Do students have a right to be mean online

School officials' attempts to cut down on cyberbullying are running into roadblocks in the court, according to an article in today's Los Angeles Times:

By Victoria Kim

December 13, 2009


One morning in May 2008, an eighth-grader walked into Janice Hart's office at a Beverly Hills school crying.

She was upset and humiliated and couldn't possibly go to class, the girl told the counselor. The night before, a classmate had posted a video on YouTube with a group of other eighth-graders bad-mouthing her, calling her "spoiled," a "brat" and a "slut." Text and instant messages had been flying since. Half the class must have seen it by now, she told Hart.

Hart took the problem to the vice principal and principal, who took it to a district administrator, who asked the district's lawyers what they could do about it. In the end, citing "cyber-bullying" concerns, school officials suspended the girl who posted the video for two days. That student took the case to federal court, saying her free speech rights had been violated.

Last month, a federal judge in Los Angeles sided with her, saying the school had gone too far. Amid rising concerns over cyber-bullying, and even calls for criminalization, some courts, parents and free-speech advocates are pushing back. Students, they say, have a 1st Amendment right to be nasty in cyberspace.

"To allow the school to cast this wide a net and suspend a student simply because another student takes offense to their speech, without any evidence that such speech caused a substantial disruption of the school's activities, runs afoul" of the law, U.S. District Judge Stephen V. Wilson wrote in a 60-page opinion.

"The court cannot uphold school discipline of student speech simply because young persons are unpredictable or immature, or because, in general, teenagers are emotionally fragile and may often fight over hurtful comments," he wrote.

Schools' ability to limit student speech, from armbands protesting the Vietnam War to banners promoting marijuana use, is an age-old issue that has been repeatedly tried and tested in the courts. But with teens' social lives moving increasingly to cyberspace, where what might have previously been private bickering is reproduced, publicized and documented for all to see, school officials find themselves on unfamiliar ground in dealing with e-mails, instant messages, profile pages, videos and the like that may result in hurt feelings or something more serious.

Free-speech advocates said the notoriety of recent cases, such as the Missouri girl who committed suicide after a mean-spirited MySpace message was sent, have led schools to overreact and excessively crack down on student expression when it comes to the Internet.

"It's better to have a lawsuit and lose some money than have a situation where a student commits suicide," said Eugene Volokh, a 1st Amendment expert and UCLA law professor who has criticized a bill in Congress that would make cyber-bullying punishable by up to two years in prison. "People don't appreciate how much the 1st Amendment protects not only political and ideological speech, but also personal nastiness and chatter. . . . If all cruel teasing led to suicide, the human race would be extinct."

The murkiness of this area of law and educational policy has resulted in legal challenges across the country over school officials' restriction of student speech or discipline meted out in such cases.

Attorneys and experts said court decisions have been "all over the map," offering little clarity to confused school administrators. The U.S. Supreme Court has yet to take up a case involving student speech online; the governing decision is from the 1969 Tinker vs. Des Moines School District case, which held that student speech could not be limited unless it caused substantial disruption on campus.

"We're in a rapidly evolving area of law with relatively few guidelines and remarkably little that has been charted," said Robert O'Neil, director of the Virginia-based Thomas Jefferson Center for the Protection of Free Expression.

O'Neil said that when a true threat is made, and when speech is made using school computers, schools have clear authority to regulate students' speech. But when something falls in the gray area between an expressed threat and mere teasing, and students are accessing the Internet outside the school's walls, administrators are faced with a tricky calculus.

"Everybody is justifiably confused about what they can and cannot do," said Witold Walczak, an attorney with the American Civil Liberties Union.

In Pennsylvania, a student sued his school district after he was suspended for 10 days and placed in an alternative education program for creating what he claimed was a parody MySpace profile of the school principal. On the website, the student referred to the principal as a "big steroid freak," and a "big whore," among other things, and stated that he was "too drunk to remember" the date of his birthday.

U.S. District Judge Terrence McVerry found that even though the profile was unquestionably "lewd, profane and sexually inappropriate," the school did not have the right to restrict the student's speech because school officials were not able to establish that the profile caused enough of a disruption on campus.

"The mere fact that the Internet may be accessed at school does not authorize school officials to become censors of the World Wide Web," he wrote.

