Monday, October 29, 2012
Monday, October 22, 2012
Case Name, Citation, Year
- Kowalski v. Berkley County Schools, No. 10-1098 2011 3:07-cv-00147-JPB (4th Cir. 2011)
Facts of the Case
- When Karla Kowalski was a senior at Musselman High School in Berkley County School District she was suspended for creating a MySpace page called S.A.S.H. (Students Against Sluts Herpes). The web page was used to invite 100 of Kowalski’s MySpace friends to join the page, two dozen Mussleman High School students were members of the page and used it to bully and harass another female student. Photos of Shay N. were placed on the site and ridiculing comments were left on the photos; in addition, the photos had been edited to make Shay N. look like she had herpes. Several students joined and viewed the MySpace page from school computers. The page was eventually discovered by the targeted student; once discovered the parents of Shay N. went to the school and filed harassment charges with the administration. The administration of the school disciplined Kowalski with a 10-day out of school suspension and a 90-day suspension from activities. Kowalski contends that the speech occurred outside of school; therefore, the school administration had no right to punish her for the MySpace site.
- Did the school violate Kowalski’s First Amendment right to free speech with the punishment?
- Did the school violate Kowalski’s Fourteenth Amendment right to due process and equal protection?
- The appellate court upheld the lower court’s decision in favor of the school district.
Rationale or Justification
- The MySpace site created by Kowalski was viewed at school and involved several students from the school; therefore, the school was within its rights to punish Kowalski. Kowalski’s hateful speech is not protected under free speech. The justices sighted the Tinker test as applicable because substantial disruption to the educational process was present. The justices also applied Morse v. Frederick by stating that the hateful language toward another student was inconsistent with the school’s mission; and although initiated off campus, clearly through school computers came to campus. Finally the court approached the problem from Bethel School District v. Fraser and determined that the speech in question was inappropriate social behavior, which the school has a duty to stop. The decision was written with an air of distaste toward Kowalski.
Personal Reaction to Decision
- It was actually wonderful to find that the courts have defended the schools with regards to punishing bullies. Cyber-bullying is just as destructive as regular bullying, possibly even more destructive. In typical bullying, the students can at least go home and be free from the bully, but cyber-bullying follows the victim everywhere the Internet is available; furthermore, the victim knows that the attack still exists online where anyone can see it. The courts were correct to give school administrators the green light to tackle cyber-bullying occurring within their communities. The most shocking thing about this case, in my opinion, is Kowalski herself. Believing that somehow it is her rights that have been violated is sad, sad, sad. She should be ashamed of herself, but instead, she is fighting her 10-day suspension in court. I’m glad the court is not giving her the satisfaction to continue believing that she is right and the rest of the civilized world is wrong. It was an interesting counter-balance to the other case I looked at where a student had posted inappropriate material about the principal. In that case the court ruled that the principal was a public figure and could not expect a complete right to privacy. Thankfully the courts have made it clear that student-to-student harassment will not be tolerated and is not free speech.
- School officials can feel comfortable going after cyber-bullies that operate within their school communities; especially, if there is any evidence that can link the online activity to impacting the school. For example, in this case, several of the witnesses admitted that they joined and/or viewed the MySpace page from a school computer. When the hurtful images and language about Shay N. reached the campus, it was like finding a smoking gun in the hands of Kowalski. The court mentioned that overwhelming evidence that the educational process was clearly disrupted and that this type of hateful speech isn’t protected under free speech. School officials can feel free to punish cyber-bullies; the courts are on our side in this matter.
Monday, October 15, 2012
Case Name, Citation, Year
- J.S. v. Blue Mountain School District, No. 08-4138 2011 WL 2305970 (3rd Cir. 2011)
Facts of the Case
- J.S. and another student were punished at school for a dress code violation by the principal, Mr. McGonigle. After returning home, J.S. and her friend created a MySpace profile for a “M-Hoe” with a photo of McGonigle from the school website. Mr. McGonigle was not named, nor was the school; however, several vulgar comments were made about Mr. McGonigle and his immediate family. The school’s web filtering software blocks MySpace, so the profile was never seen at school, nor was the profile created on school campus. A school computer was not used in the making of the profile. Several days later, a student came forward and told Mr. McGonigle about the MySpace profile. The principal asked the student to bring a print out of the profile to school; this print out was the only hard copy of the profile to ever come to campus. After reading the profile and discovering the identity of the students who made it, Mr. McGonigle confronted the two students who admitted to creating the profile. In a meeting with the parents of J.S., the MySpace profile was brought to their attention and they apologized for their daughters behavior. J.S. wrote a formal letter of apology. Mr. McGonigle gave the students a ten-day out of school suspension and threatened the parents with legal action and did contact the police. The police spoke with the families about the possible legal ramifications of the MySpace profile.
