Whose Right is it Anyway? The Latest Free Speech Controversies Involving Teachers and Students

1. Whose Right is it Anyway?The Latest Free Speech Controversies Involving Teachers and Students Lisa Anne Smith Sesaly Stamps DeConcini McDonald Yetwin & Lacy, PC

2. Introduction: The First Amendment Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

3. Charter Schools Does the First Amendment apply? • Employees • Students Caviness v. Horizon Community Learning Center: A charter school is likely a state actor for certain purposes and not others.

4. EMPLOYEE SPEECH

5. Public Employee Speech • Is the speech at issue on a matter of public concern? • Is the employee speaking as a citizen or as an employee (is the speech or expressive conduct made within the scope of the employee’s job duties)? • Can you restrict the speech in a manner that achieves a balance between the interests of the public employee, as a citizen, in commenting upon matters of public concern, and the interest of the State, as an employer, in promoting the efficiency of the public services through its employees?

6. A Matter of Public Concern? • Speech does not have to be made in a public forum in order to be considered a matter of public concern. A private complaint can trigger protection. • Speech about personal grievances within the context of public employment does not qualify as matters of public concern. • A public employer must make a reasonable, good faith effort to determine if the speech dealt with matters of public concern before imposing discipline.

7. Citizen or Employee? • When public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes and thus not exempt from employer discipline. • As a general matter, teachers do not have First Amendment rights based on what and how they teach. • The issue of “academic freedom” in K-12 has not been decided in the Supreme Court, but most lower courts find no academic freedom in K-12.

8. Johnson v. Poway Unified School District (9th Circuit, Sept. 2011) Math teacher displayed banners in class: “In God We Trust” “One Nation Under God” “God Bless America” “God shed his grace on thee” “They are endowed by their Creator” Speaking as a citizen or employee?

9. Johnson v. Poway Unified School District (9th Circuit, Sept. 2011) School district ordered teacher to take down the banners. The teacher complied and then sued for violation of First Amendment rights. Holding: No violation. School district is free to “take legitimate and appropriate steps to ensure that its message is neither garbled nor distorted” in the classroom.

10. Pickering v. Board of Education, 391 U.S. 563 (1968) Teacher’s employment is terminated after the teacher sends a letter to a local newspaper that is critical of the board of education’s financial plans and is factually inaccurate. Supreme Court held the speech was protected by the First Amendment and teacher could not be dismissed for it. • Subject of the letter was a matter of public concern • Teacher did not have any special or inside knowledge about financial plans • Board could have published the true facts • Statements were not knowingly or recklessly false

11. Teachers and Social Media • With new technology comes new challenges, but the test is still the same: 1. Speaking as a citizen on a matter of public concern? 2. If no, you can restrict the speech and impose discipline. 3. If yes, any restriction must balance free speech rights with interest in promoting the efficiency of its public services. 4. Also, is the speech “cause” for termination?

12. What do you do with a Drunken Pirate? • A student teacher posts a picture on Myspace of herself dressed as a pirate, drinking something with the caption “Drunken Pirate.” • Access to the My Space page is open to the public and she invites her students to find her there. No protection: not a matter of public concern. Snyder v. Millersville University, E.D. Pennsylvania (2008)

13. He did what? • High school art teacher is also an artist that creates art by spreading paint on his buttocks and pressing them onto canvas. • Teacher kept his “moonlighting” separate from his teaching career but a YouTube video was recognized by other faculty. • The teacher was fired. The ACLU sued on his behalf alleging violation of the First Amendment. • The school district settled for $65,000. Murmer v. Chesterfield County School Board, 2008

14. Posing with strippers • Teacher attends a bachelorette party and poses for pictures with a male stripper who is providing the entertainment. • The photos are posted to Facebook. • The teacher is suspended. • The ACLU sues and the District settles for $10,000 plus back pay.

15. Are your Spidey senses tingling? • Teacher Mr. Spanierman (aka Spiderman) uses MySpace to communicate with students about homework and to “get to know them better.” • Profile page includes pictures of the teacher, pictures of students, and pictures of naked men. • Mr. Spiderman is non-renewed and sues. • The court upholds the school district’s decision. Spanierman v. Hughes, (2008)

16. Ashley Payne’s European Vacation 700 vacation photos posted on Facebook, including 10 with alcohol. Her FB page was private.

17. Ashley Payne’s European Vacation • Principal told her to resign or face a report to professional standards committee because of an anonymous parent complaint. • Still unclear whether anonymous complaint was from a parent. • Lawsuit pending.

18. Betsy Ramsdale Takes Aim • Teacher placed on administrative leave for having this photo of herself on her Facebook page. • When brought to her attention, she removed it and said she didn’t want any controversy. Still employed and no further news.

19. Jerry Buell: Back at Work After Almost Throwing Up • Stated on his Facebook page that after hearing about legalized gay marriage he “almost threw up” and called gay union a cesspool and a sin. • Suspended, but ultimately placed back in the classroom with some kind of written documentation in his file.

