CLOSING GENERAL SESSION SPORTS LAW ISSUES IN SCHOOL ATHLETIC PROGRAMS PRESENTER: LEE E. GREEN, J.D. PROFESSOR – BAKER U.

1. 2011 NIAAACONFERENCE CLOSING GENERAL SESSION SPORTS LAW ISSUES INSCHOOL ATHLETIC PROGRAMS PRESENTER:LEE E. GREEN, J.D.PROFESSOR – BAKER U.

2. 2011 NIAAACONFERENCE FIRST AMENDMENTFREE SPEECH RIGHTS &STUDENT-ATHLETE USEOF SOCIAL MEDIA WEBSITES

3. 2011 NIAAACONFERENCE A Hypothetical Free Speech Dispute A soccer player, on her home computer, creates a Facebook page intended to parody her coach and her high school athletic director.

4. 2011 NIAAACONFERENCE A Hypothetical Free Speech Dispute The page includes a petition that visitors may sign to encouragethat the coach be fired both for incompetence and because of alleged inappropriate contact with players (a falsehood).

5. 2011 NIAAACONFERENCE A Hypothetical Free Speech Dispute The page includes a Top Ten list characterizing the AD as a sex addict and pedophile with a prison record (all falsehoods).

6. 2011 NIAAACONFERENCE A Hypothetical Free Speech Dispute The page is filled with profane language and photoshopped lewd images of the coach and AD in various states of undress.

7. 2011 NIAAACONFERENCE A Hypothetical Free Speech Dispute The page also includes numerous disparaging falsehoods and altered images designed to bully other soccer players and students.

8. 2011 NIAAACONFERENCE A Hypothetical Free Speech Dispute Upon seeing the coach and AD at a restaurant, both still unaware of her Facebook page, the player returns their friendly waves with an extension of her middle finger and an expletive heard by both.

9. 2011 NIAAACONFERENCE The History Of Student Free Speech Tinker V. Des Moines School DistrictU.S. Supreme Court – 1969 Ruling By The Supreme Court: Students do not shed their constitu-tional rights at the schoolhouse gate. Schools may limit student speechonly where it would materially and substantially interfere with the work and discipline of the school.

10. 2011 NIAAACONFERENCE The History Of Student Free Speech Bethel School District v. FrasierU.S. Supreme Court – 1986 Ruling By The Supreme Court:Schools may prohibit on-campus student speech that is vulgar, lewd, or indecent because such discourse is inconsistent with the fundamental values of public school education.

11. 2011 NIAAACONFERENCE The History Of Student Free Speech Hazelwood School Dist. v. KuhlmeierU.S. Supreme Court – 1988 Ruling By The Supreme Court:Schools may regulate student speech in school-sponsored activities that are part of the curriculum (e.g. a school newspaper) so long as their actions are reasonably related to legitimate pedagogical concerns.

12. 2011 NIAAACONFERENCE The History Of Student Free Speech Morse v. FrederickU.S. Supreme Court – 2007 Ruling By The Supreme Court:Schools may regulate student speech that takes place in school or at a school event which advocates the violation of an explicit school policy such as that prohibiting the use by students of illegal drugs.

13. 2011 NIAAACONFERENCE Student Free Speech Cases - 2011 Doninger v. NiehoffU.S. Second Circuit – April 25, 2011 Ruling By The Appellate Court: No free speech violation because the student’s conduct “posed a reasonably foreseeable risk that it would come to the attention of school authorities and materially and substantially disrupt the work and discipline of the school.”

14. 2011 NIAAACONFERENCE Student Free Speech Cases - 2011 J.S. v. Blue Mountain School District U.S. Third Circuit – June 13, 2011 Ruling By The Appellate Court:Free speech violation because student’s conduct did not cause a Tinkersubstan- tial disruption in school and because Bethel standard regarding lewd speech does not apply to off-campus speech.

15. 2011 NIAAACONFERENCE Student Free Speech Cases - 2011 Layschock v. Hermitage School Dt. U.S. Third Circuit – June 13, 2011 Ruling By The Appellate Court:Free speech violation; no substantial disruption in school; “we do not think that the First Amendment can tolerate the district stretching its authority into [the student’s] grandmother’s home and reaching him while he is sitting at her computer.”

16. 2011 NIAAACONFERENCE Student Free Speech Cases - 2011 Kowalski v. Berkeley County SchoolsU.S. Fourth Circuit – July 27, 2011 Ruling By The Appellate Court: No free speech violation; bullying and harassment create a substantial disrup-tion; although the speech originated off-campus, the student knew her words would reach the school and impact the school environment.

