Connecticut Court Looks At Student Speech on the Internet

This from the Hartford Courant:

NEW YORK — - The dispute over a Burlington, Conn., teenager's Internet journal gave rise on Tuesday to a wide-ranging and contentious federal court hearing about free speech, whether schools can regulate students' language off campus and how the Internet blurs the boundaries of a school campus.

Avery Doninger, the 17-year-old high school senior at the center of the case, sat in the front row as a three-judge panel of the U.S. 2nd Circuit Court of Appeals lobbed questions at the attorneys. Lawyers for both sides described the hearing as uncharacteristically lengthy and suggested that the duration underscored the case's position in new legal territory.

In simplest terms, the hearing Tuesday addressed whether Doninger should be allowed to serve as senior class secretary at Lewis S. Mills High School and, as a class officer, speak at her graduation.

The principal had barred Doninger from serving on the student council because of derogatory comments she made about school officials in an Internet blog...

...The appeals court did not rule Tuesday, but the judges raised questions ranging from the specifics of the high school's student council election procedures to how the Internet changes students' rights to free speech.

The attorneys staked out opposite positions on the free-speech question.

Asked whether schools should be allowed to regulate anything students write on the Internet, Doninger's attorney, Jon L. Schoenhorn, argued that the Internet should not give schools more cause to regulate off-campus speech. "It's just a bigger soapbox," he said.

The school officials' attorney, Thomas R. Gerarde, argued that the Internet has fundamentally changed students' ability to communicate, allowing them to reach hundreds of people at a time. If a student leader makes offensive comments about the school on the Internet, the school should have the right to act, said Gerarde, who represents Mills Principal Karissa Niehoff and former Region 10 Superintendent Paula Schwartz. "We shouldn't be required to just swallow it," he said.

Doninger's case began with a dispute about the school's annual Jamfest, a battle-of-the-bands-type program that Doninger had helped coordinate. Frustrated that Jamfest was not going ahead as scheduled, Doninger wrote on her livejournal.com weblog that "Jamfest is canceled due to the douchbags [sic] in central office." She also encouraged others to write or call Schwartz "to piss her off more," and included an e-mail her mother wrote as an example.

In fact, Jamfest wasn't canceled and was rescheduled.

After administrators found the blog entry, about two weeks after Doninger wrote it, Niehoff told Doninger to apologize to Schwartz, show her mother the blog entry and remove herself from seeking re-election as class secretary.Doninger agreed to the first two, but refused to withdraw her candidacy. Administrators did not allow her to run, though enough students wrote her name on the ballot that she won. She was not allowed to serve.

In his August ruling, Kravitz suggested that while Doninger wrote her blog entry off school grounds, she could be punished for it because the blog addressed school issues and was likely to be read by other students.The issue of on-campus and off-campus speech was a key theme Tuesday as attorneys and judges grappled with how the existing legal framework for school-speech issues applies to the Internet.

Student-speech issues have long been governed by a 1969 U.S. Supreme Court case. It established that disruptive conduct by students is not constitutionally protected, but that schools can prohibit expression only if they can show that not doing so would interfere with schoolwork or discipline.

A 1986 Supreme Court ruling added another cause for schools to regulate speech, allowing them to prohibit "vulgar and lewd" speech if it would undermine the school's basic educational mission. But those cases involved speech that took place on school grounds or during a school activity.

Much of the discussion Tuesday involved another 2nd Circuit Court of Appeals case, Wisniewski v. Board of Education of the Weedsport Central School District in New York. A student was suspended after he created an instant-messaging icon, visible to
his friends, that suggested his English teacher should be shot. The court upheld the suspension last year, saying it was reasonable to expect that the icon would come to the attention of school authorities and could create a risk of substantial disruption to the school environment...

In Court: When Clothes Speak to More Than Fashion

Given the importance placed on robust student expression, it’s not completely surprising that a federal judge in New Jersey last week found himself opining on whether it was appropriate for two fifth graders to be sporting buttons featuring Hitler Youth members. The occasion was a protest against the local school district’s party-pooper policy mandating uniforms for students in kindergarten through the eighth grade.

Judge Joseph A. Greenaway Jr. ruled in the affirmative, no doubt helping the wardrobe planning for some parents.

