Connecticut Education Law Blog : Connecticut Education Lawyer & Attorney : Berchem, Moses & Devlin Law Firm : CT Public Schools

The language of Missouri Senate Bill 54, effective on August 28, 2011, states:

By January 1, 2012, every school district must develop a written policy concerning teacher-student communication and employee-student communications. Each policy must include appropriate oral and nonverbal personal communication, which may be combined with sexual harassment policies, and appropriate use of electronic media as described in the act, including social networking sites. Teachers cannot establish, maintain, or use a work-related website unless it is available to school administrators and the child's legal custodian, physical custodian, or legal guardian. Teachers also cannot have a nonwork-related website that allows exclusive access with a current or former student.

This is an interesting choice of language that, while not naming any particular social networking website, such as Facebook, would seem to prohibit teachers "friending" students on such sites, since there could be communications between teacher and student that are not accessible to parents.  But what exactly is "exclusive access"?  If the parent checks the student's Facebook account and has access to all communications made from the site, is that still considered "exclusive access"?

Note also that there is a prohibition on such relationships with "former" students.  One might well ask, for what period of time does this prohibition last?  Surely adults who have gone on to graduate from college and want to "friend" their 7th grade science teachers should not have to worry that this will get the teacher in trouble with the law, right?  Suppose your aunt is a school employee in the same school district where you go to school and you "friend" her on Facebook - will that run afoul of the district's policy concerning "employee-student communications"?

Another interesting topic is the law's mandate that schools must write policies governing "nonverbal personal communication" as well.  Although one assumes that this was intended as a reference to written "chat room" and message communications available through social networking sites, it does not appear to be limited to those types of communications as written.  Will school districts start writing policies prohibiting certain types of gestures exchanged in person between teachers and students? Facial expessions?  Body language?  Let's hope sanity prevails, otherwise, we predict a First Amendment challenge on the horizon.  

In J.S. v. Blue Mountain School District, a student was suspended from school for creating a fake MySpace profile of her school principal on her home computer over the weekend that was both vulgar and offensive. The Third Circuit reversed the district court’s ruling, holding that schools in that circuit cannot punish students for “off-campus speech that is not school-sponsored or at a school-sponsored event and that caused no substantial disruption at the school.” The Third Circuit found that “general rumblings, a few minutes of talking in class, and some officials rearranging their schedules to assist” the principal in dealing with the profile did not amount to a substantial disruption in school. Moreover, the Court of Appeals found that the student’s speech could not have reasonably led school officials to forecast substantial disruption in school. Essentially, the Third Circuit held that the school district violated the First Amendment of the Constitution by giving the student a ten-day suspension for her off-campus speech. Some of the facts that seemed to be persuasive to the Third Circuit were 1) the student created the profile as a joke, 2) the student took steps to make the profile private so that access was limited to her and her friends, 3) that although the profile was “vulgar it was so juvenile and nonsensical that no reasonable person would take its content seriously,” and 4) that although the profile included a picture of the principal, it did not identify him by name, school or location. In addition, the school district’s computers blocked access to MySpace, so no student was able to view the profile while at school, and the only printout that was brought to the school was brought in at the request of the principal.

In the other case decided by the Third Circuit, Layshock v. Hermitage School District, another student created a fake MySpace profile of his principal that was again vulgar, lewd and offensive. In this case, while the student used a home computer, he accessed the MySpace profile at school, showed it to classmates and words of the profile “reached most if not all” of the high school student body. The student was suspended for ten days, placed in an alternative education program, banned from all extracurricular activities, and was not allowed to participate in his graduation ceremony. In that case, the Third Circuit held that the school district violated the First Amendment by punishing the student for expressive conduct that occurred outside of the school context, that did not result in a foreseeable and substantial disruption of school.

In both cases, the Third Circuit discussed, but did not endorse, the Second Circuit’s decision Doninger v. Niehoff, 527 F.3d 41 (2d Cir. 2008). As you may recall from previous posts on this blog, the Second Circuit in Doninger held that the student was properly disciplined for her off-campus blog and not permitted to run for class office as the conduct on the blog was unbecoming for a potential class officer, and the blog post created a foreseeable risk of substantial disruption at her school. Doninger was therefore unsuccessful in her attempt to force the school district to allow her to run for class office. 

