Today’s Presenter : Suzanne E. Eckes Attorney and University Professor Indiana University
A Real World Problem https://www.youtube.com/watch?v=HNplexvRy eE
What Would You Do? A ninth grade student creates a fake profile of his science teacher from his home computer and posts it online. The profile has a picture of the teacher and says that Ms. Campbell is a “fugly biatch.” Can the principal discipline this student?
Seven other students “like” this Instagram post from their home computers. Ms. Campbell asks her principal to discipline the student who authored the post. Can the principal discipline this student?
General Trend Students’ off-campus, online speech needs to create a substantial disruption in the school before school officials can act (see Tinker v. Des Moines, 1969).
Scenario One In groups in your location (if you have a group), please work on scenario one.
Scenario One: In Layshock v. Hermitage Sch. Dist. (2011), a student created a fake internet profile of his principal from his grandmother’s computer. The profile contained fake answers to several questions. For example, the principal’s profile included the following:
Birthday: too drunk to remember Are you a health freak: big steroid freak In the past month have you smoked: big blunt In the past month have you been on pills: big pills In the past month have you gone Skinny Dipping: big lake, not big dick In the past month have you Stolen Anything: big keg Ever been drunk: big number of times Ever been called a Tease: big whore Ever been Beaten up: big fag Ever Shoplifted: big bag of kmart
After administrators learned about the fake profile, the student was suspended, placed in an alternative education program for the remainder year, banned from extra-curricular activities, and prohibited from attending graduation. Should the principal have disciplined the student?
Outcome: The Third Circuit Court of Appeals (DE, NJ, PA) found no evidence of disruption and affirmed the district court’s decision granting summary judgment in favor of the student.
Another Third Circuit Case In J.S. v. Blue Mountain Sch. Dist. (2011), a student in Pennsylvania created an internet profile of her principal that included sexually explicit content. The post contained the principal’s picture but not his name or the school’s name. The student had limited the access of the profile to her friends. Even though it was undisputed that there was no evidence of disruption, the student was suspended.
The Third Circuit Court of Appeals reversed the district court’s decision granting summary judgment in favor of the school district. The court reasoned that the fear of a disturbance was insufficient to overcome the student’s right to free speech.
A Different Result A Connecticut high school student blogged on her home computer that the superintendent and other school officials were “douchebags” for interfering with the students’ plans to hold a jamfest in the school auditorium (Doninger v. Niehoff, 2008). After school employees learned of the online post, the student was prohibited from running for student council.
In response, students protested by wearing “vote for Avery” t-shirts to school. Also, the student and her mother appeared on a local news station to discuss the matter. Upholding the district court’s decision granting summary judgment to the school district, the Second Circuit Court of Appeals (CT, NY, VT) found that it was foreseeable that the student’s speech created a potential risk of substantial disruption.
Interestingly, the Second Circuit permitted school officials to discipline a student for making derogatory comments online, but the Third Circuit, sided with the students in two cases. What these cases seem to turn on is whether school officials can point to evidence that a substantial disruption will or will likely occur at the school.
The Fifth Circuit Court of Appeals (LA, MS, TX) in 2014 decided a case involving a high school senior who recorded a rap song containing lyrics about two high school coaches and their alleged inappropriate behavior with female students at the school. The video of the song was placed on both Facebook and Youtube. The coaches felt like they were being intimidated and harassed by the song.
The song contained profane language and also suggested that the coaches might face violent retaliation for their sexually inappropriate activities. Some of the lyrics included: “looking down girls’ shirts/ drool running down your mouth/ messing with wrong one / going to get a pistol down your mouth... middle fingers up if you can’t stand that nigga/ middle fingers up if you want to cap that nigga.” (see https://www.youtube.com/watch?v=v83dJsRQBAU) https://www.youtube.com/watch?v=v83dJsRQBAU Can the principal discipline this student?
The principal and superintendent accused the student of creating false accusations. He was suspended and later sent to an alternative school. The student sued in federal district court but lost. The court found that the speech caused a substantial disruption under Tinker v. Des Moines Independent Community School District.
Outcome The Fifth Circuit Court of Appeals ruled that the student’s speech was protected by the First Amendment because it was recorded off campus using his home computer. The court did not find that the song created a substantial disruption and that violent lyrics were rhetorical and thus could not be viewed as a serious threat. The case was reversed and affirmed in part. The case was also remanded.
Off-Campus Speech that Targets other Students In West Virginia, a high school student created a webpage from home and wrote that a classmate had herpes and was a slut (Kowalski v. Berkeley County Schools, 2011). She invited others to comment on the webpage where she also included photos of the student. The Fourth Circuit Court of Appeals (MD, NC, SC, VA, WV) upheld the district court’s decision granting summary judgment in favor of the school district.Kowalski v. Berkeley County Schools
Online Speech that Involves Threats A Nevada high school student wrote from his home computer that he would commit a school shooting. The student specifically named two classmates, identified his school, and noted the date of the proposed killings. He also wrote that he had access to weapons and ammunition (Wynar v. Douglas Cnty. Sch. Dist., 2013).
The student was eventually expelled for 90 days. Upholding the district court’s decision to grant the school district summary judgment, the Ninth Circuit Court of Appeals (AK, AR, CA, HA, ID, MT, NV, OR, WA) found no First Amendment violation because the student’s threat related to serious school violence.
In a New York case, a middle school student sent an instant message to a friend that included an icon with a pistol firing bullets at a person’s head with the words “kill Mr. VanderMolen”—the student’s English teacher (Wisniewski v. Bd. of Educ. of the Weedsport Central Sch., 2008). The student was given a one semester suspension that his parents challenged on First Amendment grounds.