But for those seeking guidance on how far Johnny and Julie can go, a reading of the full 28-page decision is a cause for some comfort and some alarm. Its review of a surprisingly ample array of similar cases raises more questions about acceptable attire and behavior than it answers.

The ruling by Judge Greenaway, of the Federal District Court in Newark, came in response to a suit by two Bayonne families seeking to bar the school district from suspending the pupils if they continue to wear the buttons after being told not to.

He ruled that the buttons, which featured the words “No School Uniforms” in a slashed red circle over a photo of young boys in Hitler Youth uniforms, was protected speech, in that wearing them did not “materially and substantially disrupt the work and discipline of the school.”

That language came from a 1969 ruling that allowed students to wear black armbands to protest the Vietnam War. In that case, Tinker v. Des Moines Independent Community School District, the court ruled that students do not “shed their constitutional rights to freedom of speech or freedom of expression at the schoolhouse gate.”

But then things got complicated. In Bethel School District No. 403 v. Fraser in 1986, the Supreme Court ruled against a high school student who had been disciplined after giving a speech invoking an extended, but not explicit, sexual metaphor. The court ruled it was a highly appropriate function of schools to “prohibit the use of vulgar and offensive” speech.

The general thought that emerged in court rulings was student political speech, [yes], offensive speech on sex and drugs, no. But you can see where this goes. So, for instance, in Boroff v. Van Wert City Board of Education, a federal appeals court ruled that a high school student couldn’t wear a Marilyn Manson T-shirt to school because the musician and his band promoted “destructive conduct and demoralizing values that are contrary to the educational mission of the school.” Black Sabbath? Britney Spears? Eminem? Good luck figuring out whose values pass muster.

Broussard v. School Board of the City of Norfolk held that another school board did not violate the First Amendment rights of a 12-year-old by prohibiting her from wearing an antidrug T-shirt that included a word deemed to be “lewd, vulgar or offensive.” So you could be antidrug and offensive at the same time...

This from the New York Times.

Inside the First Amendment: We're strangling high school free speech, press

Op Ed by Gene Policinski, Gannett News Service, in the Courier-Journal.

WASHINGTON -- As high school students head back to school this month, far fewer have a chance to participate in real student journalism owing to reduced or eliminated programs, fewer trained professional advisers and quite possibly antagonistic school administrators.

Journalism educators gathered here Aug. 9 to talk about high school journalism, 20 years after the first Scholastic Journalism Summit. They heard that many of those same problems considered two decades ago remain -- and the more recent news is even more chilling.

The combination of school abandonment of support for free press and speech and court decisions in the last two decades is "chipping away at fundamental freedoms" in a trend "for which I see no end in sight," warned Mark Goodman, who led the Student Press Law Center for much of that time.

Some student cases in point:

A federal appeals court recently ruled that New York school officials could suspend an otherwise-exemplary eighth-grader for posting a 2001 online picture message from home on his parents' computer and sending it to a few of his friends. The court said the drawing threatened the student's English teacher, but its holding wasn't based on any finding that the threat was "true." Rather, it was because school officials made the case that they believed it would disrupt classes.

In a serious case with a funny nickname, "Bong Hits 4 Jesus," the U.S. Supreme Court carved out yet another exception to a hallmark 1969 student-speech case, Tinker v. Des Moines Independent Community School District. The Court will permit school authorities to punish student speech that administrators deem to indicate even a smidgen of support for illegal drug use.

In Minnesota, an award-winning editor of a student newspaper found his publication censored by a principal because he was going to run a picture of the simulated destruction of a U.S. flag -- in a report about a play on the Civil War.

Then there was the flap last school year in a northern Indiana school district over a student newspaper column that asked for tolerance and compassion for gays. The junior-senior high school has eliminated the newspaper program and turned yearbook into an after-school club. The newspaper adviser, who successfully deflected a school board attempt to fire her, has left the public system for a private school -- where she will not be banned from the journalism program.

We can all agree that realistic threats of violence in school merit realistic responses by authorities. And I have yet to find even strident First Amendment advocates who disagree that student journalists need education, training and adult advice.

But what are we teaching students -- our future fellow citizens -- about the value of a free press when a well-written, mild-mannered essay is reason for killing off a student publication and removing the adviser?

What are we telling students about the value of free speech when the good ones are reprimanded, suspended, expelled or even face criminal charges for musings that likely would have sent a prior generation to after-school detention, at most?

