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QUIZ

1. A teacher can be held personally liable if he or she negligently fails to notify the proper authorities or take other
action when he or she observes the potential for violence in a student who later injures or kills students and
staff.

True False

2. It is considered sexual harassment if a teacher tells a sexually explicit joke that offends another teacher.

True False

3. Because the Supreme court held that students do not "shed their constitutional rights to freedom of speech or
expression at the schoolhouse gate," teachers cannot prohibit students from verbally or symbolically
expressing their views at school.

True False

4. Teachers have academic freedom guaranteed by the First Amendment to determine and implement the
educational methods that will be used in their classrooms.

True False

5. Students have the unequivocal right to engage in prayer on school premises during the school day.

True False

6. A teacher can be held personally liable if he or she discusses a student's grades, discipline or other education
records with someone other than the student or student's parents.

True False

7. It is a crime for teachers not to report known or suspected child abuse to the county department of social
services or local law enforcement authorities.

True False

8. Teachers and school administrators have a right to search students when they have reasonable suspicion that
the search will turn up evidence that the law or a rule of the school is being or has been violated.

True False

9. A teacher can be charged with child abuse for hugging a student.

True False

10. A teacher may lawfully be disciplined or terminated for speaking out on a matter of public concern during non-
school time.

True False
You Be the Judge – The Not So Funny IM Icon . . .

I. Factual Background

Aaron was an eighth grader at Weedsport Middle School. He developed an instant messaging
icon consisting of a small drawing of a pistol firing a bullet at a person's head, above which were
dots representing splattered blood. Beneath the drawing appeared the words "Kill Mr.
VanderMolen"; Mr. VanderMolen was Aaron's English teacher at the time. Aaron displayed the
icon to about 15 members of his IM "buddy list" and used the icon for about three weeks. Some
of his classmates were on his buddy list and observed the icon. The icon was not sent to
VanderMolen or any other school official.

VanderMolen learned of the icon from a student and reported it to the administration. The police
were contacted. A police investigator interviewed Aaron, concluded that the icon was meant as a
joke, that Aaron fully understood the severity of what he had done, and that Aaron posed no real
threat to VanderMolen or to any other school official. Aaron was also interviewed by a
psychologist, who found that Aaron had no violent intent, posed no actual threat, and made the
icon as a joke.

The administration recommended that Aaron be expelled for conduct endangering the health and
welfare of other students and staff at the school. He was allowed back into school after five days
pending the expulsion hearing.

The hearing officer found that the icon was threatening and should not have been understood as a
joke, and that it disrupted school operations by requiring special attention from school officials,
replacement of the threatened teacher (Aaron was removed to another teacher's class), and
interviewing pupils during class time.

Aaron sued the school district and the superintendent alleging that 1) the icon was not a "true
threat," and thus was protected speech under the First Amendment, and 2) the district and the
superintendent had failed to train school staff in threat assessment. (He also alleged violations of
New York law.)

So . . . you be the judge. Is Aaron right?


Wisniewski v Board of Educ. of Weedsport Central Sch. Dist., U.S. Court of Appeals, Second
Circuit, July 5, 2007

So . . . what did the court decide? It ruled against Aaron.

II. Analysis

1. The court noted that the Supreme Court announced four different standards for
sanctioning student speech in the Tinker case. It concluded that the Supreme Court in
Morse (the bong hits case) decided upon the following standard from Tinker to apply for
all future cases: "Student expression may not be suppressed unless school officials
reasonably conclude that it will materially and substantially disrupt the work and
discipline of the school."

2. The court determined that it was irrelevant whether or not the icon constituted a "true
threat"; instead, the court determined that discipline would be appropriate if a) it was a
reasonably foreseeable risk that the icon would come to the attention of school
authorities, and b) that it would materially and substantially disrupt the work and
discipline of the school." If these standards are met, the court concluded that it did not
matter if Aaron intended his icon to be communicated to school authorities or to cause a
substantial disruption to school.

3. The court concluded that given Aaron's extensive distribution of the icon to 15 recipients
over three weeks, including some of his classmates, the risk of distribution to school
authorities was foreseeable "if not inevitable." And the court determined that "there can
be no doubt" that the icon would foreseeably create a risk of substantial disruption within
the school environment.