They argued that their son’s speech was not a true threat. Upholding the federal district court’s decision granting summary judgment to the school district, the Second Circuit Court of Appeals agreed that the icon crossed the boundary of protected speech and that it posed a reasonably foreseeable risk of substantial disruption. The circuit court did not decide whether this speech constituted a true threat but instead applied Tinker as the appropriate analysis.
In a Minnesota case, a student sent an instant message from his home to a classmate outside of school (D.J.M. ex rel. D.M. v. Hannibal Pub. Sch. Dist., 2011). In the message he spoke of getting a gun and shooting students at school. This student also expressed access to weapons, and in his message wrote that he wanted his school “to be known for something.”
After school officials were notified, they contacted the police and the student was placed in a juvenile detention center. The district later expelled the student for the rest of the school year. Upholding the district court’s decision, the Eighth Circuit Court of Appeals (AR, IA, MN, MO, NB, ND, SD) found that his speech could be reasonably understood as a true threat and therefore not protected under the First Amendment.
The court also noted that the First Amendment did not require that school officials wait for the shootings to be carried out before disciplining this student. Even under a substantial disruption analysis, the school had been substantially disrupted because of the student’s threats.
Fishing Expeditions When an eighth grade student posted on Facebook that she “hated” the school monitor, she received a detention. Subsequently, she was disciplined after posting a message including profanity.
After school officials learned that she had a sexually-explicit conversation with a fellow student, the administrators made the student give them her password. They read both her public and private posts on Facebook.
The federal district court concluded that if the facts set out in the complaint are true, school officials had likely violated her constitutional rights (R.S. v. Minnewaska Area Sch. Dist., 2012). Thus, the court denied the school district’s motion to dismiss the First and Fourth Amendment claims.
Teacher Speech and Social Media A Pennsylvania teacher blogged that her students were “frightfully dim,” “whiny” and “utterly loathsome” (Munroe v. Central Bucks Sch. Dist., 2014). In another case, one administrator referred to colleagues as “cockroaches” and “common thieves of public money” in his online post (Alderman v. Pocahontas Cnty. Bd. of Educ., 2009).
Other times, the content of the controversial speech is political or sexual in nature. A New Jersey teacher posted that homosexuality was a “sin” that “breeds like cancer” (Knox, 2011). In California, a middle school dean posted obscene photos and comments on Craigslist (San Diego Unified Sch. Dist. v. Comm’n. on Prof’l Competence, 2011).
Sometimes the information posted is not speech.
Contact Information Suzanne Eckes Indiana University firstname.lastname@example.org
Audience Questions Answered by Suzanne Question: How much leeway does a school district have to look at student accounts (ex. Facebook) for a speech issue when it is a school issued device? Answer: Not much. Although there is not a lot of litigation on this specific type of scenario, I would argue that school officials would need to have individualized reasonable suspicion before searching a student’s account. The search would need to be appropriate both at its inception and in scope. There has been a lot of commentary written about this type of issue. School officials should not engage in fishing expeditions with student’s devices. Question: If you can’t discipline, can you press charges for defamation of character? Answer: Yes. State law defines defamation. It generally relates to a message communicated to a third party (that is understood by a third party) and is false. There are different standards for public v. private people.
Audience Questions Answered by Suzanne Question: Is there a specific subscription or web site you would recommend to keep up to date with current court cases/rulings? Answer: I think the National School Board Association’s “Legal Clips” are helpful. The practical education legal team distributes concise case summaries of pressing legal issues. As far as published books, Martha McCarthy or David Schimmel have helpful textbooks for school leaders. The Education Law Association also has some excellent publications at affordable prices. Question: Are you familiar with the NYS Dignity for All Students Act? NYS has made real or perceived harassment/bullying both on campus and off campus, during school or over the summer/breaks, something principals must investigate and take action on if claims are founded. Answer: I am aware of this act and other states have attempted similar policies/laws. In some cases these approaches contradict what we are learning from federal court decisions related to students’ First Amendment rights with regard to off-campus speech. For example, several of the cases in the powerpoint suggest that there needs to be a substantial disruption (or that you can reasonably forecast the disruption) before a school official can intervene.
Audience Questions Answered by Suzanne Question: With regards to threats (via social media), how are school leaders to interpret if a threat is credible or “rhetorical?” Isn’t a threat a threat? Answer: I think this is very fact specific. The cases highlighted in the powerpoint demonstrate when courts have found students’ off-campus speech to be a true threat. Like the substantial disruption standard we discussed, sometimes what constitutes a threat is a subjective (and applied inconsistently.) Question: Are questions of an educator’s credibility, respect and position of responsibility/accountability considered evidence in the type of cases being discussed here? Answer: The courts will look at the facts. What evidence did the school official have that there was a substantial disruption created in the school as a result of the online post.
Audience Questions Answered by Suzanne Question: A 14 year old student takes a picture of his private part and sends it to an 11 year old girl via Instagram. Fellow students see this because they have access to the girls Instagram page. It becomes a major issue among the middle school students. It also violated the conduct policy of the parochial school. Was the school lawful in expelling the 14 year old boy? Answer: A parochial school would have much more leeway in expelling this student. The Fourteenth Amendment’s due process clause would not apply (as it would in the public school context) because there is no state action. Question: You mentioned cases where there are threats with guns. Do you find the same outcome with a student threatening to “beat up” a specific person on line? Answer: It would really depend on the facts. I think in some cases a threat to beat up someone could be perceived as a threat but it would really turn on the facts.