Thursday, March 06, 2008

More Thoughts On Free Speech and Schools

Just to expand a bit on yesterday's discussion ...

Going through all the law again, I'm convinced that there's no way the school's action is allowed to stand on any grounds other than some sort of higher standards for student council candidates. Student council isn't a right and the whole notion of student government is really more about building the bright kids resumes than anything else. A punishment of banishment from student council elections wouldn't be a punishment as such, merely a failure to meet strict standards of citizenship.

I know that sounds like a lot of bologna, but schools do have a great deal of leeway. But however broad the discretion of school administrators might be, I can't imagine that discretion would extend to speech outside of school, even if that speech happens to discuss school activities. Legal precedent is fairly clear that schools have authority over activities that could disrupt the educational experience. In our Burlington case, the alleged disruption could have been caused by the girl's use of the term "douchebag" in reference to school administrators. The problem with that argument is that it's centered on both the language and the subject- seemingly if the girl has called President Bush a "douchebag" that would be acceptable. And, if the girl had just called the administration "incompetent" then I can't imagine that language would warrant punishment- not unless we literally have a system where students are literally not permitted to criticize the educational establishment and I don't think we live in that totalitarian of a nation. So it goes back to the real problem is the particular language together with the particular target. Missing in the analysis is the forum- an internet blog. You can get punished for using the term "douchebag" in school and I suppose you can get punished for insulting the administration- The point is that the school has a great deal of leeway within their walls. But outside the school, you can't have schools in the business in judging the effect of speech. School administrators can't dole out discipline because they suspect a blog is well read by other members of the school community.

The 2nd Circuit of Appeals case Wisniewski v. Board of Education of the Weedsport Central School District did allow the school to reach into the realm of internet speech outside the classroom- but only because the student in question had created an instant messaging icon suggesting violence againast a school teacher. The forum wasn't so much an issue in that case, the violent imagery was. Many of us make fun of zero tolerance policies, but the need for caution when it comes to the possibility of violence can't be ignored. Regardless, we're not talking about violence in Burlington, just douchebags- the kind that take kids to court for exercising their First Amendment rights.


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