Presentation is loading. Please wait.

Presentation is loading. Please wait.

First Amendment Freedom and Civic Responsibility in the Digital Age Presented by: David Scott Project P.A.T.C.H. Coordinator Northport – East Northport.

Similar presentations


Presentation on theme: "First Amendment Freedom and Civic Responsibility in the Digital Age Presented by: David Scott Project P.A.T.C.H. Coordinator Northport – East Northport."— Presentation transcript:

1 First Amendment Freedom and Civic Responsibility in the Digital Age Presented by: David Scott Project P.A.T.C.H. Coordinator Northport – East Northport U.F.S.D. Northport, New York

2 Thank You Special thanks to Molly McCloskey at ASCD for her leadership and support. Special thanks to Molly McCloskey at ASCD for her leadership and support. Thank you to my friend Jay Worona at the New York State School Boards Association for his assistance and support of my efforts in Law-Related Education and his assistance with the content of this presentation. Thank you to my friend Jay Worona at the New York State School Boards Association for his assistance and support of my efforts in Law-Related Education and his assistance with the content of this presentation.

3 Goals for this session Some Fun! Some Fun! First Amendment Freedom / Use and Misuse First Amendment Freedom / Use and Misuse Landmark Cases Landmark Cases Current Challenges Current Challenges Policy Considerations Policy Considerations Instructional Ideas Instructional Ideas

4 To start our session today we are going to have a pop quiz!

5 These questions come from a real of Americans to test their civic knowledge. In January 2006 the McCormick Tribune Foundation conducted a survey of 1,000 Americans. The survey asked….

6 Can you name the 5 members of the Simpsons? (Pencils up!) 1________________ 1________________ 2________________ 2________________ 3________________ 3________________ 4________________ 4________________ 5________________ 5________________

7 And the Simpsons are..

8 Homer

9 Marge

10 Bart

11 Lisa

12 Maggie

13 Extra Credit? The Family Pets? The Family Pets?

14 The Pets are? Santa’s Helper Santa’s HelperAnd Snowball II

15 The Survey Then Asked… Can you name the FIVE Freedoms Protected by the First Amendment to the United States Constitution?

16 Can you name the 5 Freedoms Protected by the 1 st Amendment? 1________________ 1________________ 2________________ 2________________ 3________________ 3________________ 4________________ 4________________ 5________________ 5________________

17 And the 5 Freedoms are…

18 Freedom of Religion

19 Freedom of Speech

20 Freedom of the Press

21 Freedom of Assembly

22 Freedom of Petition

23 The Survey had some shocking results! The survey found that… The survey found that…

24 Survey Findings Only 1 in 4 Americans Surveyed could name more than 1 right protected by the First Amendment (28 Percent) Only 1 in 4 Americans Surveyed could name more than 1 right protected by the First Amendment (28 Percent) However, 1 in 5 could name All five members of the “Simpson Family” (22 Percent) However, 1 in 5 could name All five members of the “Simpson Family” (22 Percent)

25 Survey Findings Only 1 person of 1,000 people surveyed could name all 5 Freedoms protected by the First Amendment to the United States Constitution (This equals.1%) Only 1 person of 1,000 people surveyed could name all 5 Freedoms protected by the First Amendment to the United States Constitution (This equals.1%)

26 Survey Findings 2/3 of people surveyed accurately identified “Free Speech” as a First Amendment Freedom (69%) 2/3 of people surveyed accurately identified “Free Speech” as a First Amendment Freedom (69%) The other “Freedoms” were not readily recalled by Americans: The other “Freedoms” were not readily recalled by Americans: Religion (only 24%) Religion (only 24%) Press (only 11%) Press (only 11%) Assembly (only 10%) Assembly (only 10%) Right to Petition (< 1%) Right to Petition (< 1%)

27 Survey Findings when comparing knowledge of the First Amendment to American Idol Can you name the 3 Judges on American Idol? Can you name the 3 Judges on American Idol?

28 Survey Findings when comparing knowledge of the First Amendment to American Idol 41% of those surveyed could name 2 of the 3 “American Idol” Judges 41% of those surveyed could name 2 of the 3 “American Idol” Judges 25% could name all 3 “Idol” Judges 25% could name all 3 “Idol” Judges This compares to only 8% in the same survey who could name 3 freedoms under the First Amendment This compares to only 8% in the same survey who could name 3 freedoms under the First Amendment

29 Other Survey Findings Americans often misidentified where in the Constitution certain rights are found. For example: Americans often misidentified where in the Constitution certain rights are found. For example: 55% incorrectly believed that the right to a trial by jury is protected by the First Amendment (it is protected by the 7 th Amendment) 55% incorrectly believed that the right to a trial by jury is protected by the First Amendment (it is protected by the 7 th Amendment) 38% incorrectly believed that the right against “self- incrimination” is protected by the First Amendment (it is actually protected by the …..?????.....??????) 38% incorrectly believed that the right against “self- incrimination” is protected by the First Amendment (it is actually protected by the …..?????.....??????)

30 5 th Amendment!

31 Other Survey Findings 36% of people surveyed mistakenly believed that the right of women to vote is protected by the First Amendment (19 th Amendment Right not obtained until 1920)

32 And Some Ridiculous Findings 21% agreed that the First Amendment protects the right to raise and own pets! 21% agreed that the First Amendment protects the right to raise and own pets!

33 And also the right to own a car? 20% agreed this was a 1 st Amendment Right!

34 Who is concerned about this? Sandra Day O’Connor Sandra Day O’Connor Sandra Day O’Connor Sandra Day O’Connor iCivics.org iCivics.org iCivics.org Richard Dreyfus Richard Dreyfus

35 ASCD Committed to a vision of schools as “laboratories” of Democratic Freedom Committed to Inalienable Rights Includes all Stakeholders Translates Civic Education into Civic Engagement

36 2010 State of the First Amendment 2010 Report – Released 9/15 2010 Report – Released 9/15 2010 Report – Released 9/15 2010 Report – Released 9/15 (Do you Celebrate Constitution Day?) (Do you Celebrate Constitution Day?) What elected officials know? What elected officials know? What elected officials know? What elected officials know?

