School officials need to be wary when punishing students for inappropriate off-campus, online speech or forcing students to disclose social-media passwords. Such conduct could violate students’ First Amendment right to free speech and Fourth Amendment right to be free from unreasonable searches and seizures.
That appears to be the lesson from a recent federal court decision in Minnesota. Earlier this month, a federal judge refused to dismiss a lawsuit arising from a middle school’s punishment of an eighth-grader for her Facebook posts.
In early 2011, a student at Minnewaska Area Middle School known in court papers as “R.S.” got mad at a school monitor and posted on Facebook that she “hated” the school monitor. After receiving a detention and being forced to apologize to the monitor, the student posted a second message containing profanity and inquiring who told school administrators about her initial post. She was subsequently punished for this post.
Later, in March 2011, school officials learned that R.S. apparently had engaged in sex talk that was initiated by a boy in her class. According to R.S., school officials, including a school resource officer, took her out of class and forced her to disclose her Facebook username and password and then read her public postings and private messages.
R.S. then sued in federal court, contending that school officials violated her First Amendment free-speech rights by punishing her for her off-campus, online postings. She also alleged that school officials violated her Fourth Amendment right to be free from unreasonable searches and seizures when they forced her to disclose her passwords and then searched her online content.
The school defendants filed a motion to dismiss the lawsuit. On Sept. 6, U.S. District Judge Michael J. Davis denied the defendants’ motion with respect to the First and Fourth Amendment claims in R.S. v. Minnewaska Area School District.
On the First Amendment claim, Davis ruled that public school officials can punish students for off-campus, online speech only if the speech constitutes a true threat or “pose[s] a substantial disruptive effect.” The judge characterized R.S.’s statements about the school monitor as merely “inappropriate” and a far cry from a true threat or speech that caused a substantial disruption.
Even more significant perhaps to the ultimate outcome of the case, Davis ruled that there is “clearly established” law that school officials cannot punish students merely for “inappropriate” online speech. This finding caused Davis to deny the defendants’ request for qualified immunity, a defense available for government officials if they don’t violate clearly established law.
On the Fourth Amendment claim, Davis emphasized that R.S. “had a reasonable expectation of privacy to her private Facebook information and messages.” He also reasoned that this principle was clearly established law.
Davis stressed, however, that “this case is still in its infancy” and that the school officials “may reveal facts which change the Court’s analysis of the school defendants’ qualified immunity claims or of the ultimate merits of [R.S.’s] claims.”
Dissenting opinions obviously don’t have the force of law that majority opinions do. But that doesn’t mean they aren’t better reasoned. Recall that Justice John Marshall Harlan (the first one) was known as “the Great Dissenter” in part for his solitary dissent in the abhorrent Plessy v. Ferguson (1896), in which the Court sanctioned segregation and the noxious separate-but-equal doctrine.
Judge Rosemary Pooler’s March 22 dissent in the student-speech case Cuff v. Valley Central School District from the 2nd U.S. Circuit Court of Appeals may not rise even close to that level of prominence. Yet it brought some much-needed perspective to an area of law in desperate need of it.
The case involved a class assignment in 2007 for fifth-graders at Berea Elementary School in Montgomery, N.Y., to color in a picture of an astronaut and write anything on it they wanted. The teacher allegedly told the class: “When I mean anything you want, anything. You can write about missiles.”
Hearing this, 10-year-old B.C. — in juvenile cases often only initials are used — wrote on his picture that he wanted to “blow up the school with all the teachers in it.” He showed the picture to his classmates and they laughed.
It was no laughing matter to the teacher, and B.C. received a six-day suspension. His parents sued on his behalf, alleging a violation of his First Amendment rights. When the case reached the 2nd Circuit, the three-judge panel ruled 2-1 in favor of school officials.
Judge Ralph Winter reasoned that school officials must have broad authority to handle student-speech issues in order to prevent violence or a substantial disruption of school under the U.S. Supreme Court’s famous decision in Tinker v. Des Moines Independent Community School District (1969).
“Courts have allowed wide leeway to school administrators disciplining students for writings or other conduct threatening violence,” he wrote. “The threat of substantial disruption was aggravated by B.C.’s sharing of his ‘wish’ with fellow students, an act reasonably perceived as an attention-grabbing device.” The reasoning was that other students might engage in distracting copycat behavior that would interrupt education at the school.
Judge Pooler disagreed with this line of reasoning, noting that Tinker requires at least a forecast of a substantial disruption. To Pooler, B.C.’s act created only a “minor disruption.”
