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Copy of Student Free Speech: Incorporating a New Privacy Framework

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Jill Gaitens

on 3 March 2014

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Transcript of Copy of Student Free Speech: Incorporating a New Privacy Framework

Student Free Speech
Social Media

Free Speech in Schools
History

Earl Arnoldson
Philip Pugh
Jill Gaitens

TEAM:
Parens Patriae (Parent of the Nation)
“Rule of Reasonableness”
“Minimal Scrutiny”
Wooster v. Sunderland (1915)
Minersville School District v. Gobitis (1940)















Brown v. Board of Education (1954)
“Strict Scrutiny”
Tinker v. Des Moines (1969)








History
Era of Change








Tinker v. Des Moines
Decision

Landmark Case

“Myth to say that any person has a constitutional right to say, what he pleases, where he pleases and when he pleases.”

Armbands were a distraction taking students minds off their school work.

Ruling too restrictive on school officials- limiting control over their schools.

There must be recognition of authority of schools and school officials.



Students keep their constitutional right of freedom of speech while in public School

School officials must provide constitutionally valid reasons for regulating student expression.

School officials must show: “material and substantial disruption” with the discipline and education of students.

Wearing armbands was a “silent, passive expression of opinion” .

Students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

Majority Opinion
Minority Decision
Bethel School District No. 403 v. Fraser (1986)

Freedom to advocate unpopular and controversial views in schools must be balanced against society’s countervailing interest in teaching students in the boundaries of socially appropriate behavior (p. 681)


Key Post-Tinker Cases

Bethel School District No. 403 v. Fraser (1986)

Hazelwood School District v. Kuhlmeier (1988)
Hazelwood School District v. Kuhlmeier
School is a non-public forum

Tinker does not apply to school-sponsored publications

“Rule of Reasonableness”

Case Studies
What Works...
and What Does Not Work......
Compare and Contrast the Guzick and Tinker Cases.

For Administrators: What Worked, What Did Not?

Tinker v. Des Moines Independent Community School District
United States Supreme Court (1969)
393 U.S. 503
&
Guzik v. Drebus
United States Court of Appeals,
Sixth Circuit (1970)
431 F. 2d 594


Tinker v. Des Moines Independent Community School District
United States Supreme Court (1969)
393 U.S. 503
&
Guzik v. Drebus
United States Court of Appeals,
Sixth Circuit (1970)
431 F. 2d 594


Free Speech

Compare and Contrast the Guzick and Tinker Cases.

For Administrators: What Worked, What Did Not?
Student Expression
Free Speech
West v. Derby Unified School District # 206
United State Court of Appeals,
Tenth Circuit (2000)
F. 3d 1358
&
Bragg v. Swanson
U.S District Court W.D.
West Virginia (2005)
371 F. Supp. 2d 814


Student Expression
Compare and Contrast the West and Bragg Cases.
For Administrators: What Worked, and What Did Not?
Frazer Standard:
Responsibility of schools to inculcate acceptable social standards in regard to student speech.
Unpopular or controversial speech must be “balanced against the society’s countervailing interest in teaching students boundaries of socially appropriate behavior” (La Morte, 2008, p. 120).

Lewd or Indecent Speech

A.D. ex rel. Doninger v. Niehoff and Schwartz
United States court of Appeals
Second Circuit (2008)
527 F. 3d 41
&
B.H. ex rel. Hawk v. Easton Area School District
United States Court of Appeals
Third Circuit (2013)
725 F. 3d. 293



Lewd or Indecent Speech

Compare and Contrast Doninger and Hawk.

For Administrators: What Worked, What Did Not?

Lewd or Indecent Speech

Tripartite Standard (Lemon Test):

1. Policy must have a secular purpose.
2. Its principal or primary effect must be
one that neither advances nor inhibits
religion.
3. It must not foster an excessive
government entanglement with religion.

Religious Speech

Santa Fe Independent School District v. Doe
United States Supreme Court (2000)
530 U.S. 290 No. 99-62
&
Good News Club v. Milford Central School
United States Supreme Court (2001)
533 U.S. 98 No. 99-2036


Religious Speech

Compare and Contrast the Santa Fe v. Doe and Good News Club Cases.

For Administrators: What Worked, What Did Not?

Religious Speech

First Amendment Rights and Social Media
Extends to all school facilities
Can be limited if it creates substantive disorder
Can apply to elementary students
Does not prevent "prior restraint"
Can be applied to social media (if no substantive disruptions)
Does not apply to credible threats
Does not apply to illegal activity
Tinker in the 21st Century
The Supreme Court has declined to clarify guidance regarding online activity that invaded the rights of others.

"Substantial disruption" and "material interference with school activities" require judgement based on lower court decisions.

Social media has blurred the lines between on and off school free speech.
Is it Free Speech or Libel? Lower Court Rulings

Blue Mountain School District v. J.S.

Layshock v. Hermitage School

Wolf v. Fauquier County Bd. of Supervisors
Cyber-Bullying
Over 35 states have passed anti-bullying laws and nine states have passed laws that specifically address cyber-bullying (Fisher, Schimmel &Stellman, 2011)
Schools are obligated to address conduct that is:
-Severe pervasive or persistent
-Creates a hostile environment at
school

Civil Rights Laws
Beyond the First Amendment
Federal Civil Rights Laws and protected classes
Title IV and VI of the 1964 Civil Rights Act
Cell Phone Use
Filming and taking pictures of others without their consent is not protected by the First Amendment.
Requa v. Kent School District (2007)
BYOT (Bring Your Own Technology) initiatives must be balanced with policies that address "substantial disruption"
Sexting
Defined as taking inappropriate pictures of a sexual nature and texting them.
30% of high school students have received a "sext" and 8% admit sending them (according to the text)
Students can be disciplined for sending them from school and may be prosecuted by local law enforcement for child pornography.
Miller v. Skumanic (2009)
Acceptable Use Policies
Best defense is the best offense
Most states have legislation requiring AUP's
In Virginia- schools must provide policies that cover "any technology-based device in the school or personal device brought into the school"
How far is too far?
The
Tinker
Test
In 1969 the Supreme Court ruled that students did not give up their First Amendment Rights when they entered a school.
Today, the lines are blurred between time in and time out of school regarding "substantial disruptions", First Amendment rights, and school safety.
Emerging technology like Google Glasses will keep this conversation open in the 21st Century and beyond.
Full transcript