Ask The Lawyer: SPECIAL EDITION FOR PARENTS AND STUDENTS: WHAT’S YOUR OPINION?
SPECIAL EDITION FOR PARENTS AND STUDENTS: WHAT’S YOUR OPINION?
STUDENT RIGHTS AND THE LAW
We have received several questions from students – and their parents – about students’ rights at school. Do students have the same rights to free speech, to be free from searches and seizures, and to be free of censorship as an adult? Can students be punished as adults for criminal offenses, can they be physically punished by school staff for breaking school rules? Can students be punished in school for their out-of-school conduct or communications? Is a FB post to a friend grounds for suspension from school?
Over the next few months, we will be periodically looking at the impact of major legal decisions on student’s rights today, using scenarios based loosely on current events, to illustrate the issues. At the end of each article, we will give our opinion on how we think the case should be decided. But, there is often no hard-and-fast rule: Courts have decided the issues presented in different ways, often based on very similar facts. How would you decide each case?
FREEDOM OF SPEECH – PART I
The picture of Samantha Sarkisian, her lip cut, her nose swollen and broken, and her left eye bruised and bleeding, went viral. The star of the reality show “Sam’s Place,” which followed the life and relationships of the sexy 24-year-old, had a huge following – especially among the millions of teenage girls who emulated her style. But it was the quote in the headline under the picture that many found shocking: “Josh did this.”
Josh Folgodz, 26, a football MVP whose team won the Super Bowl, was immensely popular, known for his off-the-gridiron work with St. Mark’s Children’s Hospital and the Animal Rescue Foundation. He had dated Sarkisian six months earlier; but the relationship had fizzled. Folgodz hadn’t had enough time for Sarkisian and had reportedly detested the televised nature of the relationship.
In an emotional interview from her hospital bed, Sarkisian alleged Folgodz had been controlling and abusive when they dated and had beaten her viciously when she refused to go back to him. “I let him tell me to be quiet, I let him tell me how to act, I smiled when he insulted me, and I hid the bruises when he hit me. But I am not going to be quiet anymore.” She called on all women who had been victims of physical and emotional abuse in a relationship to step forward.
Folgodz flatly denied the allegations. He noted Sarkisian has recently been dating Manuel Esteves, a boxer. He claimed Sarkisian was probably reluctant to get Esteves – a foreign national – in legal trouble. “She has to blame it on someone,” he said. “She f***ing hates me.”
Folgodz was arrested and charged with aggravated assault. He plead not guilty. His trial was scheduled to begin May 20.
In the weeks leading up to the trial, women held rallies in support of Sarkisian, calling for tougher penalties for violence against women in all forms, and decrying “a society which gives men who beat women a slap on the wrist.” Red scarves, representing the blood shed in abusive relationships, were worn by many of Sarkisian’s supporters.
In late April, high school sophomores Anne Bullen and her friends Christine Cartera and Emily Mumford wore red scarves to school at Millard FiIlmore High School to show their opposition to violence against women. Dwayne Marron, a football player, told them they were full of **it. Sarkisian was a liar, he said. They were stupid to support her. The comments sparked a brief debate during class, which was quickly silenced by the teacher.
In the following days, more girls – and even some boys — came to school wearing red scarves, sometimes worn fashionably around the neck, at other times tied around the arm, or looped through a belt buckle. The scarves attracted a lot of comment; views on the guilt or innocence of Folgodz were highly polarized both in the school and online. However, in-class discussion was controlled by teachers.
In early May, Anne Bullen was attacked on her way home from school, shoved to the ground and her red scarf yanked from her neck. She did not see her assailant, but she believed it may have been one of her classmates. Her injuries were described as minor lacerations.
The news of the attack was posted online. On Twitter, Derek Smith, a senior, stated Bullen got what she deserved. “Someone should have beat the b****. Sarkisian’s a lying **** trying to ruin a good guy. And they support her? What morons!” he tweeted. In school the following day his tweet was viewed on personal devices by numerous students. Several arguments about Smith’s views occurred in class, but were quickly contained.