Walczak, the ACLU attorney who argued the case, said censoring is often the "easy way out" for schools that want to be able to say they did something about the situation rather than stand by and watch.

"The Internet doesn't change what students say about other students or school officials, it just makes it more apparent to a larger number of people," he said.

The school district has appealed to the 3rd Circuit Court of Appeals, where a decision is pending.

In Florida, the ACLU sued a principal on behalf of a student who was suspended and removed from her honors class for alleged cyber-bullying. Katie Evans had created a Facebook page criticizing an English teacher as "the worst teacher I've ever met" and invited others to express their "feelings of hatred."

Her attorney, Matthew Bavaro, said the reach of the Web was irrelevant to whether students are allowed to express themselves freely.

"The audience, whether it's one person or 1 billion people, doesn't change that Katie still had a 1st Amendment right," Bavaro said.

In the Beverly Hills case, the student's lawsuit said her "speech" was entirely off campus and off-limits to the school administrators' regulation. The four-minute, 36-second video, in which a group of friends is chatting at a restaurant four blocks from campus, could not even be viewed at school because YouTube is blocked on the school's computers, her attorney contended.

Judge Wilson ruled that school officials had the authority to investigate the matter because the student told several of her classmates to watch the video, and it was foreseeable the video, or talk of it, would quickly make its way to the campus of Beverly Vista School. The video was "designed in such a manner to reach many persons at once," making it different from earlier cases involving school newspapers or a violent drawing, he found.

However, he ruled that the chatter in the video did not rise to a level that would cause enough disruption at the school to warrant the discipline.

"The fear that students would 'gossip' or 'pass notes' in class simply does not rise to the level of a substantial disruption," he wrote.

The plaintiff's attorney, Evan Cohen, who is also her father, said the case highlighted the school district's failure to realize the limits of its authority.

"Yeah, sure, they can fall back on cyber-bullying, but when you actually ask them questions and dig down deep into their understanding, they think it's OK for them to be a super-parent," he said.

Cohen's daughter, now a high school sophomore, is glad to put the case behind her and move on with her life, he said. She will be awarded nominal damages of $1 from the school, he said, and her two-day suspension will probably soon be removed from her academic record.

Attorney Gary Gibeaut, who represented the Beverly Hills Unified School District, declined to comment, saying the district had not decided whether to appeal the decision.

Texting common despite school bans

Schools may have rules against texting, but students are ignoring them in greater numbers.

In its latest edition, the Wichita Eagle takes a look at the phenomenon:

It's fairly easy to get away with using a cell phone, especially with teachers who aren't very strict, added Ashton Bethel, a Southeast sophomore.

"You just go under the desk and hide it," she said.

A recent national poll shows that these Wichita-area students are in the majority when it comes to surreptitious cell phone use by teens.

About two-thirds of students who are supposed to keep their phones off use them during the school day anyway, according to an online survey commissioned by Common Sense Media, a California nonprofit that researches how media affects children.

"Even at the junior high level, they're breaking out iPhones," said Bailey Ketterman, who has worked as a substitute teacher at several Wichita-area suburban districts. "It's definitely a widespread problem."

Judge tentatively acquits MySpace mother

A federal court judge tentatively threw out the conviction of a Missouri woman who pretended to be a teenage boy on MySpace, starting a chain of events that led to a 13-year-old girl's suicide.

The following article comes from CNN:

LOS ANGELES, California (CNN) -- A federal judge tentatively overturned the conviction of a Missouri woman accused of using MySpace to deceive a teenage girl who eventually committed suicide, a U.S. attorney's spokesman told CNN.

A jury convicted Lori Drew, 49, of O'Fallon, Missouri, in November on three misdemeanor counts of accessing protected computers without authorization. Prosecutors argued that Drew illegally used the social networking site to humiliate a 13-year-old girl, who authorities said killed herself after receiving derogatory messages.

Drew was to be sentenced Thursday, but California U.S. District Judge George Wu -- who heard the case because MySpace is based in Los Angeles -- instead decided to not uphold the jury's finding.

Prosecutors based their case on a federal computer crimes statute that Wu is now challenging.

Using the statute, prosecutors accused Drew of violating the social networking site's terms of service, which prohibits creating fraudulent registration information, using accounts to obtain personal information about juvenile members and using MySpace to "harass, abuse or harm other members."

