Student free speech to Supreme Court soon?

It was a big day for student free speech last Thursday, a day that ended with mixed results. One three-judge panel of the Third US Circuit Court decided for a student, and another panel from the same circuit decided against a student, Wired reports. Wired adds that the Supreme Court "has never squarely addressed the parameters of off-campus, online student speech, but might soon. So far, lower courts appear to be guided by a 1969 high court ruling saying student expression may not be suppressed unless school officials reasonably conclude that it will “materially and substantially disrupt the work and discipline of the school.” In one case the judges said that "school officials in Mercer County [Penn.] cannot reach into a family's home and police the Internet. That case also involves a MySpace parody of a principal created by a student at home," the Washington Post reported. In the other case, the judges "upheld the suspension of a Schuylkill County eighth-grader who posted sexually explicit material along with her principal's photograph on a fake MySpace page" – though the dissenting judge "said his colleagues were broadening the school's authority and improperly censoring students." The Post added that "school boards, free-speech advocates and others had been awaiting the rulings for clarity on how far schools can go to control both online speech and offsite behavior," and what they got was the opposite. [See also "Student free speech decision" and my original post on the Avery Doninger case, "Teen name-calling: Federal case" and the ensuing lower-court decision.]

'Meep,' a principal & students' free speech

It's against school rules to say "meep" at Danvers (Mass.) High School. In fact, it's also apparently against school rules or the law – not sure – for a lawyer in New York to email that indefinable word to the principal of Danvers High because, when she did, she got a reply saying her email had been forwarded to the Danvers police, that attorney blogged. This and other "meep" stories that have been flying around the fixed and mobile Web is actually a story about authority in the post-mass-media age. If it ever got to court, student calls to yell "meep" en masse at some point during the school day, for example, could possibly pass the substantial-disruption test that, if met, courts have said permits schools to discipline students who are otherwise exercising their free-speech rights (see "Court rules on student's blog post").

But could something this fun and nonsensical get to court? I mean, "meep" is the favorite (or only) word in the vocabulary of Dr. Bunsen Honeydew’s lab assistant on The Muppet Show, the Calgary Herald reports (but also the Roadrunner's favorite "word" - remember him?). Which fact only heightens the predicament of Danvers High's principal. School administrators really need to know how the Internet works. As GeekDad points out in his Wired blog, "the principal’s warning sounds awfully like a challenge." Exactly. Attorney Theodora Michaels explains that, on the Internet, "attempts to silence information – or even nonsense – are consistently met with a proliferation of that very information (or nonsense) beyond anyone's wildest dreams. Anyone who tries to stop people's honest criticism of their conduct – especially if they show that they're highly sensitive to criticism (Going to the police? Seriously?) – is likely to be the target of further criticism. Their overreaction becomes a source of lulz," which can have quite a snowballing effect (see UrbanDictionary.com for more). Which means that, in the post-mass-media age, authority gets dispersed – or distributed.

Students sue school for social Web-related discipline

The two Indiana girls who, during a sleepover before their sophomore year started this fall, posted some sexually suggestive photos in a MySpace profile set to private, thought of it as a joke among friends, says the ACLU, which filed the lawsuit on the girls' behalf. "The suit contends that someone copied the pictures and shared them with school officials, and they eventually were given to the principal," the Washington Post reports. "None of the photos made any reference to the school," it adds. The girls, athletes, were suspended from all "all extracurricular activities for the year" at first, but the school later "reduced the penalty to 25% of fall semester activities after the girls completed three counseling sessions and apologized to the coaches board." The school's attorney "said [the principal] was enforcing the northeast Indiana school's athletic code, which allows the principal to bar from school activities any student-athlete whose behavior in or out of school "creates a disruptive influence on the discipline, good order, moral or educational environment at Churubusco High School." Do you think the school's definition of "material disruption" (of students' ability to learn, a test that has been used in a number of cases involving student free speech and off-campus behavior in social media) is too broad? Your comments welcome, via email (anne[at]netfamilynews.org) or, better, posted in our forum at ConnectSafely.org.

NJ to address bullying of gay students

The New Jersey Governor's Commission on Bullying will soon be looking into bullying, particularly against gay students, and what schools are doing to stop it, the Daily Record reports. Commission chair Stuart Green "said gay students are perhaps the most vulnerable when it comes to bullying, and that schools have not done enough to address the issue.... School officials have been saying for a couple of years that they have just begun to deal with gay and gender identity issues, long after other diversity issues had been addressed." The commission will consider what educational programs and teacher training are needed and - pointing to the online part of bullying - "whether school officials should do more to punish actions that take place outside of school but have an impact on the classroom, as allowed by state law."

