THE STUDENT

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THE STUDENT
THE SCHOOL
THE FIRST AMENDMENT
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WHO ARE WE?
What is your name? Where are you from? What is
your current teaching assignment? What would you
like to gain from todays experience?
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CONGRESS SHALL MAKE NO LAW ABRIDGING THE
FREEDOM OF SPEECH
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DELETE
CONGRESS SHALL MAKE NO LAW ABRIDGING THE
FREEDOM OF SPEECH
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In your opinion, what would be the two greatest
harms to our society if we abolished Freedom of
Expression for persons under 18 years old?
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What is freedom of expression and why is it
important to democracy?
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At what point does student expression need to be
limited?
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WITH THE EXCEPTION OF MORSE ET AL. V. FREDERICK
(2007) THE SUPREME COURT HAS NOT ADDRESSED ANY
TYPE OF PURE STUDENT FIRST AMENDMENT
FREE-EXPRESSION CASE SINCE 1988.
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THE UNITED STATES SUPREME COURT HAS never
DECIDED A STUDENT INTERNET-SPEECH CASE.
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What precedents do we have to determine what the
First Amendment means when applied to schools
and students?
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TINKER V. DES MOINES SCHOOL DISTRICT 1969
..students do not shed their constitutional
rights to freedom of speech and expression at
the schoolhouse gate, The Tinker standard
provides that school officials can censor student
expression only if they can reasonably forecast
that the student initiated expression will create
a material interference or substantial disruption
of the educational environment or invade the
rights of others. The high court reasoned that
school officials could not silence student
expression simply because of undifferentiated
fear or apprehension.
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BETHEL SCHOOL DISTRICT NO. 403 V. FRASER 1986
the freedom to advocate unpopular and
controversial views in schools and classrooms
must be balanced against societys countervailing
interest in teaching students the boundaries of
socially appropriate behavior. it is a highly
appropriate function of public school education
to prohibit the use of vulgar and offensive terms
in public discourse. the constitutional rights
of students in public school are not
automatically coextensive with the rights of
adults in other settings.
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HAZELWOOD SCHOOL DISTRICT V. KUHLMEIER 1988
Educators do not offend the First Amendment by
exercising editorial control over the style and
content of student speech in school-sponsored
expressive activities so long as their actions
are related to legitimate pedagogical concerns.
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WATTS V. THE UNITED STATES 1969
A threshold issue involving student speech --
particularly after horrific school shootings in
Littleton, Colorado, Paducah, Ky. etal -- is
whether student expression constitutes a TRUE
THREAT. TRUE THREATS are not protected by the
First Amendment. Students should be aware that
threatening comments in general -- on the
Internet or not -- could subject them not only to
school discipline but also to criminal
punishment. (www.firstamendmentcenter.org/speech/
studentexpression/index.aspx)
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NOW
YOU BE THE PRINCIPAL
WHAT IS THE BEST WAY TO DEAL WITH THE PROBLEM
THAT YOU ARE ASSIGNED?
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J.S. v. Bethlehem Area School District, 569 Pa.
638 (2002)
A middle school student created his own Web
site, which contained derogatory comments about
his algebra teacher and the school principal. The
site featured a picture of the teachers head
dripping with blood, showed her face morphing
into Adolf Hitler, and contained the words, Take
a look at the diagram and the reasons I gave,
then give me 20.00 to help pay for the hitman.
The teacher allegedly suffered extreme distress
after learning of the site. The site also
contained derogatory comments about the
principal.
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Harper v. Poway Unified School District, 445 F.3d
1166 (9th Cir.)
Tyler Chase Harper sued the Poway Unified School
District in 2004 to overturn a policy that says
the schools will aim to reduce or prevent "hate
behavior," including threats and attacks based on
sexual orientation. Harper claimed the policy
limited free speech. The front of Harper's
T-shirt read, "Homosexuality is shameful. Romans
127." The back read, "Be ashamed. Our school has
embraced what God has condemned." Harper wore the
shirts to protest his schools support of a
National Day of Silence, which promotes tolerance
of sexual orientation.
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Layshock v. Hermitage School District, 496 F.
