Students Battle School Districts Over First Amendment Rights On Social Media

Across the country, school administrators are restricting Twitter and Facebook use, even outside of school.
By @TrishaMarczakMP |
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    Numerous cases highlight retaliation against students for things stated online, such as in social media and through blogging, address their First Amendment rights outside the relm of the education system. (Photo/Ed Yourdon via Flickr)

    Numerous cases highlight retaliation against students for things stated online, such as in social media and through blogging, addressing their First Amendment rights outside the realm of the education system. (Photo/Ed Yourdon via Flickr)

    When a New York high school student started a Twitter campaign highlighting his district’s budget woes, he found himself suspended from school for what the administration labeled as harassment.

    Pat Brown, a senior at Cicero-North Syracuse High School and member of the student council, began tweeting about the 2012-13 failed district budget, accompanying his tweets with the hashtag #shitCNSshouldcut. The hashtag caught on among students, creating a social media frenzy administration officials weren’t thrilled with.

    His case represents the expanding grey area between First Amendment rights to free speech among students when they’re outside of the school setting and school-related discipline. As social media has become more prevalent, school districts have struggled to find where to draw the disciplinary line — and in many cases, have failed the constitutional litmus test.

    The American Civil Liberties Union in Washington has created a manual detailing how districts in the state should handle burgeoning social media trends, particularly when the use occurs outside of school.

    According to the ACLU, Brown’s disciplinary action was out of line, as his comments regarding the school’s administration took place outside of the school setting. Had anyone else living in the district tweeted similar messages, they, of course, would not have been disciplined by the school.

    “The school does not have authority to impose discipline for writing or posting about a school-related topic, or posting an opinion that school officials don’t like,” the ACLU handbook states.


    The revolution will be tweeted

    In Brown’s case, administrators applied district rules to the student’s out-of-school behavior. In an interview with CNN, the district’s superintendent Kim Dyce Faucette indicated that school officials were treating the Twitter case like any other situation worthy of disciplinary action.

    “We have a student code of conduct that is policy we abide by,” Faucette told CNN. “Students and parents know the expectations of this policy, and whenever a situation arises where a student does not meet those expectations, we deal with it accordingly.”

    While Brown said he’s not going to press charges against the district for his 3-day suspension,  the ACLU claims that in cases like his, the law is on their side.

    In a recent post on the ACLU’s website, legal fellows Greger Calhan and Brian Hauss addressed a similar issue in Kansas, where Kansas Heights High School senior class president Wesley Teague was suspended for tweeting — again, outside of school — about the school’s football team.

    The tweet, made on May 2, stated:

    “Heights U” is equivalent to WSU’s football team.

    It was that message that led the school’s administrators to order a suspension for Brown, while also taking away his class president title and banning him from carrying out his convocation speech.

    “Wesley posted some very inappropriate tweets about the Heights athletic teams, aggressively disrespecting many athletes. After reading the tweets and taking statements from other students it was found that Wesley acted to incite the majority of our Heights athletes,” a letter from administrators to Wesley’s parents stated.

    This is just one example of school administrators who have acted outside the bounds of the Constitution, according to the ACLU.

    “What happened to Wesley is not an isolated incident,” Calhan and Hauss wrote. “It is another recent example of school administrators removing students from the classroom because of harmless student expression.”


    ACLU: the precedent case still applies today

    The ACLU points to the groundbreaking case, Tinker v. Des Moines, which upheld students’ right to express themselves in the school setting. In 1965, a group of Iowa students planned to wear black armbands to school in protest of the Vietnam War. Would-be participants had made these plans at the home of one of the students.

    Before the action could be carried out, school administrators told students that, if carried out, they would be suspended. Students who did wear armbands to school were suspended, and a lawsuit was filed against the district for violations of students’ First Amendment rights.

    The Supreme Court eventually ruled 7-2 in favor of the students, claiming administrators must have to prove student conduct “would materially and substantially interfere” with regular school operations in order to limit First Amendment free speech rights.

    Mary Beth Tinker was among the students who were suspended in the landmark 1965 incident. Still advocating for students’ First Amendment rights, Tinker stands behind the the ACLU and its quest to call on school officials to uphold the constitution.

    “I am concerned about what seems to be a growing tendency to discipline students who exercise their First Amendment rights,” Tinker wrote in an ACLU post on the topic. “Coupled with a decline in civics education, this tendency endangers our democracy and our future, because we need the voices of young people. To many of us, including the ACLU, it is important that young people know they have the right to express themselves.”


    Attempting to work around the law

    California’s Bear Creek High School came up with its own way to get rid of the bothersome situations that surround out-of-school behavior by students on social media platforms. At the end of the 2013 school year, administrators implemented a “social media policy,” one that restricted students’ First Amendment rights.

    The policy required students involved in any extracurricular activity to sign a waiver stating their behavior on social media outside of school hours was subject to school disciplinary standards.

    According to the administration, the intent was to limit social media posts about drug and alcohol use, and any association with bullying. But the language employed is open for interpretation, as it allows the district to limit anything deemed “inappropriate” and also allows students to be disciplined for liking, re-tweeting and favoriting any tweets or Facebook posts.

    “Online bullying is a genuine concern, but this policy goes so greatly beyond any speech that could be considered bullying that it would leave students entirely at the mercy of a subjective, and potentially retaliatory, punishment for speech that crosses some mysterious line of ‘inappropriateness,’” Student Press Law Center Executive Director Frank D. LoMonte said in a press release. “We’ve seen far too many instances of school administrators intimidating student whistleblowers, journalists and commentators who are trying to inform the public about the shortcomings of schools.”

    On Aug. 12, the Student Press Law Center issued a press release, stating it was pairing up with the ACLU of Northern California to pressure the district to drop the policy, calling it “draconian and constitutionally infirm.”

    “We urge the District to immediately suspend its policy on Social Networking By Student Athletes and Co-curricular Participants, which violates federal and state law and infringes on students’ fundamental constitutional rights,” a letter written on behalf of the Student Press Law Center and the ACLU to district administrators states.

    The involvement of the ACLU and the Student Press Law Center came after student protests, during which they indicated they wouldn’t be subject to a supposed anti-bullying policy that restricted their constitutional rights.

    “As currently written, the Policy applies to virtually all online communications by District students, regardless of whether they occur off campus or after school hours,” the letter to administrators states. “It reaches beyond constitutionally unprotected and unlawful behavior and proscribes extremely broad classes of speech, such as ‘demeaning statements,’ ‘language in reference to violence, drug or alcohol use, or bullying,’ and any expression deemed ‘inappropriate’ by school officials.”

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