Thom Mrozek, spokesman for the U.S. attorney's office in Los Angeles, told CNN that Wu said in court if Drew is convicted of illegally accessing computers, the guilty verdict would set a precedent and anyone who has ever violated MySpace's terms of service could also be found guilty of a misdemeanor.

"It appears that the judge is basing his decision on his conclusion that the misdemeanor statute is constitutionally vague," Mrozek wrote in an e-mail to CNN.

Wu said his decision will become final once he files a written ruling, according to Mrozek.

The misdemeanor charges -- which Drew is tentatively cleared of with Wu's action -- stemmed from an elaborate hoax played out on MySpace.

The prosecution accused Drew of using the site to inflict emotional distress on Megan Meier. Prosecutors alleged during the trial that Drew -- worried that Meier had spread malicious rumors about her daughter -- used MySpace to pose as a 16-year-old boy, "Josh Evans," who feigned romantic interest in Meier.

Meier killed herself after the "boy" spurned her and at one point told her via the Internet that the world would be a better place without her, according to prosecutors.

Jurors declared a mistrial on a more serious conspiracy charge.

Prosecutors sought the maximum three-year sentence for Drew on the misdemeanor convictions.

The U.S. Justice Department plans to explore other legal options against Drew, Mrozek said. Prosecutors might appeal the case's dismissal and consider refilling the conspiracy charge, he said.

Is cyberspying on students legal?

Today's Dayton Daily News in Ohio offers an exploration of police and school officials spying on teen internet activity on sites such as MySpace, Facebook, and YouTube:

Police officers assigned to schools in the region say they go online to check social networking sites and have found evidence of students bullying others, making threats and planning fights.

John Simmons, safety and security coordinator at Miami Valley Career Technology Center in Englewood, said he has personal MySpace and Facebook accounts and that he checks traffic on Yahoo! YouTube, AOL, Instant Messengers and other networks.

His vocational school assigns wireless laptop computers to each of its nearly 2,000 high school-age students.

Simmons, who is also a part-time Clayton police detective, said he has a legal obligation to enforce laws that require the school to ensure computer safety for its students, and to learn whether students are using the equipment for bad behavior or getting access to inappropriate Web sites.

Students who go astray can risk suspension, expulsion or even face charges in courts if the offenses are serious enough, Simmons said.

The article indicates not everyone thinks this kind of policing is the right way to go:

Police need to exercise restraint in developing suspicions on the basis of what is said on social networking sites, said Carrie Davis, a staff attorney for the American Civil Liberties Union of Ohio.

“Really, what they’re doing is using people’s speech and associations as a basis for suspicion,” Davis said.

Student strip search case headed for Supreme Court

A middle school who was strip searched for drugs in Arizona is suing the school district and the case has gone all the way to the United States Supreme Court. The following article is taken from today's Washington Post:

By Robert Barnes
Washington Post Staff Writer
Saturday, April 11, 2009; A01

SAFFORD, Ariz. -- April Redding was waiting in the parking lot of the middle school when she heard news she could hardly understand: Her 13-year-old daughter, Savana, had been strip-searched by school officials in a futile hunt for drugs.

It's a story that amazes and enrages her still, more than six years later, though she has relived it many times since.

Savana Redding was forced to strip to her underwear in the school nurse's office. She was made to expose her breasts and pubic area to prove she was not hiding pills. And the drugs being sought were prescription-strength ibuprofen, equivalent to two Advils.

"I guess it's the fact that they think they were not wrong, they're not remorseful, never said they were sorry," April Redding said this week, as she and Savana talked about the legal fight over that search, which has now reached the Supreme Court.

And even more: When, days later, the principal met with April Redding to discuss what had happened, she said he was dismissive of an event so humiliating that her daughter never returned to classes at Safford Middle School.

"He said, 'There was an incident with some pills, and we had to find out if Savana had them, but you should be happy because we didn't find any on her,' " Redding recalled. "I got really upset and was telling him, 'Why did you do this to her? How could you do this to her?' "

From the yellow-brick school in this dusty town of cotton fields and copper mines to the Supreme Court, the lawsuit that April and Savana Redding brought carries the potential for redefining the privacy rights of students and the responsibility of teachers and school officials charged with keeping drugs off their campuses.

