Prohibiting Off Campus Conduct: Dos and Don’ts

1. Prohibiting Off Campus Conduct:Dos and Don’ts Presented by Neal E. Stenberg STENBERG LAW OFFICE Lincoln, NE (402) 486-0415

2. Free Speech Issues • To what extent may school districts lawfully regulate off-campus student speech • Three cases • Kowalski v. Berkeley County Schools—Fourth Circuit Case regarding the cyber bullying of a fellow student • Layshock v. Hermitage School District—Third Circuit case regarding a student’s creation of a fake internet profile of a high school principal • J.S. v. Blue Mountain School District—Creation of a MySpace profile mocking the middle school principal • Supreme Court recently denied certiorari in all three cases Presented by Neal E. Stenberg

3. Regulation of On-Campus Student Speech • Tinker v. Des Moines Independent Community School District—the black arm band case • To justify prohibition of a particular expression of opinion school officials must demonstrate that the forbidden conduct would materially and substantially interfere with the requirements of appropriate discipline in the operation of the school • Burden cannot be met if school officials are driven by a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint • Tinker requires a specific and significant fear of disruption, not just some remote apprehension of disturbance Presented by Neal E. Stenberg

4. Regulation of On-Campus Student Speech • Tinker v. Des Moines Independent Community School District—the black arm band case • Tinker does not require actual disruption to justify a restraint on student speech • Tinker does not require certainty, only that the forecast of substantial disruption be reasonable • Where on-campus conduct is concerned, Tinker permits the regulation of even political speech Presented by Neal E. Stenberg

5. Regulation of On-Campus Student Speech • Bethel School District No. 403 v. Fraser—nominating speech used elaborate graphic and explicit sexual metaphor • Schools may determine that the essential lessons of civil, mature conduct cannot be conveyed in a school that tolerates lewd, indecent, or offensive speech and conduct such as that indulged in by Fraser • The First Amendment does not prevent schools from encouraging the fundamental values of habits and manners of civility by insisting that certain modes of expression are inappropriate and subject to sanctions • The determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board • Does not require proof of actual disruption or a reasonable forecast of disruption Presented by Neal E. Stenberg

6. Regulation of On-Campus Student Speech Presented by Neal E. Stenberg

7. Regulation of On-Campus Student Speech • Today’s questions: • May a school district regulate/prohibit off-campus speech that materially and substantially interferes with the requirements of appropriate discipline in the operation of the school? • How about off-campus speech that is lewd, indecent, or offensive? Presented by Neal E. Stenberg

8. Regulation of Off-Campus Student Speech • If the ability to regulate student speech turns on whether the speech occurs on or off campus, what speech in this electronic age is considered to be “on campus”? Presented by Neal E. Stenberg

9. The Kowalski Case • Kara Kowalski 12th grade student at Musselman High School in West Virginia • Using her home computer, created a discussion group webpage on MySpace.com with the heading " S.A.S.H.” • Evidence indicated that the acronym stood for “Students Against Shay's Herpes,” referring to another Musselman High School Student, Shay N., who was the main subject of discussion on the webpage • After creating the group, Kowalski invited approximately 100 people on her MySpace " friends" list to join the group • MySpace discussion groups allow registered users to post and respond to text, comments, and photographs in an interactive fashion. Presented by Neal E. Stenberg

10. The Kowalski Case • Ray Parsons uploaded a photograph of himself and a friend holding their noses while displaying a sign that read, “Shay Has Herpes,” referring to Shay N. • Kowalski promptly responded, stating, “Ray you are soo funny!=)” • Parsons also uploaded two additional photographs of Shay N., which he edited: • In the first, he had drawn red dots on Shay N.'s face to simulate herpes and added a sign near her pelvic region, that read, " Warning: Enter at your own risk." • In the second photograph, he captioned Shay N.'s face with a sign that read, “portrait of a whore” Presented by Neal E. Stenberg

11. The Kowalski Case • Comments included: • “Wait til she sees the page lol.” • “Haha.. screw her” • " This is great.” • “Shay has herpes sign” • “Kara=My Hero” • “Your [sic] so awesome kara ... i never thought u would mastermind a group that hates [someone] tho, lol" Presented by Neal E. Stenberg

12. The Kowalski Case • Shay’s parents complained to school administrators • Shay left school because she was uncomfortable about sitting in class with students who had posted comments about her on the MySpace webpage Presented by Neal E. Stenberg

13. The Kowalski Case • Kowalski suspended from school for 10 days and issued a 90-day social suspension which prevented her from attending school events in which she was not a direct participant • Kowalski was also prevented from crowning the next "Queen of Charm" in that year's Charm Review, having been elected “Queen" herself the previous year • In addition, she was not allowed to participate on the cheerleading squad for the remainder of the year • Kowalski's out-of-school suspension was reduced to 5 days, but the 90-day social suspension was retained Presented by Neal E. Stenberg