Millard Fillmore Principal Joyce McGill saw the tweet on a student’s phone during lunch. Smith was ordered to remove the tweet and was suspended for three days. His parents appealed the suspension.
McGill also announced that red scarves would not be allowed to be worn in the school until further notice. “The debate on this issue is disrupting classes,” she said. “I am concerned that those wearing the scarves may be putting themselves at the risk of harm,” she added.
Christine Cartera and Emily Mumford wore red scarves to school the following day to protest violence against women and, more specifically, the attack on their friend. They were told to remove the scarves. When they declined to take the scarves off, both were sent home from school. They were told they could return to school once they agreed to follow the new dress code. Cartera and Mumford insisted they had a right to wear the scarves as a form of protest. They were not allowed to return to school.
The parents of both young women sued the School District, claiming Principal McGill’s edict violated their daughters’ rights under the First Amendment.
Almost 50 years ago, a few middle school and high school students announced their intention to wear black arm bands to school in silent protest of the Vietnam War. The school district said wearing the arm bands would be prohibited. When the students wore the arm bands, they were suspended. The school board justified the suspension, stating it feared the armbands might spark argument on a highly polarizing issue, which would be disruptive to the school. The Supreme Court held the students’ rights under the First Amendment had been violated by the suspensions. The Court stated that “the prohibition of expression of one particular opinion, at least without evidence that it is necessary to avoid material and substantial interference with school work or discipline is not constitutionally permissible.” (emphasis added). Tinker v Des Moines Independent Community School District, 393 US 503 (1969).[i]
The Supreme Court noted that other forms of symbolic speech, like campaign buttons or the wearing of the Iron Cross (a symbol of Nazism) had been allowed at other schools in the district.
In the years since that case was decided, courts have been called upon to decide when a student’s right to free speech under the First Amendment must give way to the school interests. Students’ rights are likely to fall if the school can show the speech is likely to affect the safety of the school community if the speech interferes “materially and substantially” with schoolwork or discipline. As technology has evolved, this call has become increasingly difficult to make.
Almost thirty years after the Supreme Court upheld student’s free speech rights in Tinker, it ruled these rights do not include “vulgar and offensive speech” on school grounds at a school function. In Bethel School Dist. No. 403 v. Fraser, 473 US 675 (1986) a high school student was suspended after he gave a nominating speech, loaded with sexual innuendo and vulgar language, at an assembly attended by all students. Several teachers said that they had to spend class time after the assembly discussing the speech.
The Supreme Court drew a distinction between the “undoubted freedom to advocate unpopular or controversial views in schools and classrooms” and society’s interest in “teaching students the boundaries of socially appropriate behavior.” Schools may not deny students the right to express ideas, but they can regulate the language used to express them.
In 2007, the Supreme Court took regulating offensive speech a step further by upholding the suspension of a student who displayed a banner stating “Bong Hits 4 Jesus” at a school-sanctioned (and televised) event held off-campus. The rally, celebrating the Olympic Torch Relay, was an approved class trip and featured performances by the cheer team and the marching band. Although the student was not on school property, the court said the banner could easily be interpreted as advocating drug use. It concluded that the “special characteristics of the school environment,” and the “governmental interest in stopping student drug abuse … allow schools to restrict student expression that they reasonably regard as promoting illegal drug use.” Morse v Frederick, 551US 393(2007). The court noted that not even the student argued the banner was political speech. (The student stated he unfurled the banner with its “nonsensical” message hoping to get on TV.)
More recently courts have been asked to decide whether content that is posted online and that makes its way into the school is protected as an exercise of free speech rights. Factors courts consider are the nature of the speech itself (political, offensive, threatening), whether school resources were used to create or disseminate the speech (did students view the post on school computers?), whether the student intended the message to be public, whether it was easily foreseeable that the message would make its way to the school community, and whether the content could materially and substantially interfere with the requirements of school discipline.