Student free-speech decision

It may not be the last decision in a federal court on this case (Avery Doninger's lawyer said it may need to go to the Supreme Court). It was a mixed decision, reflecting how complicated student free-speech cases in the digital age are. In Doninger's case against Lewis S. Mills High School in Burlington, Conn., the Student Press Law Center reports, "US District Court Judge Mark Kravitz decided [Mills High School principal] Niehoff and Superintendent Paula Schwartz were entitled to qualified immunity, which protects 'public officials from lawsuits for damages, unless their actions violate clearly established rights'," the judge said in the ruling. Doninger, he said, hadn't clearly established her First Amendment right "to criticize her principal in an off-campus blog that used coarse language," the report added. Judge Kravitz cited two somewhat conflicting cases in his opinion: "Bethel School District v. Fraser, in which the Supreme Court ruled that a student's lewd and vulgar speech was not protected on-campus, and Tinker v. Des Moines Independent Community School District, which recognizes First Amendment protection for student speech on-campus as long as it does not substantially disrupt school, demonstrating a confusion among courts about which standard to apply to Internet student-speech cases," according to the Student Press Law Center. According to the Associated Press, the judge did let stand Doninger's claim that her right to free speech was "chilled" when the school "prohibited students from wearing T-shirts that read 'Team Avery' to a student council election assembly. That matter can proceed to trial."

More and more state cyberbullying laws

At least 13 US states have passed laws requiring school districts to develop policies on cyberbullying, the Washington Post reports, and "a handful of other states" are considering the same. Arkansas, Delaware, Idaho, Iowa, Michigan, Minnesota, Nebraska, New Jersey, Oklahoma, Oregon, South Carolina, and Washington are among those with laws already in place, and California just joined them at the turn of the year, San Francisco's KCBS radio reported. Developing cyberbullying policy is not easy for schools because of the need to balance students' protection with their free-speech rights. Such policymaking becomes a problem, civil liberties advocates say, when schools "try to control what students say outside of school," the Post reports. Where they can step in, courts have said, is when what students post off-campus disrupts the learning process at school or causes peers to avoid going to school out of fear. "John Halligan, whose son Ryan took his life in Essex Junction, Vt., after many years of bullying, some online, applauded the national movement to enact cyber-bullying laws. But, he said, laws alone cannot stop the problem," according to the Post. See also "Cyberbullying better defined," "Teaching students to help stop cyberbullying," and "Anti-cyberbullying teachable moment."

Student sues principal on free-speech grounds

Used to be, when a high school student had a beef with a teacher, she talked about it on the phone or maybe passed a note in class, no expletives deleted. Now it gets posted on MySpace or Facebook, hopefully with privacy tools turned on. But privacy apparently wasn't of interest to Katherine Evans, who was suspended for starting a Facebook group about her English teacher entitled "Ms. Sarah Phelps [her English teacher] is the worst teacher I've ever met!" [Three other students joined to defend the teacher; Evans deleted it a few days later.] Now a freshman at the University of Florida, she is suing the principal of her former high school for suspending her, the Miami Herald reports. Her lawsuit claims the principal violated her First Amendment rights, "including the free exchange of ideas and opinions in the public arena" (she's seeking removal of the suspension penalty from her academic record and no money damages beyond legal fees). Here's further coverage.

Federal judge allows students' suspension

The 10-day suspension of two eighth-graders in Pennsylvania school was in response to their creation of an imposter MySpace profile representing their principal "as a pedophile and a sex addict, among other things," ArsTechnica.com reports. In its coverage of the ruling, the Student Press Law Center reports that US District Judge James "wrote in his opinion that the arguments fell into three categories: 1) Were Snyders’ First Amendment rights violated by the school?; 2) Were the district’s policies unconstitutionally vague and overbroad?; 3) And did the school violate the Snyder’s parental rights?" He answered all three in the negative, saying the oft-used Tinker v. Des Moines Independent Community School District was about the censoring of political speech not the "lewd and vulgar" speech in the fake profile. "Munley instead analyzed Snyder’s speech under three different student speech rulings by the US Supreme Court," according to the Student Press Law Center, in particular "Bethel School District v. Fraser, which said public schools could 'prohibit the use of vulgar and offensive terms in public discourse" and "Hazlewood School District v. Kuhlmeier, which said 'educators do not offend the First Amendment by exercising editorial control over the style and content of speech so long as their actions are reasonably related to legitimate, pedagogical concerns.” An attorney for the ACLU said the judge "failed to recognize that a school cannot restrict a student's speech 'anywhere it is uttered' simply because it's vulgar and targets a school official."