Three recently reported stories show the struggles that schools and courts are facing in dealing with school discipline issues involving free speech in the social media age. Free speech and schools have always been problematic because youths, more frequently than adults, are not mature enough to exercise their freedom responsibly. Schools are charged with, among other things, turning out adult citizens who are prepared to interact appropriately with one another. In order to accomplish this goal, along with running an organized, well-disciplined institution, schools must be able to effectively regulate speech occurring among its students and staff.
Exacerbating these efforts is social media, where the writings and pictures of students and teachers alike are posted instantaneously for sometimes thousands to read and/or see. Administrators are stuck in the challenging spot of deciphering what is actionable and what must be allowed under current first amendment juris prudence.
In the first recent story, the Fourth Circuit, in Kowalski v. Berkeley County Schools, upheld the suspension of a high school “Charm Queen” who created a Myspace page for the purpose of harassing another student. Exceptionally distasteful sexual references were made about the female victim on the page. In upholding the suspension, the Court relied upon the Supreme Court’s seminal Tinker decision. Under the Tinker standard, a school may discipline a student’s speech if it can show that
the student’s activities would materially and substantially disrupt the work and discipline of the school.
Applying this standard, the Court found that the girls’ Myspace posting was actionable despite the fact that it had occurred off campus. In reaching its decision, the Court reasoned that the name of the page included the word “students,” thus pointing toward school, that all the people who had access to the page were themselves students, and that the author of the page could anticipate that the emotional fall-out from the site would reach the school. To support the disruption required under Tinker, the Court noted that the social media page was designed to harass a fellow student and that the comments there were not the type required to be supported by our schools.
In the second instance, T.V. v Smith-Green Community School Corporation, the Federal Court applied a stricter standard of disruption in ruling that the speech there was protected by the First Amendment. In Smith-Green, the girls were banned from playing on the school volleyball team after posting multiple raunchy photos of themselves “playing” with a phallus shaped lollipop. The students were disciplined under the school’s policy which allowed it to discipline students if they “act in a manner that brings discredit or dishonor” upon themselves or the school.
Here, the Court found that the speech did not qualify as school speech since there were no school insignias in the pictures and the school was not identified in any way. No mention is made in the decision about who comprised the audience for the posts. With regard to the Tinker standard, the Court also found that the district had not met the burden of showing actual disruption or a sufficient likelihood of future substantial disruption. In its decision, the Court noted that the only actual disruption was that two parents reported that the posted pictures had caused “divisiveness” on the team. In dismissing this, the Court stated, “petty disagreements among players on a team–or participants in clubs for that matter-is utterly routine.” With regard to future disruption, the Court held that the District had only summarily stated that the Tinker standard was met without making any showing of fact to support its assertion.
In a final example, Jerry Buell, a former teacher-of-the-year, has been reassigned to administrative duties after posting an anti-gay marriage message on his Facebook page. As the teacher sat in his home, the news was announced that New York would be allowing same-sex unions. Buell posted his reaction to this news writing, “I’m watching the news, eating dinner, when the story about the New York okaying same sex unions came on and I almost threw up.”
A conservative advocacy group, the Liberty Counsel, has come out in support of Buell, whose comments were brought to his superiors’ attention by parents from the school. In his defense, his attorney, Harry Mihet, stated, “If the First Amendment does not protect Mr. Buell’s right to voice his personal opinion, on his personal time, on his personal computer, on his personal Facebook page, then the First Amendment means nothing,” If the case goes to trial, as is normal, it will likely be decided based on details which have not yet come to light.
Personally, while I definitely agree with Mr. Mihet’s statement, there are some variables that might lead me to change my mind, particularly whether Buell has granted students access to his Facebook page by adding them as friends. In my opinion, if he has done this, then he has turned Facebook into an extension of his classroom and has voided his rights to speak his mind openly on matters of political import.
Here locally, Assemblywoman Nora Campbell has helped with confusion on these issues by passing a bill which clarifies existing Calfornia bullying law. In the law as revised, it is made explicit that students can be suspended or expelled for bullying which takes place on social networking sites.