One morning in May 2008, an eighth-grader walked into her school counselor’s office at a Beverly Hills school crying. She was upset and humiliated and couldn’t possibly go to class, the girl told the counselor. The night before, a classmate had posted a video on YouTube with a group of other eighth-graders bad-mouthing her, calling her “spoiled,” a “brat” and a “slut.” Text and instant messages had been flying since.
This incident, according to a story in the Los Angeles Times, is all too familiar to school officials throughout the country. It’s referred to as cyber-bullying, and it highlights the much-debated problem of identifying and limiting the authority that a school has over the online expression of its students. A murky trail of legal cases and decisions have left school officials wondering what to do. But in several cases, the courts have told schools to back off because cyber-bullying, while it may be offensive, constitutes protected speech.
In the Beverly Hills incident, disciplinary action was taken by the school district resulting in the suspension of the girl responsible for posting the offensive video online. The suspended student took the case to federal court, saying her free speech rights were violated.
A United States District judge in Los Angeles sided with the student, saying the school went too far. In a 60 page opinion, Judge Steven V. Wilson wrote:
To allow the school to cast this wide a net and suspend a student simply because another student takes offense to their speech, without any evidence that such speech caused a substantial disruption of the school’s activities, runs afoul (of the law). . . . The court cannot uphold school discipline of student speech simply because young persons are unpredictable or immature, or because, in general, teenagers are emotionally fragile and may often fight over hurtful comments.
To view the full opinion, click here.
The United States Supreme Court has not yet weighed in on the First Amendment issues at play. But lower courts throughout the country have tackled the issue and protected the speech. In Pennsylvania, a student sued his school district after he was suspended for 10 days and placed in an alternative education program for creating what he claimed was a parody MySpace profile of the school principal. On the Web site, the student referred to the principal as a “big steroid freak,” and a “big whore,” among other things, and stated that he was “too drunk to remember” the date of his birthday.
District Court Judge Terrence McVerry found that even though the profile was unquestionably “lewd, profane and sexually inappropriate,” the school did not have the right to restrict the student’s speech because school officials were not able to establish that the profile caused enough of a disruption on campus. “The mere fact that the Internet may be accessed at school does not authorize school officials to become censors of the world-wide web,” he wrote. That case is pending in the U.S. 3rd Circuit Court of Appeals. To read the lower court opinion, click here.
Administrators barred a Connecticut high school student from running in a student election after the student criticized administrators online for their handling of a student festival. You can read more about this case by clicking here.
In Florida, the ACLU sued a principal on behalf of a student who was suspended and removed from her honors class for “cyber-bullying.” Katie Evans had created a Facebook page criticizing an English teacher as “the worst teacher I’ve ever met,” and invited others to express their “feelings of hatred.” Click here for information on that case.
Closer to home, five Miscoe Hill School (Mendon, MA) students were suspended after officials pegged them as participants in a Facebook group devoted to slapping a school official. You can read the full report from the Milford Daily News by clicking here.
An in-depth article from the Boston College Law Review analyzes recent cases on the issue and argues that courts should apply a “control and supervision” test, derived from the analysis used in negligent supervision cases and Title IX cases for student-on-student sexual harassment, to determine whether a school has the authority to discipline a student for his or her online speech.
While we have not been directly confronted with the issue in Franklin, we did have some policy discussions several months ago concerning the use of social media in the school setting. Our resulting policy attempted to balance the First Amendment with the need to provide a safe environment for students. We also recognized that these are evolving issues, and that we should endeavor to teach students to properly use resources, including online tools. Those policies reflect the spirit of the words of Supreme Court Justice John Paul Stevens in New Jersey v. T.L.O., 469 U.S. 325, 385−86 (1985): “The schoolroom is the first opportunity most citizens have to experience the power of government. Through it passes every citizen and public official, from schoolteachers to policemen and prison guards. The values they learn there, they take with them in life.”
Stay tuned as there will certainly be updates as the law continues to evolve in this area.