37 Student Expression in the Digital World

38 How Are Students Using Technology As A Means Of Expression? How Are Students Using Technology As A Means Of Expression? Social Networking Social Networking Instant Messaging Instant Messaging Picture/Video Sites Picture/Video Sites Cell Phone Issues Cell Phone Issues Posting Sites Posting Sites

39 Students and Technology Use-By the Numbers 96% of surveyed students who had online access have previously accessed a social networking website. (National School Boards Survey) 96% of surveyed students who had online access have previously accessed a social networking website. (National School Boards Survey) Children age 10-14 spend more time on the internet than watching TV. (National Cyber Ethics, Cyber Security, and Cyber Safety Baseline Study, 2008) Children age 10-14 spend more time on the internet than watching TV. (National Cyber Ethics, Cyber Security, and Cyber Safety Baseline Study, 2008) Social Networking 50% of teens who use the internet have at least one profile on at least one social networking website. (“Teens and Social Media” Lenhart)

40 43% of social network users who are teens send messages through social networks daily. (Lenhart, 2009) 43% of social network users who are teens send messages through social networks daily. (Lenhart, 2009) Students and Technology Use-By the Numbers Cyber-bullying: 43% of teens have been victims of cyber-bullying. (National Crime Prevention Council) 27% of youths who had been targets of cyber-bullying (monthly or more often) had carried a weapon to school at least once. (Journal of Adolescent Health)

41 20% of teenagers overall 20% of teenagers overall 22% of teen girls 22% of teen girls 18% of teen boys 18% of teen boys 11% of young teen girls ages 13-16 11% of young teen girls ages 13-16 (National Campaign to prevent Teen and Unplanned Pregnancy.) Students and Technology Use-By the Numbers The number of teenagers who have sent or posted nude or semi-nude pictures or video of themselves:

42 15% of teenagers who have sent or posted nude or seminude images of themselves report that they have done so to someone they only know online. 15% of teenagers who have sent or posted nude or seminude images of themselves report that they have done so to someone they only know online. However, 48% of teenagers say they have received this type of message. 36% of teen girls and 39% of teen boys say it is common for nude or semi-nude photos to be shared with people other than the intended recipient. 36% of teen girls and 39% of teen boys say it is common for nude or semi-nude photos to be shared with people other than the intended recipient. Students and Technology Use-By the Numbers

43 51% of teen girls cite pressure from a boy as the reason for sending sexy messages or images. Only 18% of teen boys cited pressure from girls as the reason. 51% of teen girls cite pressure from a boy as the reason for sending sexy messages or images. Only 18% of teen boys cited pressure from girls as the reason. 66% of teen girls and 60% of teen boys say they did so to be “fun or flirtatious” – this was the most common reason cited during the survey. 66% of teen girls and 60% of teen boys say they did so to be “fun or flirtatious” – this was the most common reason cited during the survey. 40% of teen girls viewed sexting as a “joke”. 40% of teen girls viewed sexting as a “joke”. Students and Technology Use-By the Numbers Why are teens engaging in this behavior?

44 Cheating Cheating Disruption of School Operations (ringers; theft of phones/computers; cyber-bullying; sexting) Disruption of School Operations (ringers; theft of phones/computers; cyber-bullying; sexting) Flirting Flirting Issues Schools are Facing with Technology Use

45 Criminal Purposes Engaging in child pornography – students who are being photographed and those taking the photographs. Engaging in child pornography – students who are being photographed and those taking the photographs. Possession of child pornography – students who took the photographs and students who receive the photograph (whether solicited or unsolicited), and fail to turn over same to an adult or the police. Possession of child pornography – students who took the photographs and students who receive the photograph (whether solicited or unsolicited), and fail to turn over same to an adult or the police. Distribution of child pornography if sent to fellow classmates/friends. Distribution of child pornography if sent to fellow classmates/friends. Issues Schools are Facing with Technology Use

46 Bullying/Harassment Bullying/Harassment Can take place off school premises but have consequences in school that disrupt the educational system. Can take place off school premises but have consequences in school that disrupt the educational system. Issues Schools are Facing with Technology Use Cyber-bullying can be anonymous and inflict increased stress upon the victim, who cannot confront the bully in the traditional sense. This anonymity can also lead children to engage in online behaviors they may not otherwise attempt if the experience were face-to-face.

47 “Victim of Secret Dorm Sex Tape Posts Facebook Goodbye, Jumps to His Death” Student Technology Use in the News Tyler Clementi

48 “Text rage’ Leads to Alleged Brutal Teen Beating” “Text rage’ Leads to Alleged Brutal Teen Beating” “Coach sued for requesting Facebook logins” “Coach sued for requesting Facebook logins” In Massachusetts, six teenagers charged in suicide death of bullied 15-year old Irish freshman. Student Technology Use in the News

49 “Vermont Lawmakers Lessen Penalties for Teen ‘Sexting’” “Vermont Lawmakers Lessen Penalties for Teen ‘Sexting’” “Sexting Girls Facing Porn Charges Sue D.A.” “Sexting Girls Facing Porn Charges Sue D.A.” “’Sexting’ investigated at N. Hartford School” “’Sexting’ investigated at N. Hartford School” Student Technology Use in the News

50 On June 22, 2010, New York State passed the Dignity for All Students Act (DAS), an enumerated anti-bullying bill. Gov. Signed September 8, 2010 On June 22, 2010, New York State passed the Dignity for All Students Act (DAS), an enumerated anti-bullying bill. Gov. Signed September 8, 2010 U.S. Dept. of Education issues guidance to support educators in combating bullying in schools on October 26, 2010 U.S. Dept. of Education issues guidance to support educators in combating bullying in schools on October 26, 2010 Student Technology Use in the News “Suffolk County bill made Cyber-bullying a Crime”

51 Anthony Stancl accused of posing as girl on Facebook, blackmailing students into sex acts. By staff writers NEWS.com.au February 06, 2009 07:49am Accused... Anthony Stancl has been charged over alleged sexual assaults / AP A TEENAGER has been charged with sexual assault after he allegedly posed as a girl on Facebook, had classmates send him naked photos and blackmailed them into performing sex acts. If convicted, he could face up to 293 years in prison.