- Did Mr. McGonigle violate the students’ right to free speech?
- Did Mr. McGonigle violate the Fourteenth Amendment rights J.S.’s parents to raise their daughter as they see fit?
- Are Blue Mountain Student Handbook and Acceptable Use Policy (AUP) unconstitutional due to vague and overreaching language?
- The majority ruled that Mr. McGonigle, acting on the part of Blue Mountain School District, did violate the students’ right to free speech; therefore, the students’ punishment must be overturned by the lower court. However, the majority found that the Fourteenth Amendment rights of the parents were not violated by the school and that the student handbook and AUP were constitutional.
Rationale or Justification
- Citing several landmark cases like Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), Bethel School District v. Fraser, 478 U.S. 675 (1986), Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266 (1988) and Morse v. Frederick, 551 U.S. 393 (2007), plus several Federal Court cases such as Lowery v. Euverard, 497 F.3d 584, 591–92 (6th Cir.2007), LaVine v. Blaine Sch. Dist., 257 F .3d 981, 989 (9th Cir.2001), and Doninger v. Niehoff, 527 F.3d 41, 51 (2d Cir.2008) the court ruled against the school district. The court’s opinion was based on several key facts in the case. J.S. and the other student never created, nor brought to school anything about the MySpace account that they created; furthermore, the MySpace profile was not created on school owned or leased computers. Finally, the school software blocked MySpace. The court applied Tinker as a test demonstrating that no disruption to the educational process was apparent. In addition, the court used the Fraser exception to Tinker but ruled that this didn’t pass muster, because Fraser cannot be applied to off-campus expression. The court agreed that what J.S. and the other student wrote was vulgar and mean-spirited, but because it was created off-campus and produced no disruption to the educational process, it was protected by the Free Speech provision of the First Amendment. In citing the same case history, the court found that the parents’ rights to raise their child as they wished lacked merit, because the suspension did not interfere with them instilling their own opinions of right or wrong in their child; in addition, the school has the right to reasonably control student behavior in order to facilitate the educational process. As to the claim that the student handbook and AUP used language that was vague and overreaching and therefore unconstitutional, the court disagreed citing the language in the student handbook and AUP was clear and concise, but that the principal, Mr. McGonigle, had misapplied the rules.
Personal Reaction to Decision
- As a former Dean of Students it is pretty tough to swallow the idea that a student I may punish is protected by free speech from bashing me off campus as much as he/she likes as long as it doesn’t come on campus; however, the reality is that school officials are public figures and aren’t afforded the same rights to privacy as non-public figures. Also, the actions of a teenager shouldn’t get the best of an adult. I respect the freedom of speech for all people and believe that Voltaire said it best, “I may despise what you say, but I defend to the death your right to say it.” I agree with the court, but it is sad that this case went to court to begin with. The minority opinion in the case made an interesting argument by stating that the Internet is everywhere and that J.S. and her friend knew that at some point the MySpace account was going to be discovered by other students and then come on campus, but I still believe the majority was correct to decide the way they did. Does a teenager fully understand that the Internet and everything published on it are essentially public to the whole world? I’d like to think so, but having seen many students make mistakes with publishing unfortunate things on the Internet, I believe they do necessary know the ramifications of their actions, which is where we enter the scene as educators. The Internet is everywhere, but we must draw some lines between where families have the right to govern themselves and where the school can govern students. J.S. and the other student wrote some pretty terrible things on the Internet about Mr. McGonigle and his immediate family, which is where the principal should have taken a deep breath before he launched into his witch hunt. A ten-day out of school suspension was very harsh in my opinion and then calling the police pushed J.S.’s family into a corner. This is a time where you sit down with the families involved and have a very long discussion about the importance of Internet safety, integrity, making mistakes and learning from them.
