Suspended by the school and banned from extracurricular activities, 17-year-old Justin Layshock and his parents sued on the grounds that his First Amendment rights were violated and won, including $10,000 in compensatory damages.
In its 2011 ruling upholding the student’s victory, the 3rd U.S. Circuit Court of Appeals decreed, “It would be an unseemly and dangerous precedent to allow the state, in the guise of school authorities, to reach into a child’s home and control his/her actions there to the same extent that it can control that child when he/she participates in school-sponsored activities.” The court felt that the parody – circulated to a limited number of the student’s classmates — did not create a substantial disruption of the school.
A student in West Virginia did not fare as well in her legal challenge of a suspension for creating a MySpace page that mocked a fellow student for having herpes. Kara Kowalski maintained that the Berkeley County system had no authority to censure her cyber cruelty because she created the offensive page outside of school.
In ruling against Kowalski, a cheerleader and her high school’s reigning “Queen of Charm,” the U.S. Circuit Court of Appeals for the Fourth Circuit decreed noted that the mean-spirited website — Students Against Shay’s Herpes — was created to ridicule a classmate and was directed to a student audience.
The court noted, “Kowalski used the Internet to orchestrate a targeted attack on a classmate, and did so in a manner that was sufficiently connected to the school environment as to implicate the school district’s recognized authority to discipline speech which materially and substantially interferes with the requirements of appropriate discipline in the operation of the school and collides with the rights of others.”
In January, the U.S. Supreme Court declined the opportunity to reconcile these disparate rulings, leaving school systems in limbo over the escalating collision between online student speech and school safety, standards and stability.
The law now allows schools to restrict student speech that “disrupts classwork,” creates “substantial disorder” or collides with “the rights of others.” But those criteria have historically been applied to speech and actions within the “schoolhouse gate.” The question yet to be definitively answered by the Court is whether the gate ought to swing wide enough to encompass MySpace, Facebook, YouTube, Twitter and smart phones.
The judges in the Queen of Charm case pushed the gate wider, concluding, “Kowalski indeed pushed her computer’s keys in her home, but she knew that the electronic response would be, as it in fact was, published beyond her home and could reasonably be expected to reach the school or impact the school environment. ”
But a federal court in Florida ruled that it was protected speech when a high school senior created a Facebook page proclaiming her teacher by name as “the worst teacher I’ve ever met” and inviting classmates to “express your feelings of hatred.” On the other hand, a California federal court upheld a school’s decision to suspend and transfer a middle-school student who created a slide show depicting the murder of her teacher.
Because of the conflicting rulings and the Supreme Court’s refusal to set clearer parameters, attorneys are cautioning schools systems to proceed carefully when addressing online attacks by students on teachers, principals and other students.
But schools cannot ignore it, as two recent Florida cases illustrate. On Feb. 14, two Gainesville High School students indulged in ugly racist rantings about their classmates on a YouTube video that quickly went viral. A few days later, two ninth graders in Lantana posted another shocking racist video on YouTube — this one also disparaging black classmates — that quickly found a worldwide audience and worldwide condemnation.
Threats to the girls forced both schools to go on alert and bring in additional police officers.
The mother of one of the Gainesville students — whose names have not been released because they are minors and who have now withdrawn from the school — sent a letter to the Gainesville Sun, pleading, “While we can never take back the words and actions that these two children have said, we have to start to heal and forgive immediately. Stop the violent threats to our homes and our children, stop the anger, because this will solve absolutely nothing, and most importantly, look at yourself for change and love.”
A Georgia system had to deal with an online threat this week. A 17-year-old North Forsyth High School student was arrested Wednesday for threatening students on Facebook, authorities said. The student was charged with one count of terroristic threats for posting threats against fellow students, Forsyth County Sheriff’s officials said.
–From Maureen Downey, for the AJC Get Schooled blog