ILNews

Can schools discipline for off-campus conduct?

Back to TopCommentsE-mailPrintBookmark and Share

School is back in session, and a new set of court rulings issued during the summer break may make it more difficult for school administrators to decide how to handle inappropriate or potentially disruptive online activities carried out by students off-campus.

In an age where cyber-bullying and school violence are constant concerns and the Internet has changed how students interact, the legalities of how far schools can go in disciplining and protecting students raise questions for school officials. Attorneys representing Hoosier schools say more often than not, administrators are taking a cautious approach to disciplining students for off-campus online conduct, even when that conduct may violate school policies.

“Looking at constitutional issues relating to schools, this topic of schools being able to regulate off-campus conduct is on the front burner and is a hot button issue, particularly when talking about written communications or other forms of speech that might be protected,” said Noblesville attorney Seamus Boyce, who represents schools statewide and has been watching these student-speech cases for years. “Schools, when they’re aware of these issues, are very cautious and they’ll have to be extra cautious now.”

On Aug. 10, Chief Judge Philip Simon in the Northern District of Indiana ruled on the case of T.V. and M.K. v. Smith-Green Community School Corp. and Austin Couch, No. 1:09-CV-00290. In this case involving a school district located near Fort Wayne, the judge ruled that the First Amendment protected the online photos posted by two teenage girls, and that administrators shouldn’t have disciplined the pair.

The two teenagers were sophomores at Churubusco High School when the incident happened during the summer of 2009. They attended sleepovers with friends and took suggestive pictures of themselves posing in provocative clothing, kissing and licking novelty phallic-shaped lollipops, and simulating sexual acts. They posted the pictures on their Myspace and Facebook pages, making them visible to online friends. Though they didn’t bring the pictures to the 400-person school and the photos didn’t identify the girls as students at the school, other parents and staff members brought the online images to the attention of the superintendent and principal on claims they were disrupting and causing concern in the school and on the volleyball team of which both girls were members. The girls were later suspended from extracurricular activities, which meant they couldn’t participate in several volleyball games.

Challenging that punishment, the American Civil Liberties Union of Indiana filed a federal lawsuit against the district claiming that the school’s policy was unconstitutional and needed to be altered or removed. In response to the lawsuit, Smith-Green Community School Corp. stated that the pictures were obscene and constituted child pornography and as such are not protected speech under the First Amendment.

In his 38-page ruling, Chief Judge Simon disagreed with the school and found the photos should be protected despite their suggestive and racy nature.

Though the photos were “juvenile and silly,” Chief Judge Simon found the conduct was intended to be humorous to those teenagers who might view them online and that the Supreme Court of the United States has held that kind of “expressive” conduct is protected under the First Amendment. The judge ruled that the photos can’t be considered obscene or along the lines of sexual conduct, child exploitation, or child pornography, according to state or federal law.

He relied on the ruling in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), which involved Iowa students wearing black Vietnam War opposition armbands and led the SCOTUS to define the constitutional rights of students in public schools using a test to determine whether a school’s disciplinary actions violate a student’s First Amendment rights. Courts nationwide have used the Tinker standard, even though the SCOTUS hasn’t addressed how far Tinker goes in the 21st century. Some uncertainty exists as to when courts should apply school-speech precedent.
 

seamus-boyce-mug.jpg Boyce

Chief Judge Simon used the Tinker standard and cited a pair of 3rd Circuit rulings from June to find in favor of the Indiana students. He found the girls’ photographs do not rise to the level of “substantial disruption,” as defined by Tinker, and that “petty disagreements” on the volleyball team didn’t justify infringing on student-speech rights. He also determined the school policies are vague and overbroad and are unconstitutional in permitting discipline based on the principal’s conclusion that T.V. and M.K. had brought “discredit or dishonor” to themselves and the school. He issued an injunction against the school from enforcing that standard.

Attorneys from the two Fort Wayne law firms representing Smith-Green schools say a decision hasn’t been reached on whether an appeal will be filed with the 7th Circuit, and they declined to speak about the specific case or issue as the litigation remains pending.

From a statewide perspective, Boyce believes schools will have to be more cautious up front and determine whether off-campus speech actually has a connection to school and if it creates a real, substantial risk to the school, rather than an intangible one. The courts haven’t offered an answer on what might be a foreseeable risk, and that becomes the school’s responsibility.

“There must be a balance between schools being indifferent to harassment they know about and going too far and violating the free speech rights of students,” he said. “That’s not an easy line to find, and this analysis (from Judge Simon) might lead some to turn away from disciplining that altogether. If a school wants to start regulating how students treat themselves and act off-campus, even if it rolls onto campus somehow, then they’re rolling the dice and could be sued.”

