At the Schoolhouse Gate

Setback for the "First Amendment Freedom Fighter"

In denying a request for an injunction, the 2nd Circuit Court of Appeals seemed to signal defeat for Avery Donninger, the Connecticut high school student who was disciplined for referring to county school administrators as "douche bags."   The Court ruled that Avery's comments could cause "substantial disruption."  This horrible ruling, if it stands, could signal the end of student free speech, at least in the K-12 schools, and invites school authorities into the private homes of students and parents.

That's my opinion.  What's yours?  Here's the article:

Appeals Court Rules Against Burlington Student

By ARIELLE LEVIN BECKER | Courant Staff Writer
May 30, 2008

Ruling in a case that addresses broad questions of the boundaries of free speech in the Internet age, a federal appeals court on Thursday effectively ended a Burlington student's effort to serve as a class officer and speak at graduation.

The ruling by the U.S. 2nd Circuit Court of Appeals in New York only addressed a preliminary issue in the case of Avery Doninger, a senior at Lewis S. Mills High School, who has argued that school district administrators violated her First Amendment rights by disciplining her for a blog post she wrote off school grounds.

But the court's ruling weighed in on a hotly contested and evolving area of the law, freedom of expression on the Internet. The three-judge panel stopped short of declaring how far schools can go in regulating offensive Internet speech made off campus, but stated that the school did not violate the Constitution in disciplining Doninger because her blog post "created a foreseeable risk of substantial disruption" at the school.

Thursday's ruling addressed a request by Doninger's attorney for an injunction to allow Doninger to serve as class secretary, which she was barred from doing because of the blog post. A federal district court judge rejected the request last year, finding that Doninger had not proven a substantial likelihood of challenging the constitutionality of her punishment. The appeals court agreed.

Read it here

Column: Why the Drew Cyberbullying Prosecution Is A Bad Idea

Why the Cyberbullying Prosecution Is A Bad Idea

by Mike Tully

The tragic case of Megan Meier has spawned an indictment that, if upheld by the federal courts, could turn every Internet “terms of service” violation into a potential felony. The expansive reading of a federal statute by Los Angeles-based United States Attorney Thomas P. O’Brien might signal the Ice Age of Internet expression. As sad as the Megan Meier story is, as much as every shred of decency in our instincts cries out for retribution against her tormentor, O’Brien’s gambit is not the answer. As a guardian of the law, he should guard against throwing the First Amendment onto the tracks for the sake of a politically popular prosecution.

The attorneys for the Defendant, Lori Drew, will probably challenge the May 15th indictment on the grounds that the facts, as alleged, do not provide the basis for a criminal prosecution. I think they would be right. This prosecution is likely to end with a whimper: dismissal on motion.

More...

Indictment Handed Down In Meier Cyber-Suicide Case

Mom indicted in deadly My Space hoaxStory Highlights
    
LOS ANGELES, California (AP) -- A federal grand jury on Thursday indicted a Missouri woman for her alleged role in perpetrating a hoax on the online social network MySpace against a 13-year-old neighbor girl who then committed suicide.

Lori Drew of suburban St. Louis was charged with one count of conspiracy and three counts of accessing protected computers without authorization to obtain information to inflict emotional distress on the girl.

Drew allegedly helped create a MySpace account on false premises to contact Megan Meier, who thought she was chatting with a 16-year-old boy named Josh Evans, who turned out not to exist.

Drew has denied creating the account or sending messages to Megan.

Read the article here:  http://tinyurl.com/48nodw

Avoiding Viewpoint Discrimination or Opening A Can of Worms?

The 7th Circuit Court of Appeals upheld the right of a student to wear an anti-gay t-shirt.  Wonder how'd they react to an anti-straight t-shirt?  Here's the story:

Court says Ill. student can wear anti-gay T-shirt at school

   CHICAGO— A federal appeals court has ruled that a suburban Chicago student should be allowed to wear an anti-gay T-shirt at his high school — a decision the teen's attorneys describe as a victory for First Amendment rights.

   In its ruling, the 7th U.S. Circuit Court of Appeals instructed the district court to order the Neuqua Valley High School to suspend its ban on the ``Be Happy, Not Gay'' T-shirt while a civil rights lawsuit in the case proceeds.

   Neuqua sophomore Alexander Nuxoll was banned from wearing the shirt to school, and he and one-time student Heidi Zamecnik, who wore a similar T-shirt to school in 2006, filed a lawsuit saying their civil rights had been violated.

   Indian Prairie Unit District 204 later said the students would be allowed to wear a T-shirt that read ``Be Happy, Be Straight,'' but the students refused. Last year, a judge ruled against them.