III. Conclusions

1. This decision reflects the recent trend in court cases addressing student threats. It gives
greater deference to school administrators to discipline students fro making threats by
eliminating the need for trained staff to conclude that the remarks were a “true threat,”
and by making the student’s motivations in sending the message irrelevant.
You Be the Judge – The Overweight Athletic Director

I. Factual Background

Zach Paul, a student at Franklin Regional High School, was upset that he had been denied a
student parking permit and that additional rules/regulations had been imposed for members of
the track team. He decided to vent his frustrations by compiling a "Top Ten" list about the
athletic director, Robert Bozzuto, at home after school hours. He emailed the list to friends from
his school computer, but did not bring the list to school because he had distributed similar lists in
the past and had been warned that he would be punished if he brought another list to school.

The list read as follows:

10. The School Store doesn't sell twinkies.


9. He is constantly tripping over his own chins.
8. The girls at the 900 #s keep hanging up on him.
7. For him, becoming Franklin's "Athletic Director" was considered "moving up in the
world."
6. He has to use a pencil to type and make phone calls because his fingers are unable to hit
only one key at a time.
5. As stated in previous list, he's just not getting any.
4. He is no longer allowed in any "All You Can Eat" restaurants.
3. He has constant flashbacks of when he was in high school and the athletes used to pick
on him, instead of him picking on the athletes.
2. Because of his extensive gut factor, the "man" hasn't seen his own penis in over a decade.
1. Even if it wasn't for his gut, it would still take a magnifying glass and extensive searching
to find it.

Several weeks after Zach emailed the list to his friends, copies of the Bozzuto Top Ten list were
found in the high school teachers' lounge and at the middle school. It was not determined who
had distributed the message.

Zach received a ten day suspension for "verbal/written abuse of a staff member." The District's
policy stated that "it must be clearly understood that if a student verbally or otherwise abuses a
staff member, he or she will be immediately suspended from school. It may then be the
recommendation of the administration to the Board of School Directors that they indefinitely
suspend or expel the student involved."

Zach filed a lawsuit, which prompted the school district to enter an agreement allowing him to
return to school. Zach alleged violations of his constitutional rights, including his First
Amendment rights.

So . . . you be the judge. Is Zach right?


Killion v. Frankline Regional School Dist. 136 F. Supp. 2d 446, W.D. Pa. 2001.

II. Analysis

So . . . what did the court decide? The court ruled in Zach's favor and found that the District had
violated his First Amendment rights.

1. The court concluded that Zach's list did not cause a substantial disruption to the school
environment, and that school officials did not have adequate grounds to reasonably
suspect that the list would cause disruption as necessary to support "preemptive"
discipline. The court noted that there was no evidence that teachers were "incapable of
teaching or controlling their classes" because of the list. In fact, the court noted that the
list was on school grounds for several days before the administration became aware of its
existence, and that one week passed before school officials imposed discipline.
Moreover, the court noted that although Bozzuto was upset and had a hard time doing his
job, and that the school librarian -- who had been the subject of an earlier list regarding
the "Book Nazi" -- was almost in tears, these events did not meet the substantial
disruption standard, especially when there was no evidence indicating that distribution of
the prior lists had caused a substantial disruption.

2. The court rejected the school's argument that prohibition upon discipline in this case
would "impair the administration's ability to appropriately discipline the students." The
court stated that "we cannot accept, without more, that the childish and boorish antics of a
minor could impair the administrators' abilities to discipline students and maintain
control."

3. The court found that the policy permitting discipline if a student "verbally or otherwise
abuses a staff member" to be overly broad, vague, and therefore unconstitutional. The
court concluded that the policy language did not define "abuse" and did not include any
limitations --e.g., limitations which would preclude discipline for off campus speech, for
on-campus speech which did not cause a material and substantial disruption to the school
environment, etc.

III. Conclusions

1. As you’ll hear me say at the conclusion of many of these synopses . . . don’t blame the
messenger! I don’t agree with this decision, but it reflects the position of many state and
federal judges. Knowledge of these decisions should help us develop strategies for
addressing these types of cases without adverse legal consequences.

