Better Late Than Never: The ACLU Finally Opposes the High School War On Off-Campus Speech

High schools are seeking to place this lable on your child's head. Check for it right behind the left ear.

I had just about given up. The growing number of instances around the nation in which students are being punished by their schools for opinions and statements published on their personal Facebook pages and blogs—often under the supposed authority of “anti-bullying” rules—is disturbing and indefensible, the equivalent of schools censoring  students’ phone conversations or dinner time chats. This is an issue made for the American Civil Liberty Union’s mission of defending free speech, yet the organization had been loudly silent.

All is forgiven. We can now fairly assume that it was waiting for an especially egregious case—and one that didn’t involve alleged bullying—that it could win and set some strong precedent. It found one: a high school senior suspended and kicked out of an honors club because he criticized a teacher in a Facebook post, “from his own computer, in his own bedroom, at his parents’ home.”

The post was up for less than 24 hours, and was restricted to 10 friends. Nonetheless, Brusly High School Principal Walter Lemoine (in New Orleans) suspended the student who wrote it based on the school’s “Improper access of the Internet” policy. [To be clear: No school has the right to tell my child how he may use the internet in my home. That’s my job. Butt out.] As a result of the suspension, the senior, an A student who had not had any disciplinary difficulties previously, did poorly on two exams and had his permanent record marred. His parents are suing everyone in sight connected with the school, and should. And, finally, the ACLU is on the case.

There are plenty of villains in this sorry scenario, though the suspended student isn’t one of them:

  • The teacher, who learned of the remark and didn’t have the sense of proportion to treat it like teachers used to treat restroom graffiti—kid stuff, not worthy of taking offense. Even though he knew it was a private communication not intended for wide distribution, he complained to the principle. Jerk. Weenie.
  • The principal, who then went about the task of getting the student suspended for expressing his personal opinion. Censor. Bully.
  • Superintendent of Schools David Corona, who refused to meet with the student’s mother, herself a teacher, to discuss the incident. Coward. Hack.
  • The West Baton Rouge Parish School Board, which supported the action. Fools. Incompetents.
  • And my personal candidate for the worst of the worst, one of the student’s ten “friends,” who took a screen shot of the post and sent it to the teacher, thus setting off the whole incident. Snake. Betrayer.

The student’s culpability? None whatsoever, unless what he wrote was a credible death threat.

No school should have authority to discipline students regarding what they communicate to each other when they aren’t in school, and that includes offensive comments, teasing and bullying.  This principle needs to be absolute. Any other result constitutes an abuse of power, an unjust restriction on student’s individual autonomy and parental authority.

Finally, the ACLU is doing its job.
(You can read the complaint in the law suit here.)

37 thoughts on “Better Late Than Never: The ACLU Finally Opposes the High School War On Off-Campus Speech

  1. I agree with you 100%. If it had been my child I would have filed suit as well. It will be VERY interesting to see what happens next since so many schools have instituted zero tolerance policies regarding bullying and other issues that also mandate what students may and may not due when they are not at school.

  2. “As a result of the suspension, Minor Doe was unable to attend in-class reviews for two exams he was to take on Tuesday, September 20, 2011. He performed poorly on both,” the complaint states.
    “Prior to performing poorly on the two exams, Minor Doe had never received grades lower than an ‘A’ in either class.”

    Seriously? How many exams had been given in that class less than a month into the school year?

  3. So, what IS the policy in question? I looked at the WBRP Schools policy manual online and could not find anything on “improper access of the internet”.

    Also, what was in the student’s post? There’s obviously some gray area here. Should well-reasoned criticism–especially when it is not on school grounds be censored? Would the license to post unrestrained, vulgar anti-teach rants posed a problem for school discipline?

    I have seen that some teachers have been fired for making comments about students on their own websites away from school. Do you agree/disagree with that?