- First and foremost, don’t overreact to a student publishing something on the Internet. The courts’ standard for free speech is a tough one to overcome; if the situation doesn’t clearly affect the educational process, an administrator is on very shaky ground. If the speech occurs off campus, administrators should assume that the courts will treat it as protected free speech. Administrators do have a leg to stand on, if the speech occurred on campus, or with school computers, and there was clearly a disruption to the educational process. A personal insult, even a public one, doesn’t give an administrator the right to punish a student immediately. If McGonigle would have waited another week, he probably would have been completely justified in his decision on a suspension. In fact, I think if Mr. McGonigle would have stopped with a shorter suspension and the apology, J.S.’s family would have never brought this case to court. Although there were hurtful and ugly things stated about McGonigle and his family, as administrators we should always put personal feelings aside and focus on what is best for the student. J.S. was, at the time, an eighth grade teenager; she was punished for a dress code violation and lashed out on the Internet. This was a great time for a teachable moment for the child and family; a wonderful opportunity to show some benevolence and compassion. Instead, it turned into a fiasco, an huge expense and embarrassment for the school district. Mr. Gonigle was upset and possibly worried about his reputation in the community, after losing this court case and spending thousands of dollars of the district’s money -- is his reputation better or worse? I’d say worse.
Sunday, October 14, 2012
This was Sharon Grey’s fifth year as principal of Riverboat High School, and she had to agree that this group of seniors had been a real challenge. The final straw occurred in February. During a snow break, several seniors loaded up in two or three cars and drove the 8 hours to New Orleans for Mardi Gras. Unfortunately, the local snowstorms quickly dissipated, and district schools reopened before the students returned. The fact that the school was in session had little impact on the dozen or so seniors in New Orleans, and they decided to stay for a few more days. Apparently, the parents of this group sent them more money and condoned their “senior trip” in spite of the fact that one of the young men managed to get arrested by the New Orleans police and charged with underage drinking. The group returned as heroes to the rest of their senior class and as villains to the staff. Sharon was bound by policy to mark their absences as unexcused, much to the dissatisfaction of several of the students’ parents. In spite of her best efforts, this issue developed into an emotional confrontation between several parents and the Board of Education, with hurt feelings on all sides. “Senior shirts” had been a long tradition at Riverboat High School. Each year the senior class designed a T-shirt, collected money from other seniors, and contracted with a local company to screen print shirts for the senior class. When Sharon first can to Riverboat High School, the shirts were relatively simple items, but they had become more complex and expensive over the past few years. Sharon sighed as she thought about this year’s shirt. The front of the shirt was simple enough. It read SENIORS 2011 and, in script, “The Best is Yet to Come.” However, on the back of the shirt was a purple, green, and gold Mardi Gras mask. Under the mask was the slogan “GOODBYE RHS: BURN IN HELL.” In the background Sharon could make out a figure, clearly female, tied to a cross with flames enveloping the lower torso.
As the Supreme Court stated in Tinker, “students possess the same constitutional rights as adults and that these rights do not end at the schoolhouse door.” Students do have rights to free expression, but their rights are balanced by the schools need to maintain an orderly and safe environment to promote the educational process. With regards to freedom of expression the question should focus on whether or not the shirts create a material or substantial disruption to the educational process? It is clear that the entire school community is aware of the events that happened involving the seniors who skipped school and went to Mardi Gras, therefore, a shirt referencing the event calls attention to skipping school and reckless alcohol use. This shirt disrupts the educational process and certainly undermines the school’s authority. The Morse v. Frederick case can be used to justify banning the shirts from school because the message of the shirt is inconsistent with the school’s mission.
In addition, Scott v. School Board of Alachua County established that schools can ban shirts with symbols on them, if the symbols are considered highly offensive. The image of a person burning on a cross could be understood as a reference to actions of the KKK. Although the school’s location wasn’t provided, it is located within driving distance of New Orleans and can be assumed to be in the Southern part of the US. A reference to the actions of the KKK would be highly offensive to minority students and parents; the administration could ban the shirts to protect students from possible violent confrontations that could arise from students being offended by the symbol of a person being burnt on a cross. Finally, the phrase “burn in hell” is certainly offensive language. In the case Bethel School District v. Fraser the court established that offensive language is not necessarily protected. Students are allowed to have controversial opinions, but that right must be balanced against the school’s interest in teaching appropriate behavior.