Matthew W. Wright, the school system's lawyer, declined to make his clients available for interviews. But in a statement, he said he regrets the news media's "reflexive reaction" to the case and underscored the dilemma school officials face between privacy and protection.

"Unfortunately, this tension sometimes places school officials in the untenable position of either facing the threat of lawsuits for their attempts to enforce a drug-free policy or for their laxity in failing to interdict potentially harmful drugs," he wrote.

To which Savana Redding's lawyer, Adam Wolf of the American Civil Liberties Union, replied: "The school official here heard an accusation that Savana previously possessed ibuprofen at some unknown location at some unknown time and jumped to the conclusion that Savana was presently storing ibuprofen and that she was storing it against her genitalia.

"It should be self-evident that that search is wrong."

But the federal judges who have reviewed the case have not been so sure.

The full U.S. Court of Appeals for the 9th Circuit eventually ruled that the search violated Savana's Fourth Amendment protections against unreasonable searches and that Vice Principal Kerry Wilson could be found personally liable for ordering the search.

"The public school officials who strip searched Savana acted contrary to all reason and common sense," wrote Judge Kim McLane Wardlaw, who reached back to a previous court decision for the quote that has come to define the case:

"It does not require a constitutional scholar to conclude that a nude search of a thirteen-year-old child is an invasion of constitutional rights of some magnitude."

On the other hand, it apparently stumped other constitutional scholars. The first judge who heard the Reddings' case agreed with the school system that the search was justified because of accusations that school officials had heard about Savana. He threw out the suit.

A divided three-judge panel of the 9th Circuit upheld that decision.

And while eight judges on the circuit eventually ruled that the search was unconstitutional, several of the judges said Wilson could not have been expected to navigate the shifting legal standards for when such searches are allowed.

"Searches are often fruitless, and students' motives are often benign, but teachers, unlike courts, do not act with the benefit of hindsight," wrote Judge Michael Daly Hawkins.

The backdrop for the case is a 1985 Supreme Court decision that said school officials need to have only reasonable suspicions, rather than probable cause, to search individual students. That case involved the search of a student's purse, but the justices cautioned against a search "excessively intrusive in light of the age and sex of the student and the nature of the infraction."

Safford officials say in court briefs that they were on high alert in October 2003 because the year before, a student nearly died after taking prescription medication brought to school by a friend. And they said they had good reason to be suspicious of Savana Redding, despite her honor-roll grades and spotless disciplinary record.

They had received a complaint from one student that, before a dance earlier in the year, students drank alcohol at a party hosted by Redding and her mother. On the day of the search, a student told officials he had been given a prescription-strength ibuprofen tablet by a friend of Redding's.

When that girl was discovered to be carrying such pills, she said she received them from Redding.

Savana Redding said both allegations were lies -- the boy had not even been at the party, she said. But what happened next is not in dispute.

Vice Principal Wilson removed her from class and brought her to his office. She gave permission for a search of her backpack, which turned up nothing.

Then Wilson told her to go to the nurse's office with two female staffers. They told her to remove her socks and shoes, her stretch pants and pink T-shirt. They told her to move her bra from side to side, which exposed her breasts, and pull out the waistband of her underwear.

"I did what they told me to do -- I didn't want to look at them, though," Redding recalled. "If I had looked at them, I probably would have cried. I was trying not to."

She never attended classes again at Safford Middle School -- "I just couldn't go back," she said. She developed ulcers in high school, and the girl who, according to her mother, "would rather be at school than anywhere else" eventually dropped out.

Now 19, she took placement tests to get into nearby Eastern Arizona College and gives interviews to the national media in a small frame house just off the Old West Highway, which runs through the center of town.

"It's something that I really want to see through," Redding said of the lawsuit. "It's just that I'm one of those kinds of people who don't even want to get up in class and talk in front of people, so it's just going through it, over and over . . ."

She recently saw a flyer at the college that advertised a class that was going to discuss her case. She hears from "a lot of people [who] would find me through MySpace or something and then send me messages like, 'Hey, you're that girl that got strip-searched.' Yeah, I'm that girl, thanks."

But she didn't know about a new group on Facebook. It's called "Friends of Savana Redding."

"Really?" she asked.