    • 1) It doesn’t matter what the policy is. It is wrong to have such a policy.
      2) There is no account of the student’s post. That doesn’t matter either, unless it was criminal in nature. He had an absolute right to make it.
      3) A student can say or write what he wants,, to whomever he wants, on his own time, unless it tangibly disrupts the school’s work.
      4) I have written a lot on this: see Natalie Munroe. Yes, a teacher whose on-line posts denigrate students and make it difficult or impossible for them to feel comfortable in class or to trust the teacher not to be biased against them should be fired. It’s not a speech issue then, it is a conduct issue directly relating to the ability to do the job.

      • Why would a teacher telling the truth–as he or she sees it–not be protected in the same way as student speech? Do only students get to feel “comfortable”?

        What, then, is your position on so-called internet bullying where one student makes another feel “uncomfortable”?

        Give me some examples of what does and does not “tangibly disrupt” the school’s work.

        Also, you didn’t answer my question about whether the school policy was available. I didn’t ask for your opinion on its rightness or wrongness. I would liked to see it in any case. I take it that you have no idea what it says.

        • 1) I haven’t seen the policy. As I said, even if the essages are indeed bullying, it’s none of the school’s business.
          2) You are being dense. Teachers are professionals, and thus must be trusted be trusted and trustworthy. A teacher who, for example, expresses enmity or bias toward a particular student, the student’s family or his race, nationality, etc., then that student and his parents can no longer trust that the teacher can do his duty as a teacher for that student, fairly and respectfully. That teacher has rendered hiself unable to meet his professional responsibilities, and that is a legitimate firing offense. The offense is conduct, which has impact, not meer words, as in the student’s case. The teacher, unlike the student, has power, and a professional obligation to not act so as to undermine the educational opportunities of the students. They are not analogous situations…not remotely. Different standards apply.

          • No, there’s denseness here, but it’s not mine.

            So, a student can say absolutely WHATEVER he wants no matter how offensive about a teacher or another student, because he “has no power.”

            Now, we have laws against libel and slander in state law, and the law says NOTHING about having or not having power. It’s simply a matter of whether the speech/writing is libelous or slanderous. Yes, there are distinctions between minors and adults. But how much sense does it make to have no limits until the age of majority and then strict legal limits? School is about learning to function in the world, not being taught that there are no limits and then at age 18 finding out that, yes, there really are limits to free speech.

            So, who else besides teachers qualify as “professionals”? Or by professionals, do you simply mean adults over 18 years of age?

            And why do you focus on the question of “a particular student”? Suppose a teacher writes: “I despise the students at this school. They are generally lazy and inattentive. They are unworthy of the effort I put into my classroom.” Since that is not focused on “a particular student”, is that OK with you?

            And if student X says, “I think we need to get rid of every f****** nig*** in this school.” Is that OK with you? Just free speech?

            Or if student X makes up a false story, saying “I happen to know that teacher X is f*****ing teacher Y. Is that OK with you?

            This is a complex topic. Discipline IS important. So is free speech. And your simplistic, “its so easy” approach is that of a zealot. There are many reasons that American schools perform so poorly, and your mindless ideology is part of the problem.

            • Wait, one second, do you actually support the school’s decision to suspend the student? Because really, schools should not punish students for things they say off campus (that responsibility belongs to the parents); it just sets a bad precedent, considering that such restrictions would almost inevitably be applied to situations where their enforcement is inappropriate (zero tolerance policies are a good example of this principle at work); there’s a good reason why it’s supposed to be incredibly difficult in US courts to successfully prosecute someone for libel and slander, after all. If a teacher hears of a case of genuine cyber-bullying, though, I would imagine that she/he at least has the right to contact the parents of the children involved.

                  • And if the parents let the kids eat candy for breakfast and sing dirty sailor chanteys for bed, what then? The parents and the kid are accountable if something bad happens. You don’t get to raise my kid, if I feed and clothe him and take him to the doctor. Sorry! If the local grocery store is badly managed, the school doesn’t get to dictate to its employees either in the theory that they know best. a) Who says they know best? and b) They don’t have the authority. “Hey! The family down the street is raising a bad kid! Let’s give the kid detention!”