When we block students from expressing themselves in school, we likely don't shut off the speech. We drive it underground or into cyberspace.

When we shut down or water down student newspapers, Web sites and yearbooks, we speak loudly about authority at the expense of education.

Again, from Goodman: "Large numbers of students are learning that government does have the power to control the content" of newspapers and speech.

Summit attendees heard some glimmers of positive news. Innovative programs like the American Society of Newspaper Editors' High School Journalism initiative offer advice and a Web home to electronic versions of high school newspapers. A new initiative by the Radio Television News Directors Association will boost student radio and television.

But in an era when too many school officials seem bent on shutting down student expression and the courts seem willing to support them, there's too little good news for those who don't see the words "except for students" anywhere in the 45 words of the First Amendment.

Free-Speech Case Divides Bush and Religious Right

Bong Hits 4 Jesus

The New York Times reports: A Supreme Court case about the free-speech rights of high school students, to be argued on Monday, has opened an unexpected fissure between the Bush administration and its usual allies on the religious right.

As a result, an appeal that asks the justices to decide whether school officials can squelch or punish student advocacy of illegal drugs has taken on an added dimension as a window on an active front in the culture wars, one that has escaped the notice of most people outside the fray. And as the stakes have grown higher, a case that once looked like an easy victory for the government side may prove to be a much closer call.

As the Olympic torch was carried through the streets of Juneau on its way to the 2002 winter games in Salt Lake City, students were allowed to leave the school grounds to watch. The school band and cheerleaders performed. With television cameras focused on the scene, student Joseph Frederick and some friends unfurled a 14-foot-long banner with the inscription: “Bong Hits 4 Jesus.”

Mr. Fredericks’s ensuing lawsuit and the free-speech court battle that resulted, in which he has prevailed so far, is one that, classically, pits official authority against student dissent. It is the first Supreme Court case to do so directly since the court upheld the right of students to wear black arm bands to school to protest the war in Vietnam, declaring in Tinker v. Des Moines School District that “it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

The court followed that 1969 decision with two others during the 1980s that upheld the authority of school officials to ban vulgar or offensive student speech and to control the content of school newspapers. Clearly there is some tension in the court’s student-speech doctrine; what message to extract from the trio of decisions is the basic analytical question in the new case, Morse v. Frederick, No. 06-278. What is most striking is how the two sides line up.

The Bush administration entered the case on the side of the principal and the Juneau School Board, which are both represented by Kenneth W. Starr, the former solicitor general and independent counsel.

While it is hardly surprising to find the American Civil Liberties Union and the National Coalition Against Censorship on Mr. Frederick’s side, it is the array of briefs from organizations that litigate and speak on behalf of the religious right that has lifted Morse v. Frederick out of the realm of the ordinary. The groups include the American Center for Law and Justice, founded by the Rev. Pat Robertson; the Christian Legal Society; the Alliance Defense Fund, an organization based in Arizona that describes its mission as “defending the right to hear and speak the Truth”; the Rutherford Institute, which has participated in many religion cases before the court; and Liberty Legal Institute, a nonprofit law firm “dedicated to the preservation of First Amendment rights and religious freedom.”

The institute, based in Plano, Tex., told the justices in its brief that it was “gravely concerned that the religious freedom of students in public schools will be damaged” if the court rules for the school board.

More analysis from the Supreme Court of the U S - SCOTUSBLOG...and here.

Bong Hits 4 Jesus

Joseph Frederick, far right, helped hold up his homemade banner as an Olympic-torch relay paraded by his high school in Alaska, in 2002. The incident led to his suspension. — Photo by Clay Good/ZUMA Press.


Student-banner fight may shape law on discipline, administrator's liability, from Education Week.

Despite the less-than-weighty incident at its core—the display of a homemade banner emblazoned with “Bong Hits 4 Jesus”—a case that the U.S. Supreme Court will take up next week carries potentially far-reaching consequences for student speech, and for the legal protections of public school educators.

From a sea of controversies over student speech—on T-shirts, in classroom assignments, on Web pages, and in other forms that have conveyed political, religious, or arguably violent or offensive messages—the justices have chosen to review the case of an Alaska high school student who was disciplined for exhibiting the banner. It was a fleeting statement that its creator describes as lacking in any particular meaning other than to provoke.

