Schools punishing kids for what they say online

[Johnny_Blaze_47]

Schools punishing kids for what they say online

By Rebecca Neal
[email protected]

A growing number of school officials in the Indianapolis area are trying to punish students for Internet commentary they deem inappropriate -- including postings on home computers -- drawing outrage from teens and free-speech advocates.

One student has been expelled at one school, another suspended. One school district has warned students they are legally responsible for postings; another will vote on a similar policy this month.

"Kids look at the Internet as today's restroom wall," said Steve Dillon, director of student services for Carmel Clay Schools. "They need to learn that some things are not acceptable anywhere."

Carmel High School used its harassment and bullying policy to expel a student Dillon said posted sexually explicit comments about a teacher on MySpace. A second Carmel student was suspended for 10 days and given community service for posting racially offensive comments about a teacher on the site, he said.

Another area school district, Clark-Pleasant in Whiteland, is trying to pass a policy that puts students -- and teachers -- on notice that they are legally responsible for anything they post online, including material deemed defamatory, obscene, proprietary or libelous. The proposed policy will come before the School Board on Oct. 17. Beech Grove passed a similar policy in the spring. "If something starts online and spills into school, we want to be able to deal with that and restore order to the school," said Clark-Pleasant Director of Technology Jim White, who crafted the district's proposed policy on responding to Internet activity.

While educators worry that postings on Web sites such as MySpace can disrupt learning, students see controlling what they post outside school as a threat to their right of free speech.

Civil rights advocates are on their side, worrying that the new policies extend government's reach too far into the personal lives of students.

"It's chilling and gives the effect that people don't know what they can and cannot say," said Henry Karlson, a professor at Indiana University School of Law-Indianapolis. "How disruptive does it have to be for the school to be able to control it?"

MySpace and other social networking sites are an integral part of tech-savvy teens' worlds. Students post everything from photos and homemade videos to journals chronicling their crushes, vacations and school experiences.

To these kids, the idea of new controls is troubling.

"The school system has no right to sit there and tell us what we can and cannot do at home," said 17-year-old Kayla Wiggington, a junior at Clark-Pleasant's Whiteland Community High School who uses MySpace to keep in touch with friends. "They can control what we do at school, but when it gets home, the only people who can tell us what to do is our parents, not the school."

At this point, only a few schools in the metro area have policies targeting what students can say online. But virtually all block access on school computers to sites such as MySpace and Facebook, where students can post photos, text and other material, and the online journals known as blogs on Web sites such as LiveJournal and Xanga.

Dillon said the Carmel Clay district hoped its cases would serve as a warning to students.

"We wanted to find a couple students, prove it was them, apply discipline and then let the word get out to the other kids," he said.

Who should monitor kids?

Schools, however, must remember that students do have significant First Amendment rights in school, said Karlson, the law professor.

He said most of the policies he's reviewed do not define disruptions clearly.
"The control of student speech should be in the hands of the parents, not the school, when children are out of school," he said. "It's unfortunate that the school is regulating student activities instead of parents doing that."
The Indiana School Boards Association has seen a rise in the number of schools inquiring about disciplining students based on Internet postings and the need for new policies.

"Lots of schools are asking what they can do," said Julie Slavens, the association's staff attorney. "In the past six months, I've had more calls than ever before."

She said the association reminds schools that students do have free-speech rights, but that students must remember that anyone -- parents, principals and potential employers -- has access to what they say online.

"We're educating kids that people are watching what they say and do online," she said, "and that it's not as private as they think."

Whiteland junior Logan Sappington uses MySpace to promote his acoustic guitar duo, Hopeless Romantics. He said it's fine for schools to use the policies when physical threats are made against students, but he questions whether administrators will go too far in spying on students' lives outside school and in trampling on their free-speech rights.

"I think they should notify the parents if they hear of something," said Sappington, 17. "In the end, this is just gossip. That's all that's on MySpace -- gossip."

Slavens, the attorney, said students should be prepared for more policies -- and monitoring -- to come.

"MySpace and other sites really have a life of their own," she said. "We're going to see more and more of this in the next few months."