52 Anthony Stancl accused of posing as girl on Facebook, blackmailing students into sex acts Anthony Stancl, 18 of New Berlin, Wisconsin, persuaded at least 31 boys to send him compromising pictures and then coerced some of them to perform sexual acts to keep him from releasing the photos on the internet, prosecutors said. "The kind of manipulation that occurred here is really sinister in my estimation," Waukesha County District Attorney Brad Schmiel told the Associated Press. Mr Stancl is accused of posing as a girl, named either Kayla or Emily, who would ask his schoolmates to perform sexual acts on a male friend of her or trick them into sending nude photos or videos of themselves. Anthony Stancl, 18 of New Berlin, Wisconsin, persuaded at least 31 boys to send him compromising pictures and then coerced some of them to perform sexual acts to keep him from releasing the photos on the internet, prosecutors said. "The kind of manipulation that occurred here is really sinister in my estimation," Waukesha County District Attorney Brad Schmiel told the Associated Press. Mr Stancl is accused of posing as a girl, named either Kayla or Emily, who would ask his schoolmates to perform sexual acts on a male friend of her or trick them into sending nude photos or videos of themselves.

53 Anthony Stancl accused of posing as girl on Facebook, blackmailing students into sex acts They were told that if they didn't comply, the girl would send the nude photos or movies to their friends and post them on the internet, according to the criminal complaint. They were told that if they didn't comply, the girl would send the nude photos or movies to their friends and post them on the internet, according to the criminal complaint. Mr Stancl has been charged with five counts of child enticement, two counts of second-degree sexual assault of a child, two counts of third-degree sexual assault, possession of child pornography, repeated sexual assault of the same child and making a bomb threat. The incidents occurred from mid-2007 until the time of Mr Stancl's arrest in November last year. The investigation into Mr Stancl began after bomb threats in November led to the closure of his school, New Berlin Eisenhower Middle/High School, Police said the threats were sent via email from a computer that Mr Stancl was logged into at a public library. Mr Stancl has been charged with five counts of child enticement, two counts of second-degree sexual assault of a child, two counts of third-degree sexual assault, possession of child pornography, repeated sexual assault of the same child and making a bomb threat. The incidents occurred from mid-2007 until the time of Mr Stancl's arrest in November last year. The investigation into Mr Stancl began after bomb threats in November led to the closure of his school, New Berlin Eisenhower Middle/High School, Police said the threats were sent via email from a computer that Mr Stancl was logged into at a public library.

54 Anthony Stancl accused of posing as girl on Facebook, blackmailing students into sex acts During the bomb threat investigation into Mr Stancl one of his alleged victims went to police after Mr Stancl asked him to get nude pictures of his brother, prosecutors said. More than 300 naked photos and movie clips of his classmates and another 600 professionally made pornographic movies of children were allegedly found on Mr Stancl's computer. Mr Stancl's lawyer, Craig Kuhary, told the Associated Press his client plans to plead not guilty. "It's too early in the case for me to make a statement, other than the fact at some point we are going to go into events that had taken place earlier that might have had some impact on what he did here," he said. During the bomb threat investigation into Mr Stancl one of his alleged victims went to police after Mr Stancl asked him to get nude pictures of his brother, prosecutors said. More than 300 naked photos and movie clips of his classmates and another 600 professionally made pornographic movies of children were allegedly found on Mr Stancl's computer. Mr Stancl's lawyer, Craig Kuhary, told the Associated Press his client plans to plead not guilty. "It's too early in the case for me to make a statement, other than the fact at some point we are going to go into events that had taken place earlier that might have had some impact on what he did here," he said.

55 Anthony Stancl accused of posing as girl on Facebook, blackmailing students into sex acts “The Stancl case, as extreme as it is, offers an unsettling answer: what happened here is shocking because it was not all that shocking...This exchange was within the range of what kids-lots of kids- consider normal. On-line, a boy chats with a girl he’s never met. Pants go down. Pictures are sent. And a chain of unpredictable, unknowable consequences is set in motion.” “The Stancl case, as extreme as it is, offers an unsettling answer: what happened here is shocking because it was not all that shocking...This exchange was within the range of what kids-lots of kids- consider normal. On-line, a boy chats with a girl he’s never met. Pants go down. Pictures are sent. And a chain of unpredictable, unknowable consequences is set in motion.” Sextortion at Eisenhower High, by Michael Joseph Gross Sextortion at Eisenhower High, by Michael Joseph Gross GQ Magazine, August 2009 GQ Magazine, August 2009

56 So What does this mean for Schools?

57 So what does the First Amendment actually say? Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

58 Do Students even have Constitutional Rights in School?

59 The 14 th Amendment o Section 1 – No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

60 My favorites I know no safe depositary of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power. Thomas Jefferson I know no safe depositary of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power. Thomas Jefferson Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it. Learned Hand

61 The Tinker Standard Tinker v. Des Moines Independent School Dist. (1969) Student speech cannot be censored as long as it does not “materially disrupt class work or involve substantial disorder or invasion of the rights of others.”

62 Decisions on Student / Teacher Rights o Tinker (1969): “It can hardly be argued that either teachers or students shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” o Pickering (1968): “The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen... And the interest of the State, as an employer.”

63 The Fraser Standard Bethel School District No. 403 v. Fraser (1986) Because school officials have an “interest in teaching students the boundaries of socially appropriate behavior,” they can censor student speech that is vulgar or indecent, even if it does not cause a “material or substantial disruption.”

