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learning.now: at the crossroads of Internet culture & education with host Andy Carvin

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October032008

Judge: School was Right to Suspend Student over Fake MySpace Profile

A court has ruled that a school was within its rights for suspending a student who created an offensive fake MySpace page for the school principal. The ruling brings together a number of legal precedents regarding the difficult question of what happens when students’ actions take place beyond the schoolhouse gate, but reverberate back through it.

The case revolves around a 14-year-old student, identified only as JS in a lawsuit filed by her parents. In March 2007, JS and another student, identified as KL, used a home computer to create a fake MySpace profile for James McGonigle, principal of Blue Mountain Middle School in Pennsylvania. While the page didn’t mention him by name, it used his official photo displayed on the school’s website. The profile included a bio that intimated that he was a pedophile and sex addict. The fake bio also stated “I have come to myspace so I can pervert the minds of other principals to be just like me,” adding, “kids rock my bed.”

Word of the fake MySpace profile reached the school the next day. According to court testimony, KL told five to eight students, and another half a dozen students asked about it. “Discussion of the website continued through the day, and there was a general ‘buzz’ in the school with quite a few people knowing about it,” the judge wrote in the ruling. Within a couple of days, at least one teacher approached the principal and informed him, “students were discussing the profile in class.”

Initially, the profile was publicly accessible, but JS then set it to private, which meant that MySpace users could only access it with their permission. JS and KL granted nearly two dozen students access.

After being confronted by school officials, JS eventually confessed to creating the page. JS and KL were suspended for 10 days, using clauses in the school’s discipline code regarding the prohibition of making false statements against school staff. Additionally, she was found in violation of the school district’s acceptable use policy because she used copyrighted materials - the photo - without the district’s permission.

The family of JS decided to sue the district. (KL was not involved in the suit.) Lawyers for the family argued that the First Amendment “precludes the school district from excluding a student from classes for two weeks for the profile which is non-threatening, non-obscene and a parody.” They also cited previous precedent - the 1969 US Supreme Court case known as Tinker v. Des Moines - that states students cannot be disciplined for speech that doesn’t cause a disruption within the school.

US District Judge James Munley, however, considered their free-speech arguments “unconvincing,” citing the Tinker ruling:

The Court held that a student may express his opinions during school hours, “if he does so without materially and substantially interfering with the requirements of appropriate discipline in the operation of the school and without colliding with the rights of others… . But conduct by the student, in class or out of it, which for any reason-whether it stems from time, place, or type of behavior - materially disrupts class-work or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.”

… The type of speech involved in Tinker is political speech. In the instant case, the speech is not political; rather, it was vulgar and offensive statement ascribed to the school principal.

The judge continued his argument by citing another well-known case, Bethel v. Fraser. In that case, a student gave a speech nominating another student for a class election and used “an elaborate, graphic and explicit sexual metaphor.” Receiving a suspension, the student sued, but eventually lost the case. According to the court ruling, “it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse…. Nothing in the Constitution prohibits the states from insisting that certain modes of expression are inappropriate and subject to sanctions. The inculcation of these values is truly the work of the schools.”

Not surprisingly, the judge also referenced the now-famous “BONG HiTS 4JESUS” case, aka Morse v. Frederick, in which the Supreme Court ruled that a school was within its rights to punish a student for unfurling a banner with that now-infamous phrase at an Olympic torch relay just off school grounds. Given the precedent of the case, ” A school can validly restrict speech that is vulgar and lewd and also it can restrict speech that promotes unlawful behavior,” the judge wrote. “In the instant case, there can be no doubt that the speech used is vulgar and lewd.”

The judge also addressed the issue of the incident taking place off-campus. Because their actions involved attacking the reputation of a school official, they were fair game for disciplinary action. Quoting a case known as Fenton v. Stear, ” It is our opinion that when a high school student refers to a high school teacher in a public…by a lewd and obscene name in such a loud voice that the teacher and others hear the insult it may be deemed a matter for discipline in the discretion of the school authorities.” In this case, though, school staff “heard” the insult by viewing the Web page in question.

