New Fights, Old Rights

As the number of sites lampooning teachers and schools grows, students find not everybody has a sense of humor. How far will schools go to stop students from expressing their views?

by / July 17, 2001;;;; and SeeUinHell. com -- these are just a few of the Web sites that are pitting students against teachers and school administrators in courtroom battles over the right to free speech.

As students from middle schools to universities use the Internet to create forums for venting frustrations about teachers, schools and school administrators, the targets of the rants are reacting with suspensions, expulsions and lawsuits alleging defamation of character.

Lowering the Boom

In 1968, the U.S. Supreme Court heard the case Tinker v. Des Moines, in which three students from Des Moines, Iowa, were suspended from school for wearing black armbands in protest of the federal governments policy in Vietnam.

The students protested their suspension all the way up to the Supreme Court, which issued its decision in early 1969.

"In our system, state-operated schools may not be enclaves of totalitarianism," wrote Justice Abe Fortas in the courts opinion. "School officials do not possess absolute authority over their students. Students in school as well as out of school are persons under our Constitution. They are possessed of fundamental rights -- which the state must respect -- just as they themselves must respect their obligations to the state. ... In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views."

Despite this apparently airtight case for free speech, school districts and administrators are lowering the boom on students who create the sites, often on their own time and using their own computers. This has spurred a host of lawsuits and court cases as students and their families fight back.

More often than not, the students and their families win.

In Washington, three cases have gone in favor of students since 1995. In California, two community college professors dropped their lawsuit against the student who created, a Web site where students posted critiques of professors. In Pennsylvania, three cases concerning students online activities landed in the courts. One went the students way; another initially went the school districts way and is being appealed; and the states Supreme Court is currently considering the third.

"Nobody likes being criticized, and some of these school administrators might be the type that would have had the same overreaction if the student had written the exact same material on a piece of paper," said Aaron Caplan, staff attorney of the ACLU of Washington, speculating on why some schools react to these sites with lawsuits.

"Then, there is a genuine fear of technology. For some people, they react worse to something that is posted on the Internet."

Caplan sees a similarity between court cases now and court cases a couple of decades ago relating to underground newspapers.

"There are a lot of cases from the late 1960s and early 70s dealing with underground newspapers," he explained. "A new technology came into being that allowed students to voice their opinions and distribute them widely. At that time, it was the fact that [copy] machines and mimeograph machines were coming out in a way that would allow students to become publishers more cheaply."

The same sorts of feelings -- fear, mistrust and the perception of losing control -- that led to a flurry of court cases over newspapers now rear again in administrators minds, he said.

"As far as where we are on the initial bell curve, unfortunately, were still kind of early in the curve," he said. "In the next three to five years, there will be a lot of these kinds of cases. Were trying to get the word out that schools are asking for trouble if they engage in this kind of censorship."

Crossing the Line

Making Web sites with cartoon caricatures of teachers and administrators is one thing. But creating a Web site where a teacher is shown decapitated or requesting $20 donations to help pay for a hit man to kill the teacher is quite another.

A Web page called "Teacher Sux," created by an eighth-grader in Pennsylvania, contained a photograph of a teacher which mutated into a likeness of Adolph Hitler. It also showed the principal being hit with a cartoon bullet.

The student was expelled; the student fought the expulsion; and the Commonwealth Court of Pennsylvania upheld the expulsion.

The court ruled that school officials can "discipline students for off-campus activity where that activity materially and substantially interferes with the education process," according to a story from the National Education Associations NEA Today.

The NEA doesnt have a particular position regarding students speech on the Internet, said Michael Simpson of the NEAs Office of General Counsel.

"Its not an issue the association has taken a particular position on, and Im not sure the association could," Simpson said, adding that the NEA supports free speech in general. "Students certainly have free speech rights, but theres a line there that they should not cross. Students should be very careful about that -- when they make threats of violence against other students, teachers, school personnel or principals, thats stepping over the line, and school officials can take action to punish the student. Indeed, law enforcement officials can take action to have the student charged with a crime."

The troublesome terrain, Simpson said, is the "great gray area in the middle" between biting criticism and threatened violence.

In the Pennsylvania situation, the teacher ultimately retired after a 26-year career, reportedly due to health problems related to the threats made on the students Web site.

A Right to Speak, which defines its mission as "helping you pick the teachers that are right for you," is the creation of James Warner, a 24-year-old computer science major at Fullerton College, located in Fullerton, Calif.

Warner said he created the site late last year after a particularly trying experience with a class and the teacher who taught it. Ultimately, Warner dropped the class because he wasnt learning what he needed to pass. After speaking with other instructors about his frustrations, which he said other students shared, and examining other courses of action, Warner discovered that there wasnt much he could do.

"The other instructors told me I could go to the dean and talk to him about it, but instructors have academic freedom," he said. "They teach how they want to teach. But hearing [that] made me really frustrated. I work full time. I go to school full time, and I really need to get done with my education. Now I was one large class behind, and there was nothing I could do about it. I got so frustrated that I had to find some way to tell people about it, and I came up with the Web site. I made the site thinking that just a few students would use it, and its just blown up from there."

In an e-mail message to Warner, one professor from the college had this to say:

"Legal action will be pursued by myself and a large group of faculty ... if these comments are not removed immediately from the site. You are hereby ordered to cease and desist from placing and maintaining the posting of any negative, derogatory, defamatory and/or libelous remarks about instructors [being private individuals] immediately, within the next 48 hours."

No lawsuit has been filed so far, Warner said, noting that several teachers at the college have sent him e-mails supporting what hes doing. He also said he tries very hard to keep the site from degenerating into some sort of insult fest.

Yet Warner believes he has the right to say whats on his mind.

"There was nothing I could do about people who are really shaping my future," he said, in reference to the class that started the Web site. "They decide when I finish school and what Im going to learn. There has to be some way where I can pick who I want to take for a specific class that I will learn the best from."

Warner also said that hes gotten plenty of e-mails from adults who are going back to school thanking him for his site. They told him that balancing a career, family and school means that they can only take one class at a time and that his Web site helped them carefully choose which class, and teacher, appealed to them.

Pressure Point

While administrators may be a bit overzealous in handing out punishment for those Web sites that dont make specific threats, those administrators arent operating in a vacuum, said Paul Houston, executive director of the American Association of School Administrators.

"Theres always this compulsion on the part of school administrators to do something," Houston said. "Youre expected to do something. People are looking at you saying, OK, what are you going to do about this? Youve got this kid saying these terrible things about the school. Or a school board member calls up: Whats the principal going to do about this [Web site]?"

Houston said that, many times, its in the best interests of the administrator to not do anything. At the same time, though, threats of violence should be taken seriously and school administrators need to take action in such a situation.

Schools would also do well to let parents know very quickly if their child is involved in creating a Web site that borders on poor taste or is particularly vicious, he said, noting that its not necessarily a school administrators job to punish a student for something the student did at home.

"My general advice to school leaders is to be cautious," he said. "The whole Internet area is being sorted out in the courts in general as to whats appropriate and whats not. Generally, the courts are pretty consistent on freedom-of-speech issues. When its involved with something outside the school setting, administrators have to be very cautious. You might not like it. It may not make you very happy. But unless its posing some sort of direct threat ... I believe schools would do best by ignoring a lot of it."