The Associated Press (AP) reports in The Washington Post that the American Civil Liberties Union of Indiana (ACLU-IN) has filed suit in federal court on behalf of three middle school students who were expelled by Griffith Public Schools (GPS) after joking on Facebook about which of their classmates they would like to kill. The students were suspended and later expelled in January 2012 for the remainder of the school year after a classmate’s mother alerted officials at GMS to the girls’ Facebook posts.
According to the suit, GMS officials told the girls they had violated school policy against bullying, harassment, and intimidation. ACLU-IN attorney Gavin Rose said it was clear the girls were joking because their remarks were accompanied by smiley faces and other emoticons, along with Internet abbreviations for laughter, such as LOL. “The fact of the matter is that no reasonable person looking at this conversation would think that these girls were going to go out and inflict harm on anyone,” Rose said. “If you make a legitimate threat against someone … you don’t follow it up with an emoticon.”
The posts were made after school on the girls’ personal electronic devices, not on school computers, the lawsuit says, and were visible only to the girls’ online friends who were allowed access. “Schools do not possess infinite reach into the private lives of their students,” Rose said.
The suit claims the posts did not cause any disruption at school, and no one at school mentioned the posts the following day. The suit claims that GPS told the girls they would be permitted to proceed to ninth grade at Griffith High School this fall, but only one of the girls intends to attend that school.
Source: The Washington Post, 4/25/12, By AP
[Editor's Note: This story is another example of the difficult balancing act facing school administrators when dealing with off-campus, online student speech. As alluded to in the article, student speech may only be regulated under very specific circumstances. One of those circumstances is when school officials can reasonably forecast that the student's speech will cause a substantial disruption at school, as established in Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969).
The U.S. Supreme Court recently declined to address the extent to which school officials may regulate off-campus, online student speech. In January 2012, Legal Clips summarized articles from a number of media outlets, reporting on the Supreme Court’s denial of certiorari in three student Internet speech cases, J.S. v. Blue Mountain Sch. Dist. (combined with Layshock v. Hermitage Sch. Dist.) and Kowalksi v. Berkeley Cnty. Sch. In each of these cases, a student had used offensive language online, after school hours, to berate school administrators or a fellow student. School officials disciplined the students for the behavior, drawing a suit based on First Amendment free speech protection.
Until the Supreme Court clarifies the standard on this issue, federal courts will continue to look at the facts of each case and apply the standard in their circuit. In March 2012, Legal Clips summarized a Mississippi federal district court decision in Bell v. Itawamba Cnty. Sch. Bd., holding that school officials did not violate a student’s free speech rights when they disciplined him for posting a “rap” song he composed and performed off-campus and posted on his Facebook page, because school officials can regulate off-campus speech/expression that causes material or substantial disruption at school.
In April 2012, Legal Clips summarized an AP article in Education Week, reporting that a Garrett City, Indiana, student’s multiple use of the F-word in a late-night tweet had led to his expulsion from Garrett High School (GHS). The article notes that 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.
Another aspect of the above article that merits consideration is the AP's point that the students were expelled for violating the school's bullying, harassment, and intimidation policies. In August 2011, Legal Clips summarized a decision by a three-judge panel of the U.S. Court of Appeals for the Eighth Circuit (AR, IA, MN, MO, ND, NE, SD), in D.J.M. v. Hannibal Pub. Sch. Dist., holding that a school district that suspended a student for off-campus instant message communications with a classmate did not violate the student’s free speech rights because the student’s speech constituted unprotected true threats.]