A few local schools' policies on Internet usage

Here are three examples of policies local school districts have adopted or are considering adopting regarding Internet postings:

Beech Grove
"Computer Usage Infractions -- Actions that do not adhere to the provisions of the authorized user policy or federal law with regard to computer facilities and equipment. Creating e-mails, Web blogs, Web sites, etc. . . . with the intent to harass, ridicule, humiliate, intimidate, or harm individuals."

Carmel Clay
"The superintendent is directed to establish administrative guidelines to ensure that students and staff are making appropriate and ethical use of computers, other equipment and networks. The superintendent shall establish administrative guidelines which comply with federal and state laws and are in accordance with any guidelines promulgated by the State Department of Education.

The superintendent shall also ensure that staff and students are adequately informed about disciplinary actions that will be taken if corporation technology and/or networks are abused in any way or used in an illegal or unethical manner."

Clark-Pleasant (remains under consideration)
Excerpt: "When you choose to publicly air your opinions via a blog, you are legally responsible for your commentary. Individual bloggers can be held personally liable for any commentary deemed to be defamatory, obscene (not swear words, but rather the legal definition of "obscene"), proprietary or libelous. For these reasons, bloggers should exercise caution with regards to exaggeration, colorful language, guesswork, obscenity, copyrighted materials, legal conclusions and derogatory remarks or characteristics."

Sources: Beech Grove, Carmel Clay and Clark-Pleasant school districts

SOME BLOGGING CASES
As schools across the country adopt blogging policies, parents have challenged their cons utionality. Here are a few cases stemming from the policies:

Colorado: Littleton High School junior Bryan Lopez was suspended after posting comments about his school on MySpace.com in February. On his profile, he discussed the poor condition of his school building and the perceived racial biases of teachers and staff. Lopez contested his suspension and was reinstated.

Ohio: Eighth-grader Jessica Schoch was expelled after posting a parody profile of a school administrator on MySpace in the spring. The Holland, Ohio, teen protested the expulsion, claiming the profile was free speech. The Springfield School Board later reversed the expulsion.

Pennsylvania: Student rapper Anthony Latour, Ellwood City, posted his original rap lyrics and recordings on the Internet. Latour, then 14, and a friend engaged in "battle rap," trying to one-up each other with violent lyrics. Anthony was expelled in May 2005 because of the violent lyrics and arrested and charged with terroristic threatening, though the charges were later dropped. He sued the Riverside Beaver County School District, which settled with Latour's family for $90,000. Latour has since filed a lawsuit against the officers who arrested him.

-- Star research

[Trainwreck2100]

Any kid that is stupid enough to post about their school on a public forum deserves it, if they went on TV and said that stuff the same would be expected.

Talk about your parents, you stupid emo bas s, but when you are stupid enough to attack a school official where anyone in the school can see it you deserve what you get.

[Johnny_Blaze_47]

Any kid that is stupid enough to post about their school on a public forum deserves it, if they went on TV and said that stuff the same would be expected.

Talk about your parents, you stupid emo bas s, but when you are stupid enough to attack a school official where anyone in the school can see it you deserve what you get.

They don't deserve to have their right to free speech restricted.

Look at that Colorado case at the bottom.

[dirk4mvp]

That's bull .

[Trainwreck2100]

They don't deserve to have their right to free speech restricted.

Look at that Colorado case at the bottom.

School's do have the right to quash certain rights though, the easiest example is search and seizure. The USSC ruled that school's can search anybody if the need is there.

[Johnny_Blaze_47]

School's do have the right to quash certain rights though, the easiest example is search and seizure. The USSC ruled that school's can search anybody if the need is there.

True, but we're not talking about students and privacy rights.

[MannyIsGod]

This is pretty much complete bull . Students can say whatever they want about another individual when not at school. Whats next, if a student tells another student at home that one of his teachers is a "stupid " then he gets expelled if school officials find out?

[Trainwreck2100]

This is pretty much complete bull . Students can say whatever they want about another individual when not at school. Whats next, if a student tells another student at home that one of his teachers is a "stupid " then he gets expelled if school officials find out?

Here's the thing Myspace isn't a private convo between you and your friend it's basically a public forum. If the student goes on television and says the teacher is a stupid would a suspension be expected then. What if he hands out flyers with the teacher's picture and stupid written on it. Wouldn't you expect a suspension for those cases, how is MySpace any different.

