School attorneys working hard to tip the balance against students like Emma Sullivan

A high school student makes a coarse remark about a prominent politician on Twitter.

The post comes to the attention of her principal, who gives her a stern lecture about civility but recognizes that his authority goes no further, and that any punishment must come from the student’s parents.

This is a delicately balanced system of freedom versus authority at work – and in the case of tweeting Kansas teen Emma Sullivan, the system did work.

Emma received a chewing-out for her unkind (but constitutionally protected) message about Kansas Gov. Sam Brownback, and a reminder that tweets intended for a small circle of friends are capable of traveling much further. That is as far as her principal could lawfully go, and it is as far as he needed to go. No purpose would have been served by ruining the clean disciplinary record of an exemplary, college-bound senior.

Lawyers for America’s schools and colleges are working overtime in courts across the country to upset this delicate balance.

Under well-established First Amendment standards, public schools may not punish students for what they say at school events, unless the speech “substantially disrupts” the school’s ability to function. In the view of school attorneys, the accessibility of the Internet means that “disruptive” speech should now be punishable no matter where it occurs.

At the U.S. Supreme Court, a coalition led by the National School Boards Association is asking for a radical shift in school disciplinary authority that would let schools punish students for anything posted on the Web – even if done off-campus on personal time using a family computer – if the posting threatens to damage the career of a teacher or administrator.

Meanwhile, in a case pending before the Minnesota Supreme Court, attorneys for colleges and universities are seeking comparably sweeping authority over what college students say on social networking pages and other off-campus, personal websites.

The first case, Layshock v. Blue Mountain School District, involves a Pennsylvania high school student who crudely ridiculed his principal on MySpace. The second case, Tatro v. University of Minnesota, involves a college student who joked about violence in a Facebook post that alarmed a classmate who wasn’t in on the joke.

Neither case involves speech of any great civic importance, and judges understandably may be tempted to defer to school authorities when considering speech of such marginal value.

But the legal precedent these cases set will apply to all off-campus speech: letters to the local newspaper, speeches in front of a school board, interviews with a TV news station. If school attorneys prevail, all of that speech will become subject to school disciplinary jurisdiction, if administrators believe the speech might cause a “disruption” on campus.

Now, let’s consider what happened at Emma Sullivan’s Kansas high school last month.

The principal took an irate phone call from Gov. Brownback’s office, which resulted in a lengthy meeting with Emma, undoubtedly followed by hours spent with school attorneys after the story went public. Unsupportive classmates took to Facebook and Twitter, attacking Emma in graphically profane terms (“attention whore” was one of the printable phrases). Hundreds of students staged a rally at the school defending the principal against public criticism.

In other words, school administrators might well have concluded that Emma’s tweet “substantially disrupted” normal operations.

If the NSBA and the University of Minnesota have their way, that’s all it will take to legitimize an order like this one: “Students may not use Twitter to call politicians insulting names, under penalty of suspension or expulsion.”

That’s a bridge too far. Study after study emphasizes the urgent need to involve students more avidly in civic affairs. If a student who is carried away with her enthusiasm for a political cause risks being disciplined for expressing her views impolitely, then we will give government officials a blank check of authority to decide how and when it is permissible to criticize them.

The authority that schools are seeking – to punish those who call school administrators bad names – would enable them to silence the whistleblower as well as the jokester. If we have learned anything from the unfolding scandal at Penn State, it is that educators’ careers sometimes need to be ruined.

Uncivil remarks about political figures and events should be the subject of a conversation – not a suspension. The First Amendment requires that we tolerate some unpleasant speech (“the governor blowsalot”) to leave ample breathing space for strongly worded political debate (“the governor’s education policies suck”). Emma Sullivan’s principal figured that out. Our judges should, too.

Tagged: Off-campus Student Internet Speech