Supp. 2d 587
The case began in December 2005 when Justin and
several other Hickory High School students posted
parody profiles of Principal Eric Trosch on the
MySpace.com website. Justin created the website
at his grandmother's house. No school resources
were used to create the profile but for a
photograph of Trosch that Justin copied from the
schools website by performing a simple copy and
paste operation with his mouse. Justins
answers to the questions, which appeared to be by
and about Trosch, centered on the theme of big.
The answers ranged from nonsensical answers to
silly questions on the one hand, to crude
juvenile language on the other.
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J.S. v. Bethlehem Area School District, 569 Pa.
638 (2002)
DECISION
The state high court determined that the Web
site, though in extremely poor taste, was not a
true threat We believe that the Web site, taken
as a whole, was a sophomoric, crude, highly
offensive and perhaps misguided attempt at humor
or parody. However, it did not reflect a serious
expression of intent to inflict harm. It
dismissed the argument that the Web page created
at the students control was off-campus speech
beyond the schools jurisdiction. We find there
is a sufficient nexus between the Web site and
the school campus to consider the speech as
occurring on-campus. The court determined the
speech on-campus because the student accessed the
site at school, showed it to a fellow student,
and informed other students of the site. We hold
that where speech that is aimed at a specific
school and/or its personnel is brought onto the
school campus or accessed at school by its
originator, the speech will be considered
on-campus speech, the court said. According to
the Pennsylvania Supreme Court, the school
district could punish the student under the
Fraser standard because the speech on the Web
site was clearly vulgar and highly offensive. It
could punish the student under the Tinker
standard because the Web site caused a
substantial disruption of school activities.
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Harper v. Poway Unified School District, 445 F.3d
1166 (9th Cir.)
DECISION
The panel ruled 2-1 in Harper v. Poway Unified
School District that school officials could
prohibit student Tyler Chase Harper from wearing
shirts bearing messages such as BE ASHAMED, OUR
SCHOOL EMBRACED WHAT GOD HAS CONDEMNED and
HOMOSEXUALITY IS SHAMEFUL. Harper wore the
shirts to protest his schools support of a
National Day of Silence, which promotes tolerance
of sexual orientation. Judge Stephen Reinhardt
contended that Harpers speech could be
prohibited because it collides with the rights
of other students within the meaning of Tinker
v. Des Moines. In Tinker, the Supreme Court ruled
that school officials can prohibit student speech
when they can reasonably forecast that the
expression will create a substantial disruption
or invade the rights of others. Reinhardt relied
on the invades the rights of others part of
Tinker to rule against Harper. This decision
was later set aside by the United States Supreme
Court in March 2007.
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Layshock v. Hermitage School District, 496 F.
Supp. 2d 587
DECISION
A federal district court in Pennsylvania has
ruled that school officials violated a high
school students free speech rights when they
disciplined him for his off-campus parody MySpace
profile of the schools principal. However, the
court rejected the students challenge that the
school district policies were vague and overbroad
and found his parents constitutional claims
without merit. The district court concluded that
the weight of student speech case law favored the
view "that school officials' authority over
off-campus expression is much more limited than
expression on school grounds." The court also
concluded that the relevant court precedents
analyzed student speech, whether on or off
campus, in accordance with the principles set
forth in the Supreme Courts ruling in Tinker v.
Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503,
507 (1969). The court identified the key issue as
whether school officials had the authority to
discipline the student for creating the profile
on a computer off-campus.
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The different results and reasoning used by the
courts in these cases show that the issue of
student Internet speech is far from settled. The
courts are divided on several important legal
questions, including Whether school officials
have any legal authority to regulate student
online expression created off-campus. Whether
and under what standard school officials can
regulate off-campus student speech that is
distributed at school either by the student who
created it or other students. Whether school
officials have more authority to regulate student
online speech if it is created off-campus but
contains a link to the schools own Web site and
is aimed directly at the school
audience. Washington trial court Judge William
Thomas McPhee may have said it best in his 2000
decision in Beidler v. North Thurston School
District Schools can and will adjust to the new
challenges created by students and the
internet, but not at the expense of the First
Amendment. It will probably take a decision by
the U.S. Supreme Court to provide the necessary
guidance to resolve these thorny issues of
student cyberspeech.
(www.firstamendmentcenter.org/speech/studentexpres
sion/index.aspx)
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In your opinion where does this leave the schools
when balancing the interests of the schools with
the interests of the students?