student-teacher evaluation in all areas except "professionalism," for which she received an "unsatisfactory" mark. She alleges that Professor J. Barry Girvin, who supervised her work, stated that the reason for that mark was "errors in judgment that relate to Pennsylvania's Code of Professional Practice and Conduct for Educators."

Reportedly, administrators at the school where Snyder did her 2006 student teaching, Conestoga Valley High School, told the university they would stop accepting student teachers from Millersville University if Snyder was not sanctioned. Snyder apologized, but as noted above, Millersville still insisted on giving her an English, not an Education, degree.

Jane S. Bray, Dean of the School of Education, in a meeting that day accused Snyder of promoting underage drinking, the suit alleges. Thus, the basis for the university's decision appears to be that Snyder was not in compliance with Pennsylvania's Code of Conduct of Processional Practice for Educators and/or that she had violated University policies by posting her "Drunken Pirate" photo on her web page.

The federal lawsuit -- filed against the university and some of its top officials -- seeks at least $75,000 in damages. A university official told Snyder that the photo was "unprofessional" and could have offended her students if they accessed her MySpace page. At the time the "Drunken Pirate" photo was taken, Snyder herself was of legal age to drink, though her lawsuit notes that the photo "does not show the cup's contents."

I believe Snyder's lawsuit will succeed because she was not given sufficient prior notice of the university's actions or a chance to appeal it; instead, she says she learned of the change in her degree the day before she graduated. As a public university, Millersville must comply with Constitutional Due Process - which typically requires the provision of prior notice and the opportunity for a hearing.

Snyder claims also that the university violated its own rules and policies. She alleges that neither the Millersville Student Code of Conduct nor Pennsylvania's Code of Professional Practice and Conduct for Educators prohibits teachers from the posting photos of any kind on their own private web pages. This claim, too, may succeed if Snyder's description of the relevant Codes proves accurate. (Whether the Student Code of Conduct, more generally, extends to off-campus behavior may also be a possible issue.)

Can A University Base Administrative or Disciplinary Action on a MySpace Photo?

In future cases, however, other public universities and high schools may comply with due process requirements in trying to punish students based on their MySpace pages and similar social networking postings. They may also include in their Codes of Conduct language indicating that they have the right to do so. In that event, will legal challenges succeed?

Unfortunately, they may not. It will be possible for students to sue their school districts for violation of their First Amendment rights, under the relevant federal civil rights statute. But students' First Amendment rights - especially high school students' - may be deemed by courts to more limited than those of adults, at least within the school setting.

Moreover, privacy arguments may not work, as MySpace pages are, at best, quasi-private: While permission might be necessary to view a full profile, there is nothing to stop a person who has that permission from printing, copying or sharing photos that appeared on the MySpace page with others. And some parts of MySpace pages can be viewed by the public, so postings there would not be deemed private at all.

Accordingly, the strong possibility exists that - with a clear Code of Conduct, prior notice, and the opportunity for a hearing - a public university or high school could legally sanction a student for posting content on a MySpace case. Also, if students are foolish enough to break the law - posting copyrighted material or child pornography, for example - then the university or high school's case for expulsion, or another punishment, will be an open-and-shut one.