64 "I know a man who is firm -- he's firm in his pants, he's firm in his shirt, his character is firm – but most... of all, his belief in you, the students of Bethel, is firm. Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he'll take an issue and nail it to the wall. He doesn't attack things in spurts -- he drives hard, pushing and pushing until finally -- he succeeds. Jeff is a man who will go to the very end -- even the climax, for each and every one of you. "I know a man who is firm -- he's firm in his pants, he's firm in his shirt, his character is firm – but most... of all, his belief in you, the students of Bethel, is firm. Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he'll take an issue and nail it to the wall. He doesn't attack things in spurts -- he drives hard, pushing and pushing until finally -- he succeeds. Jeff is a man who will go to the very end -- even the climax, for each and every one of you. So vote for Jeff for A. S. B. vice-president -- he'll never come between you and the best our high school can be." So vote for Jeff for A. S. B. vice-president -- he'll never come between you and the best our high school can be." Text of Fraser’s Speech

65 Hazelwood Standard Hazelwood School Dist. V. Kuhlmeier (1988) Censorship of school- sponsored student expression is permissible when school officials can show that it is “reasonably related to legitimate pedagogical concerns.”

66 A Recent Case involving “Students Rights” that went all the way to the Supreme Court of the United States Morse v. Frederick Morse v. Frederick Argued 3/19/07 Argued 3/19/07 Decided 6/25/07 Decided 6/25/07 This case has been referred to in the media as the “BONG HITS 4 JESUS CASE.” This case has been referred to in the media as the “BONG HITS 4 JESUS CASE.”

67 Background and History of “Morse v. Frederick” Date is 1/24/02 in Juneau, Alaska Date is 1/24/02 in Juneau, Alaska Students were permitted to leave class to go to a “school-sanctioned and supervised event” to watch the Olympic Torch pass through town. Students were permitted to leave class to go to a “school-sanctioned and supervised event” to watch the Olympic Torch pass through town. 18 year old student Joseph Frederick was late for school that day. He joined his friends on the sidewalk at the event. 18 year old student Joseph Frederick was late for school that day. He joined his friends on the sidewalk at the event.

68 Background and History of “Morse v. Frederick” Continued Hoping to “get on television” Joseph Frederick and his friends unfurled a 14 foot long paper banner the read “BONG HiTS 4 JESUS.” Frederick was once explained that he saw the saying on a snowboard and thought it was funny. Hoping to “get on television” Joseph Frederick and his friends unfurled a 14 foot long paper banner the read “BONG HiTS 4 JESUS.” Frederick was once explained that he saw the saying on a snowboard and thought it was funny. Seeing the banner unfurled, the school Principal, Deborah Morse ran across the street and “seized” the banner. Seeing the banner unfurled, the school Principal, Deborah Morse ran across the street and “seized” the banner.

69

70 Question Do you think the Principal acted correctly in “seizing” the banner? Do you think the Principal acted correctly in “seizing” the banner? Do you think Joseph Frederick should have been punished for displaying the “Bong HiTS 4 JESUS” banner at the school event? Do you think Joseph Frederick should have been punished for displaying the “Bong HiTS 4 JESUS” banner at the school event?

71 So what actually happened to Frederick? Principal Morse first suspended Joseph Frederick for 5 days for his role in unfurling the banner. Principal Morse first suspended Joseph Frederick for 5 days for his role in unfurling the banner. The suspension was increased to 10 days when Frederick refused to give the names of his fellow participants and quoted Thomas Jefferson and his right to “Free Speech.” The suspension was increased to 10 days when Frederick refused to give the names of his fellow participants and quoted Thomas Jefferson and his right to “Free Speech.”

72 Question Do you think the punishment is too harsh? Do you think the punishment is too harsh? What reasons might justify the suspension for the first 5 days? What reasons might justify the suspension for the first 5 days? What about for the second 5 days? What about for the second 5 days?

73 So why was Frederick suspended? Principal Morse claimed that Frederick violated the School Districts “anti-drug” policy. She argued that “BONG HiTS 4 JESUS” is a “pro-drug” message in violation of school rules. Principal Morse claimed that Frederick violated the School Districts “anti-drug” policy. She argued that “BONG HiTS 4 JESUS” is a “pro-drug” message in violation of school rules.

74 Question So what does the saying “BONG HiTS 4 JESUS” mean? So what does the saying “BONG HiTS 4 JESUS” mean? Who decides? Who decides? Does it matter what Frederick intended it to mean? Does it matter what Frederick intended it to mean? Does it matter what a reader might think it means? Does it matter what a reader might think it means?

75 Frederick sues the School district In the United States District Court Frederick argues: In the United States District Court Frederick argues: 1- The School district violated his Constitutional Right to Freedom of Speech under the First Amendment 1- The School district violated his Constitutional Right to Freedom of Speech under the First Amendment 2- He also sues Principal Morse claiming she exceeded her authority as principal and violated his Civil Rights (section 1983 violation). 2- He also sues Principal Morse claiming she exceeded her authority as principal and violated his Civil Rights (section 1983 violation).

76 The District Court Case Frederick lost. Frederick lost. He appeals his case to the 9 th Circuit Court of Appeals. They look at the “precedent cases” related to student speech. He appeals his case to the 9 th Circuit Court of Appeals. They look at the “precedent cases” related to student speech.

77 The Tinker Standard Tinker v. Des Moines Independent School Dist. (1969) Student speech cannot be censored as long as it does not “materially disrupt class work or involve substantial disorder or invasion of the rights of others.”

78 Decisions on Student / Teacher Rights o Tinker (1969): “It can hardly be argued that either teachers or students shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

79 The Fraser Standard Bethel School District No. 403 v. Fraser (1986) Because school officials have an “interest in teaching students the boundaries of socially appropriate behavior,” they can censor student speech that is vulgar or indecent, even if it does not cause a “material or substantial disruption.”

80 The 9 th Circuits Decision The 9 th Circuit applied Tinker and Fraser and decided for Frederick. The 9 th Circuit applied Tinker and Fraser and decided for Frederick. Not only did they rule that Frederick’s First Amendment Rights were violated, they ruled that the law was so “clearly defined” that Principal Morse was could not claim “immunity” for her actions. This meant Morse was personally responsible. Not only did they rule that Frederick’s First Amendment Rights were violated, they ruled that the law was so “clearly defined” that Principal Morse was could not claim “immunity” for her actions. This meant Morse was personally responsible.