She also warned that the majority opinion allows a speaker’s First Amendment freedoms to be determined entirely by listeners. She didn’t use the term, but the majority opinion sanctioned the idea of a heckler’s veto on speech.
“The First Amendment’s protection of free speech cannot hinge entirely on the reaction of a listener to a person’s speech,” she wrote. “If that were the case, the First Amendment would be only as strong as the weakest, or at least the most thin-skinned, listener in a crowd.”
Pooler did not say that the student should win the case. Disputed factual issues, such as the meaning and relevance of B.C.’s past drawings, required the case to go to jury, she said.
The majority seemed to declare that any student expression with violent themes justifies school punishment. Pooler dug deeper and questioned such unrestrained deference to school officials by the majority.
Her opinion brings to mind Justice Abe Fortas’ warning in Tinker: “[I]n our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.”
A public school student should have the right to wear a T-shirt in support of a gay-straight alliance. But a controversy at a high school in Madisonville, Tenn., highlights the reality that censorship is alive and well when it comes to sexual orientation.
Chris Sigler, a student at Sequoyah High School, wore a T-shirt with the messages “SQHS” and “Gay Straight Alliance: We’ve Got Your Back.” Sigler alleges that his principal, Maurice Moser, verbally and physically assaulted him on Sept. 30 for wearing the T-shirt.
If true, such an attack is unacceptable and likely violates the student’s First Amendment free-speech rights.
The American Civil Liberties Union of Tennessee sent a stern letter Oct. 4 to the director of Monroe County (Tenn.) Schools regarding the incident. The letter states that the T-shirt did not constitute a substantial disruption or material interference with school activities.
“It is totally unacceptable that a young man who was peacefully exercising his First Amendment rights would have his speech shut down by the public school principal,” said Hedy Weinberg, executive director of the ACLU of Tennessee, in a news release.
Under the U.S. Supreme Court’s famous student-speech decision, Tinker v. Des Moines Independent Community School District (1969), school officials cannot censor student expression unless they can reasonably forecast that the speech would cause a substantial disruption or material interference with school activities, or invade the rights of others.
The principal may have acted out of a fear that some students would pick on or bully students who wore shirts supporting the attempts to form a gay-straight club at the school. But as the ACLU indicates in its letter, “when students engage in harassment or bullying, whether their purported reason is a T-shirt or something else, the school administration is obligated to stop the harassment and maintain order and safety.”
Even if the T-shirt supporting the formation of a gay-straight alliance provoked bullying, the school should stand up for Sigler. Otherwise, the school would allow bullies to impose a “heckler’s veto” upon protected speech.
The bottom line is that a principal should be protecting a student’s constitutional rights to wear a T-shirt either for or against a gay-straight alliance. He certainly shouldn’t be in the business of censoring and harassing a student for wearing one.
The American Booksellers Foundation for Free Expression is the bookseller's voice in the fight against censorship. Founded by the American Booksellers Association in 1990, ABFFE’s mission is to promote and protect the free exchange of ideas, particularly those contained in books, by opposing restrictions on the freedom of speech; issuing statements on significant free expression controversies; participating in legal cases involving First Amendment rights; collaborating with other groups with an interest in free speech; and providing education about the importance of free expression to booksellers, other members of the book industry, politicians, the press and the public.
ABFFE: How did you become interested in student free-speech rights? Hudson: Much of it comes from my daily work at the First Amendment Center. One of the best parts of my job is getting to travel to different middle and high schools and speak to students and teachers about First Amendment issues in the schools. My interest began even before my employment at the Center, as I had a personal experience with censorship in high school (being punished for "inappropriate" speech).
ABFFE: What was something that surprised you in your research about the history of student expression? Hudson: I was surprised at the sheer number of early student speech cases. They are not often talked about, mentioned or even cited in most modern student-speech cases or secondary-source literature (with a few notable exceptions). The stories of Earl Wooster, Pearl Pugsley, Camilia Booth and other early student litigants are interesting to students - and hopefully will be interesting to readers of the book. Read the rest of the interview here. To read about other Book of the Month selections, click here.
Administrators didn’t violate the First Amendment when they expelled a Nevada high school student who sent instant messages containing an alleged hit list, a federal judge has ruled.
In 2008, Landon Wynar sent messages to a friend known in court papers as J. In his messages, Wynar threatened violence against some female students. One message read: “that stupid kid from vetch, he didn’t do shit and got a record. I bet I could get 50+ people, and not one bullet would be wasted.”
J. forwarded the messages to R., another student, who suggested that they tell Douglas County High School authorities. After J. and R. told school officials, Wynar was suspended for 10 days and then expelled for 90 days.