Principal Grey’s first action should be to get a photo of the front and back of the shirt and contact her school board and superintendent as soon as possible. Any action she ultimately takes needs the support of her superintendent and the school board, because there is a strong possibility that this will end up in court. Citing court cases like Morse v. Frederick, Scott v. School Board of Alachua County, and Bethel School District v. Fraser she should explain the need to ban the shirts from campus. Using the school’s student handbook, she should draft a document establishing the need to ban the shirt and the consequences for wearing the shirt on campus. In my school, administrators have the right to ban any offensive clothing. For violating the rule, students receive a warning for a first offense with a parent phone call; a detention and parent phone call for a second offense; an in-school suspension (up to three days) and a parental meeting for a third offense; an out of school suspension (up to three days) and a parental meeting for a fourth offense; a possible expulsion for a fifth offense. After contacting and explaining the situation thoroughly to the superintendent and school board, she should call a meeting with the senior class. Explaining very simply and calmly, she should inform the seniors that their shirts will be banned from campus and the consequences for violating the ban. Also, a written letter to the senior parents explaining the reasons for the ban and consequences for violating the ban should also be sent home immediately.
Wednesday, October 10, 2012
Saturday, October 6, 2012
Currently I'm taking a School Law course for my MSE in Educational Leadership. My professor asked us to summarize an article about an issue involving freedom of speech and students. Those interested in school law, school leadership, student rights, or social media are encouraged to read this post. Cheers!
Wilson, C. (2012). Students profane tweet stirs free-speech debate. Associated Press. Retrieved from http://news.yahoo.com/students-profane-tweet-stirs-free-speech-debate-185703148.html
Austin Collin, a student at Garrett High School in Garrett, Indiana, was suspended after writing a tweet on March 16, 2012 at 2:30am from his home. The tweet contained a profanity: the f-word. A few days later school administrators informed Collin that he was expelled from school. Collin’s mother believes that it is retaliation for a few other discipline problems from before this episode. According to the mother, Collin violated the school dress code by wearing a kilt to school and wrote a profanity on a school computer once before while on campus. The problem in this case is that Collin claims he wrote the tweet on his own computer and not on the school network. The school administration claims that the tweet did come from either a school computer or the school network which is how they know about the tweet. The school network automatically flags any profanities sent out by electronic means or unapproved websites visited. Although the school officials aren’t allowed to directly comment on a student discipline case because of confidentiality issues, it is clear that somehow they were aware of the late night tweet.
The article details the landmark Tinker case as the Supreme Courts historical take on student freedom of speech. The article goes on to explain that state legislatures and school officials are looking for guidance from the courts for clarification on student free speech off-campus, but that the Supreme Court as denied to hear three cases about student off-campus speech in this session. Lower court rulings are all over the map and without clear guidance, state legislatures and school officials are making choices that may cost them later.
The school policy appears to be punishment for any student who uses a school computer or the school network to send profanities electronically. Also there is punishment for visiting any unapproved websites. Because this article doesn’t publish the exact wording of the policy, it is impossible to determine if it unconstitutionally written.
Although this is a news article and not really a review of a policy per se, I do feel there are some issues that need to be dealt with. There are some issues not clearly known in the situation in the article, but one thing is for sure -- the school will find itself in court over this matter. Not only will they find themselves in court, they will probably lose the case. I can see several problems with who the administration handled this student discipline matter. First, expulsion is an extreme form of punishment. This is a violation of the students Fourteenth Amendment right to equal treatment. The student has a right to an education and poses no threat to the health or safety of the school environment. There has been no threat made by the student toward any student, faculty member, or administrator. Furthermore, based on Tinker the administration has no legs to stand on, because there was no material or substantial disruption to the educational process. In addition, the question of whether or not Austin Collin intentionally meant to send the tweet from the school network also posses a dilemma. However, even if he intentionally sent the tweet from the school network, the punishment fails to fit the crime and is a possible violation of Collin’s rights under the Eighth Amendment -- the right to be free of cruel and unusual punishment. With these things in mind, I disagree with how the administration of the school handled this discipline case. Although I believe that Collin should be suspended for his actions, expulsion is way overboard on the part of the school.