The Third Circuit distinguished its cases from the Doninger case, finding that the off-campus speech in Layshock and J.S. v. Blue Mountain School District did not disrupt the school environment nor was there any reasonable foreseeable disruption that would have occurred from each student’s off-campus conduct, while in Doninger, the student’s off-campus speech had resulted in a foreseeable and substantial disruption of the school. In addition, the Third Circuit felt that the Doninger court was “careful to explain ‘that it had no occasion to consider whether a different, more serious consequence than disqualification from student office would raise constitutional concerns.’” The Third Circuit emphasized that Layshock’s disciplinary consequences were more serious than Doninger’s disciplinary consequences. It is important to note that in Layshock, the court stated that “in citing Doninger, we do not suggest that we agree with that court’s conclusion that the student’s out of school expressive conduct was not protected by the First Amendment there” and that the court was only citing to Doninger to respond to the school district’s contention that the Doninger case supported the school district’s disciplinary actions.

Recently, the Fourth Circuit weighed in on the discipline of a student for off-campus speech. In Kowalski v. Berkeley County Schools, a student had created a MySpace group which was primarily aimed at harassing another student, and approximately two dozen other students at the school joined the online group. The creator of the page received a 10-day suspension from school and a 90-day “social suspension” which prevented her from participating in extracurricular activities, for violating the school’s bullying policy. Citing Doninger, the Fourth Circuit held that the student’s speech “caused the interference and disruption described in Tinker as being immune from First Amendment protection”, and upheld the school’s discipline of the student.

Schools in Connecticut should be aware of the two Third Circuit decisions but understand that the Doninger case, as a Second Circuit decision, is still controlling authority for districts in Connecticut. The recent Fourth Circuit decision follows the holding in Doninger, giving credence to the Second Circuit’s approach, but is also not binding on the Second Circuit.  The Third Circuit appears to be attempting to narrow the holding by the Second Circuit in Doninger to apply only to restrictions on extra-curricular or co-curricular activities, as opposed to exclusions from school, which have historically been treated differently in legal analysis.  The Supreme Court of the United States may ultimately weigh in on this apparent split amongst the Circuits, if and when these cases are appealed. In addition, school districts should familiarize themselves with the new language and requirements added to Connecticut’s bullying statute, specifically the provisions relating to Cyberbullying, which are included in Substitute Senate Bill 1138, Public Act 11-232 and became effective on July 1, 2011.

To refresh your memory, Avery Doninger was class secretary at the time of the original incident, in which she was upset by the potential postponement or relocation of a battle of the bands event at her high school, and so she allegedly did a few things in protest: (1) in concert with others, she accessed a home e-mail account from school and caused an e-mail letter to be sent out to numerous parents and students about the alleged injustice of the actions of school officials, (2) she posted, at home, on her personal livejournal blog (using inappropriate language for school-related communications), a protest statement and a call to action for others to contact school officials, and (3) after she was banned from running for class office and others started a write-in campaign for her, she contemplated and was prohibited from wearing a Team Avery T-shirt during the assembly for candidates to make speeches.

Qualified immunity essentially protects school officials from liability for civil damages when their conduct "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known". Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).  Qualified immunity, it is noted, protects "all but the plainly incompetent or those who knowingly violate the law".  Walczyk v. Rio, 496 F.3d 139, 154 (2d Cir. 2007).  So, the primary question on this appeal was whether Avery Doninger's First Amendment rights were so clearly established that no reasonable jury could conclude anything other than school officials violated those rights.  The Second Circuit says that these questions are sometimes so nuanced and difficult, meeting this standard is exceedingly difficult: "The law governing restrictions on student speech can be difficult and confusing, even for lawyers, law professors, and judges. The relevant Supreme Court cases can be hard to reconcile, and courts often struggle to determine which standard applies in any particular case." (Slip Op. at 29-30).  Furthermore, "[the] line between the potential for 'substantial disruption of or material interference with school activities'...and the potential for less significant interference is similar to the 'hazy border' that the Supreme Court has recognized to exist between acceptable and unacceptable uses of force." Id. at 32.  Therefore, the school officials here were entitled to the benefit of the doubt and would not be subjected to a jury trial that could result in a possible award of damages for violation of the student's First Amendment rights.  While noting that a reasonable jury could find that the school principal was mistaken in her assessment of the risk of substantial disruption inherent in the student's expression, the court concluded that such a mistake would be a reasonable mistake, given the state of the law under the First Amendment.

While this means that school officials here are spared being individual defendants in a jury trial, this does not necessarily represent the last word on this case. There may still be claims pending in lower courts that will be subject to trial, and as of Tuesday, it was reported by major media outlets that the plaintiff was considering filing a petition for rehearing en banc before the entire Second Circuit Court of Appeals, or a petition for certiorari to the United States Supreme Court. Stay tuned.