2. Several court decisions have found that a student’s communication of disrespectful,


insulting information about a staff member – even when that communication, as here,
occurs on school property – does not provide automatic authority to impose discipline.
Unless the student’s comment includes profanity (e.g., “F--- you, Mr. Assistant
Principal”), imposing discipline for disrespectful/offensive student speech is vulnerable
to an adverse legal challenge unless the administrator can demonstrate that the student
speech has caused substantial disruption to the school environment or that the
administrator reasonably believes that the remarks will cause substantial disruption. It is
easier to substantiate that substantial disruption is present when a student makes
insulting/disrespectful verbal comments in the presence of third parties (e.g., calling the
campus supervisor a “fat moron” when the supervisor confronts a smoker and his friends
in the parking lot). Written statements can be more difficult to establish substantial
disruption, especially when the statement is distributed to a small group of students (e.g.,
to 5 or 10 friends) and is not being read/discussed by students during class time.

3. Engaging the student and parent in a conference to discuss the disrespectful/insulting


comments will often result in the student receiving consequences which the student
perceives to be more severe than a school suspension – and avoid a possible First
Amendment controversy for the administrator and the school.
You Be the Judge – Off-Campus MySpace Comments

I. Factual Background

Justin Big, a senior at Hickory High School, created a MySpace profile for Paul Principal using
his grandmother's computer, at her home, during non-school hours. The profile included a
question and answer section including the following:

Q -- "In the past month have you smoked?"

A -- "Big blunt"

Q -- "Do you use alcohol?"

A -- "Big keg behind my desk"

Q -- "Ever been beaten up?"

A -- "Big fag"

Q -- "In the past month have you gone on a date?"

A -- "Big hard-on"

The profile also referred to Principal as a "big steroid freak," a "big whore," and stated that
Principal was "too drunk to remember" the date of his birthday.

There were three other unflattering profiles of Principal posted on MySpace by unknown parties,
and these profiles included vulgar and offensive statements.

Justin accessed the profile he had created from a computer in the Spanish classroom on
December 15 and showed it to other classmates, although he did not claim authorship of it at that
time. Justin also accessed the profile at the school the next day; he claimed his purpose was to
delete it. Teachers and school administrators were unaware that he had accessed the profile until
their investigation the next week.

The same day that Justin accessed the profile in Spanish class, a teacher in another classroom
observed students in his class gathered around a computer, looking at Justin's profile of
Principal, and giggling. The teacher did not report this incident to the administration. Another
administrator was contacted by five teachers on this same day indicating that students wanted to
discuss the profiles during class, and five students were referred to the administrator to tell him
about the profiles so that he could investigate. Most, if not all, of the student body at Hickory
High School had received word about the profile, including Principal's daughter -- a junior at the
school.
The Principal held a faculty meeting on December 16 to let them about the profile. Some of the
teachers were unaware of the profile before this meeting. Principal became very emotional
during the meeting and could not continue. The other administrator took over, asked teachers
not to discuss the profile during class, and directed that teachers send students who might have
information about the profiles to the office. About 20 students were referred to the administrator
that day because they had "made conversation, made a joke, made a disruption in class, that the
teacher had to redirect." The administrator interviewed the students and ten teachers to gather
more information. The school contacted MySpace directly and had the profiles disabled.
Computer access for students was limited up until the start of winter break, and several teachers
revised lesson plans so that assignments calling for internet research became class discussions
instead. A district technology specialist estimated that he spent 25 percent of his time for one
week in disabling access to the MySpace website through various web addresses and dealing
with issues related to the Principal's profile.

Further disruptions occurred throughout January. Teachers had to intervene on several occasions
to address students who were huddling around computers and observing the various profiles
posted concerning Principal. The school was able to show how many students accessed
MySpace at school, but the staff could not determine how many had accessed the profiles of
Principal or the ones created by Justin in particular.