14. Kowalski—Tinker Applies • Opinion indicates that Tinker will apply to some but not all speech which originates off campus but creates a disruption on campus • Political speech for or against a war, a ballot measure, a political candidate, etc. which originates off campus probably can’t be regulated even if that speech is communicated via the internet and causes a disruption at school • Court declined to specify a precise test for when Tinker can be applied to speech which originates off campus • Said only that off campus speech was subject to disciplinary measures under the circumstances of this particular case Presented by Neal E. Stenberg

15. Reasons for Applying Tinker • Foreseeable that speech would reach the school • Forseeable that speech would cause disruption • Communication was targeted at a specific student • Duty--schools have a duty to protect their students from harassment and bullying in the school environment • There was disruption: • Forced Shay N. to miss school in order to avoid further abuse—student’s ability to participate in school programs was adversely affected • School did not suppress speech on political and social issues based on disagreement with the viewpoint expressed Presented by Neal E. Stenberg

16. Does Fraser Apply? • If speech originates outside of the schoolhouse gate but is directed at persons in school and received by and acted on by them it can constitute “in-school” speech • In that case, speech could be regulated not only under Tinker but also, as vulgar and lewd in-school speech, under Fraser • “We need not resolve, however, whether this was in-school speech and therefore whether Fraser could apply because the School District was authorized by Tinker to discipline Kowalski” Presented by Neal E. Stenberg

17. Keys to applying Tinker to off-campus speech—a complex task • Foreseeable that speech would reach the school • Foreseeable that speech would cause disruption • Communication was targeted at a specific student • Duty--schools have a duty to protect their students from harassment and bullying in the school environment • Speech caused disruption—student’s ability to participate in school programs was adversely affected • Speech was both subjectively and objectively offensive (not specifically discussed in Kowalski) • School did not suppress speech on political and social issues based on disagreement with the viewpoint expressed Presented by Neal E. Stenberg

18. How about these hypotheticals? • Assume that each of these statements made at a social networking site reaches the campus at Alex’s school and adversely affects his ability to participate in school programs: • Hey Alex J. the Bible says: “Do not practice homosexuality; it is a detestable sin.” Leviticus 18:22 • Hey Alex J. God hates fags like you • Pray for Alex J. that he may repent of his homosexuality and be redeemed in the eyes of God Presented by Neal E. Stenberg

19. J.S. v. BLUE MOUNTAIN SCHOOL DISTRICT Presented by Neal E. Stenberg

20. J.S. v. BLUE MOUNTAIN SCHOOL DISTRICT • J.S. is a generally well behaved 8th grade student • J.S. and her friend K.L., another eighth grade student at Blue Mountain Middle School, created a fake profile of McGonigle, which they posted on MySpace, a social networking website • The profile was created at J.S.'s home, on a computer belonging to J.S.'s parents Presented by Neal E. Stenberg

21. J.S. v. BLUE MOUNTAIN SCHOOL DISTRICT • The profile did not identify McGonigle by name, school, or location • Contained his official photograph from the School District's website • The profile was presented as a self-portrayal of a bisexual Alabama middle school principal named “M-Hoe” • Contained crude content and vulgar language • The profile lists M-Hoe's general interests as: “detention, being a tight ass, riding the fraintrain, spending time with my child (who looks like a gorilla), baseball, my golden pen, f***ing in my office, hitting on students and their parents” Presented by Neal E. Stenberg

22. J.S. v. BLUE MOUNTAIN SCHOOL DISTRICT • The “about me” portion of the profile said among other things: • It's your oh so wonderful, hairy, expressionless, sex addict, fagass, put on this world with a small dick PRINCIPAL • For those who want to be my friend, and aren't in my school[,] I love children, sex (any kind), dogs, long walks on the beach, tv, being a dick head, and last but not least my darling wife who looks like a man (who satisfies my needs) MY FRAINTRAIN.... (Debra Frain is McGonigle’s wife) Presented by Neal E. Stenberg

23. J.S. v. BLUE MOUNTAIN SCHOOL DISTRICT • Originally the profile could be accessed by anyone • After one day the profile was made private and accessible only by about 20 of J.S.’s friends at school • The School District's computers block access to MySpace, so no Blue Mountain student was ever able to view the profile from school • Student told McGonigle about profile • He tries to find it and can’t • McGonigle asks the student to print the profile and bring it to him • The only printout of the profile that was ever brought to school was one brought at McGonigle's specific request. Presented by Neal E. Stenberg

