Legal Case Studies November 8, 2012

 1 st Amendment to US Constitution  4 th Amendment to US Constitution  Tinker vs. Des Moines

 1 st Amendment to US Constitution  What does it say?

 Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceable to assemble, and to petition the government for a redress of grievances.

 4 th Amendment to US Constitution  What does it say?

 The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to searched, and the persons or things to be seized.

 Tell me about the Tinker Case

 Students do not shed their constitutional rights at the schoolhouse door

 Substantial Disruption or  Material Disruption

 Review and lets look at it together

 Case Study 2 – Elementary AP’s  Case Study 3 – High School AP’s  Case Study 4 – Middle School AP’s

 What did you decide?

 The Court held that the student’s statements were not protected speech either under the “true threat” or “substantial disruption” analysis. The Court stated:  “Here the district was given enough information that it reasonably feared the student had access to a handgun and was thinking about shooting several students at the high school. In light of the district’s obligations to ensure the safety of its students and reasonable concerns created by shooting deaths at other schools such as Columbine, the school district did not violate the First Amendment by notifying the policy and subsequently suspending her after he was placed in juvenile detention.”

 Actual case: D.J.M. vs Hannibal Public School District (8 th Cir. 2011)

 What did you decide?

 The 4 th Circuit ruled:  Adele used the Internet to orchestrate a targeted attack on a classmate and did so in a manner that was sufficiently connected to the school environment as to implicate the school district’s recognized authority to discipline speech which materially and substantially interferes with the requirements of appropriate discipline in the operation of the school and interferes with the rights of others. The Constitution does not hinder school administrators’ good faith efforts to address the problems of harassment and bullying.

 In addition the court found that following receiving a copy of the harassment complaint they conducted an investigating of all of the students and determined that Adele had created a “hate website” in violation of school policy.

 Actual case:  Actual Case: Kowalski vs. Berkley County Schools (4 th Cir. 2011)

 What did you decide?

 The school and individual defendants requested a dismissal of the case. This request was denied.  The Court ruled that a “reasonable reader could not consider her statements likely to cause a substantial disruption to the school environment”.

 The Court also denied the qualified immunity of the individuals in this case. The Court determined that the protected status of off-campus online speech was clearly established law.  The District Court determined that the admitted sexual conversations were not illegal and did not violate any school policies therefore her lawsuit against the school district could continue on the Fourth Amendment claims and against the individuals involved in searching her phone.

 Actual Case: R.S. vs. Minnewaska Area School District, 2012.

 On Campus Speech  Students have a right to free speech but not if violates current school policies.  We are free to enforce our policies

 Off Campus Speech

“ For purposes of whether the government can regulate off- campus student speech, courts have generally held that a student’s speech will not be protected by the 1 st Amendment if:

1. If the speech is determined to be a true threat that a reasonable person would interpret as a serious expression of an intent to cause a present or future harm; or

2. The student expression materially or substantially interferes with the normal operations of school or the rights of other students or teachers or if the school administration has reasonable cause to believe that the expression would materially and substantially interfere with school operations.”

Don’t get caught up in the trappings of electronic student speech…It is still student speech and the traditional rulings apply. As a general rule ask: “Who is the target?”

“If a student is the target, you have more leeway to step in…but if snarky comments are directed at staffers, step back.”