“The phrase ‘Bong Hits 4 Jesus’—to me, it’s absurdly funny,” said Joseph Frederick, who was a senior at Juneau-Douglas High School in January 2002 when he and other students unfurled the banner at an Olympic-torch relay outside the school. “What the banner says is, ‘I have the right to free speech, and I’m asserting it.’ ”

“Of course,” he added in a conference call with reporters this month, “I knew there was a possibility that some people would not take it well.”

District’s View
Deborah Morse, then the principal of Juneau-Douglas High, in Juneau, was one such person. Upset by the banner’s reference to drug paraphernalia, Ms. Morse asked Mr. Frederick and the others to drop the banner, according to court papers. When Mr. Frederick refused, he was suspended by the principal for 10 days, an action upheld by administrators and the school board of the 5,000-student district.

“We didn’t view the sign as serious speech on a political topic,” said Peggy Cowan, the Juneau superintendent, who was an assistant superintendent at the time.

Ms. Morse’s actions share the spotlight in the case. After Mr. Frederick sued over the suspension, a federal district court sided with the principal and the district. But a federal appeals court held that Mr. Frederick’s banner was protected speech under the Supreme Court’s landmark 1969 decision in Tinker v. Des Moines Independent Community School District, which ruled in favor of students who wore black armbands to protest the Vietnam War.

The three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, also held unanimously that the principal was not entitled to immunity from the student’s lawsuit because her actions violated Mr. Frederick’s rights under clearly settled law on student speech.

That part of the 9th Circuit ruling has alarmed school groups, which contend that applying conflicting legal rulings on student expression is far from easy on a day-to-day basis.

“Refusing to grant immunity to school administrators despite the lack of clarity over free-speech rights will have a deleterious impact” on districts and school administrators, says a friend-of-the-court brief filed on the side of Ms. Morse and the Juneau district by the American Association of School Administrators, the National Association of Secondary School Principals, and the National School Boards Association.

Public or School Speech?

Mr. Frederick will not be in Washington when the justices hear arguments on March 19 in Morse v. Frederick (Case No. 06-278). After graduating from Juneau-Douglas High in 2002, he attended college at Stephen F. Austin State University in Texas and then at the University of Idaho, where, he said, he is a few credits short of graduating.

He recently took a job in China, teaching English and studying Chinese history and the Mandarin Chinese language.

Mr. Frederick said he was intent on testing the limits of free speech when he created his “Bong Hits 4 Jesus” banner using duct tape for the lettering on a long strip of paper. He acknowledged having had various run-ins with administrators during his high school years. He said he once declined to stand for the Pledge of Allegiance, instead remaining seated and turning his back to the flag.

On the morning five years ago that the torch relay for the Winter Olympics in Salt Lake City was going to parade by Juneau-Douglas High, Mr. Frederick never reported to school. He said his car was stuck in snow.

But he arrived outside the school in time for the torch entourage. He stayed on the sidewalk across the street from Juneau-Douglas High, and with the help of several other students, held up the banner just as the torch passed, in the hope of getting on the local TV news. Mr. Frederick said he had first seen the phrase “Bong Hits 4 Jesus” imprinted on a snowboard, and he was not seeking to convey any message about either marijuana or Christianity.

“It was supposed to be subjectively interpreted,” he said. “I was not promoting drugs.” Ms. Morse initially suspended Mr. Frederick and another student for five days. Mr. Frederick contends that when he quoted Thomas Jefferson on free expression to her, the principal doubled his suspension. The district says in court papers he was suspended for 10 days because he was “defiant and uncooperative,” and he refused to divulge who else was holding up the banner.

The American Civil Liberties Union, which represents Mr. Frederick, says its first argument is that the banner should not be seen as student speech, since it was shown on a public sidewalk. “This is an incident of pure free speech by a young adult, having nothing to do with the school,” said Douglas K. Mertz of Juneau, who will argue Mr. Frederick’s case. “The district wants to be able to punish off-campus speech.”

But the district and Ms. Morse contend that the Olympic-torch relay just outside the school was akin to a field trip, where administrators supervise students. Both the federal district court and the 9th Circuit court analyzed the case as a student-speech case.