Calling in parents to discuss an issue could be a middle-ground solution, Boyce suggested.


wheeler-tom-mug.jpg Wheeler

Indianapolis attorney Tom Wheeler, who represents schools throughout the state and has presented on this issue nationwide, said he expects the SCOTUS will be asked to take one of the 3rd Circuit cases that he was involved with.

“The problem these decisions pose is that they seem to imply that schools have no power to regulate off-campus cyber speech in any situation,” he said. “If students have a First Amendment right to say and post whatever they want off-campus, how do we fulfill our legal duty to protect students from harassment and issues such as cyber-bullying that we’re still liable for? It’s a struggle to figure out how schools can harmonize that obligation to protect students with those First Amendment rights, and this puts schools in an absolute bind.”

Wheeler thinks school administrators should be able to discipline students for any off-campus conduct that disrupts the education of one child – even if there is no connection to the school. He plans to continue advising schools to discipline students for activity that could lead to some form of harassment or bullying or issue in or out of school. It’s an issue of being sued by the cyber-bully or by a grieving family that expected the school to protect the student, he said.

“We need guidance from the Supreme Court, because the Tinker standard is effectively meaningless for cyber speech and the on/off-campus distinction just doesn’t work anymore,” Wheeler said. “Not when you have every kid connected to the Internet the way they are now, and something posted online is like a hand grenade that you throw from off-campus and it goes off somewhere else. The risk is there.”•

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Thanks Jim. We surprised ourselves with the first album, so we did a second one. We are releasing it 6/30/17 at the HiFi. The reviews so far are amazing! www.itsjustcraig.com Skope Mag: It’s Just Craig offers a warm intimacy with the tender folk of “Dark Corners”. Rather lovely in execution, It’s Just Craig opts for a full, rich sound. Quite ornate instrumentally, the songs unfurl with such grace and style. Everything about the album feels real and fully lived. By far the highlight of the album are the soft smooth reassuring vocals whose highly articulate lyrics have a dreamy quality to them. Stories emerge out of these small snapshots of reflective moments.... A wide variety of styles are utilized, with folk anchoring it but allowing for chamber pop, soundtrack work, and found electronics filtering their way into the mix. Without a word, It’s Just Craig sets the tone of the album with the warble of “Intro”. From there things get truly started with the hush of “Go”. Building up into a great structure, “Go” has a kindness to it. Organs glisten in the distance on the fragile textures of “Alone” whose light melody adds to the song’s gorgeousness. A wonderful bloom of color defines the spaciousness of “Captain”. Infectious grooves take hold on the otherworldly origins of “Goodnight” with precise drum work giving the song a jazzy feeling. Hazy to its very core is the tragedy of “Leaving Now”. By far the highlight of the album comes with the closing impassioned “Thirty-Nine” where many layers of sound work together possessing a poetic quality.

  2. what a wonderful world we are living, i still doubt this spell caster how he did it!!! i am Tamara Barrow am from USA I am so happy to let the whole word know how this powerful spell caster saved my marriage.Everything was going down the drain as my husband can not stop cheating on me with other women. It became used to always heating on me. I tried to make him stop, but I couldn't help the situation, the more I tried, the harder it becomes. At times we will fight and go apart for some months and we will come back again just because of our kids. One day a friend told me about this spell caster who helped her too, his name is Dr.voodoo, she said he uses white magic spells to solve spiritual problems. I decided to give it a try, I contacted him and he told me it will take just 2 to 3 days and I will see great changes in my husband. He actually cast a spell, believe me after 2 to 3 days of the spell, my husband was confessing different names of woman he has slept with. He begged for forgiveness and never to try it again. From that day till now, my mind is at rest. My husband dislike every other women on earth except me. And am so happy to have him for myself alone.The spell caster’s contact his email at: voodoospelltemple66@gmail.com visit his website on http://drvodoospelltemple.webs.com

  3. Andrew, if what you report is true, then it certainly is newsworthy. If what you report is false, then it certainly is newsworthy. Any journalists reading along??? And that same Coordinator blew me up real good as well, even destroying evidence to get the ordered wetwork done. There is a story here, if any have the moxie to go for it. Search ADA here for just some of my experiences with the court's junk yard dog. https://www.scribd.com/document/299040062/Brown-ind-Bar-memo-Pet-cert Yep, drive by shootings. The lawyers of the Old Dominion got that right. Career executions lacking any real semblance of due process. It is the ISC way ... under the bad shepard's leadership ... and a compliant, silent, boot-licking fifth estate.

  4. Journalism may just be asleep. I pray this editorial is more than just a passing toss and turn. Indiana's old boy system of ruling over attorneys is cultish. Unmask them oh guardians of democracy.

  5. Banana.Republic

ADVERTISEMENT