                    Nope.

                    A group of parents visit the parents and try to get them to be responsible. A friendly police officer can ask to talk to the family. The school can have parent meetings, conferences, send letters–and if the parents say “Sorry–I’ll handle this my way!” That’s it. STILL can’t punish the student.

                    • Oh come on, a problem of one child bullying–or being perceived to bully another student IS a school problem. Now, the charge of bullying CAN be overstated or exaggerated, but when it involves two or more students, it IS a school problem. Don’t conflate it with the things you list above which actually ARE internal to a family.

                    • Where did you get that idea? You’re worried about the school system…one big problem it has had, increasingly, is parents dumping every problem on them that had been traditionally handled by solid parent discipline and the student themselves.. If bullying takes place in the school or on the school playground, it’s a school problem. Only then. What a kid says or does about another child, in his class or not, has nothing to do with the school’s function, which is teaching.

                      If a student is fearful or depressed in school, or can’t concentrate, the school has a duty to inquire and address that problem. Absent that, the fact that Nellie tells Julie that she’s stupid and looks like a cow over the weekend is none of the school’s business.

              • Well, to answer your question, I don’t know. I want to see details of what happened first. I am distrustful of attempts to censor speech generated outside of the school, company, agency (and often, within them as well.)

                But contra your view, I don’t think that the student is entitled to defame, insult or deliberately embarrass a teacher or others just for the sake of doing so AND still attend the school. After all, we don’t let him do it face to face so why over the internet. But was the speech in question defamatory? Did student X say that his history teacher was unprepared and the class was disorganized? Or did he say that teacher Y is a sh**bag? That makes a difference for me, though, I guess, not for you. If a teacher can’t call the principal a sh**bag on his website, why should the student be able to? The distinction you made about “professionals” versus others doesn’t really hold water for me.

                Now, there ARE cases where schools are trying to censor speech. But the same general guidelines that apply to adult speech should apply to students as well. I can’t just put on my website that my boss is an idiot. Well, I can, but I may be subject to disciplinary action when it becomes known. Organizations cannot function otherwise.

                Of course, before blogging, social networking and email, this was never an issue, because students had minimal access to public platforms. Now, they do. But I don’t see students speech as a uniquely protected, limitless form of communication. The standards should be the same as for adults.

                Another question that’s worth considering is what IS the relationship of a student to his school? He is not an employee. He is not exactly a customer inasmuch as the outcome of his education is based partly on teacher effort but even more on his own. It’s somewhat unique, but like any other organization, defamatory or insulting speech tends to subvert authority–which, like it or not, is important–and undermine the overall mission.

                I am suspicious of what this high school did, but I want to know more about what actually happened. For me, that matters.

                • Cut it out. I didn’t say the student has the right to defame. He doesn’t have the right to defame, as a term of art. But the school isn’t the one to address it. The teacher is, through the courts. “Mr. X is an ass-hole,” however, is not defamation. It’s an opinion. In this case, if that’s what was said, it seems like an accurate opinion. And the school can’t punish a student for it.

            • Why don’t you be direct and state what you think? Rhetorical questions have their uses, but you’re just being vague….until the last sentence, when you are merely absurd.