81 Question Do you agree with the 9 th Circuit that Principal Morse was wrong? Do you agree with the 9 th Circuit that Principal Morse was wrong? Was her error so serious that she should be personally responsible? Was her error so serious that she should be personally responsible?

82 The Case goes to the Supreme Court of the United States The Supreme Court took the case to decide two questions: The Supreme Court took the case to decide two questions: 1- Was this Constitutionally protected speech? 1- Was this Constitutionally protected speech? 2- If it was protected, was the Principal entitled to immunity? 2- If it was protected, was the Principal entitled to immunity?

83 Questions the Court had to consider? 1 Was this a school event? 1 Was this a school event? 2 Was this a “pro-drug” message? 2 Was this a “pro-drug” message? 3 Is the schools interest in preventing a “pro-drug” message so strong that it could discipline a student who conveys such a message? 3 Is the schools interest in preventing a “pro-drug” message so strong that it could discipline a student who conveys such a message? 4 Did the principal clearly violate the student’s rights based upon established law? 4 Did the principal clearly violate the student’s rights based upon established law?

84 How would you answer these questions? 1 Was this a school event? 1 Was this a school event? 2 Was this a “pro-drug” message? 2 Was this a “pro-drug” message? 3 Is the schools interest in preventing a “pro-drug” message so strong that it could discipline a student who conveys such a message? 3 Is the schools interest in preventing a “pro-drug” message so strong that it could discipline a student who conveys such a message? 4 Did the principal clearly violate the student’s rights based upon established law? 4 Did the principal clearly violate the student’s rights based upon established law?

85 What the Court Decided The case has multiple “opinions.” The case has multiple “opinions.” Opinion #1- Justice Roberts, for the majority (joined by Scalia, Kennedy, Thomas and Alito) ruled that this was a school event and that the danger of illegal drug use is so serious that a school must act in the face of expression that contributes to those dangers. Opinion #1- Justice Roberts, for the majority (joined by Scalia, Kennedy, Thomas and Alito) ruled that this was a school event and that the danger of illegal drug use is so serious that a school must act in the face of expression that contributes to those dangers.

86 Opinion #2 Justice Thomas, in a concurrence, wrote that he does not think students have free speech rights in school at all and said he thinks Tinker should be overturned. Justice Thomas, in a concurrence, wrote that he does not think students have free speech rights in school at all and said he thinks Tinker should be overturned.

87 Morse v. Frederick “To accomplish the desirable ends of teaching self-restraint, obedience, and other civic virtues, the Master of a school must govern these pupils, quicken the slothful, spur the indolent, restrain the impetuous, and control the stubborn.”

88 Opinion #3 Although they were in the majority, Justices Alito and Kennedy filed a concurrence which stated that: Although they were in the majority, Justices Alito and Kennedy filed a concurrence which stated that: A) the decision should not be applied to political speech. For example someone who advocated legalizing marijuana for medical purposes. A) the decision should not be applied to political speech. For example someone who advocated legalizing marijuana for medical purposes. B) that the decision goes no further than to hold that a public school may restrict speech that can be reasonably interpreted to advocate illegal drug use. B) that the decision goes no further than to hold that a public school may restrict speech that can be reasonably interpreted to advocate illegal drug use.

89 Question Why do you think Justices Alito and Kennedy tried to limit the scope of the ruling (it only applies to this situation)? What might they have been worried about? Why do you think Justices Alito and Kennedy tried to limit the scope of the ruling (it only applies to this situation)? What might they have been worried about?

90 Opinion #4 Justice Breyer wrote an opinion in which he concurred in part and dissented in part. Justice Breyer wrote an opinion in which he concurred in part and dissented in part. He said that the court should NOT decide the First Amendment issue. Instead, he thought the message (BONG HiTS 4 Jesus) was too unclear as to what it meant. Because of this he would have given the principal immunity. He said that the court should NOT decide the First Amendment issue. Instead, he thought the message (BONG HiTS 4 Jesus) was too unclear as to what it meant. Because of this he would have given the principal immunity. Do you think Justice Breyer had a better approach? Do you think Justice Breyer had a better approach?

91 Opinion #5 The Dissenters- Justices Stevens, Souter and Ginsburg. They wrote that: The Dissenters- Justices Stevens, Souter and Ginsburg. They wrote that: This was an ambiguous statement that does not justify harsh discipline. This was an ambiguous statement that does not justify harsh discipline. The banner was just “dumb” and could not be seen as an incitement to drug use. The banner was just “dumb” and could not be seen as an incitement to drug use.

92 Morse v. Frederick- In a Nutshell Tinker Restrict banners, not viewpoints This is not advocacy Political speech remains protected Advocacy of illegal drug use not protected

93 Student Cases

94 A.Critical Considerations – the First and Fourth Amendments to the U.S. Constitution; B. Code of Conduct; C. What Constitutes Criminal Behavior and When to Involve the Police; D. Policy Considerations and Practical Resources What is a School’s Ability to Gain Control, Prevent Problems & Impose Discipline where necessary?

95 Search and Seizure of Students In New Jersey v. TLO, 469 U.S. 325 (1985), the United States Supreme Court ruled that student searches conducted by school officials were subject to the Fourth Amendment and concluded that such searches may be conducted as long as the search was “reasonable under the circumstances.” To determine the proper standard, the Court balanced the child’s legitimate expectation of privacy with the school’s equally legitimate need to maintain an environment in which learning can take place.

96 Internet Based “Free Speech” Layshock v. Hermitage School District Layshock v. Hermitage School District Layshock v. Hermitage School District Layshock v. Hermitage School District A federal district court ruled against a school district for suspending a student because there was no finding of material disruption.