20. What is a school to do? • Discipline more likely to be upheld if the content of the inappropriate speech involves students or is connected to the school in some manner. • If the employee can show constitutionally protected speech was a substantial factor in the school’s decision to discipline, can the school show it would have reached the same decision for other reasons? • Schools can make reasonable rules about social networking with students and should provide training to teachers on expectations regarding appropriate online communication.

21. Angry Parents Use Social Media, Too • A Gilbert man was sentenced to three months in jail for computer fraud and identify theft after he created a fake profile on a pornographic website to get back at the assistant principal at his son’s elementary school after the AP took his son’s iPod. • He used the AP’s name and photos from the school website to create the profile and chat on-line.

22. STUDENT SPEECH

23. Tinker v. Des Moines Indiana School District, 393 U.S. 503 (1969) U.S. Supreme Court rules that a school district could not prohibit students from wearing black armbands to protest the Vietnam War: constitutional rights are not shed at the schoolhouse gate. “The record does not demonstrate any facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities, and no disturbances or disorders on the school premises in fact occurred.”

24. Bethel School District v. Fraser478 U.S. 675 (1986) Student could be disciplined for giving a lewd and vulgar speech at a school assembly. “A high school assembly or classroom is no place for a sexually explicit monologue directed towards an unsuspecting audience of teenage students. Accordingly, it was perfectly appropriate for the school to disassociate itself to make the point to the pupils that vulgar speech and lewd conduct is wholly inconsistent with the ‘fundamental values’ of public school education.”

25. Watts v. United States394 U.S. 705 (1969) “If they ever make me carry a rifle the first man I want to get in my sights is L.B.J. “ “True Threats” are not protected speech, but political rhetoric such as this comment does not constitute a true threat.

26. On-Campus Speech • Cox v. Warwick Valley Sch. District, (2nd Circuit, August 2011): Middle school temporarily removed from class based on an essay depicting violent suicide. No free speech violation: protective, not disciplinary. • Barber v. Dearborn Public Schools, 286 F.Supp.2d 847 (E.D. Mich. 2003): student has a right to wear George Bush as “International Terrorist” t-shirt despite “high” terrorist alert.

27. Sapp v. School Bd. of Alachua County (N. Dist. Florida, Sept. 30, 2011): School District could prohibit students from wearing “Islam is the Devil” t-shirt because of reasonable forecast of substantial disruption. • B.W.A. v. Farmington R-7 Sch. Dist., 554 F.3d 734 (2009): School could suspend students for wearing Confederate flag t-shirts based on reasonable forecast of substantial disruption.

28. H.D. v. Easton Area Sch. Dist., (E.D. Pennsylvania, 2011): School could not ban “I ♥ Boobies” bracelets: not vulgar and no reasonable forecast of substantial disruption. • Morse v. Frederick, 127 S.Ct. 2618 (2007): School could ban “Bong Hits 4 Jesus” banner at school sponsored event because it promotes unlawful drug use. • Doe v. Silsbee, (5thCircuit, September 2011): No free speech violation for disciplining cheerleader who refused to cheer for student who she accused of assaulting her.

29. What about off-campus speech? • Analysis for off-campus and on-campus speech is essentially the same. It is the impact to the school, not the place where the speech is made, that matters: • Watts: Is it a true threat? If so, not protected. • Tinker: Did protected speech cause an actual or reasonably foreseeable substantial disruption or material interference with school activities? • Fraser: Frequently mentioned; rarely relied upon.

30. Student Speech that Criticizes the School, Administrators, Teachers

31. Lack v. Kersey(N.D. Georgia, March 2012) Student removed as student body president after Facebook posts and other speech in which he “vilified” the principal for issues regarding the President’s Council and accused specific Council members of doing things to protect themselves from a disgruntled student body. Holding: Facebook posts were protected because they were “non-violent and did not cause a material or substantial disruption.”

32. Doninger v. Niehoff(2nd Circuit, 2011) A student was prevented from running for class secretary after posting information on a blog alleging “jamfest is cancelled due to douchebags in central office.” The student encouraged readers to contact the school and “piss [them] off more.” Jamfest had actually not been cancelled.

33. Doninger v. Niehoff,cont. Holding: It was objectively reasonable for school officials to conclude the blog posts would cause a substantial disruption: • Phone calls and emails for2 days. • Administrator schedules disrupted • Many upset students gathered outside the principal’s office. • Court suggested student might be prohibited from running for Class Secretary because of offensive off-campus speech related to a school event (Fraser standard?).

