Parents and students should familiarize themselves themselves with their school’s code of conduct or ethics policy. Adam Cohen has an interesting case study at Time. In Can Schools Punish Students for Posting Racy Photos Online? Cohen reports:
Two Indiana girls — one 16, one 15 — took racy photos of themselves at a slumber party and posted them online. When their high school found out, it suspended the girls from participating in a certain amount of their extracurricular activities. Can the school legally do that?
A federal district court in Fort Wayne, Ind., recently ruled that it cannot — because the punishment violated the girls’ First Amendment rights. The legal question of what rights students have to post provocative material on the Internet, and what rights schools have to restrict such postings, is still unsettled. But the Indiana decision is the second important ruling in recent months to strike a blow for students’ online speech rights.
In other words people have a right to be idiots. The question is do you want to be identified for posterity as terminally stupid?
Nirvi Shah is reporting in the Education Week article, Groups Urge Balance Between Censoring, Stopping Bullies:
Parts of the guidelines are bolstered by several unrelated court rulings. In a 2011 ruling by the 7th U.S. Circuit Court of Appeals in Chicago, for instance, a judge wrote that the phrase “Be Happy, Not Gay” on a student’s T-shirt was not derogatory or demeaning to other students. Students wore the shirts on the Day of Truth, a response to the national Day of Silence. The latter, sponsored by the Gay, Lesbian & Straight Education Network, or GLSEN, based in New York City, is intended to bring attention to anti-lesbian, -gay, -bisexual, and -transgender name-calling, bullying, and harassment in schools.
In this Illinois case, two students had sued their school district after they were prevented from wearing the shirts at school….
“Students may have a right to say what they’re saying, but etiquette in a pluralist society sometimes means you can’t say everything you want to say when you want to,” he added. “The approaches we’ve outlined will work to diffuse controversy.”
One notable exception to the list of groups endorsing the guidelines was GLSEN. Executive Director Eliza Byard said she appreciated the guidelines’ intent, and the distinction made between a simple statement of belief versus bullying and harassment.
However, she said, given the political climate, her organization feared misuse of the document, so they didn’t endorse it.
She referenced several states’ proposals to ban the discussion of homosexuality in school, or “Don’t Say Gay” bills, as they have been dubbed, including one in Tennessee
that died earlier this month and another effort still alive in Missouri….
Spelling It Out
The guidelines note that “students should be able to attend school without being—or even reasonably feeling—threatened by others. School officials should be mindful that abusive peer conduct may deny students full access to an education, even when it is not on a basis prohibited by law.”
They also say that there is no gray area when it comes to suppressing any kind of physical assault, unwanted touching, or violence.
But in general, unless a student exercising his or her right to free speech or expression is creating a substantial disruption of the school environment, it should not be squelched.
That criterion was established more than 40 years ago by the U.S. Supreme Court’s Tinker decision over whether students could wear black arm bands in protest of the Vietnam conflict.
For example, the guidelines say the presence of a Confederate flag, clothing expressing a stance on abortion, or something that provides a viewpoint about homosexuality aren’t inherently bullying or harassment. Exceptions in which schools may intervene include speech that promotes the use of illegal drugs, speech considered lewd or vulgar, and school-sponsored speech, such as what’s printed in a school-run newspaper, Ms. Trainor said. When schools do face a situation in which students’ speech is disruptive, the guidelines suggest asking the students to stop what they’re doing rather than immediately punishing the students.
The guidance left the question of off-campus speech fairly untouched, noting a mixed collection of court rulings and the U.S. Supreme Court’s decision not to take up such cases earlier this year.
“We are responsible for protecting students and teachers from online harassment, but in doing so, we may trigger a lawsuit from a student claiming that his or her free speech has been impinged upon,” said Sasha Pudelski, the government affairs manager for the AASA. “As a result, the line between what is appropriate punishment and what is appropriate speech continues to remain blurred. In the meantime, school districts could be at risk for litigation when they attempt to punish students for online, off-campus speech.”
While there is a gray area, it may not be as murky as some think, said Justin Patchin, an associate professor of criminal justice at the University of Wisconsin-Eau Claire and a co-director of the Cyberbullying Research Center.
The standard is the same: whether the expression results in a substantial disruption at school…..
Lawsuits are often triggered when schools attempt to quell the speech and punish the posters severely, such as by expulsion or suspension, or when schools fail to intervene at all, including simply having a conversation with parents of the student who posted the offending material.