[Leetonidas]

Here's the thing Myspace isn't a private convo between you and your friend it's basically a public forum. If the student goes on television and says the teacher is a stupid would a suspension be expected then. What if he hands out flyers with the teacher's picture and stupid written on it. Wouldn't you expect a suspension for those cases, how is MySpace any different.

Free Speech. We're not in school so why should we be governed by school in our homes? It's serious bull , and school districts need to seriously back the off.

Watch me ing get arrested for saying that too.

From 8:50 to 4:05, I'm a prisoner in school, but when that bell rings and I go home, I should be able to do whatever the I want.

[Johnny_Blaze_47]

Here's the thing Myspace isn't a private convo between you and your friend it's basically a public forum. If the student goes on television and says the teacher is a stupid would a suspension be expected then. What if he hands out flyers with the teacher's picture and stupid written on it. Wouldn't you expect a suspension for those cases, how is MySpace any different.

No, I wouldn't expect a suspension.

Students don't lose their first amendment rights when they walk through the door to a school.

Tinker v. Des Moines ISD

http://en.wikipedia.org/wiki/Tinker_...chool_District

[Trainwreck2100]

No, I wouldn't expect a suspension.

Students don't lose their first amendment rights when they walk through the door to a school.

Tinker v. Des Moines ISD

http://en.wikipedia.org/wiki/Tinker_...chool_District

So you think a school can just sit by and do nothing when someone publically insults a school official

[Johnny_Blaze_47]

So you think a school can just sit by and do nothing when someone publically insults a school official

If I publically insult you, what's the difference?

[Trainwreck2100]

If I publically insult you, what's the difference?

I'd be hurt for one thing what did I do to you?

I'm not your authority figure, I'm sure somewhere in the handbook of any school there's something against going after faculty. A teacher's job is hard enough without some little punk posting something on a board because he can't say it to the person's face without disciplinary action. What is the difference between walking up to a teacher and saying "you are a stupid " and posting it on MySpace.

[Johnny_Blaze_47]

What is the difference between walking up to a teacher and saying "you are a stupid " and posting it on MySpace.

There is no difference. In fact, they're the same in that it's protected speech.

The argument here is whether or not schools can do this outside of the classroom environment. There are legal rules in schools about disrupting the learning environment, which are how schools can regulate a student that calls a teacher a stupid , not specifically for the language or speech.

It can be in handbooks all they want (see some of the examples I posted from the IndyStar), it doesn't make it legal.

So what type of speech should be restricted from schools? What part of Tinker is wrong? What if the students had worn armbands outside of the school and were disciplined by the school?

I'm almost certain you're not agreeing that the Tinker kids could have been disciplined for protesting the war outside of school, so what type of speech is subject to disciplinary action? Speech you find vulgar?

[Trainwreck2100]

I could care less about vulgar speech, I just don't like that HS student's think they can do whatever they want, If you go and post on your MySpace insulting your boss do you think you are above reprisal?

[Leetonidas]

There is no difference. In fact, they're the same in that it's protected speech.

The argument here is whether or not schools can do this outside of the classroom environment. There are legal rules in schools about disrupting the learning environment, which are how schools can regulate a student that calls a teacher a stupid , not specifically for the language or speech.

It can be in handbooks all they want (see some of the examples I posted from the IndyStar), it doesn't make it legal.

So what type of speech should be restricted from schools? What part of Tinker is wrong? What if the students had worn armbands outside of the school and were disciplined by the school?

I'm almost certain you're not agreeing that the Tinker kids could have been disciplined for protesting the war outside of school, so what type of speech is subject to disciplinary action? Speech you find vulgar?

I see what you're saying. It's not like if the Tinker kids wore the armbands and posted pictures of them on MySpace they would have gotten suspended.

[Trainwreck2100]

I see what you're saying. It's not like if the Tinker kids wore the armbands and posted pictures of them on MySpace they would have gotten suspended.

Kids have been suspended for having pics of themselves surrounded by guns, that they posted on MySpace

[Zunni]

I could care less about vulgar speech, I just don't like that HS student's think they can do whatever they want, If you go and post on your MySpace insulting your boss do you think you are above reprisal?

