I was not too pleased about the outcome of the "Bong Hits for Jesus" case, but it did seem to be an edge case. If students had walked across the street from the school, during school hours, at a school sponsored event and unfurled a banner that said "Niggers go home," many people might feel differently about whether or not the school should be able to enforce their disciplinary policies.
But Andy Carvin reports on a new lower court ruling that cites the Bong Hits case as precedent and seems to go way beyond it. It strikes me as extreme enough in its implications that there is a good chance it will be overturned, so I don't want to completely evacuate my bowels, but it is definitely cause for alarm.
Basically, a seventh grader used an AIM icon in chatting with his friends that encouraged killing his English teacher. This eventually got back to the teacher, and the kid was ultimately suspended for a semester. Here's a quote from the decision:
[I]t was reasonably foreseeable that the IM icon would come to the attention of school authorities and the teacher whom the icon depicted being shot… and the risk of substantial disruption is not only reasonable, but clear. These consequences permit school discipline, whether or not Aaron intended his IM icon to be communicated to school authorities or, if communicated, to cause a substantial disruption. As in [the Bong Hits 4 Jesus ruling], the student in the pending case was not disciplined for conduct that was merely “offensive,” or merely in conflict with some view of the school’s “educational mission.”
My question is, what if I use "Bong hits for Jesus" as my status message at home, with my friends? Haven't we now established that that phrase is in conflict with a school's educational mission, and that messages used in private IM chats off-campus can be the basis of disciplinary procedures?
Even leaving aside the first amendment implications, this would seem to make life impossible for schools. I mean, leaving technology out entirely, if two students in the same class get in a fight, and one of the students' parents insists that the students be put into different sections, then couldn't that fight be cited as a substantial educational disruption (because the school had to rearrange class rosters), violation of the student code of conduct, etc., and subject to disciplinary action at school? And once you say "schools may discipline students for doing X," then it often seems a short walk to "schools are exposing themselves to a lawsuit if they don't discipline students for doing X."
This is a recipe for chaos, repression, or both.
I understand what you're saying here and I get the premise of your argument. Is there no case to be made for restraint on the part of the stakeholders?
Have we left behind completely the idea that those parties involved in these cases have the option of sitting down outside of a litigious environment and coming to a common understanding?
My fear beyond the legal precedent is the societal precedent we continue to set. I plan on discussing this case with my students when we return to school. One of the questions I plan on asking is whether or not this should have been a legal matter at all. I know what I'm hoping they'll say, I wonder if I'm right.
I think the cases are just different enough to make it difficult to apply either (or both)cases to your example of using a Bong Hits 4 Jesus status message.
In the Bong Hits case, it really appears that justices heavily considered the degree to which the event was school-related. It was a bit of a stretch, but in school a student would likely receive consequences for wearing a shirt advocating drug use. It would likely be harder to prove disruption of potential disruption for flashing this banner.
In the AIM case, it is much easier to reason that the speech was off-campus, and to me, I think this case became very different from Bong Hits. This one focused more on the potential for disruption.
In your example, it would not only be off-campus, but much less likely to be considered disruptive or potentially disruptive. So it would have two factors weighing in favor of free speech - it was off-campus, and I would think it hard to consider it disruptive.
I think these cases typify what is difficult for school administrators (at least in the instances in which I've assisted). I think that technology seems to cloud our judgment at times.
When it became easier for kids to post content, we had multiple instances of students who created false profiles of school administrators on things like Yahoo Personal pages. Principals would go straight to Defcon 1, and want to discipline the student for what ultimately was off-campus speech. The students would create the pages on their home computers and on their own time, but for some reason, because the webpage was sitting in front of the principal on his/her computer, that off-campus part seemed to get lost. It didn't matter that other kids could not access the page at school (making potential disruption difficult).
In some instances, the students could probably be held accountable because some of the content could be considered slander or defamation of character (and the parents usually helped in getting it removed), but we could have taken some ill-advised steps in disciplining students if we were not careful.
The issues certainly get more complicated as free speech has never been a 100% guarantee 100% of the time. Yet, we have many more tools available which allow us to get the word out in so many new ways - and the idea of off-campus -vs- on-campus is getting to be more difficult to define as many communication media cross over what used to only be physical boundaries.
If the AIM icon precedent stands, then it seems very clear to this Not-Lawyer that setting up a fraudulent MySpace (or whatever) for a teacher would be punishable by the school, if the act disrupts the educational process, whether the school blocks the site or not. The AIM icon was essentially private; it was only shown to 15 friends.
Essentially, yes, the problem is this only heightens the litigiousness. I think it makes it even worse because it further muddles the distinction between school rules and law enforcement.
I think the problem that I have with the AIM item is that I am not "seeing" the disruption portion. Maybe there is more to the story than what I've read, but as an administrator, I could not consider the off-campus speech disruptive.
However, I would argue that there are times when school action is warranted depending on the off-campus speech. If a student posted a threat to kill all students at graduation on his Myspace account, and interviews with school counselors indicate s/he has a history of violence - I think the school should be able to disallow the person from attending graduation. Yes this is something that law enforcement should handle too, but school rules and laws are not mutually exclusive.
Now, this is a far cry from using an avatar of one's least favorite teacher as in the AIM case, but this instance is only different in my mind due to my perceived lack of disruption.
The courts are redefining disruptive each time one of these cases comes through. If the AIM case holds up, I would think we have strayed quite a bit from the intentions of the justices ruling in the Tinker v. Des Moines case - where I could agree that a powder keg was potentially going to explode.
Wow. That's how out of the loop I am as I am just hearing this for the first time. I'm baffled as to what the children did that deserved such a reaction. And then to hear that the reaction was defended by a lawful judgement is even more disturbing.
This is absurd...
"[...] a principal may, consistent with the First Amendment, restrict student speech at a school event when that speech is reasonably viewed as promoting illegal drug use."
Tom you hit the nail on the head when you suppose a situation where the speech was "Niggers go home." Obviously, this speech "promotes" hatred (thus increasing the potential for violence) around the illusory idea of race. This needs to be addressed as individuals have the right to feel safe. The right to feel safe trumps any claim to free speech. It's pretty straightforward...just like intentionally yelling "fire" in a crowded building for kicks is not "free speech".
Now if students had come to school with ganga-packed pipes and held up a sign saying "Come get your weed here!", I would agree that a school has the right to restrict and report that behavior. THAT is "promoting" something that runs counter to the mission of any serious environment of learning. As well, the fact that the drug use implied by "bong hits" (i.e. marijuana) is "illegal" is an irrelevant red herring. What does the legal status of marijuana have to do with the ruling's justification?
You may find the case of Layshock v. Hermitage interesting as it is pretty close to what you gave as an example about a Myspace parody. In the past few days, a federal court judged ruled the school violated the constitutional rights of Layschock for disciplining him over a fake Myspace site created off-campus and viewed on-campus.
The school district claimed they had to shut down their network for 6 days due to students viewing the site - which I am having difficulty believing. But, it was held up in a lower court as a substantial disruption (don't ask me how it was held up).
Layshock v. Hermitage School District
Schools are getting a bit carried away with this "preparing students for the workplace" stuff. I mean there should be more reasonable ways to teach students lessons about at-will employment and demonstrate how they will eventually get the shaft from their employers.
Post a Comment