34. Flaherty v. Keystone Oaks School District (W.D. Pa. 2003) Student posted on web-message board, from home and school, about a volleyball rivalry. He made derogatory remarks about a player on the other team, used crude language, and insulted that player’s mother (who taught at plaintiff’s school). Holding: Rules were unconstitutionally vague & overbroad because they did not link discipline to substantial disruption. Principal believed he could discipline for disrespectful speech that brought negative publicity and attention to the school and team.

35. Evans v. Bayer (S.D. Fla. 2010) High school student created a Facebook page called “Ms. Sarah Phelps is the worst teacher I’ve ever met.” Others were invited to post their feelings. Holding: Student’s speech was protected. Page was an expression of student’s opinion about a teacher, did not cause disruption, was not lewd or threating and did not advocate illegal behavior.

36. Neal v. Efurd (W.D. Ark 2005) Two students each created a website critical of school and allowed others to post comments. A parent complained about the negative portrayal of athletes & band members and some “hateful comments.” Students were suspended and faculty were informed they were suspended for making threatening statements regarding staff members. In fact, there were no threatening statements on the websites made by these two students.

37. Neal v. Efurd, cont. Holding: The only evidence of a disruption was that the suspension of the students and the email describing threatening comments caused the disruption, not the websites themselves; even then, disruption was minimal. • Students cannot be punished for comments made by others. • No true threat, so Tinker applies & no substantial disruption.

38. Beussink v. Woodland R-IV Sch. District (E.D. Mo 1998) Student created a webpage highly critical of administration, which included crude and vulgar language. He showed it to a friend, at home, who got mad at him and showed it to the computer teacher. Principal made an immediate decision to discipline. Holding: Discipline was because principal did not like the speech, not because of a forecast of substantial disruption.

39. ACLU v. Minnewaska Area School District (Pending Litigation) Student, while at home, posted comments on Facebook expressing dislike of a school staff member. Student was given detention and ordered to write an apology. The student then “cursed” on her Facebook page about someone reporting her to the school. Student was given in-school suspension and prevented from participating in a field trip.

40. Threats

41. D.J.M v. Hannibal(8th Circuit, 2011) High school student had instant message conversation with another student (C.M.) about his frustration at being spurned by another student, L., a romantic interest. D.J.M.: What kinda gun did your friend have again? C.M.: 357 magnum. Ha ha would you shoot [L.] or let her live? D.J.M.: I still like her so I would say let her live. C.M.: Well who would you shoot then lol. D.J.M.: everyone else

42. D.J.M v. Hannibal, cont. D.J.M. then proceeds to name specific students he would have to get rid of as well categories of students using multiple derogatory terms. At several points, both students used LOL and similar shorthand indications of amusement. Still, C.M. became worried and reported to an adult. Holding: D.J.M.’s words could reasonably be considered a true threat. • The reaction of those who read his messages is evidence that his statements were understood as “true threats.” • Also found discipline met the Tinker standard.

43. Emmett v. Kent Sch. District (W.D. Wash 2000) Student created an “Unofficial Kentlake High Home Page,” with disclaimers. Site included mock obituaries and a place to vote for who should “die” next. Local news reported on the website and referred to it as including a hit list. Holding: No evidence that website was threatening or resulted in substantial disruption.

44. Mahaffey v. Aldrich (E.D. Mich. 2002) Student created “Satan’s Web Page.” In addition to other content, the website suggested that the reader commit murder for no reason, and then said: “P.S. NOW THAT YOU’VE READ MY WEB PAGE PLEASE DON’T GO KILLING PEOPLE AND STUFF AND THEN BLAMING IT O ME, OK?” Holding: No true threat, no substantial disruption.

45. O.Z. v. Board of Trustees of Long Beach Unified School District (C.D. California 2008) Middle school student suspended after creating a slide show depicting simulated killing of 7th grade English teacher and posted on YouTube. Holding: Slide show created a foreseeable risk of substantial disruption.

46. Wisniewski v. Board of Education (2nd Cir. 2007) Eighth grade student suspended for instant messaging from a home computer a drawing that suggested a particular teacher should be shot and killed. Image was seen by at least 15 recipients, including classmates and the teacher. Holding: Reasonably foreseeable that the drawing would cause a disruption within the school environment. No “true threat” analysis required.

47. ACLU v. Griffith (Pending litigation) Students suspended after posting on Facebook about which classmates they would like to kill. The students used “LOL” and emoticons in posts. At least two students refused to attend school the next day apparently out of fear. School district alleges it was a true threat.

48. Bullying

49. Kowalski v. Berkeley County Schools (4th Circuit 2011) A high school student, Kara Kowalski, created a MySpace page using her home computer. The page was called S.A.S.H. (Students Against Sluts Herpes) and was designed to target another student. Holding: School district could discipline Kowalski under the substantial disruption standard.

50. Kowalski v. Berkeley County Schools, cont. “[T]he language of Tinker supports the conclusion that public schools have a ‘compelling interest’ in regulating speech that interferes with or disrupts the work and discipline of the school, including discipline for student harassment and bullying.”