Ding ding ding. We have a winner. People have already been fired for what they write in their blogs about their boss or even their company.

[Johnny_Blaze_47]

I could care less about vulgar speech, I just don't like that HS student's think they can do whatever they want, If you go and post on your MySpace insulting your boss do you think you are above reprisal?

My boss = private enterprise

School districts = publically funded

[Johnny_Blaze_47]

Ding ding ding. We have a winner. People have already been fired for what they write in their blogs about their boss or even their company.

My boss = private enterprise

School districts = publically funded

[Johnny_Blaze_47]

And just in case you didn't see it before.

My boss = private enterprise

School districts = publically funded

[Trainwreck2100]

My boss = private enterprise

School districts = publically funded

So any gov. worker can insult his boss on MySpace?

[Zunni]

So any gov. worker can insult his boss on MySpace?

Damn, you beat me to it.

When you put yourself out there publicly, there are consequences. The kids are probably accessing it on school computers, so then it ISN'T any different from the bathroom wall.

[KEDA]

I publically insult Joe all the time and he does the same to me, am I going to stop anytime soon because he might get mad at me?


no.

[Johnny_Blaze_47]

Damn, you beat me to it.

When you put yourself out there publicly, there are consequences. The kids are probably accessing it on school computers, so then it ISN'T any different from the bathroom wall.

Actually, the article says that kids are doing this away from school grounds.

If they're accessing it or using school materials to do it, then hey, they're subject to the rules against using school property to say what they said, not the fact that they said it.

I'm not saying there can't be consequences. Bosses can fire their employees, but I don't know the difference seen in public speech by public employees.

I'm not going to sit here, though, and say I know the law in and out about public employees and freedom of speech.

The best information I can find on the subject is Connick v. Meyes.

Connick v. Myers: Reflections on landmark public employee free-speech case

By David Hudson
freedomforum.org

04.10.01

New Orleans attorney and former U.S. Supreme Court litigant Sheila Myers says that she wishes the landmark public employee free-speech case that bears her name were not a "negative one for public employees."

In 1983, the Supreme Court ruled in Connick v. Myers that Harry Connick, the district attorney in Orleans Parish, did not violate Myers' First Amendment rights when he discharged her for distributing a questionnaire to her fellow assistant district attorneys in the office.

Ironically, nearly 20 years later, the major players in the case remain heavily involved in the legal community in the New Orleans area. Connick, the father of famous jazz musician Harry Connick Jr., is still the district attorney.

Myers practices criminal defense law in New Orleans. Both attorneys who argued the case before the Supreme Court still reside in New Orleans.

Their lives will be forever linked in what is considered the leading public employee free-speech case. "When a federal court has a public employee free-speech case, the first precedent it looks to is Connick v. Myers," said Supreme Court prac ioner Tom Goldstein.

Neither Myers nor Connick ever saw the case as a major First Amendment case. Myers said that she thought her act of distributing the questionnaire was fully authorized. For his part, Connick sees the case as an employee who disobeyed an order.

However, the 18-year-old case has become a landmark. "The case established a doctrine that has shaped the analysis of countless public employee free-speech cases," says Robert O'Neil, author of The Rights of Public Employees.

The controversy: a transfer, a questionnaire
The controversy began after then-first assistant district attorney Dennis Waldron informed Myers that she was being transferred to a different section of the criminal court. At that time, Myers had been employed at the district attorney's office for more than five years.

Believing the transfer to be unjust, Myers told Waldron that she objected to it. During their discussion, Myers complained about some other procedures in the office. Waldron informed her that others did not share her concerns. According to Myers, she told Waldron she would obtain information on these matters.

"He said 'fine,' and I regarded what I did as fully authorized," she says. Myers distributed a 14-point questionnaire soliciting the views of her fellow staff members concerning office transfer policy. Some of the questions were:

* From your experience, do you feel office procedure regarding transfers has been fair?

* Do you generally first learn of office changes and developments through rumor?

* Do you ever feel pressured to work in political campaigns on behalf of office-supported candidates?

* Do you feel a grievance committee would be a worthwhile addition to the office structure?

After Myers distributed the questionnaire to 15 assistant district attorneys, Waldron phoned Connick and told him that Myers was creating a "mini-insurrection" within the office.