In October 2009, Landon and his guardian, Mark Wynar, sued school officials claiming that they violated Landon’s constitutional rights, including his First Amendment right to free-speech when he was punished for his off-campus speech.
On Aug. 10, U.S. District Judge Larry R. Hicks rejected these claims in Wynar v. Douglas County School District. Hicks reasoned that even though the speech originated off campus, most courts would apply the “substantial disruption” test from the U.S. Supreme Court’s 1969 decisionTinker v. Des Moines Independent School Districtif the speech were brought to the attention of school authorities. Under the Tinker test, school officials can restrict student speech if they can reasonably forecast a substantial disruption of school activities.
“Where a student’s speech is violent or threatening to members of the school, a school can reasonably portend substantial disruption,” Hicks wrote, adding that “the court finds that defendants had a reasonable basis to forecast a material disruption to school activities.”
Hicks noted that Landon Wynar specifically referenced April 20 — the anniversary of the infamous school shooting at Columbine High School in Littleton, Colo., as a date for the shooting and “made specific references to girls and the school by name.”
Wynar insisted that the messages were only jokes, not real threats. But Hicks said that even if they were jokes, school officials “still had a reasonable basis to forecast a substantial disruption to school activities.”
The Wynars’ attorney, Jeffrey S. Blanck, said his clients hadn’t decided whether to appeal the ruling.
“I am not happy with the decision because this was purely off-campus speech and the kid did not intend to harm anyone and didn’t convey an intent to harm anyone,” Blanck said. “This was joking between friends and the friend joked back.
“This kid spent 33 days in jail before a juvenile court judge tossed out the criminal charges.”
Requests for comments from the school district’s attorney went unanswered.
Released Today: Let the Students Speak! details the rich history and growth of the First Amendment in public schools, from the early nineteenth-century's failed student free-expression claims to the development of protection for students by the U.S. Supreme Court. David Hudson brings this history vividly alive by drawing from interviews with key student litigants in famous cases, including John Tinker of Tinker v. Des Moines Independent School District and Joe Frederick of the "Bong Hits 4 Jesus" case, Morse v. Frederick. He goes on to discuss the raging free-speech controversies in public schools today, including dress codes and uniforms, cyberbullying, and the regulation of any violent-themed expression in a post-Columbine and Virginia Tech environment. This book should be required reading for students, teachers, and school administrators alike.
David L. Hudson, Jr. is a First Amendment Scholar with the First Amendment Center at Vanderbilt University. He teaches at Vanderbilt University Law School and Nashville School of Law. Read his posts on Beacon Broadside.
“Not much good takes place at slumber parties for high school kids, and this case proves the point.” Despite that observation, U.S. District Judge Philip P. Simon found that Indiana school officials exceeded their authority when they punished two high school girls for posting provocative pictures of themselves online.
In 2009 during summer vacation, 16-year-old T.V. and 15-year-old M.K. posed for photos during a sleepover then posted them in what the court called a “saucy online display.” The court noted that several photos featured the girls pretending to lick a penis-shaped lollipop and wearing lingerie with money stuck in “stripper-style.”
The girls did not bring the images to school and all the activity took place off-campus. However, another parent brought printouts of the photos to Steve Darnell, superintendent of Smith-Green Community School Corp. The parent claimed that the images were causing divisiveness on the volleyball team — a squad which included T.V. and M.K.
Darnell took the photos to Austin Couch, principal of Churubusco High School. Couch suspended the girls from several volleyball games for violating the school’s “Extra-Curricular Code of Conduct” and student handbook. The handbook states: “If you act in a manner in school or out of school that brings discredit or dishonor upon yourself or your school, you may be removed from extra-curricular activities for all or part of the year.”
Couch also said the girls were suspended because their online photos had the potential to cause disruption at school.
In October 2009, the girls, represented by the American Civil Liberties Union of Indiana, sued in federal court, arguing that school officials violated the First Amendment by punishing them for purely off-campus conduct.
The school defendants initially argued that the online photos were not expression and therefore did not trigger First Amendment protections. Simon disagreed, writing: “The record supports the conclusion that, although juvenile and silly — and certainly not a high-minded effort to express an idea such as burning a flag or wearing a black arm band — the conduct depicted in the photographs was intended to be humorous to the participants and to those who would later view the images.” In other words, the photos were speech that conveyed a particularized message sufficient to trigger First Amendment protections.