The district court judge held that the banner’s message could be prohibited by the school under the Supreme Court’s 1986 ruling in Bethel School District v. Fraser, which upheld the discipline of a student who had made a speech laced with sexual innuendo at a student assembly because such speech would undermine the school’s basic educational mission.

The district judge said the “Bong Hits 4 Jesus” banner “directly contravened” the district’s policies aimed at drug-abuse prevention.

The 9th Circuit court reversed the decision. It narrowly interpreted Fraser to apply to sexually oriented speech, and said that analyzed under Tinker, Mr. Frederick’s banner could not be prohibited because it did not cause substantial disruption to school.

“Under Tinker, a school cannot censor or punish students’ speech merely because the students advocate a position contrary to government policy,” the appeals court said in its ruling last year.

Learning Environment

Administrators should be able to restrict messages about illegal drugs, the Juneau district and some of its allies in the case stress.

The banner’s “slang marijuana reference was part of an antisocial publicity stunt designed to draw attention away from an important” school activity, says the brief for the district and Ms. Morse. They are being represented by Kenneth W. Starr, the former U.S. solicitor general under President George H.W. Bush and the Whitewater independent counsel who investigated President Clinton.

The AASA, the NASSP, and the NSBA, which all back the district, emphasize that schools must be able to maintain “safe and effective learning environments to carry out their educational mission.” Thus, their brief says, schools should be able to regulate “messages that are threatening or hurtful to [students] or otherwise at odds with academic and citizenship-building work of the schools.”

The brief cites lower-court rulings that have upheld administrators in disciplining students for such actions as wearing a Marilyn Manson T-shirt, because it promoted antisocial behavior. They also say they need to regulate student speech in cyberspace, such as a parody profile of a school principal that was created off-campus.

In addition, the three groups would give little protection to what they deem “low value” speech, saying Mr. Frederick’s “display of Jabberwocky” should receive “little or no First Amendment protection.”

Lawyers for Mr. Frederick say that school authorities are virtually seeking to overturn Tinker. “There is an extraordinarily broad claim of authority asserted by school officials in this case,” said Steven R. Shapiro, the national legal director of the ACLU.

Mr. Frederick has attracted friend-of-the-court briefs from several conservative legal organizations that often represent students in student-expression cases involving efforts to pray or to wear and distribute religious messages in public schools.

Those groups, including the American Center for Law and Justice, the Alliance Defense Fund, the Christian Legal Society, and the Rutherford Institute, are concerned that a ruling giving school authorities more control over speech would affect student religious expression. The Alliance Defense Fund is representing a former California high school student who was disciplined for wearing a T-shirt that said “Homosexuality is shameful.”

The group suggests administrators go too far when they restrict expression merely because it might be perceived as derogatory toward a group of students based on their race, religion, or sexual orientation. “There is no right not to be offended,” the group’s brief says.

‘Reasonable Mistakes’

On the matter of personal legal liability for educators, the 9th Circuit appeals court held that Ms. Morse, then the Juneau-Douglas High principal, was not entitled to what is known as “qualified immunity” for her actions in disciplining Mr. Frederick. That type of immunity applies to public school officials when their conduct does not violate clearly established rights.

“When Frederick unfurled his pro-marijuana banner, an experienced educator made a reasonable, on-the-spot judgment to enforce her school board’s long-standing, commonplace rule” against advocating illegal drug use, Mr. Starr says in his brief.

The appellate court’s denial of qualified immunity means that a “conscientious school administrator … is now saddled with the prospect of a potentially ruinous damages award,” Mr. Starr adds.

The Bush administration, which will also argue in the Supreme Court on the side of the district and Ms. Morse, says in its brief that even if the banner was protected speech, the former principal was entitled to immunity. The law on what messages were protected was not clearly established because of legal uncertainty over reconciling the Supreme Court’s Fraser decision with the Tinker ruling, the brief by U.S. Solicitor General Paul D. Clement says.

The ACLU responds that qualified immunity is meant to shelter officials who make “reasonable mistakes,” but that Ms. Morse should have known that Mr. Frederick’s banner was protected speech. For one thing, both the ACLU and the 9th Circuit court noted, the principal had taken a graduate course in school law that had covered Tinker, Fraser, and other relevant speech cases.

“Principal Morse seized Frederick’s banner and punished him because she disagreed with the position he advocated,” the ACLU brief says. “That action contravenes the First Amendment, and Principal Morse should be held accountable.”