Online Conduct, Student Free Speech,

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Online Conduct, Student Free Speech, In-School
Consequences

• Joe Caruolo and Kate Hayes

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Constitutional Considerations

• First Amendment
• Congress shall make no lawabridging the freedom
  of speech or of the press
• Does not protect in cases of
• Obscenity
• Child Pornography
• Defamation
• Fighting Words
• True Threats
• Overbroad and Vague School Speech Policies
• An overbroad statute is one that is designed to
  punish activities that are not constitutionally
  protected, but which prohibits protected
  activities as well.

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Important Case Law Standards

• Tinker v. Des Moines
• Tinker Standard Does the speech or expression
  concretely disrupt the schools educational
  mission?
• It can hardly be argued that either students or
  teachers shed their constitutional rights to
  freedom of speech or expression at the school
  house gate.
• Bethel v. Fraser
• Fraser Standard Is the speech/conduct lewd,
  vulgar, indecent, or offensive?
• schools as instruments of the state, may
  determine that the essential lessons of civil,
  mature conduct cannot be conveyed in a school
  that tolerates lewd, indecent, or offensive
  speech and conduct.
• Hazelwood School District v. Kuhlmeier
• Kuhlmeier Standard Is the speech
  school-sponsored?
• A school can exercise editorial control over the
  style and content of student speech in
  school-sponsored expressive activities as long as
  its actions are reasonably related to
  legitimate pedagogical concerns.

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Case Law Students and Online BehaviorCourts
Ruling Against School Sanctions

• Beussink v. Woodland R-IV School District
• Homepage criticizing school administrators
• Court found
• Tinker Standard applied Although the speech was
  unpopular, it did not materially interfere with
  schools operations or discipline.
• Cannot suspend because you dislike the website
• Emmett V. Kent School District No. 415
• Homepage with mock obituaries and student voting
  for who will die next.
• Court found
• Fraser and Kuhlmeier Standards applied Speech
  was entirely outside the schools supervision or
  control.
• No intention to harm, or evidence that people
  felt threatened.

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Case Law Students and Online BehaviorCourts
Ruling Against School Sanctions

• Flaherty v. Keystone Oaks School District
• Flaherty posted chat room messages about an
  upcoming volleyball game and insulted a
  teacher/mom of opposing player my dog can teach
  art better.
• Flaherty was kicked off the volleyball team.
• Court reinstated student and found
• Policy was not incorporated in Student Handbook.
• Attacked district speech policies as overbroad
  and vague school speech policies were declared
  unconstitutional and may lead to arbitrary
  enforcement.
• Tinker Standard applied Bringing disrespect,
  negative publicity to the district is not
  justification for discipline.
• District must pay family 60,000.

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Case Law Students and Online BehaviorCourts
Ruling Against School Sanctions

• Killion v. Franklin Regional School District
• Student composed a Top 10 of insults about the
  District A.D. and emailed the list to friends.
  The list was brought to school.
• Student was suspended without due process.
• Court found
• Due process rights were violated.
• District policy itself was overbroad and vague.
• Tinker Standard applied the mere desire to
  avoid discomfort or unpleasantness is not
  enough to justify restricting student speech

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Case Law Students and Online BehaviorCourts
Ruling In Favor of School Sanctions

• Minor v. Bethlehem Area School District
• Teacher Sux website depicting gruesome images,
  soliciting funds for a hit man, and accusing the
  principal of an extramarital affair.
• Student was expelled.
• Court found
• Tinker Standard applied in this day and age
  where school violence is becoming more
  commonplace, school officials are justified in
  taking very seriously threats against faculty and
  other students. The website hindered and
  materially and substantially interfered with
  the educational process of the school.
• Students First Amendment rights were not
  violated.
• Teacher sued student Won on negligent
  supervision and emotional distress charge
  500,000 dollars worth of damages!

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Case Study

• Layshock v. Hermitage School District
• or
• Coy v. Board of Education
• North Canton City Schools
• Review Your Case in Groups (2-3).
• What standards should the court apply?
• What is the courts decision? And why?

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Case Study Students and Online Behavior

• Layshock v. Hermitage School District
• Student created a parody profile of the principal
  on MySpace.com, using a photo from District
  Website.
• Discipline included 1) 10 day out-of-school
  suspension 2) Placement in Alternative
  Curriculum Education Program 3) Banned from
  school sponsored events 4) Prohibited from
  Graduation.
• Court found
• Tinker Standard and Fraser Standard applied.
• Looked to Flaherty and Killion cases punishment
  for out-of-school speech?
• Upheld Schools discipline ...Plaintiffs
  actions appear to have substantially disrupted
  school operations and interfered with the rights
  of others, which along with his apparent
  violations of school rules, would provide a
  sufficient legal basis for Defendants actions.

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Case Study Students and Online Behavior

• Coy v. Board of Education North Canton City
  Schools
• Student accessed his own Website on school
  computer a webpage that called classmates
  losers, gave his finger, and contained sexual
  insults.
• School suspended Coy because the website was lewd
  and vulgar.
• Parents sued district.
• Court found
• AUP prohibited any action or behavior judged by
  school officials to be inappropriate.
• District Code of Conduct said student shall not
  be defiant, belligerent, or disrespectful.
• Overbroad and Vague Speech Policy was
  unconstitutional because it gave no indication of
  what actions or behavior would lead to
  discipline.
• Code of conduct need not define forbidden conduct
  with mathematical precision but students need
  to know what is permitted and not permitted as
  well as the consequences.

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It could happen to YOU!