Indiana student’s expulsion for obscene tweet leads to free speech debate

According an Associated Press (AP) report in Education Week, a Garrett City, Indiana student’s multiple use of the F-word in a late-night tweet has led to his expulsion from Garrett High School (GHS). Austin Carroll argues that his profane rant should not be subject to discipline by school authorities because it occurred after school hours at home on his own computer. GHS officials contend that Carroll used either his school-issued computer or the school network.

The facts are crucial as to whether this a routine case of school officials punishing a student for inappropriate use of school technology, or school officials reaching out to regulate off-campus, online speech. If it is the latter, it opens up a broader First Amendment debate. GHS officials declined to discuss why Carroll was suspended, citing the confidentiality of a student’s disciplinary record. GHS issues younger students iPads and older ones are sent home with MacBooks.

Carroll, in a previous television interview, stated: “If my account is on my own personal account, I don’t think the school or anybody should be looking at it. Because it’s my own personal stuff, and it’s none of their business.” First Amendment and students’ rights experts agree with him. If Carroll was using his own computer and network to send the tweet, the school’s action was “an incredible overreach and overreaction that arguably raises not only First Amendment but Fourth Amendment issues,” said David Hudson, a scholar at the First Amendment Center at Vanderbilt University in Tennessee. The Fourth Amendment protects citizens against unreasonable searches and seizures.

Since 1969, the U.S. Supreme Court has generally ruled that students have free-speech rights, and schools can prohibit their speech only if it is vulgar or disruptive to schoolwork or other people. But that power doesn’t reach far beyond school property. “I think it makes a big difference where this was done,” said Ken Falk, legal director of the American Civil Liberties Union of Indiana.

“It was either on the school network or one of the school computers,” said Tony Griffin, vice president of the Garrett-Keyser-Butler school district. “It wasn’t any of his own personal network or computer that caused this.” Superintendent Dennis Stockdale said the school computer network has a federally required filter that flags certain prohibited content, whether it’s foul language or a pornographic website, anytime a student or teacher posts or accesses it.

Students must sign a “Respectable Use Policy” in which they agree not to visit websites or forward communications that are “inappropriate,” but the document doesn’t specifically mention language and says nothing about students’ own posts. Stockdale was uncertain whether a school computer might download Internet content that had been posted from a personal device earlier when a student logged onto their Twitter or Facebook account at school. “Whether it’s already on there or not … if they bring it up on their school computer then, then it’s a school issue,” Stockdale said.

Legal experts say schools aren’t getting much help from the courts. Lower court rulings have varied widely, and the Supreme Court has declined three times this term to review similar student off-campus speech. With little help from the courts, school officials and state lawmakers across the U.S. are groping for any kind of guidance on the issue. New Jersey legislators last year passed a law aimed at curbing cyberbullying that also compels administrators to track students’ online behavior away from school.

Indiana lawmakers this year considered a bill that would have increased school officials’ authority over off-campus behavior. Supporters said it was motivated by concerns over bullying, but critics contended it was a response to a federal court ruling in August 2011 that found a northern Indiana school district violated the First Amendment rights of two teenage girls by punishing them for posting sexually suggestive photos on MySpace during their summer vacation. The bill bogged down over First Amendment concerns and was referred to a study committee.

Source: Education Week, 4/3/12, By Richard Lardner (AP)

[Editor's Note: Five online off-campus student speech cases were decided by four U.S. Courts of Appeal in 2011.  Three cases were petitioned to the U.S. Supreme Court:  two decisions from the U.S. Court of Appeals for the Third Circuit (J.S. v. Blue Mountain Sch. Dist., combined with Layshock v. Hermitage Sch. Dist.) and one from the Fourth Circuit (Kowalski v. Berkeley Count Sch.) In January 2012, Legal Clips summarized articles from a number of media outlets reporting on the Supreme Court's decision to deny review in those cases.

In J.S.,  the Third Circuit, sitting en banc (all active judges participating), assumed without holding that the substantial disruption standard set out in Tinker v. Des Moines Ind. Comm. Sch. Dist. (1969) applied, and determined that the school district had failed to demonstrate a reasonable forecast of disruption.  The student’s suspension, therefore, did not pass constitutional muster. In Layshock, where the school district had abandoned its Tinker substantial disruption argument, the Third Circuit, again sitting en banc, determined that the district had violated the student’s free speech rights because it had not established a sufficient nexus to the school.  Nor could the district show that the speech had occurred on-campus so that it could be regulated under Fraser’s  “lewd/vulgar” standard.

In Kowalski, Fourth Circuit three-judge panel found that the language of Tinker supports the conclusion that public schools have a compelling interest in regulating speech that interferes with or disrupts the work and discipline of the school, including discipline for student harassment and bullying.  The panel determined that it was reasonably foreseeable that the speech would reach the school, so it was “satisfied that the nexus of Kowalski’s speech to [the school]‘s pedagogical interests was sufficiently strong to justify the action taken by school officials in carrying out their role as the trustees of the student body’s well-being.” Noting that it was unresolved whether Fraser applied to speech that originates off-campus (and citing Layshock), the Fourth Circuit panel declined to apply it, finding that Tinker provided sufficient authority for the discipline.

The Indiana federal district court decision referred to above, T.V. v. Smirh-Green Cmty. Sch. Corp, was summarized by Legal Clips in August 2011. The district court ruled that a school district violated the free speech rights of two students when it disciplined them for off-campus conduct captured in photographs and later posted on the Internet. The court also held that the school district policy that provided the basis for the disciplinary action was unconstitutionally overbroad and vague.]

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