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Can schools discipline for off-campus conduct?

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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.”•

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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