97 Layshock (continued) According to the Court, “it is clear that the test for school authority is not geographical. The reach of school administrators is not strictly limited to the school’s physical property.... However, school districts do not have inherent power to implement policies in the name of school safety.” Indeed, citing to Justice Alito’s concurrence in Morse, the court noted that school officials are not provided with unfettered latitude to censor student speech under the rubric of “interference with the educational mission” because the term can be easily manipulated.” According to the Court, “it is clear that the test for school authority is not geographical. The reach of school administrators is not strictly limited to the school’s physical property.... However, school districts do not have inherent power to implement policies in the name of school safety.” Indeed, citing to Justice Alito’s concurrence in Morse, the court noted that school officials are not provided with unfettered latitude to censor student speech under the rubric of “interference with the educational mission” because the term can be easily manipulated.”

98 Another student case J.S. v. Blue Mountain School District J.S. v. Blue Mountain School District J.S. v. Blue Mountain School District J.S. v. Blue Mountain School District A middle school student is suspended for 10 days for creating a fake MySpace profile featuring vulgar, lewd comments about her principal. She lost her free- speech lawsuit in federal district court in Pennsylvania. A middle school student is suspended for 10 days for creating a fake MySpace profile featuring vulgar, lewd comments about her principal. She lost her free- speech lawsuit in federal district court in Pennsylvania.

99 Important Note On April 9, 2010 the Chief Judge of the Third Circuit vacated the conflicting opinions in Layshock and J.S. On April 9, 2010 the Chief Judge of the Third Circuit vacated the conflicting opinions in Layshock and J.S. On June 10 th the entire panel of judges heard arguments on both cases. On June 10 th the entire panel of judges heard arguments on both cases. A written decision is yet to be published. A written decision is yet to be published. This might be the BIG case that clarifies students’ rights and the internet for all of us if it makes it to the Supreme Court. This might be the BIG case that clarifies students’ rights and the internet for all of us if it makes it to the Supreme Court.

100 Doninger v. Niehoff Student Posting on community blog leads to ineligibility to serve on student government. See Link: Student Posting on community blog leads to ineligibility to serve on student government. See Link: Doninger Decision from Second Circuit Doninger Decision from Second Circuit Doninger Decision from Second Circuit Doninger Decision from Second Circuit Article on case Article on case Article on case Article on case

101 The Commissioner of Education held that a school district had authority to suspend for 15 months a student who e-mailed an offensive message from a home computer to other students’ home computers because the district reasonably interpreted the e-mail as a threat to student safety and it substantially disrupted school operations. New York Commissioner’s Decision: Appeal of Ravick

102 Wisniewski v. Board of Educ. Of Weedsport CSD A three-judge panel of the United States Court of Appeals for the Second Circuit, which has jurisdiction over all of New York State, affirmed a decision by the United States District Court for the Northern District of New York, albeit on slightly different grounds, which held that the Weedsport Central School District did not violate the First Amendment Free Speech rights of a District pupil when the District suspended the pupil for making a threat against a District teacher on his home computer that was ultimately shared with the teacher by others and caused disruption at school.

103 Requa v. Kent School District No. 415 An 18 year old student, with the help of fellow students, surreptitiously videotaped his teacher on two occasions and edited the video with graphics and music and posted the video on YouTube.com. The video commented on the teacher’s hygiene, showed students making faces behind her back, and making pelvic thrusts in her direction together with shots of her posterior and references to her “booty”. An 18 year old student, with the help of fellow students, surreptitiously videotaped his teacher on two occasions and edited the video with graphics and music and posted the video on YouTube.com. The video commented on the teacher’s hygiene, showed students making faces behind her back, and making pelvic thrusts in her direction together with shots of her posterior and references to her “booty”. You be the Judge! What should happen here? You be the Judge! What should happen here?

104 Requa v. Kent School District No. 415 All students involved received a 40 day suspension for violating a provision of the student handbook prohibiting the use of personal electronic devices at school including video recorders and cameras and for engaging in conduct in-class that constituted sexual harassment (pelvic thrusts at the teacher and using rabbit ears behind her back). The court upheld the discipline imposed for the secret in- class filming of the teacher NOT the off-campus activity including the editing and posting the video on YouTube. All students involved received a 40 day suspension for violating a provision of the student handbook prohibiting the use of personal electronic devices at school including video recorders and cameras and for engaging in conduct in-class that constituted sexual harassment (pelvic thrusts at the teacher and using rabbit ears behind her back). The court upheld the discipline imposed for the secret in- class filming of the teacher NOT the off-campus activity including the editing and posting the video on YouTube.

105 Requa v. Kent School District No. 415 T he court commented that although “the ability of students to critique the performance and competence of their teachers is a legitimate and important right…the public also has a deeply vested interest in the creation and maintenance of an educational system where teachers can practice their vitally important craft in an environment free from harassment, lewdness and inappropriate behavior.” Thus, the students’ in-class sexual harassment (pelvic thrusts, rabbit hears behind the teacher’s back, etc.) constituted a material and substantial disruption to the work and discipline of the school, not protected political commentary or critique of a teacher. T he court commented that although “the ability of students to critique the performance and competence of their teachers is a legitimate and important right…the public also has a deeply vested interest in the creation and maintenance of an educational system where teachers can practice their vitally important craft in an environment free from harassment, lewdness and inappropriate behavior.” Thus, the students’ in-class sexual harassment (pelvic thrusts, rabbit hears behind the teacher’s back, etc.) constituted a material and substantial disruption to the work and discipline of the school, not protected political commentary or critique of a teacher.

106 Code of Conduct The benefit of a well-drafted code of conduct is that it sets forth clearly defined rules and expectations, as well as potential consequences for violations, so students and parents are “on notice” prior to the imposition of discipline. More difficult – a school’s ability to discipline when students engage in these behaviors off school property, not on school time, but there is an arguable connection to the school environment (i.e., students failing to report to school over fears of bullying continuing during the day, making false bomb threats, making agreements at home to fight at school the next day, etc.).