The Court of Appeals overturned the suspension of a student who used an actual photo of the school principal to create a rude MySpace profile of a high school principal who was a sex-addicted pedophile. The profile did not use the actual principal’s name and was so outrageous that “no one took its content seriously.” The principal, with the approval of the school superintendent, charged the student with violating school rules and suspended her for 10 days.
The court ruled that because the speech did not occur at school (even if it was discussed at school), the school did not have a right to regulate it. The principal had “a mere desire to avoid the discomfort and unpleasantness” of an unpopular viewpoint.
Where the off-campus speech indicates a credible threat of material and substantial disruption, schools may restrict a student’s free speech rights and punish a student – even though comments were made outside of school hours on a private device.
The school had every right to suspend and then expel a sophomore who started tweeting to his friends that he planned to come to school and open fire, hoping to beat the record then held by the Virginia Tech gunman (32 killed, 17 wounded). The series of tweets, as illustrated, was highly disturbing:
- “it’s pretty simple/I have a sweet gun / my neighbor is giving me 500 rounds / dhs is gay/ ive watched these kinds of movies so i know how NOT to go wrong/I just cant decide who will be on my hitlist/and that’s totally deminted and it scares even myself.
- “and i’ll probly only kill the people I hate? Who hate me / then a few random to get the record”
- [in response to a statement that he would “kill everyone”] “no, just the blacks/ and Mexicans / halfbreeds / atheists / french / gays/ liberals / David”
- [referring to a classmate] “no im shooting her boobs off / then paul (hell take a 50rdclip) / then i reload and takeout everybody else on the list / hmm paul should be last that way i can get more people before they run away …”.
The student owned several guns including, reportedly, a semi-automatic. His friends were so alarmed by the tweets they talked to a trusted coach, who in turn informed the principal, who suspended the student.
The court ruled these tweets might reasonably have lead school authorities to believe there would be “substantial disruption or material interference” of school activities and that threatening tweets could also affect the rights of other students to be let alone. In that case, Wynar v Douglas County School Dist, 782 F.3d 1062 (9th Cir. 2013) several parents, learning of the threats – some of which were directed at particular students – refused to bring their children to school.
In 2015, the District Court of Appeals for Oregon came to a different result in a case involving a threat, ruling in favor of a 14-year-old middle school student who was suspended for posting a FB comment that said his teacher, who had given him a C, should be shot. In support of its ruling that the speech was protected, the court noted that the comment was made out of school on a social media site on a day when school was not in session and that no one, apart from the student’s FB friends, learned of the comment until six weeks later. In addition, even though the threat worried the teacher, she did not stop teaching and her fear was not enough to constitute a material or substantial impact on classroom activities or administrative responsibilities. Perhaps of most importance, the comment was clearly not regarded as a true threat: The school itself did not take any actions to indicate it took the comment seriously, it did not determine whether the student had access to guns, contact the police, have student evaluated by mental health professional, or investigate whether he had made any similar or subsequent comments. Burge ex rel Burge v Colton School Dist 53, 100 F.Supp.3d 1057 (D. Oregon 2015)
WERE EMILY AND CHRISTINE’S RIGHTS VIOLATED? WERE DEREK’S?
How would you rule?
How would you resolve this case? What factors would affect your decision? How would the caselaw support your decision? Please feel free to weigh in at www.gwinnlegal.com, “Ask the Lawyer.”
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[i] The numbers after the name of a court case refer to the volume, the name of the reporting document, and the page number on which the case appears, and the year in which the case was decided. Tinker appears in volume 393 of the U.S. Reporter at page 503. In decisions of a federal circuit court, the number of the circuit precedes the year: 390 F. 3d 16 (6th Cir. 2018) would refer to a 2018 decision of the 6th Circuit Court of Appeals, published in volume 390 of the Federal Reporter, 3rd edition, at page 16. Additional abbreviations are used for decisions of the federal district courts and the various levels of state appellate courts. It can often take years for a case to make its way to a circuit court or the Supreme Court, which is why a case involving a MySpace account might be released years after MySpace was effectively replaced by Facebook.