In an entry titled “Hot for Teacher,” the student discusses his concerns about being distracted in class by attractive professors. In a separate entry, the student states that his professor is like Ginger from the television series Gilligan’s Island, while another professor is like the character Mary Ann.
In an e-mail on November 29, his professor announced to some of her colleagues, “Either [the student] leaves campus or I do.” On December 7, the dean of students and assistant vice president of student affairs and the vice president for student affairs and enrollment management met with the student and pressured him to withdraw from his winter semester classes. Shortly after, the student was suspended.
On these described facts, this is a perfect example of administrative overreaching and infringing on free speech, though it should be noted that Oakland has asserted it was also concerned about references to guns and possible implied threats contained in the writings. The student writing did not rise to the level of harassment because it was not persistent/pervasive nor did it deprive the professor of her right of education or employment access, benefits, or opportunities. The journal entries contained no “direct threat” and it is clearly, then, constitutionally protected speech. While the professor was so offended that she threatened to resign, her ultimatum does not grant the university license to violate the student’s constitutional rights. By classifying his writing as “unlawful individual activities,” the university could try to argue that its action was content neutral. That would fail because the student was required to undergo sensitivity training, which, in itself, is used to change the way a person expresses himself to others. To date, this matter remains unresolved.
The second of our case studies involves two concurrent court decisions from last year: Layshock v. Hermitage School District and J.S. v. Blue Mountain School District. Both cases involved student ridicule of school officials through the use of online social media.
Justin Layshock was disciplined by Hickory High School after he created a fictitious MySpace profile for the school principal, Eric Trosch, using a private computer. Layshock copied a photo of Trosch from the district website, but otherwise used no school resources in formulating his “parody.” As part of the profile creation process, Layshock completed various survey questions meant to help MySpace users define themselves. Layshock’s answers included repeated use of the word “big” (which the court noted was an apparent reference to Trosch as a “large man”), references to drug and alcohol use, and homophobic remarks. Some examples:
Birthday: too drunk to remember
In the past month have you smoked: big blunt
Ever been beaten up: big fag
Layshock subsequently popularized this fake profile among his friends, which led to several more “parodies” being created, which Trosch characterized as “degrading,” “demeaning,” “demoralizing,” and “shocking.” The court noted that while Trosch reported the matter to police, no criminal charges were filed. Nevertheless, Layshock was suspended from school for ten days, restricted from extracurricular activities, and prohibited from participating in his graduation ceremony.
J.S. was likewise disciplined for creating a fake MySpace profile of her school principal, James McGonigle. Again, the profile was created using a private computer, off of school property, and without the use of educational resources. In this case, the principal was not identified by name, although McGonigle’s photo was used on the fake profile. Instead, the name given was “M-Hoe,” and the following listed in the “About me” section:
HELLO CHILDREN[.] yes. it’s your oh so wonderful, hairy, expressionless, sex addict, fagass, put on this world with a small dick PRINCIPAL[.] I have come to myspace so i can pervert the minds of other principal’s [sic] to be just like me. I know, I know, you’re all thrilled[.] Another reason I came to myspace is because - I am keeping an eye on you students (who[m] I care for so much)[.] For those who want to be my friend, and aren’t in my school[,] I love children, sex (any kind), dogs, long walks on the beach, tv, being a dick head, and last but not least my darling wife who looks like a man (who satisfies my needs) MY FRAINTRAIN . . .
This fake profile was initially made public; however, J.S. changed it to “private” after several other students made reference to it at school. After this change, access to the profile was limited to approximately two dozen students. As in the Layshock case, when J.S. was discovered to be the creator of the profile, the school issued a ten-day suspension. Again, the police were contacted, but no criminal charges were ever filed.
The two cases were heard en banc by the Third Circuit in Pennsylvania and decisions handed down on June 13, 2011. In both, the court found for the students, indicating their belief that the schools overreached in disciplining them for behavior that took place outside the classroom.
In writing for the Layshock majority, Chief Judge Theodore McGee stated, “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. Allowing the [school] district to punish Justin for conduct he engaged in while at his grandmother’s house using his grandmother’s computer would create just such a precedent. . . .”
Judge Michael Chagares wrote for the majority in the J.S. case. In it, he dismissed comparison to the 1986 Bethel School District v. Fraser decision, which upheld the right to limit freedom of speech while at school: “[T]o apply the Fraser standard to justify the school district’s punishment of J.S.’s speech would be to adopt a rule that allows school officials to punish any speech by a student that takes place anywhere, at any time, as long as it is about the school or a school official, is brought to the attention of a school official and is deemed ‘offensive’ by the prevailing authority. . . . Accordingly, we conclude that the Fraser decision did not give the school district the authority to punish J.S. for her off-campus speech.”
Neither of these cases involved allegations of harassment; therefore, in making its decisions, the court relied not on the Davis standard, but on that established by Tinker v. Des Moines Independent Community School District, in which the Supreme Court stated schools may only restrict speech that “materially and substantially interfere[s] with the requirements of appropriate discipline in the operation of the school.”
The Layshock decision states, “[W]hen pressed at oral argument, counsel for the School District conceded that the District was relying solely on the fact that Justin created the profile of Trosch, and not arguing that it created any substantial disruption in the school.” Likewise, the J.S. decision contends that “beyond general rumblings, a few minutes of talking in class, and some officials rearranging their schedules to assist McGonigle in dealing with the profile, no disruptions occurred.” The Tinker standard is comparable to the Davis standard, which places the threshold for harassment at the point where conduct “bars the victim’s access to an educational opportunity,” in that speech can be restricted only when the educational process is substantially impeded. In other words, when reviewing school policies, and the implementation thereof, it is critical to ensure students are being disciplined as a result of the objective impact of their speech, and not solely based on its content and/or the feelings of those to whom that speech is targeted.
Despite concerns about the tactics employed by critics such as FIRE, the authors agree with most of FIRE’s contentions about free speech. In particular, FIRE’s guide to free speech is a worthwhile read. Many schools have problematically expanded the concept of harassment to encompass general campus or school civility. In such cases, the moral value of civility and tolerance has been raised above the moral value of free speech. The policies and practices of a public institution or district need to honor discourse, and use free and open debate—not disciplinary proceedings—as the remedy for unpopular speech. The moral value of free speech is at least as important as the moral values of civility and tolerance.
Schools are in the business of education, and when members of those communities engage in repulsive speech, the moment must be used to educate, not to punish. By honoring free speech, we honor the moral values of civility and tolerance. By repressing or chilling speech, we dishonor those values.
Source List
- Bethel Sch. Dist. v. Fraser, 478 U.S. 675 (1986).
- Broadrick v. Oklahoma, 413 U.S. 601 (1973).
- Cal. Educ. Code § 94367 (West 2009).
- Chaplinsky v. New Hampshire, 315U.S. 568 (1942).
- Davis v. Monroe Cnty. Bd. of Educ.,526 U.S. 629 (1999).
- Found. for Individual Rights in Educ..
- J.S. et al. v. Blue Mountain Sch. Dist., 593 F.3d 286 (2010).
- Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952).
- Layshock ex rel. Layshock v. Hermitage Sch. Dist., 593 F.3d 249 (2010).
- Near v. Minnesota, 283 U.S. 697 (1931).
- Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969).