              1) We are not talking about criminal speech, of comments giving rise to civil liability. It would be very rare for a child to be found liable of the latter. Furthermore, the remedy is for the teacher to sue, not suspension. Absent speech found to be slander or libel. no the school, which is part of the government, cannot take punitive measures for its content. That’s why the ACLU is properly involved.
              2) Check the blog title: we’re talking about ethics, not law. The teacher has a legal right to say whatever she or he wants on a blog or Facebook…he or she just doesn’t have the right to keep working as a teacher after undermining their ability to teach.
              3) For your edification and information: A professional is an individual whose profession is devoted to the public good, such as law, medicine, accountancy, public education, journalism, the clergy. Professionals are held to higher ethical standards, because they must have the public trust—trust is the core of professional ethics. A professional who denigrates those to whom he has professional duties—the students in this case—has breached a professional duty, and is not fit to serve. My primary field is professional ethics.
              4 .“And if student X says, “I think we need to get rid of every f****** nig*** in this school.” Is that OK with you? Just free speech?” It’s not a sentiment that I think is civil or appropriate. Is it protected off of school grounds? Absolutely! A student has a right to express opinions in his home, over the phone, on line.SHOULD they say this? No. Whose job is it to stop it? Parents. Period. The school/government cannot come into my house and punish my family for what we say.
              5. “Or if student X makes up a false story, saying “I happen to know that teacher X is f*****ing teacher Y. Is that OK with you?”
              See above. If it is true, it is 100% protected. If it is not, it is wrong—unethical. Spreading rumors about teachers and students has been a problem for centuries, but the speech is protected unless it amounts to libel. I heard rumors that teacher x was having an affair with teacher y in my high school. You really think the school could punish the students who started the rumor?
              6. Free speech is NOT complex in this case. It is very close to absolute, and must be protected. The mindless ideology you refer to is the Constitution and the Bill of Rights. Discipline may be important, but nobody has the right to discipline my child based on conduct or speech occurring in my home. And upholding the First Amendment and not letting incompetent, law-suit terrified school administrators overstep their authority does nothing—ZIP—to impede the educational system. Your position is fanciful, dangerous, constitutionally offensive and unmoored from both law and ethics.

              • “The teacher has a legal right to say whatever she or he wants on a blog or Facebook…he or she just doesn’t have the right to keep working as a teacher after undermining their ability to teach.”

                My version: The student has the legal right to say whatever she or he wants on a blog or facebook…he or she just doesn’t have the right to keep attending a school after undermining the school’s ability to maintain discipline and order so that ALL students can learn.

                “Absent speech found to be slander or libel. no the school, which is part of the government, cannot take punitive measures for its content.”

                Well, now you’re backpedaling. You now concede that the CONTENT of the speech actually DOES matter. Hence my original query about the CONTENT of what the student said.

                • “My version: The student has the legal right to say whatever she or he wants on a blog or facebook…he or she just doesn’t have the right to keep attending a school after undermining the school’s ability to maintain discipline and order so that ALL students can learn.”

                  A joke. Off-campus speech has no impact on discipline in school—the school has no right or function to dictate out of school conduct. Your contention is boot-strapping the school into the role of parent. The school gets to assign homework. That’s it, once the bell has rung. Your statement endorses outright abuse of power.

                  • “Off-campus speech has no impact on discipline in school.”
                    “Out of workplace speech has no impact on discipline in the workplace.”
                    “Off-post speech has no impact on discipline in the military unit.”

                    All these MAY be true until they become a matter of public knowledge and debate; then, they may very well NOT be true. Isn’t interesting that kids are so shocked when they discover that what they post on facebook can be examined by current or future employers and used to evaluate their suitability for employment?

    • Should well-reasoned criticism–especially when it is not on school grounds be censored?

      It doesn’t matter if it’s well-reasoned or poorly-reasoned. The student could have wrote “teacher X is a poo-poo face” or “teacher X is Jewish, therefore he is a money grubbing whore.” The school has no authority to punish the student for their comments outside of school.

      Would the license to post unrestrained, vulgar anti-teach rants posed a problem for school discipline?

      Would the license to teach your children that God’s word is the highest law pose a problem for school discipline? The answer to both statements is “Possibly, but it’s both outside your jurisdiction and constitutionally protected. Deal with it.”

      • So, students can say anything they want about any group–teachers, Jews, blacks, whites, other students–with no limits, if I understand your view.

        I pose the same question to which Jack Marshall responded above. Does that unlimited speech apply to ALL citizens–not just students–and if not, why not?