The school defendants then argued that they had the power to discipline the students under the U.S. Supreme Court precedent Bethel School District v. Fraser (1986) — a case in which school officials suspended a student for his sexually laced speech at a school assembly. The Fraser standard provides that school officials can punish students for lewd and vulgar speech. The defendants in the Indiana case argued that because the girls’ photos were lewd and vulgar, they should evaluated under Fraser. Simon disagreed, finding that Fraser did not apply to off-campus student speech.
Simon then addressed the seminal student-speech standard from the Supreme Court’s black armband case Tinker v. Des Moines Independent Community School District (1969). Under the Tinker standard, school officials can prohibit or punish students for speech if they can reasonably forecast that the student speech will cause a substantial disruption of school activities.
“Defendant’s showing of actual disruption is extremely weak,” the judge wrote. “In sum, at most, this case involved two complaints from parents and some petty sniping among a group of 15 and 16 year olds.”
Simon concluded that “no reasonable jury could conclude that the photos of T.V. and M.K. posted on the internet caused a substantial disruption to school activities, or that there was a reasonably foreseeable chance of future substantial disruption.”
He also ruled that the school policy which permits school officials to punish students for any conduct “that brings discredit or dishonor” on the school or student is too broad and vague.
Ken Falk, the ACLU of Indiana’s legal director, told the First Amendment Center Online: “The students and parents are very happy that the court recognized that there is a clear line beyond which a school cannot go in punishing students for expressive conduct.”
W. Erik Weber, an attorney for the school district, told the Associated Press that he believed the school officials were justified in their actions in this “unsettled area of the law.” He said it was too soon to determine whether the district would appeal because the judge did not rule on whether the school corporation was immune from damages under the 11th Amendment, which often prohibits citizens from suing states for monetary damages.
A former Connecticut high school student punished for speech critical of school officials on her public Internet journal has asked the U.S. Supreme Court to hear her appeal. If the Supreme Court takes Avery Doninger’s case, it could offer much-needed guidance on when or whether school officials can punish students for online speech created off campus.
Doninger, the former class secretary of Lewis S. Mills High School in Burlington, became upset with Principal Karissa Niehoff and Superintendent Paula Schwartz in 2007 over the cancellation of a proposed student event called Jamfest. In an online message, Doninger referred to Niehoff and other school officials as “douchebags.” As a result of the message, Niehoff barred Doninger from running for re-election for student office. Later the principal also prohibited students from wearing “TEAM AVERY” T-shirts.
Doninger sued in state court, contending that the principal violated the First Amendment by punishing her for off-campus, online speech and for censoring the T-shirts. The defendants had the case removed to federal court.
Now Doninger takes her case to the high court. “This case presents important and compelling first amendment issues which impact millions of students and thousands of school officials,” reads her cert. petition in Doninger v. Niehoff.
The petition points out that the 2nd Circuit’s decision conflicts with a pair of en banc decisions issued last month by the 3rd U.S. Circuit Court of Appeals —Layschock v. Hermitage School District and J.S. v. Blue Mountain School District. In those decisions, the 3rd Circuit ruled that school officials exceeded their authority in punishing students for off-campus, online speech that did not cause a substantial disruption.
The petition adds that school officials, students and others need guidance in this area of student online speech: “The lack of guidance by this Court to address students’ internet speech, or indeed any kind of off-campus speech, combined with school officials’ inflated fears of school violence, have resulted in improper punishment of many students for otherwise protected off-campus speech.”
Twenty-five years ago – on July 7, 1986 — the U.S. Supreme Court curtailed the free-speech rights of public school students in Bethel School District No. 403 v. Fraser, ruling that public school officials could punish a student for giving a speech that they considered vulgar and lewd before a school assembly.
The decision signaled a sea change in First Amendment law, as the Court seemingly created a large exception to its seminal free-speech decision inTinker v. Des Moines Independent Community School District(1969) — known as the black-armband decision. In Tinker, the Court had ruled that public school officials could restrict or punished student speech if they could show evidence that it would cause or had caused a substantial disruption of school activities.
Under the Tinker “substantial disruption” standard, Matthew Fraser should have won his free-speech battle with school officials at Bethel High School. Instead Fraser inspired the wrath of school officials after he delivered a sex-laced speech nominating a fellow student for elective office at the school assembly of 600 students.
“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.”
For his brazenness, school officials suspended Fraser for several days for allegedly violating a school no-disruption rule. But his speech did not cause a substantial disruption. Some students giggled and snickered. A teacher took time to discuss the speech in the classroom. The incident did not, however, cause a breakdown of school discipline or other significant problems.