   The Alliance Defense Fund, a Christian litigation group representing the students, hailed Wednesday's ruling.

   ``The court's ruling is a victory for all students seeking to protect their First Amendment rights on a school campus.'' ADF attorney Nate Kellum said on Thursday. ``Public school officials cannot censor a message expressing one viewpoint on homosexual behavior and then at the same time allow messages that express another viewpoint.''

More:  http://tinyurl.com/3wwoab

ANOTHER BULLYING LAWSUIT

Families file bullying lawsuit against Sioux City schools

Associated Press - April 7, 2008 8:44 AM ET

SIOUX CITY, Iowa (AP) - Two students are taking the Sioux City school district to court over bullying.

The ninth-graders say the district failed to protect them from being bullied and assaulted.

The lawsuit has been filed in Woodbury District Court by Ricky White Thunder, a student at West High School, and his sister, Jackie White Thunder, who transferred from West to Hoover Alternative School.

Read it here:  http://tinyurl.com/4pf4tj

"Butt Artist" case comes to an "end"

Sorry, couldn't resist that title.  It's not quite as good as the title of the paper I wrote about the case for an upcoming conference.  That title is, "Butting up against the First Amendment..."

Anyway, I'm disappointed that this case was settled.  In my opinion, the law on the rights of public employees to free speech outside of the workplace is murky at best.  This case, IMHO, was an ideal fact pattern to get some clarity and some good case law.

Also, I'm of the opinion that the district got off easy paying this guy $65K to go away and to not have to admit liability.

New Liability Frontier? Or Just A "Nuisance Settlement?"

Sometimes there's more to a story than what appears in print.  I think that might be the case here.  I suspect the cost of the settlement was less than the cost of defending the case.  Nonetheless, the story is interesting because it might signal the beginning of a new era of tort liability for schools.  If this is what it takes for schools to take bullying seriously, so be it. - Mike

Woman settles with school officials over son's suicide

4:36 PM EST, March 6, 2008

NEW HAVEN, Conn. - A Meriden woman has settled a federal lawsuit she filed against school officials after her son committed suicide in a bullying case.

Judith Scruggs and Meriden school officials filed a stipulation Thursday in court agreeing to dismiss the case.

Scott Karsten, an attorney for the Meriden Board of Education, and Scruggs' attorney, M.H. "Reese" Norris, said there was a settlement but they could not discuss details. Norris said the settlement was confidential. ..

Read the article here:

http://tinyurl.com/244av4

Cheating(?) and Facebook

[cross-posted at Educational Insanity]

I sure would like to know more about this story. The way CNN reports it makes it all seem harmless to me. What's wrong with a little digital ingenuity and the creation of an online study group?

Onward Douche Bag Soldiers!

I was glad to read this morning that the Donninger vs Niehoff case is being heard by the 2nd Circuit Court of Appeals.  I predict the appellate court will reverse the District Court, or at least vacate and remand.  It's an interesting case, one that I wrote about in my Internet column last fall.  (http://miketully.net/archives/column_douche_bags_and_poets.html). 

Here is an article about the appeal:

Appeals Court Weighs Teen's Web Speech

The Associated Press
Wednesday, March 5, 2008; 10:18 AM

NEW YORK -- A teen who used vulgar slang in an Internet blog to complain about school administrators shouldn't have been punished by the school, her lawyer told a federal appeals court.

But a lawyer for the Burlington, Conn., school told the 2nd U.S. Circuit Court of Appeals on Tuesday that administrators should be allowed to act if such comments are made on the Web.

Avery Doninger, 17, claims officials at Lewis S. Mills High School violated her free speech rights when they barred her from serving on the student council because of what she wrote from her home computer.

More:  http://tinyurl.com/27m5h2

Religious Icons or Gang Symbols?

Here's an interesting First Amendment dilemma.  A principal in Oregon suspended two students for wearing crucifixes, alleging they were actually displaying gang symbols.  The police apparently agree, and the district is backing the principal.

Is the district right?  Or does it open the door for overreaching, say, banning crescents for fear of terrorism?  This case brings up very interesting and provocative First Amendment issues.

School Suspends Teens for Wearing Crucifixes
Monday, February 25, 2008

ALBANY, Ore. —  A pair of Albany teenagers suspended for "gang-related behavior" because they were wearing crucifixes say they were only wearing gifts from their mothers.

Jaime Salazar, 14, his friend Marco Castro, 16, were suspended from South Albany High School recently after they refused to put away the crucifixes they were wearing around their necks.

Salazar said Principal Chris Equinoa saw his necklace and told him to put it away. "I was like, why?" Salazar said. "He says it's related to gangs."

Read it here:  http://tinyurl.com/2s3qwc