Here is some information about the guidelines:
Harassment, Bullying and Free Expression:
Guidelines for Free and Safe Public Schools
Produced by:
American Jewish Committee
Religious Freedom Education Project/First Amendment Center
http://www.religiousfreedomeducation.org
Endorsed by:
American Association of School Administrators
ASCD
Center for Religion and Public Affairs, Wake Forest University Divinity
School
rpa@wfu.edu
Christian Educators Association International
Christian Legal Society
Hindu American Foundation
Islamic Networks Group and its Affiliates
Islamic Society of North America
Muslim Public Affairs Council
National Association of Evangelicals
National Association of State Boards of Education
National Council for the Social Studies
National School Boards Association
Religion Action Center of Reform Judaism
Union of Orthodox Jewish Congregations of America
This is a general statement from the guidelines:
Where Should Schools Draw a Line?
The U.S. Supreme Court has recognized that students have the right under the First Amendment to express religious, social and political views in public schools, even on subjects as controversial as the United States’ involvement in the Vietnam War while that war was still ongoing, unless the school can demonstrate or reasonably forecast that the expression will cause a substantial disruption of the school environment or violate the legal rights of others (Tinker v. Des Moines Independent School District, 1969).5 Most litigation has focused on the disruption prong of the test – what the Supreme Court meant by intruding on the legal rights of others is uncertain.
School officials may lawfully prohibit speech, upon a showing that the expression either causes an actual disturbance to the school’s educational program – or makes it reasonably foreseeable that the expression would cause such a disturbance.6 In reviewing the content of student expression, school officials should apply the following
5 More detailed summaries of Tinker and subsequent cases can be found at
http://www.firstamendmentcenter.org/category/speech
6 The Supreme Court has recognized that public schools may in some circumstances restrict speech that is school-sponsored, lewd or vulgar, or related to illegal drug use.
safeguards and guidelines:
· Generally, the offensiveness of the content alone, without a showing that the speech is, or is likely to be, substantially disruptive, is not a basis for silencing speech. Fully-protected speech is often offensive to someone. Of course, grade level and developmental stage matter.
· When faced with disruptive or harassing student speech which conveys an idea, absent exceptional circumstances or a previously published specific rule, school officials should generally ask the students to discontinue the speech rather than immediately imposing discipline. At the same time, school officials have an
affirmative duty to prevent anti-harassment and anti-bullying rules from being used as a “heckler’s veto” of unpopular speech.
· Narrowly tailored bans on speech determined to cause, or likely to cause, substantial disruption should, absent exceptional circumstances, be viewpoint neutral.
· Student expression of ideas occurring outside of school should be subject to school action only, if at all, upon a clear showing of disruption, or likely disruption to the school, or a violation of the rights of school administrators and officials, teachers and other school employees, or students.
Hazelwood v. Kuhlmeier, 484 U.S. 260 (1988); Bethel v. Fraser, 478 U.S. 675 (1987);
Morse v. Frederick, 551 U.S. 393 (2007).
The authority of school officials to discipline students for off-campus speech, and the liability for doing so, is currently in dispute in the state and lower federal
courts. It is likely that, at some point, further legal guidance will come from the Supreme Court.
· Regardless of how the First Amendment issues about out-of school speech are ultimately resolved, schools should consider incorporating proactive measures as part of their response, apart from discipline and suppression of speech. For example, schools could monitor the locations within the school where the students
involved in incidents of off-campus bullying or harassment may interact; publicize statements that the school will not tolerate in school harassment; incorporate harassment awareness education into the curriculum and professional development programs; and engage parents and community groups. If adopted, such programs
should be designed with sensitivity to a wide range of community views.
· True threats of physical harm or targeted, continuing harassment may be the basis for disciplinary action, while speech intended to convey a student’s viewpoint or ideas on social, religious, political, or cultural issues (among others) may not be the basis for disciplinary action absent a showing of substantial disruption (or likely disruption) or a violation of another student’s legal rights. Schools should teach students that, as a general matter, there is no right to be free of speech one does not like, whether in school or elsewhere.
The Tanenbaum Center which honors the work of the late Rabbi Marc Tanenbaum has a really good definition of the “Golden Rule” which is stated in an interview with Joyce Dubensky entitled, The Golden Rule Around the World At the core of all bullying is a failure to recognize another’s humanity and a basic lack of respect for life. At the core of the demand for personal expression and failure to tolerate opinions which are not like one’s own is a self-centeredness which can destroy the very society it claims to want to protect.
Dr. Wilda says this about that ©
drwilda 