That is why Matthew Fraser prevailed before a federal district court in Washington and the 9th U.S. Circuit Court of Appeals. His punishment also is the probable reason that fellow students elected Matthew Fraser as a speaker at graduation. Years ago, Matthew Fraser told me in an interview that school officials made a free-speech martyr out of him.
Although lower court judges voted for Matthew Fraser, the U.S. Supreme Court did not. Chief Justice Warren Burger and the majority of his colleagues saw the legal dispute differently. They said school officials needed more flexibility to establish control over students. In the last opinion he wrote on the Court, Burger emphasized that “[t]he undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against the society’s countervailing interest in teaching students the boundaries of socially appropriate behavior.”
“Surely it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse,” Burger wrote. He created a new standard to handle student speech considered to be vulgar, lewd or plainly offensive.
Burger took pains to distinguish Fraser’s case from the Tinker precedent, writing there was a “marked distinction” between the political speech symbolized by the black peace armbands and Matthew Fraser’s sexual speech. But Burger conveniently ignored that Matthew Fraser was delivering a speech nominating a student to elective office.
Two justices — Thurgood Marshall and John Paul Stevens — dissented from the Court’s ruling. Marshall, a consistent defender of free speech, wrote that “the School District failed to demonstrate that respondent’s remarks were indeed disruptive.”
Stevens began his dissent with the famous Clark Gable line from “Gone With the Wind”: “Frankly, my dear, I don’t give a damn.” He emphasized that Matthew Fraser was denied due process because he was not given fair notice that he could be punished under a disruption rule for a speech that didn’t create a substantial disruption.
But Chief Justice Burger prevailed 25 years ago today, writing an opinion that gave school officials greater control over student speech within school walls.
This week, the Supreme Court declined to hear Doe v. Silsbee Independent School District, a case in which a cheerleader was kicked off her squad when she refused to cheer for the boy she said raped her. Hudson wrote this piece for the First Amendment Center blog when the case was making its way through the courts.
Can a silent cheerleader disrupt school activities? Is there a legitimate educational reason to punish a student for refusing to cheer for her alleged attacker?
These questions formed the basis for an appeal to the full 5th U.S. Circuit Court of Appeals filed on behalf of a former Texas cheerleader (known as H.S. in court papers), who was kicked off the Silsbee High School squad after she didn’t cheer for a basketball player who allegedly sexually assaulted her after a football game. The individual played on both the football and basketball teams.
Last September, a three-judge panel of the 5th Circuit rejected H.S.’s First Amendment, due-process and equal-protection claims in Doe v. Silsbee Independent School Dist. With respect to the First Amendment claims, the panel upheld a lower court’s dismissal in part because, it said, the cheerleader’s silence was disruptive. According to the panel, the lack of cheering “constituted substantial interference with the work of the school because, as a cheerleader, H.S. was at the basketball game for the purpose of cheering, a position she undertook voluntarily.”
The panel also reasoned: “Insofar as the First Amendment does not require schools to promote particular student speech, [the school] had no duty to promote H.S.’s message by allowing her to cheer or not cheer, as she saw fit.”
The panel cited two seminal student First Amendment decisions in its decision — Tinker v. Des Moines Independent Community School Dist. (1969) and Hazelwood School District v. Kuhlmeier (1988). In Tinker, the Court ruled that public school officials can censor student speech only if they reasonably forecast that the speech will cause substantial disruption of school activities. Under Hazelwood, school officials have more control over school-sponsored speech if their reason for censorship is reasonably related to a legitimate educational concern.
There is no way that a single cheerleader not cheering for a player at the free-throw line is disruptive. The crowd probably focused on the game, not on a single cheerleader. If the cheerleader, say, had walked to the foul line and confronted the player, that would have been disruptive. But being silent for a few moments disrupts nothing.
The full 5th Circuit reasonably could say that the student speech should be evaluated under the more deferential Hazelwood standard, in that cheerleading is a school-sponsored activity. But even the Hazelwood standard requires fundamental reasonableness. What is the legitimate educational reason in forcing a student-cheerleader to cheer for her attacker? (The player later pleaded guilty to misdemeanor assault.)
In the petition for full panel review, Larry Watts, the cheerleader’s attorney, wrote: “She cheered the entire game except for a two brief times when the accused rapist went to the free-throw line. There was no pedagogical purpose ever articulated by defendants as to why a rape victim should in addition to cheering for the team be required to cheer for the accused rapist also.”
It is not only unreasonable to force a cheerleader to cheer for her assailant, it is ridiculous. As Selena Roberts of Sports Illustrated wrote in her Nov. 8 column, “lessons remain to be learned — by the educators.”