Genesee Valley Chapter — Students’ Speech Not Free Online

Students’ Speech Not Free Online

By Scott Forsyth A version of this article appeared in the ‘Daily Record’ on February 10, 2010. Parents, contemplate a real-life scenario involving a local high school. Matt, a junior, hates science and his science teacher, Mrs. John. He is not alone. Two classmates set up a Facebook site to voice their discontent. Matt, being a creative soul, goes to the site and writes “F**k you, Mrs. John.” He didn’t use such polite asterisks, however. Somehow, Mrs. John learned about the post and reported it to the principal, who summoned Matt to his office and immediately suspended him from school for two days. “Wait a minute!” you might be thinking. The comment was inappropriate and Matt’s parents will punish him. Moreover, he expressed himself while off of school property and not during a school function. His comment may not have been on a weighty subject, like the military draft, but isn’t it protected by the First Amendment? Unfortunately, the principal may have had the power to discipline Matt. While high school students do not shed their rights to freedom of speech “at the schoolhouse gate,” those rights “are not automatically coextensive with the rights of adults in other settings.” Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682 (1986). School administrators may discipline students for making statements that “materially and substantially disrupt the work and discipline of the school” or that create a foreseeable risk of disruption. Tinker v. Des Moines Inde. Cmty. Sch. Dist., 393 U.S. 503, 513, (1969). They also may punish vulgar or offensive speech as part of their responsibility for “teaching students the boundaries of socially appropriate behavior.” Bethel Sch. Dist. No. 403 v. Fraser, supra at 681. The courts defer often to administrators’ judgment when it comes to whether a particular statement creates such a risk or crosses that boundary. The U.S. Supreme Court has not ruled on whether administrators may regulate off-campus speech not related to drugs. Our circuit court has, in two cases, observing that “territoriality is not … a useful concept in determining the limit of (administrators’) authority.” See, e.g., Doniger v. Nieho, 527 F.3d 41, 48-49 (Second Cir. 2007). In Doniger, Lauren, a senior, was so upset by her school’s cancellation of a musical festival that she posted on her blog a tirade against the principal and superintendent, calling them “douchebags” and urging her readers to contact the administrators to complain about the cancellation. She ended, “call her to piss her off more.” The blog had its desired effect, generating a wave of e-mails and telephone calls. The administrators had to devote extra time to the controversy and they missed or arrived late to several school-related activities. Administrators reproached Lauren for bypassing student government procedures and appealing directly to the public. They disciplined her by removing her as a candidate for class secretary. The circuit court unanimously supported the administrators. Lauren used “plainly offensive” language, intended to reach the administrators, the court reasoned. The risk of disruption was real and foreseeable. Her punishment — the loss of an extracurricular privilege — fit the crime, the bypass of procedures. Three judges decided the case, one was our newest Supreme Court Justice Sonia Sotomayer. A worse case is Wisniewski v. Bd. of Educ., 494 F3d 34 (Second Cir. 2007). In it, Aaron, an eighth grader, was instant messaging with 15 buddies from his home computer. He used an icon featuring a bloody head, pistol pointed at it, bullet flying. Beneath the head appeared the words “Kill Mr. VanderMolen,” who was his English teacher. A classmate, not a buddy, informed the teacher about the icon. Feeling threatened, the teacher told the principal and asked to stop teaching the class. The principal agreed, then notified the police. The police investigated but decided not to take any action. It did not find any malicious intent in the use of the icon. A psychologist who evaluated Aaron concurred. The school district thought otherwise, and suspended Aaron for a full semester, ruling that his intent was irrelevant. The message was threatening and he admitted that he sent it. The circuit court backed up the district, and pointed out that Aaron could reasonably foresee that his speech would reach school property through one of his many buddies. “And there can be no doubt” that the icon, once revealed, would “create a risk of substantial disruption within the school environment.” Id. at 40. For some reason, Aaron did not challenge the severity of the discipline. But back to Matt: We do not know the number of persons having access to the Facebook site, now discontinued, or the site’s other content. The comment about Mrs. John was offensive and could be viewed as potentially disruptive of the teaching process. Parents, let the experiences of Matt, Lauren and Aaron serve as a warning: What your student writes online may get back to his or her school, where a teacher or an administrator may view it as disruptive and grounds for discipline. Free speech may not be a defense.