107 Code of Conduct Focus on prohibited behaviors – not mode of delivery / communication (i.e., bullying, harassment, intimidation) May address cell phones, if not in separate policy. If in separate policy, incorporate by cross-reference Prohibited conduct section should be carefully reviewed annually

108 Code of Conduct Involve students and parents in formulation Involve students and parents in formulation Prohibitions to consider: Prohibitions to consider: Computer/electronic communication misuse Computer/electronic communication misuse Display of personal electronic devices Display of personal electronic devices Inappropriate public sexual contact Inappropriate public sexual contact Selling, using, or distributing obscene material Selling, using, or distributing obscene material Academic misconduct, including cheating, plagiarism, altering records Academic misconduct, including cheating, plagiarism, altering records

109 Code of Conduct Schools can require that the Code of Conduct contain an acknowledgment form to be signed by parents and students ensuring that they are aware of school rules and prohibitions in this area.

110 Code of Conduct A Review of the Code of Conduct for the Northport – East Northport UFSD

111 What Constitutes Criminal Behavior & When to Involve the Police? “’Sexting’ Hysteria Falsely Brands Educator as Child Pornographer”

112 What Constitutes Criminal Behavior & When to Involve the Police? Background School administrators in Virginia learned that students were distributing nude pictures on their cell phones. Assistant Principal Ting-Yi Oei, age 60, was assigned to investigate. Oei and a school safety and security specialist met with a 16 year old student who admitted possessing one of the pictures on his cell phone. The image depicted the torso of a 17 year old girl wearing only underpants, with her arms covering her breasts. The boy claimed no knowledge of the girl, or who sent him the picture.

113 What Constitutes Criminal Behavior & When to Involve the Police? Background School Oei’s Actions Oei showed the picture to the building principal, who told him to preserve a copy on his computer for the investigation. He did not know how to transfer the text message to his computer, so he asked the student to forward the photograph as a text message to Oei’s phone, so he could then send it via email to his work computer. Oei told the student to delete the photograph. Oei tried to determine who the girl was, but investigations revealed nothing further, and he reported same to the principal.

114 What Constitutes Criminal Behavior & When to Involve the Police? Police Involvement Two weeks later, the same boy was disciplined for another school infraction. His mother found out about the picture and was furious that she had not been informed, and demanded his suspension for the pants incident be revoked. When Oei refused, she informed the police about the photo. Investigators came to school and helped Oei recover the photo from his phone. They determined the photo was of a student at Oei’s school.

115 What Constitutes Criminal Behavior & When to Involve the Police? Two weeks later, Police filed charges against Oei that he failed to report suspicion of child abuse (a misdemeanor). Although the prosecution admitted the photo did not show evidence of sexual activity or show the student’s genitalia (making it unclear whether any child abuse had occurred), the county prosecutor demanded that Oei resign or the charge would be increased to a felony. Even under the state’s reporting requirements, though, Oei had fulfilled his responsibility by showing his supervisor, the principal the picture. Nonetheless, the prosecutor’s office pursued the case.

116 What Constitutes Criminal Behavior & When to Involve the Police? Grand Jury Indictment A grand jury indicted Oei for possession of child pornography – a crime with a possible 5 year jail sentence. He was arrested at school. The county prosecutor’s office stated to media, “We just feel very strongly that this is not someone who should be in the Loudon County school system”.

117 What Constitutes Criminal Behavior & When to Involve the Police? Devastating Effects Oei was reassigned by the district to a position with no contact with students His already ill wife became paranoid. He took a second mortgage on his home to pay legal bills. Oei was also charged with asking the 16 year old student to send him the photo, and for storing the photo on his computer, which could have added two more years to his jail sentence.

118 What Constitutes Criminal Behavior & When to Involve the Police? Resolution Oei’s defense attorney filed a motion to dismiss the charges on the grounds that the photo did not constitute child pornography, and a judge agreed. All charges against Oei were dismissed. However, says Oei, as he considers whether to return to the district or seek employment elsewhere, “If someone were to Google me, why would you want to touch someone who had [this trouble], even if I had the charge dismissed?...I don’t think you’d necessarily want that baggage.”

119 Federal Pornography and Obscenity Statutes Federal Pornography and Obscenity Statutes 18 USC § 2251 – prohibits production of child pornography (mandatory minimum jail term is 15 years, while the maximum is 30 years in prison); 18 USC § 2252 and §2252A – prohibits possessing, distributing, and receiving child pornography (mandatory minimum jail term for possession or receipt of child pornography under this provision is 5 years, while the maximum is life in prison) 18 USC § 2260 – prohibits the importation of child pornography (maximum jail term is 10 years) 18 USC § 1460 – prohibits the transmission of obscene material, including through a computer, to a minor (under age 16)

120 Federal Pornography and Obscenity Statutes  47 USC § 223(d) – prohibits the use of a computer to display child pornography or obscenity in a manner that makes it available to a minor under age 18  47 USC § 231 – prohibits knowingly making a commercial communication using the internet that includes obscenity and is available to any minor under age 17

121 Criminal Considerations in New York Section 156.05 of the New York State Penal Law makes it a class A misdemeanor for a person to knowingly use, cause to be used, or access a computer, computer service, or computer network without authorization. Section 156.10 of the New York State Penal Law makes it a class E felony for a person to commit computer trespass by knowingly using or accessing a computer, computer service, or computer network without authorization.

122 Criminal Considerations in New York New York State Laws prohibits distribution, dissemination, manufacture, promotion, giving or selling any material that is obscene. (NY Penal Law section 235.00) NY Penal Law 235.20 (prohibits the dissemination of indecent material to minors)

123 Criminal Considerations in New York NY Penal Law Article 263 (Prohibits the use of a child in a sexual performance or promoting or possessing an obscene sexual performance of a child). New York Penal Law Article 130 (Person under age 17 can’t consent to a sexual act).

124 Child Abuse Reporting Requirements Child Abuse in the Educational Setting (Education Law section 1125) Child Abuse in the Domestic Setting (Social Services Law section 412 et seq.)