“Accordingly, we find that plaintiff cannot establish a First Amendment
violation, and summary judgment will be granted to the defendan,” the judge concluded, siding with the school.

This case is particularly interesting because it contains elements of so many other previous rulings. The students’ actions took place off campus, but reverberated on campus. The content was a parody, but was a lewd and vulgar attack against a school official.

Do you think the ruling was cut-and-dry? Did the judge make the right decision? -andy

Filed under : Policy

Responses

Andy,

This is an interesting story. It does speak to the rights of students to express themselves. Had I been J.S.’s age I may have done something similar to this…

Although I am a proponent of freedom of speech, I think that in this case I would support the judges decision mainly because the MySpace profile was a public one.

From what I have read of the case (not much really), it was not a parody and was meant to slander the principal, paint him as a pedophile and degrade him. They made it a public page so it was intended for anyone and everyone to see. Had it been private, I don’t think the school would have had a case.

What I find problematic though is that they did not mention the principle by name.

I want to look into it more and I will be posting a more complete response on my blog.

If he’d made posters and put them all over town on telephone poles could he have avoided legal action? I doubt it.

His problem was using the principal’s picture, name or no name. All else was tied to that, and he knew people knew who it was.

Andy,

I believe the judge made a fair judgement. I would have been different if the profile was private the whole time, but because it was public at first it was open for the world to view. When it was public, not only was it hurting the principal, but also the school, and therefore indirectly all the students in attendance and all the families involved in that school. I do believe the judge made the right choice.

Andy,

I’d also generally agree with the deicision, but I personally wonder if 10 days of suspension was an appropriate penalty. Ten day suspensions are typically academically devestating, and as a result, they are usually only given in the most severe cases, and usually as a precursor to expulsion. Certainly, the students made highly offensive statements about the principal, but if no one was likely to believe them—and they were presumably not intended to be believable—did the offense rise the level of a 10 day suspension? Alas, that probably wasn’t an issue for the court to decide.

In the interest of full disclosure, and relevant details, I’ll admit that in 11th grade I was suspended for 3 days for wearing a t-shirt that declared: “[this high school] is fascist.” Now that was political speech.

I agree with the judge’s decision as well. I also think that the 10 days suspension was justified due to the offense. When you get into, “well, no one would have believed it,” etc., that is being too subjective. I think that students should pay the consequences when they break rules. If the rule is severe, the consequence should be also. Consistency is also EXTREMELY important. This student may not have done such a thing if he had a reason to fear consequences.

The minute the word pedophile was used when in fact the principal was not a pedophile, free speech goes out the window. The judge was correct in his ruling, a principal’s reputation and job were at stake.

Could someone have sent a copy of this site around, which means it may be lurking somewhere in cyberspace?

Technology is being integrated into the classroom in multiple ways now that we have entered the 21st century. However, it is sad when the internet begins to have a negative effect on a school. It is unfortunate that court cases like this are occurring. Although the internet has many good uses, it can also be used for bullying and slander. This can affect schools in multiple ways as well. I believe the judge made the right decision in this case. Students need to understand what is appropriate and what is not appropriate on the internet.

I definitely think the punishment was acceptable. Just think if the students were not caught right away. They could have added REALLY offensive information to the false MySpace page just to keep the “buzz” going around school. Also, we can’t let students get away with hurting a school official’s reputation. I have seen too many teachers and administrators get into trouble to know that sometimes the teachers and administrators really are to blame for their unethical or illegal behavior, but sometimes vindictive students are the ones to blame. If the school and judge let these particular kids get away with such an action, only more would follow. Also, if my child were to do something that terrible, I would never have supported her by suing the school. She broke the rules. She attacked an administrator’s reputation. She deserves to be punished.

Slander is not a protected right of free speech. I agree with the judge’s ruling. Children tend to make thoughtless mistakes. Let’s hope a serious lesson was learned by these teens.

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