School officials expelled Justin for the second semester of the school year and prohibited him
from participating in the graduation ceremony. (After the lawsuit was filed, the school district
allowed Justin to return to regular class attendance, participate in "academic games," and to
attend the graduation ceremony.) The basis for the expulsion was violation of the following
provisions of the school's discipline code:

-- Disruption of the normal school process


-- Disrespect; harassment of a school administrator via computer/internet with remarks that have
demeaning implications
-- Gross misbehavior; obscene, vulgar and profane language
-- Computer policy violation; use of school pictures without authorization

Justin filed a lawsuit in federal court against the School District, the superintendent, Principal,
and the other administrator at the high school alleging that they had violated Justin's
constitutional rights, including his First Amendment rights.

So . . . you be the judge. Is Justin right?


Layshock v Hermitage School District, W. D. Pa., July 10, 2007

So . . . what did the judge say? He agreed with Justin. Key points in the court's analysis
included the following:

II. Analysis

1. "The mere fact that the internet may be accessed at school does not authorize school
officials to become censors of the world-wide web. . . . Schools have an undoubted right
to control conduct within the scope of their activities, but they must share the supervision
of children with other, equally vital, institutions such as families, churches, community
organizations and the judicial system."

2. "This Court has no difficulty concluding, and will assume arguendo, that Justin's profile
is lewd, profane and sexually inappropriate. Nevertheless . . . the school district does not
have authority to punish him for creating it . . . even construing the evidence in a light
most favorable to defendants, they have not established a sufficient nexus between
Justin's speech and a substantial disruption of the school environment. . . . A reasonable
jury could not conclude that the 'substantial disruption' standard could be met on this
record." More specifically:

a. "The School District is unable to connect the alleged disruption to Justin's conduct
insofar as there were three other profiles of Principal available on MySpace during
the same timeframe."

b. "The School has not demonstrated that the 'buzz' or discussions were caused by
Justin's profile as opposed to the reaction of administrators."

c. The court found that the students in the Tinker decision who wore black armbands
protesting the Vietnam war sparked a "far more boisterous and hostile environment"
than Justin had, and that since the Supreme Court found that it was improper to expel
the students in Tinker it was improper to expel Justin; any disruption here did not
meet the "substantial" standard.

d. Justin's only in-school conduct was showing the profile to other students in the
Spanish classroom; that the teacher was not aware of what was going on, and that
administrators did not know that Justin had accessed the profile in school prior to
suspending him, weighed against a finding of substantial disruption.

3. The judge stated that "this decision is a close call and defendants' reaction to the
unflattering profile was understandable. . . ." He went on, however, to reject the school
district's arguments that Justin's remarks were "fighting words" and "obscenity" outside
the protection of the First Amendment.
4. The school also alleged that their actions were permissible because Justin's comments
imputed that Principal had engaged in a criminal offense and were thus slanderous. The
court addressed this argument by stating that "even assuming arguendo that the profile
was slanderous, the dispositive question here is whether the School District had authority
to impose its own punishment on Justin. The school cannot usurp the judicial system's
role in resolving tort actions for alleged slander occurring outside the school."

III. Conclusions

1. I believe that the court reached the wrong conclusion in this case and that the discipline
should have been upheld under the Supreme Court’s decision in Fraser, which held that
school officials may regulate student expression involving lewd, vulgar, obscene, or
plainly offensive speech. Nonetheless, this case provides guidance on two important
points: a) administrators should proceed with the presumption that they will be unable to
discipline students for comments made on MySpace and other off-campus locations, even
if the comments are insulting to or demeaning of students or staff, absent comments
which threaten physical harm to students or staff or which cause substantial disruption to
the school environment; and b) in conducting the “substantial disruption” review, courts
focus most upon impacts upon student behavior in the environment than upon impacts to
staff – especially, as here, when the court concludes (implicitly) that administration has
made a “mountain out of a molehill” by conducting an intensive investigation and
investing extensive IT resources in blocking access to the site.

2. During the course of my career, I have been asked many times if school districts can “do
something” to reign in students, parents, and staff members who make disparaging
comments about school district staff members. This decision shows the risk to school
officials and school districts inherent in punishing students, parents and staff through
school processes for remarks perceived as scandalous/defamatory. If you have such a
case, please proceed cautiously and consult our office before imposing discipline.