Profiles cause crackdown
A student logs onto her MySpace account to vent about a situation with one of her teachers. Another signs into Facebook to see pictures of himself at a party last weekend, holding a red plastic SOLO cup. And with a swift swoop of their school district’s jurisdictional arm, both students are suspended.
The reach of school officials has extended beyond the schoolhouse gate to the World Wide Web, where pictures on Facebook, a posting on MySpace or a comment on a personal blog can now mean punishments for students.
While information from social networking sites has served as supplemental evidence when reprimanding students, districts are clarifying their intentions to discipline students for online behavior in their conduct codes.
“Codes that restrict the off-campus speech of students on Facebook, MySpace or blogs, are popping up all over the country now and raise serious questions on the free speech rights of minors,” said Clay Calvert, a scholar in communications at the University of Florida.
In June, the school board for the Des Moines Public Schools in Des Moines, Iowa, approved changes to its discipline code for students involved in extracurricular activities. The code now specifies that reliable evidence used to prove a violation includes “information from social networking Web sites such as MySpace and Facebook.”
Officials can now punish students for illegal acts —?mostly underage drinking —?even if they are not arrested or found guilty in court, said the district’s attorney, Beth Nigut. The code also allows officials to punish students who are in the presence of illegal activities.
Nigut noted the school’s policy on extracurricular groups — which includes sports teams and academic clubs — is more stringent than the standard student conduct code.
“There is a privilege, not a right, to participate in these types of activities,” Nigut said. “Therefore, we are holding those students to a higher standard just as every other district here in our state does.”
But Calvert, previously the co-director of the Pennsylvania Center for the First Amendment, said there are serious legal concerns with codes that punish students for material on social networking sites.
It is tricky, Calvert said, because schools can punish students for their conduct but not for their protected speech. For instance, a school could punish a student for drinking after discovering a Facebook photo —?but only if they can completely prove the cup in the minor’s hand is filled with alcohol. While the drinking is student conduct, the posted picture qualifies as speech.
David Hudson, an attorney and scholar at the First Amendment Center, said he is worried about what effect the school’s discipline could have.
“The problem is schools reaching into areas of jurisdiction that are either matter of parental authority or, in certain egregious cases, law enforcement authority,” Hudson said. “I think it’s going to create more student disciplinary cases, probably create more lawsuits, and it’s probably going to create a chilling effect on student online speech.”
Nigut said the Iowa district would not seek out potential violators, adding it is “not interested in playing ‘Big Brother.’ ” Instead, officials will use information that is brought to them. But at other some schools, Nigut said officials peruse through online content to monitor students’ behavior for any red flags.
At State College Area High School South in State College, Pa., school officials created a Facebook account in a fictitious name to access and monitor students’ pages, Principal Debra Latta told the local paper, the Centre Daily Times. Latta did not return multiple calls for comment.
“We’re not breaking any ground here,” Nigut said, noting other officials like college admissions officers and employers monitor social networking sites. “We are basically coming into line with what the practices are in our world today.”
Colleges across the country took the leap first by putting clauses in the conduct code. At the public Truman State University in Kirksville, Mo., officials investigate online conduct if there is “substantial university interest.” At the private Concordia University Wisconsin in Mequon, Wis., students’ online social activity is punishable by the university if the students publicly affiliate themselves with the school.
At the Regent University in Virginia Beach, Va., a former law student sued the private institution after he was suspended for posting to Facebook a picture of university President Pat Robertson displaying his middle finger. His suit was thrown out of district court in June; he has not appealed.
In Chicago, Ill., University of Chicago officials demanded that student Andrew Thompson remove a Facebook album he posted in January titled “[Name of Thomspson’s ex-girlfriend] cheated on me, and you’re next!” University officials told the Foundation for Individual Rights in Education (FIRE) they could censor “disrespectful” speech.
But both Regent University and University of Chicago are private institutions, giving them greater ability to muzzle students’ speech, said Adam Kissel, director of the Individual Rights Defense Program for FIRE. He noted the University of Chicago incident would be a “major violation of the First Amendment at any public college,” but is not at the private school.
At the high school level, First Amendment advocates say officials might be overstepping their bounds because it is difficult to determine when speech is considered “on-campus.”