125 Fourth Amendment Search and Seizure Issues If school officials, administrators, teachers and/or staff become aware that students are using technology for cyber-bullying, harassment, sexting, and the like, what steps should be taken?

126 Fourth Amendment Search and Seizure Issues Reasonable suspicion must be present in order to search information contained on technology devices. Investigating Sexting-Contact law enforcement prior to confiscating evidence When in doubt contact school district attorney

127 General Guidelines Ultimately, two functions of law enforcement vis-à-vis schools can help school administrators and officials decide when the police should be involved: protecting students, and working with students and district staff and officials to understand the negative consequences of students’ inappropriate use of technology. Consider the role of the S.R.O in investigating student technology cases.

128 How to Work With Law Enforcement The police-school relationship has long antedated these laws and has existed in the context of dealing with crimes on school property, K-9 searches of lockers, bomb threat responses, patrols of school property and school resource officers in the schools. This enduring relationship has become stronger and more vital in light of the on-going war against terror, school related violence and the prevalence of drug use in our society.

129 Sexual Harassment Sexual harassment is not a criminal offense. However, a school’s failure to follow sexual harassment reporting and investigation requirements (under both school policy and federal and state mandates) can subject the school to civil liability by a student who alleges the school knew of sexually harassing behavior occurring during school hours yet failed to address the behavior.

130 If Cyber-Bullying Escalates to Stalking/Harassment Police and parents should be contacted when: A student makes threats of violence to a particular student, groups of students, or the school at large School officials learn that student(s) (the victim or bully) plans or actually takes physical steps to confront the other student(s) in a way that is not designed to resolve the issue peacefully Students complain of being actually threatened or complain that the behavior has put them in a situation where they feel unsafe at school or at home.

131 Policy Recommendations 1.Computer Network Use 2.Internet Safety 3.Code of Conduct

132 Computer Network Use Applies to all users Use for educational purposes only Prohibits disclosure of personal information Establishes no expectation of privacy “Privilege, not a right” – but…..disciplinary consequences need to be discussed

133 Computer Network Use Consent form associated with policy for students and staff, (e.g. agreement should state that user name and passwords remains property of the district and school sponsored e-mail can be reviewed at any time). Establish importance of the integrity of the network (limit remote access, etc.) Review policy/regulation annually, especially prohibited activities and uses

134 Internet Safety Filtering/blocking technology to protect against obscene material Cross references computer use policy Establish expectation that violations will be reported Includes training/education component

135 Policy Considerations and Practical Resources Cell Phone Policies (differs from district to district based upon circumstances facing each district—e.g. whether problem is disruption of educational program or criminal activity) Student Use of District Resources During School Time (e.g. prohibiting use of computers during school day to access social networking sites, viewing photos or videos unrelated to school work, etc.).

136 Practical Suggestions Ensure all adult staff members are familiar with the social technologies that students now use to communicate with one another. Do not assume all staff are as tech-savvy as students! Conduct informal and/or anonymous formal assessments of students to determine whether cyber- bullying, sexting, or other inappropriate technology use is occurring. Such information will help guide the district in its approach to ensuring students are safe when using technology to communicate. Consider implementing education programs throughout the district to instill compassion rather than imposing discipline.

137 Practical Suggestions Consider formulating a youth safety team on a building or district level, including a mentoring program for older students to teach younger students about the pitfalls of sharing too much information online. Send e-mail blasts to students with information about how to be safe and savvy internet users. According to “The Challenge”, a publication of the Office of Safe and Drug-Free Schools, research shows that students who receive online messages about the risks of posting inappropriate material actually reduces their references to high-risk behavior on their social networking web pages.

138 Take-Aways Know the law Know the law Know when conduct violates the law Know when conduct violates the law Secure a functional working-relationship with law enforcement Secure a functional working-relationship with law enforcement Ensure that your district policies are legally defensible and practically useful Ensure that your district policies are legally defensible and practically useful Develop district-wide approaches aimed at protecting students and faculty from harm Develop district-wide approaches aimed at protecting students and faculty from harm

139 The Core Civic Habits Core Civic Habits PDF Core Civic Habits PDF Core Civic Habits PDF Core Civic Habits PDF

140 Paideia Activity Paideia Activity Paideia Instructions Paideia Instructions Work in your groups Work in your groups Set a goal for yourself Set a goal for yourself Be “equitable” with airtime Be “equitable” with airtime If you think it, share it! If you think it, share it! No raising hands No raising hands Focus on ideas Focus on ideas Listen actively Listen actively Refer to the document Refer to the document

141 Web Resources www.fivefreedoms.org www.fivefreedoms.org www.fivefreedoms.org www.firstamendmentschools.org www.firstamendmentschools.org www.firstamendmentschools.org www.civiced.org www.civiced.org www.civiced.org www.constitutioncenter.org www.constitutioncenter.org www.constitutioncenter.org www.billofrightsinstitute.org www.billofrightsinstitute.org www.billofrightsinstitute.org www.justicelearning.org www.justicelearning.org www.justicelearning.org www.icivics.org www.icivics.org www.icivics.org www.pdfailla.com www.pdfailla.com www.pdfailla.com Stony Brook News Literacy Stony Brook News Literacy

142 LYC We the People We the People Project Citizen Project Citizen

143 The Power of Student Voice In 1960, when students all over the South started sitting-in at lunch counters… I knew that as they were sitting in, they were really standing up for the best in the American dream, and taking the whole nation back to those great wells of democracy which were dug deep by the Founding Fathers in the Declaration of Independence and the Constitution.

144 RIGHTS – Inalienable RIGHTS – Inalienable RESPONSIBILITIES – Mutual RESPONSIBILITIES – Mutual RESPECT – How we debate, not only what we debate, is critical RESPECT – How we debate, not only what we debate, is critical

145 Thank You! E-mail E-mail patch@northport.k12.ny.us patch@northport.k12.ny.us


Download ppt "First Amendment Freedom and Civic Responsibility in the Digital Age Presented by: David Scott Project P.A.T.C.H. Coordinator Northport – East Northport."

Similar presentations


Ads by Google