When Connick returned to the office, he informed Myers that she was being terminated for her refusal to accept the transfer. He also told her that her distribution of the questionnaire was an act of insubordination.

Myers sued in federal court, contending that she was fired in violation of her First Amendment free-speech rights. A district court sided with Myers, finding that the real reason for her termination was her cons utionally protected act of distributing her questionnaire about important public issues. The district court determined that the questionnaire had not "substantially interfered" with the workings of the D.A.'s office.

After the 5th U.S. Circuit Court of Appeals affirmed the lower court, Connick appealed to the U.S. Supreme Court — which agreed to review the case.

"When the court granted cert., I had this sinking feeling," said Tulane law professor George Strickler Jr., who argued the case on behalf of Myers. "Plainly, we figured there were at least four justices who disagreed with the lower courts." (For the Supreme Court to grant review of a decision, four justices must vote to hear the case.)

Similarly, New Orleans attorney William F. Wessel, who argued the case for Connick, said that "once the Supreme Court granted certiorari, we felt we would win."

Supreme Court's decision
Strickler and Wessel proved accurate about the outcome of the high court's decision. On April 20, 1983, the court ruled 5-4 in favor of Connick.

Writing for the majority, Justice Byron White phrased the issue as: "whether the First and Fourteenth Amendments prevent the discharge of a state employee for circulating a questionnaire concerning internal office affairs."

The majority's phrasing of the issue foreshadowed its result, because a key inquiry in public employee free-speech cases was whether the speech in question touched on matters of public concern.

In its 1968 decision Pickering v. Board of Education, the Supreme Court determined that school board officials in Will County, Ill., violated the First Amendment rights of high school teacher Marvin Pickering when they fired him for writing a letter to the editor of the local newspaper. In his letter, Pickering criticized the board of education for its allocation of school funds between athletics and education.

The high court in Pickering wrote that the problem in public employee free-speech cases was balancing "the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees."

White used the Pickering analysis to determine that the threshold question in a public employee-speech case was whether the speech touched on matters of public concern or public importance.

The majority ruled that nearly all of Myers' questions were private internal matters, rather than issues of public concern. "Indeed, the questionnaire, if released to the public, would convey no information at all, other than the fact that a single employee is upset with the status quo," White wrote.

However, White determined that the question of whether assistant district attorneys "feel pressured" to work in political campaigns did "touch upon a matter of public concern."

"We believe it apparent that the issue of whether assistant district attorneys are pressured to work in political campaigns is a matter of interest to the community upon which it is essential that public employees be able to speak out freely without fear of retaliatory dismissal," White wrote.

The majority then said that the next question was whether Myers' interest in free speech on a matter of public concern outweighed Connick's interest in a disruption-free working environment.

The majority sided with the employer's efficiency interests. "When close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to the employer's judgment is appropriate," White wrote.

The tone of the majority's opinion takes a pro-employer stance. For example, White wrote that "government offices could not function if every employment decision became a cons utional matter."

Four justices dissented in an opinion written by Justice William Brennan. Brennan wrote that most of the subjects in Myers' questionnaire "addressed matters of public concern that could reasonably be expected to be of interest to persons seeking to develop informed opinions about" the district attorney's office.

Brennan argued that the majority "artificially" restricted "the concept of public concern." He believed that the proper standard should be one similar to the standard articulated by the court in a student-speech case, Tinker v. Des Moines Independent Community School District. In Tinker, the high court ruled that student expression could not be punished unless school officials could reasonably forecast that the expression would cause a substantial disruption of the school environment.

Brennan concluded that the majority's decision would "deter public employees from making critical statements" about the way in which government agencies operate.

Reflections by attorneys
Strickler says that Brennan was correct in his dissent when he predicted that the decision would chill critical employee speech. "The standard from the case on what is a matter of public interest has proved not to be very workable in the sense that we see very different opinions by the lower courts," he said.

He said that in the trial court, his side "showed ample evidence that the questionnaire did not cause any inflammatory uprising or 'mini-insurrection.' "

"This was the purest kind of speech by an employee," Strickler said. "This had been an easy case for the lower courts and, I think, rightfully so."

However, Strickler says that "plainly, the Supreme Court's decision establishes that public employees are more at risk for expressing dissent."

