3)+Free+Speech

=Free Speech = == =media type="youtube" key="5lSRr_BswUY" height="613" width="768"=

The first amendment and the freedom of speech is always in the foreground. Both the student and the teacher retain their right to free speech, no matter the mode of communication. The conflict always arises between the school district’s goal of security and the individual’s rights. “One of the internet’s unfortunate byproducts is that in today’s digital era, school administrators are being called upon with increasing frequency to balance the use of Internet-based tools that enrich learning against the need to maintain order and a safe learning environment” (Broek, K., Puiszis, S., & Brown, E., 2009, p. 11).

While the First Amendment is clearly at issue, the right to a safe and free public education is at conflict. While the freedom of speech is a defining American right, there are categories that are not covered by the First Amendment. True threats, fighting words, obscenity, and child pornography are not awarded First Amendment protection. Assuming that the freedom of speech is sheltered by the First Amendment, the speech may still be prohibited by the schools. There are three main cases that are relevant to a student’s right to free speech. The first and most famous is the //Tinker v. Des Moines Independent Community School District (1969)//. In the //Tinker// case students wore black armbands in protest of the Vietnam War. School officials suspended the students and lifted the suspensions only when the students returned without the armbands. The students sued on grounds that the school violated their First Amendment rights. The Supreme Court found in favor of the students. Two important precedents came from this case. The //Tinker// precedent states that the First Amendment does not protect speech that “materially disrupts class work or involves substantial disorder or invasion of the rights of others” (Waters, & Russell, 2008, p. 2). The second is that the Supreme Court stated “that students do not shed their First Amendment rights when they enter the schoolhouse gate” (Tinker, 1969). While //Tinker// applies to all forms of speech, a question, especially in light of the internet, remains. Where does the schoolhouse gate begin and end? Another case is //Bethel School District No. 403 v. Fraser//. The case involves a student making a speech during a school assembly that contained sexual innuendos. The student was suspended and sued the school district for violation of his First Amendment rights. The Court in //Fraser// rejected the student’s argument that his suspension violated the First Amendment and held that student speech that is vulgar or lewd is not protected by the First Amendment. (Fraser, 1986) “The Fraser standard is referenced because it gives the school authority to discipline student for harsh, vulgar or lewd language” (Waters, & Russell, 2008, p. 2). Some important notes about Fraser are the incident occurred on campus and that the speech undermined the “basic educational mission” Fraser (1986). The third case is //Hazelwood School District v. Kuhlmeier//, where the principal censored particular articles for a school newspaper. The //Kuhlmeier// standard allows the censorship as long as it is founded on legitimate pedagogical concerns. The above stated decisions have influenced other lower court’s rulings, like in //Boucher v. School Board of Greenfield (1986)//, //J.S. v Bethlehem Area School District (2000)// and //O.Z. v. Board of Trustees (2008)//. In //Boucher//, a student published instructions to hack into the school’s district’s computer network. School officials discovered Boucher as the author and he was expelled from school. The 7th Circuit Court found in favor of the school district since the student’s behavior would lead to a reasonable forecast of disruption of the school. In //J.S.// the student created a website that targeted his math teacher. The website contained “offensive and threatening comments”, including a teacher photo that morphed into an image of Hitler. The teacher took a medical leave of absence, was replaced with three substitute teachers for the remaining part of the school year and the student was expelled at the end of the year. The Pennsylvania Supreme Court found the standards of //Tinker// and //Fraser// were violated by the student’s website. The vulgar speech was a breach of the //Fraser// standard while the replacement of the algebra teacher was a substantial disruption under //Tinker//. In //O.Z. v. Board of Trustees (2008)// a teacher discovered a slideshow on YouTube depicting her murder while doing a Google search on her name. The school’s discipline of the student was allowed because the district court concluded that the slide show created a foreseeable risk of disruption within the school (Broek, K., Puiszis, S., & Brown, E., (2009). While no one wants to deny someone’s right to free speech, the right of a free and public education has just as much merit. Administrators when investigating a student’s speech, they need to keep the following things in mind. Is the speech a true threat? If so, then the student is not protected under the First Amendment. Next, was the speech created on school technology? If so, the school district’s Acceptable Usage Policy (AUP) would apply. Was there a nexus between the school and the student? If the speech is likely to be brought, accessed or transmitted to school, and significantly disrupts the educational environment, the school may discipline the student for online behavior. Any discipline action must be compliant with the school’s AUP and/or student handbook. Let’s not forget the teacher. The teacher’s right to freedom of speech is limited to when the teacher acts as a private citizen on a public issue. Otherwise, the teacher may be disciplined for speech acting as an employee on internal matters. There are also other legal issues to consider like the Fourth Amendment. Since many schools district provide student storage of their electronic works, the question of privacy comes into play. Many schools districts treat the storage of electronic media as they do with lockers, that the expectation of privacy is less being that the student does not own the storage. The 4th Amendment is also something to take into account. “Schools should recognize the importance of due process rights and make sure to give the student sufficient notice of the charges against them, in writing and not rush disciplinary action because of the content of the student’s Internet speech” (Waters, & Russell, 2008, p. 8).

The Freedom of speech must be respected for both the student and the teacher but not at the expense of distracting the operations of the school or the violation of an individual’s rights. The school board must consider this when drafting and implementing their AUP. It should be clear as to what are inappropriate speeches as well as the consequences for violating the policy. The policy should also cover the nexus when off-campus student conduct and the school collide. The teacher is the enforcer of the policy. It is the teacher’s responsibility to assure the student’s rights and maintain the order of the classroom. One word of caution is offered. Student’s speech about a particular teacher is allowable and cannot be punishable unless there is clear evidence that the student’s behavior has caused substantial disruption to the school.