        • So, students can say anything they want about any group–teachers, Jews, blacks, whites, other students–with no limits, if I understand your view.

          I pose the same question to which Jack Marshall responded above. Does that unlimited speech apply to ALL citizens–not just students–and if not, why not?

          Strawman. Nobody is arguing the kid shouldn’t face consequences from the appropriate authority if what they said deserves reproach. The issue is that THE SCHOOL is not a valid authority for punishing student actions OUTSIDE OF SCHOOOL.

          In this case, parents are the first appropriate authority. If the statements amount to a violation of law, the police could be an appropriate authority. The school has no place in it.

          Now, if the statements occurred at school, it might actually matter what the statements were.

  4. “The mindless ideology you refer to is the Constitution and the Bill of Rights.”

    I’m sorry, I missed the part about the overriding distinction between “professionals” and all others and between the school–as an organization–and all other organizations in the First Amendment. Which clause was that?

    “Discipline may be important, but nobody has the right to discipline my child based on conduct or speech occurring in my home.”

    It’s not simply speech in the home–any more than a published written work is speech in the home. It may have been composed there, but it’s now in a public space–in this case, the internet. Here, the student evidently emailed to a limited number of students. But, of course, on the internet, once you hit “send”, it’s out in public and only a question of who will pay attention or to whom it will eventually be forwarded.

    • May I say that your method of debate is obnoxious, particularly since you don’t address the issues under discussion.

      1) You are confused about the Constitution. It does not prohibit employers from firing individuals for conduct that interferes with their ability to do their jobs and, that can include public statements. If you call your boss an ass-hole in public, he can fire you for insubordination.
      2) The special duties and ethical standards of professionals are in the realm of professional ethics, not law. It is what defines “professionals.” Pretend they don’t exist if you want to; being ignorant is your choice.
      3) The ability of students to have their speech , if it is not criminal, prohibited or constrained by the school even when they are on school property is severely limited. There is no right to do so off school grounds. Nor should there be. A school can punish communications that take place on school grounds, or that are sent to the school. If a student writes a letter to a student friend and he brings it to the teacher, do you think that could be punished? Well, if so you’re dead wrong. Same with an internet post. The school does not have the right. Again, you can deny until you turn blue, but they don’t, and should not, Sorry. This is America.

  5. “May I say that your method of debate is obnoxious, particularly since you don’t address the issues under discussion.”

    Feel free, as long as it meets your ethical standards.

    “If a student writes a letter to a student friend and he brings it to the teacher, do you think that could be punished?”

    It depends what the letter says. Assuming we are talking about insulting speech, probably not. But that’s a bad analogue. The nature of a private correspondence–when letters were actually written–is different than the email/blog posting that has emerged over that last 10-20 years and that is inherently public and therefore has a potential impact on the institution/organization/school. An more appropriate analogue would be that of a student leasing a billboard and making known is unflattering feelings about a teacher. This constitutes a similarly public communication.

    “The special duties and ethical standards of professionals are in the realm of professional ethics, not law. It is what defines “professionals.” Pretend they don’t exist if you want to; being ignorant is your choice.”

    I am perfectly willing to believe they exist. It’s just the conflation of professional ethics with free speech limitations based on an imagined conception of who “holds power” and who does not with which I have a problem. An organizational prohibition on insulting, ad hominem speech designed to or with the effect of undermining the organization’s leadership or other members and ultimately its mission is, in my view, understandable and possibly necessary. The notion that only the “professionals” need to abide by what is, in fact, a general ethical principal is not only absurd but destructive of the organization.

    The focus of free speech protection in the school environment should be on substantive speech just as it is in the adult world, NOT in creating the false impression among students that defamation, slurs, insults, or fighting words are something they can use without ramifications.

    • The school (government) has a duty to teach all students. If it becomes known that a teacher is biased against a group of students, the teacher (an arm of the government) can not meet that duty. The government needs to take steps to remedy the situation.