24. J.S. v. BLUE MOUNTAIN SCHOOL DISTRICT--Disruption • A teacher experienced a disruption in his class when six or seven students were talking and discussing the profile • Nunemacher had to tell the students to stop talking three times, and raised his voice on the third occasion • Same teacher heard two students talking about the profile in his class on another day, but they stopped when he told them to get back to work. • Teacher admitted that the talking in class was not a unique incident and that he had to tell his students to stop talking about various topics about once a week Presented by Neal E. Stenberg

25. J.S. v. BLUE MOUNTAIN SCHOOL DISTRICT • J.S. was suspended from school • Parents files suit • District Court granted summary judgment for school district and dismissed complaint • Appealed to Third Circuit Court of Appeals which eventually heard the case en banc • 8 judges joined in the majority opinion • 5 judges joined in a concurring opinion • 6 judges joined in a dissenting opinion • Opinions do not appear to turn on party affiliation Presented by Neal E. Stenberg

26. J.S.—The Majority Decision • Prohibition of speech could not be justified on the basis of Tinker because there was no substantial disruption—school conceded that • Also, there were no facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities • Because the standard was not met, majority did not decide whether Tinker can be applied to speech which originates off campus under any circumstances Presented by Neal E. Stenberg

27. J.S.—The Majority Decision • Did Fraser apply? • No. • Fraser does not apply to off-campus speech • In Morse, Chief Justice Roberts, writing for the majority, emphasized that “[h]ad Fraser delivered the same speech in a public forum outside the school context, it would have been protected.” Presented by Neal E. Stenberg

28. J.S.—Concurring opinion • These five judges would not apply Tinker to off-campus speech under any circumstances • “Applying Tinker to off-campus speech would create a precedent with ominous implications. Doing so would empower schools to regulate students' expressive activity no matter where it takes place, when it occurs, or what subject matter it involves—; so long as it causes a substantial disruption at school. Tinker, for example, authorizes schools to suppress political speech—; speech “at the core of what the First Amendment is designed to protect—if it substantially disrupts school activities” Presented by Neal E. Stenberg

29. J.S.—Concurring opinion • When is speech on campus? • Concurring judges would have no difficulty applying Tinker[and apparently Fraser as well] to a case where a student sent a disruptive email to school faculty from his home computer. Regardless of its place of origin, speech intentionally directed towards a school is properly considered on-campus speech • On the other hand, speech originating off campus does not mutate into on-campus speech simply because it foreseeably makes its way onto campus • A bare foreseeability standard could be stretched too far, and would risk ensnaring any off-campus expression that happened to discuss school-related matters Presented by Neal E. Stenberg

30. J.S.—Dissenting opinion • Appears to agree with the majority and concurring opinions that Fraser cannot be applied to off-campus speech • Says that Tinker can be applied to off-campus speech which creates a substantial disruption or if there is a reasonable forecast of substantial disruption; and • If it is reasonably forseeable that speech will create a substantial disruption • The forseeability standard would apparently be met by any posting at a social networking site even if only one other student has access to the posting Presented by Neal E. Stenberg

31. Failing to take action in response to such conduct would not only encourage the offending student to repeat the conduct, but also would serve to foster an attitude of disrespect towards teachers and staff. J.S.—Dissenting opinion • Agrees that there was no actual disruption • “But the profile's potential to cause disruption was reasonably foreseeable, and that is sufficient.” • “Failing to take action in response to such conduct would not only encourage the offending student to repeat the conduct, but also would serve to foster an attitude of disrespect towards teachers and staff” • “This kind of harassment has tangible effects on educators. It may cause teachers to leave the school and stop teaching altogether, and those who decide to stay are oftentimes less effective.” Presented by Neal E. Stenberg

32. Summary • What is on-campus speech? • Student sends a disruptive email to school faculty from his home computer--regardless of its place of origin, speech intentionally directed towards a school is properly considered on-campus speech • Speech that ends up on school grounds but is not specifically targeted at the school is not “on school grounds”. • Note that in order to constitute “bullying” within the meaning of Neb. Rev. Stat. § 79-2,137 the conduct must occur “on school grounds, in a vehicle owned, leased, or contracted by a school being used for a school purpose by a school employee or his or her designee, or at school-sponsored activities or school-sponsored athletic events” Presented by Neal E. Stenberg

33. Summary • Application of Tinker to off-campus speech • Only under limited circumstances • Can’t limit speech that involves an expression of opinion on political, social, or philosophical issues • Can prohibit speech that clear constitutes bullying but parameters are still ill defined • The extent to which attacks on teachers and administrators can be punished is unclear • Application of Fraser to off-campus speech • Does not apply Presented by Neal E. Stenberg

34. Prohibiting Off Campus Conduct:Dos and Don’ts Presented by Neal E. Stenberg STENBERG LAW OFFICE Lincoln, NE (402) 486-0415