Montana Miller, an assistant professor of popular culture at Bowling Green State University in Ohio, said school officials traditionally could not punish students for their off-campus speech, but the Internet complicates things.
“It’s very hard to draw the line and say that the Internet is off-campus and that the school setting is separate,” said Miller, who specializes in youth culture and Internet communities. “The Internet is everywhere. It’s not in one location; it’s not on-campus or off-campus.”
A U.S. District Court attempted to determine in January whether a Connecticut principal was right to discipline a student for her blog, which called school administrators “douchebags.”
But U.S. District Court Judge Mark Kravitz said in Doninger v. Niehoff that there is confusion in courts over how to determine whether off-campus speech is punishable because of its effect on the school.
“If courts and legal scholars cannot discern the contours of the First Amendment protections for student internet speech, then it is certainly unreasonable to expect school administrators … to predict where the line between on- and off-campus speech will be drawn in this new digital era,” Kravitz said in his opinion.
Hudson acknowledged that there is still “some uncertainty at the outer perimeters to what is truly on-campus and what is off-campus” speech.
In Morse v. Frederick, also known as the “Bong Hits 4 Jesus” case, the Supreme Court decided in 2007 that school officials could rightfully punish a student for holding a banner near school grounds because his action was directed to the school community and occurred at a school-sponsored event.
Hudson said he thinks many courts have applied this “school audience rationale.”
“If off-campus, online speech’s intended audience is the school audience, that’s enough to trigger the school’s jurisdictional arm, and then they can apply the regular precedents of Tinker and Fraser,” he said.
In Tinker v. Des Moines Independent Community School District, the Supreme Court said student expression is constitutionally protected unless it is unlawful or disrupts school activities. The Court said in Bethel School District No. 403 v. Fraser that schools can legally “prohibit the use of vulgar and offensive terms in public discourse.”
Kevin Goldberg, a Washington, D.C.-based attorney who specializes in First Amendment issues and Internet publishing, said if schools continue to punish students for their online content it could lead to more self-censorship, which is “no less censorship … because it leads to direct government influenced, perhaps government-mandated, speech.”
Goldberg said it is clear that schools have not grasped an understanding of when online speech becomes a school’s problem.
“There has to be a division between on-campus and off-campus speech because otherwise schools will effectively run a student’s entire life,” he said. “The only area in which a school can properly discipline off-campus online speech is when it is clearly, unquestionably something that affects, impacts, and disrupts the on-campus experience.”
Until the Supreme Court takes on student Internet speech, educators should be cautious with their actions, Hudson added, to prevent a lasting impact on student rights. The freedom for students to express themselves online is vital, he said.
“[The Internet] is the medium that these students grew up in,” Hudson said. “It’s where they feel comfortable expressing themselves.”
For two Pennsylvania students, it was the medium they chose to employ when mocking their principals with fake MySpace pages. But the two similar cases are unfolding with contrasting rulings.
In Layshock v. Hermitage School District, Judge Terrence McVerry ruled in the U.S. District Court for the Western District of Pennsylvania that officials overstepped their bounds when punishing Justin Layshock for his fake profile of his principal.
“The mere fact that the Internet may be accessed at school does not authorize school officials to become censors of the World Wide Web,” McVerry wrote in his opinion.
But in J.S. v. Blue Mountain School District, Judge James Munley upheld the 10-day suspension of Jill Snyder, who created a fake profile of her principal, describing him as a pedophile who enjoyed “hitting on students and their parents,” and was “put on this world with a small dick.”
Munley, in the U.S. District Court for the Middle District of Pennsylvania, said school officials could punish Synder because her speech was vulgar and lewd, and encouraged illegal behavior.
Both cases have been argued before the 3rd U.S. Circuit Court of Appeals, where different sets of three-judge panels seemed split on the issue, based on their comments during the attorneys’ arguments.
Hudson said it is vital that students maintain their rights to free speech online. If students lose that right, he said the consequences could be severe.
“It could create a generation that either is very cynical about constitutional freedoms or a generation that doesn’t grow up with a full appreciation of the value of those freedoms if they’re denied them,” Hudson said.
Fall 2009, reports