Hey, kids! Hate school? Don't tell Facebook!
October 6, 2009
The First Amendment right to insult one's school increasingly challenged
High school sucks. Did you forget? Don't believe it? Check out Facebook.
Contrary to the evidence on Facebook student pages however, high schools aren't the only educational institutions capable of totally sucking.
Even schools you elect to attend, for example, the Salon Professional Academy of Elgin, Ill., can also act as an oxygen vortex. At least that's the opinion of a Nicholas Blacconiere, an academy student under legal fire for enshrining his negative opinions and those of others on a private page he posted on the world's most popular social networking site.
"Facebook 'suck sites' to be tested in court," proclaimed the Chicago Tribune in reporting the academy's $50,000 suit against Blacconiere for unauthorized use of the school's logo and for emotional damage caused by defamatory comments posted on his page, titled "Tspa RobinHood."
Other media followed suit, with headlines such as " ‘My School Sucks' pages under attack," and the like. Why it's as if just now, a couple of months short of 2010, the First Amendment rights of Internet-savvy students are under fire and not, in fact, an ongoing and troublesome issue.
While the medium of expression has changed over the years - from the cover of one's Mead Trapper Keeper to Facebook and other Internet-loitering spots - proclaiming the suckitude of one's school is an ancient rite of passage. It may even be a necessary for growing personalities to assert such independence, according to some experts. The change of venue, however, has led to myriad lawsuits involving disgruntled students and the schools that punish them.
"Forty years ago, the Supreme Court resoundingly affirmed that young people attending public schools do not ‘shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,' " writes Frank D. LoMonte in "Reaching Through the School House Gate: Students' Eroding First Amendment Right," his February 2009 brief for the American Constitution Society for Law and Policy.
Recent developments in the law of online speech, however, are rattling the certainty of that assumption," the Student Press Law Center executive director continues. "In the view of at least some federal judges, students do not enjoy - anywhere, anytime -the same right to comment on school as ordinary citizens."
One of the more prominent cases still pending started two years ago, when Katherine "Katy" Evans, then a Pembroke Pines Charter junior in Fort Lauderdale, Fla., built a Facebook page titled "Ms. Sarah Phelps is the worst teacher I've ever met." It featured a photo of the teacher who disgruntled Evans so, as well as an invitation to others to "express your feelings of hatred." Evans created the page to blow off steam. Now it's the subject of an ACLU lawsuit.
It was hardly the first Facebook page posted by a disgruntled student. Even now, a Facebook search for "student organizations" with "high school" and "sucks" in the title returns hundreds of results augmented with the names of specific schools, pages that have been online for months, even years.
For Evans, however, this teenage indiscretion - which she removed after a few days - cost her a three-day suspension and removal from her college-critical "advanced placement" status in her senior year.
"It is ironic that high school is where students first learn about First Amendment rights, including the right to free speech, yet it is Katy's high school that unconstitutionally trampled those very rights," ACLU cooperating attorney Matthew D. Bavaro, said in a press release announcing the suit last December.
Unfortunately, interfering with an adequate education has served before as punishment for such online shenanigans. In 2007, the ACLU successfully defended Justin Layshock, a high school senior who received 10 days suspension for a MySpace parody of his principal. What's more, Layshock, a "gifted" student, was removed from his classes and placed in an "alternative learning environment" far below his capabilities.
"Significantly, the Layshock court took care to examine the basis for the punishment, and had no difficulty concluding that the suspension was imposed purely for the content of the student's speech, and not for any non-speech disruptive conduct on campus," LoMonte writes in "Students' Eroding First Amendment Right."
"Thus, the school could not justify its actions by claiming that the discipline was for on-campus misconduct," one of few reasons schools can legally interfere in a student's off-campus behavior.
Still, these cases are never so clear-cut. The precedent set 40 years ago that ensured First Amendment rights for public school students took place long before the Internet era, with its cyberbullying and the like.
Appeals are still pending for the case of Avery Doninger, who in 2007 was not permitted to run for senior class secretary after she referred to faculty at Lewis Mills High School in Burlington, Conn., as "douchebags" on her LiveJournal blog. Faculty called the student, who'd previously never been in trouble, a cyberbully.
The Internet "is bringing up things we used to say verbally, that's now searchable and online," says Robert L. Shibley, vice president at the Foundation for Individual Rights in Education (FIRE). While FIRE advocates for university students, who have significantly more rights than high school students, Shibley notes the slippery slope between the two education levels.
It is not unusual, Shibely says, for a university to note a precedent set for high school students and First Amendment rights and attempt to apply that precedent to people old enough "to fight in a war, vote and drink."
"You have sort of an Orwellian atmosphere at universities, and especially at high schools, Shibley says. "Administrators feel they have to tamp down (online speech) or somebody going to sue the high school."
"It's a big mess, and it's just coming out everywhere."
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