17. 2011 NIAAACONFERENCE Student Free Speech Cases - 2011 D.J.M. V. Hannibal Public School Dt.U.S. Eighth Circuit – August 1, 2011 Ruling By The Appellate Court:No free speech violation because the student’s conduct constituted a “true threat” - “a statement that a reasonable recipient would have interpreted as a serious expression of intent to cause harm or injury to another.”

18. 2011 NIAAACONFERENCE Student Free Speech Cases - 2011 T.V.&M.K v. Smith-Green C. Schools U.S. District Court (IN) - Aug 10, 2011 Ruling By The District Court:Free speech violation; no substantial disruption in school; student-athlete code of conduct was too vague; social media policies must be highly specific and narrowly tailored with regard to defining prohibited behaviors.

19. 2011 NIAAACONFERENCE Other Student Free Speech Cases Lowery v. EuvardU.S. Sixth Circuit – 2007 Ruling By The Appellate Court:Upheld the suspension from their team of high school football players who were actively campaigning (petitions) to have their coach fired; court applied the Tinker substantial disruption standard to team morale/discipline.

20. 2011 NIAAACONFERENCE Other Student Free Speech Cases Killion v. Franklin Regional S. Dt. U.S. District Court (PA) – 2001 Ruling By The District Court:Overturned on free speech grounds (off-campus/no disruption) the suspension from school and athletics of a student who created on his home computer a David Letterman- like Top Ten list dissing his h.s. AD.

21. 2011 NIAAACONFERENCE Other Student Free Speech Cases Klein v. SmithU.S. District Court (ME) – 1986 Ruling By The District Court:Overturned on free speech grounds (off-campus/no disruption) the suspension of a student from school, sports, and extracurriculars for giving a teacher a “middle finger salute” upon seeing him at a restaurant.

22. 2011 NIAAACONFERENCE Other Student Free Speech Cases Klein v. SmithU.S. District Court (ME) – 1986 The District Judge began his ruling withthe following quote: “Of all the griefs that harrass the distress’d Surely the most bitter is a scornful jest; Fate never wounds more deep the gen’rous heart, Than when a blockhead’s insult points the dart.”Samuel Johnson – London (1738 Edition)

23. 2011 NIAAACONFERENCE Other Student Free Speech Cases Fenton v. StearU.S. District Court (PA) – 1976 Ruling By The District Court: Upheld the in-school suspension, ban from the senior trip, and ban from sports of a student who at a shopping mall greeted one of his teachers by calling him a pr*#k (fighting words exception to free speech).

24. 2011 NIAAACONFERENCE Other Student Free Speech Cases Fenton v. StearU.S. District Court (PA) – 1976 The District Court Judge stated “[i]t is not the role of the federal courts to set aside decisions of school administrators which the court may view as lacking a basis in wisdom or compassion.”

25. 2011 NIAAACONFERENCE RECOMMENDATIONS • Include a social media policy in your student-athlete code of conduct. • Begin with a statement of purpose explaining the disruptive impact of inappropriate social media postings on the morale and success of the team. • Avoid generalized, morals clause type language in the policy. • Include “participation is a privilege not a right” language.

26. 2011 NIAAACONFERENCE RECOMMENDATIONS • Include precise language defining the specific prohibited behaviors: • Sexually explicit, profane, lewd,indecent, or defamatory language. • Derogatory language regardingschool personnel or other students. • Comments designed to harass orbully students/school personnel. • Nude/sexually-oriented/indecentphotos/images or altered pics.

27. 2011 NIAAACONFERENCE RECOMMENDATIONS • Document all on-campus connections to off-campus violations of the policy. • Use of school computers to view the off-campus postings. • Extent of students accessing posts at school on their own devices. • Distribution of hard copies of posts on school property. • Extent of re-communication on campus of the content of the posts.

28. 2011 NIAAACONFERENCE RECOMMENDATIONS • Document all on-campus disruptive impacts of off-campus violations. • Disruptions that occur in class or during curricular activities. • Disruptions that occur anywhere on school property. • Disruptions that constitute in any way harassment or bullying. • Disruptions to sports teams that impact morale, discipline, or team cohesiveness.

29. 2011 NIAAACONFERENCE Lee E. Green, J.D. - Baker University618 Eighth Street P.O. Box 65Baldwin City, Kansas 66006Office: 785.594.8336Email: Lee.Green@BakerU.Edu Thanks For Attending The Presentation!!