      The student is not a principal of the government, so this overriding logic does not apply. Instead we have the government (school) punishing something that is both protected and outside their jurisdiction.

      Remember, government speech is not protected like citizen speech. An employee of the government is part of the government, and their speech rights can be limited when necessary or required.

  6. OK this is becoming ridiculous. The one thing that has not been said is that the students are CHILDREN and they are acting like CHILDREN. Children are not mature enough to make reasonable or rational decisions on their own. If they were, we could give them the full rights of adults. Since they can’t we have to understand that they will act in immature and irresponsible ways at times. Yes, it is annoying. I have an immature and irresponsible adult student today to come for a meeting. I would like nothing better than to apply grown-up standards to this student and tell them to take a hike. However, although they are legally over 18, they are still an immature I do understand that their actions are still the actions of a child. I will suck it up, contain my anger, and try to get them to improve their behavior. It is part of my job and my profession, although not the most pleasant part.

    One of the biggest problems with these zero tolerance, policing students at home issues is that the schools expect children and teenagers to act like responsible adults. They don’t. You have to have some tolerance for teenage behavior, even when it is annoying, irresponsible, and sometimes hurtful.

    Teachers on the other hand, are adults. They are professionals, they are working in this field voluntarily, and they have to abide by the restrictions of that profession. Just as an attorney at a law firm who starts a blog to ridicule and complain about every judge in town would be fired, just as a restaurant manager who started a blog to talk about the disgusting eating habits of the people in his small town would be fired by the owner, and just as a minister who blogs online about how selfish, mean, ugly, stupid, and self-righteous his congregation is will be fired, so a teacher will be for similar conduct. Yes, you have freedom of speech and the government is not going to lock up any of the above fictional people for their behavior, but the first amendment does not remove all consequences from your spoken actions, just some of them.

  7. I’ll just say that administrators shouldn’t avoid the online speech if it can help inform their decisions when it comes to on-campus activity. When a student victim is trying to show a hostile education environment, the off campus speech should be considered if it relates to the activity that has occurred on campus. It can show pre-meditation and illuminate the scope of the problem.

    But yes, off-campus speech is just a resource to inform decisions and can not rise to the level of disciplinary action. If it rises to that level, it will have crossed legal lines.

  8. Unbelievable exchanges! Xenophon misses the point entirely. This kid wrote one post to ten friends only. He did not put it out for all to see. Apparently if the ACLU is willing to defend him he didn’t threaten/defame the teacher or anyone else, disrupt the school, or cause anything other than some kind of righteous anger on the part of one teacher, who, immaturely, went to “higher authorities” to have him “disciplined.” Ever had a teacher you didn’t like or who didn’t like you? Are you old enough to remember passing notes in class? It’s no different; just electronic. This is the classic and relatively new hubris of the education system… and the examples are sickening. Did you read about the middle school that provided free computers to kids and then monitored them by implanted cameras in their own homes!! Is THAT okay? Is that the school’s RIGHT?

    What if this kid wrote ten letters on paper to his ten friends about the teacher? What prerogative would the school have been then?

    Xenophon says: “…He is not exactly a customer inasmuch as the outcome of his education is based partly on teacher effort but even more on his own. It’s somewhat unique, but like any other organization, defamatory or insulting speech tends to subvert authority–…” Then bravo to this kid. His school and school system obviously has its own subverted definition of its authority, and he has every right to say so. The school has absolutely no “authority” over the thinking and speech of a student on his own time and in his own home. Period.

    Xenophone also says that this “subversion” of the school’s authority would “undermine the overall mission.” Define overall mission, if you will. Teach kids facts, teach the tests, keep them in line and never, ever allow them to make a statement against the prevailing “authority?” If this view was popular in the 18th century, there would never had been an American Revolution and never a United States of America. Put into a historical context, Xenophobe’s comments are extremely alarming.

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