Predictably, Wessel disagrees with those assessments. He said he never viewed the case as presenting a large First Amendment issue. "I always characterized the speech at issue in this case as petty bickering," he says.

"I think the Supreme Court majority took a common-sense approach to this type of situation," he says. "If you look at the tone of the questionnaire, it was nearly 100 percent internal."

"The primary precedent from the case is that not everything said in the public arena by public employees gets the protection of the First Amendment," he says.

But Wessel, who practices employment law and usually represents employees, says that "the First Amendment is not imperiled in the area of public employment."

Ironically, it was Wessel who first interviewed Myers when she joined the district attorney's office. However, he left to private practice before the controversy. "Sheila was an excellent prosecutor," he says.

Reflections by litigants
Connick, who has been district attorney for 27 years, still is puzzled over how the facts of the case gave rise to a First Amendment Supreme Court decision.

"We should have won in the district court," he says. "We never should have gone to the U.S. Supreme Court.

"If that case got to the Supreme Court, then any case involving a public employee could get to the Supreme Court," Connick said. "At oral arguments, I was thinking, 'What in the are we doing in the Supreme Court?' This case had to do with an assistant D.A. refusing to be transferred for the good of the office. All of this free-speech foolishness was nonsense."

Connick insists that Myers was not fired for the questionnaire but for refusing the transfer. "We got into this First Amendment issue, but that was totally unrelated," Connick said. "An employer should be able to fire an employee who fails to follow orders, plain and simple."

Myers, however, sees the case as a free-speech loss for public employees. She also disagrees with Wessel's assessment of her speech. "The speech goes from creating a 'mini-insurrection' to 'petty bickering,' " she says. "Who knows what label will be placed on it next.

"I think public employees were disserved by this decision," she said. "I didn't draft the questionnaire with the thought that it would be risky to my employment. I thought it was at least implicitly authorized by Judge Waldron." (Dennis Waldron is now a criminal court judge.)

Both Connick and Myers agree with the Supreme Court that speech about employees being pressured to work in political campaigns is a matter of public concern. They just disagree on whether it occurred in Connick's office.

"That is an issue of grave public concern and is absolutely improper," Connick said. "I can tell you that that has never happened in my office."

Myers says she was disappointed with her firing and by the Supreme Court's decision. "I was probably more upset at being fired, particularly because I was the first person from my family to become an attorney," she says.

However, Myers holds no bitterness over the actions of Connick and Waldron.

"It is kind of ironic that we are all still around," Myers said. "When I see them, I speak and they speak. I think there is a level of mutual respect. I did what I thought was right, and I think they did what they thought was right at the time.

"I do believe that a positive outcome for me from the case is that people believe me when I say that I'm going to do something," said Myers, who is doing a large amount of death-penalty litigation these days. "I think people believe that I will stand up for what I believe in."

For his part, Connick says that his office had better respect the rights of Myers as a criminal defense attorney. "She has a duty to represent her clients, and my attorneys must respect that duty. I don't believe most of the attorneys in my office even know that this incident happened," he said.

Myers' biggest regret, though, is that the case bearing her name is a bad one for public employees. "It bothers me that it is cited as the case against public employees."

Future of public employee free speech
The Supreme Court's decision in Connick v. Myers has been applied in different ways by the lower courts. For example, the lower courts are divided on what cons utes a matter of public concern.

"This area of the law is very confused in the lower courts right now," Goldstein says. "It is confused in no small part because of the very different factual situations that can arise and because of the very flexible standard from Connick v. Myers."

O'Neil, the founder of the Thomas Jefferson Center for the Protection of Free Expression, agrees that "clarity is lacking in the court's opinion. Since the decision we have had continuous confusion about what speech is a matter of public concern."

"This is a messy area of First Amendment jurisprudence," Goldstein says. "I expect that the conflicts in the lower courts will give rise to another Supreme Court case."

Connick agrees with the First Amendment experts that the Supreme Court case is "confusing." "The decision is confusing," he said. "I don't know how this case became a big First Amendment case. The main reason this employee was fired was for failing to follow an order."

Myers hopes the high court will review this area of First Amendment law. "I hope to live to see it overturned," she says