Saturday, December 22, 2018

by Anna Salvatore

My high school was submerged in scandal last week. I won’t name any names, but one of my classmates allegedly posted racist messages to his Snapchat story. The messages included “Fuck n—–s,” “Who wants to get lynched?”, and a scrawled statement that a black classmate is a monkey. The perpetrator is suspended from school for the next ten days, and there’s a chance he’ll be expelled.

All of this talk has me wondering: what are the constitutional grounds for punishing public school students for their online, off-campus speech?

Lower court judges mainly look to Tinker v. Des Moines, which provides that students’ conduct, “in class or out of it, which for any reason—whether it stems from time, place, or type of behavior—materially disrupts classwork 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 key phrase is “in class or out of it,” which many judges understand as applying to off-campus speech.

That’s what the Ninth Circuit understood in LaVine v. Blaine School District (2001), where it upheld eleventh grader James LaVine’s expulsion for writing violent poetry. Even though James’s poem was written off campus, and it was unrelated to any school assignment, its content had troubling implications for his classmates’ safety. “As I approched, the classroom door, I drew my gun and, threw open the door, Bang, Bang, Bang-Bang,” James wrote. “When it all was over, 28 were, dead, and all I remember, was not felling, any remorce, for I felt, I was, clensing my soul.” The Ninth Circuit barely addressed speech’s off-campus nature, instead holding that the expulsion was constitutional under Tinker because Blaine officials could reasonably foresee “substantial disruption… or material interference with school activities” if James continued attending school. The substantial disruption test seems to be a popular and relatively easy to prove method of declaring off-campus speech unprotected.

Another helpful case is Hannibal School District v. D.J.M. After tenth grader D.J.M. sent threatening text messages to a classmate, he was placed in juvie, evaluated in a psychiatric hospital, and suspended for the rest of the school year. The Eighth Circuit affirmed his suspension for two reasons. The first reason, as I mentioned a couple paragraphs ago, is that his threatening texts could be reasonably foreseen to create “substantial disruption” to his school. This isn’t a radical assumption – D.J.M. had been speculating about how to purchase a gun and which classmates he might shoot. The other reason is that his speech was deemed an unprotected true threat.

True threats are linked with Watts v. United States, in which a young anti-war protester named Watts was prosecuted for threatening President Lyndon Johnson. Watts said that if he got drafted, LBJ would be the first person he killed. The justices ruled for Watts because his remarks were mere “political hyperbole,” and in their per curium opinion, they gave three factors for determining whether speech is a true threat: 1) the context of the statements, 2) how listeners reacted, and 3) whether the threat was conditional. Because Watts was participating in a political debate, because his statement was conditional upon joining the armed forces — which he said would never, ever happen — and because both he and the crowd laughed after his statement, the Supreme Court didn’t think that his threat was grave enough to be a true one.

The justices elaborated on true threats in Virginia v. Black in 2003, finding that states can outlaw cross-burning that is intended as a threat rather than symbolic expression. “While a burning cross does not inevitably convey a message of intimidation,” wrote Justice O’Connor, “often the cross burner intends that the recipients of the message fear for their lives. And when a cross burning is used to intimidate, few if any messages are more powerful.”

I won’t try to analyze the incident at my school under the frameworks of substantial disruption or true threats — that might be illegal. But if the Snapchat incident does end up in court, I’ll be curious to see whether Tinker and Watts are thrown around.

If you’re looking for a sample opinion on off-campus speech, I recommend Judge Jon Newman’s opinion in Wisniewski v. Bd. of Ed. of Weedsport Central School Dist. He addresses the off-campus aspect of Aaron Wisniewski’s speech almost as an afterthought,  dispatching it in under a page, and then he makes the important point that proving substantial disruption is much easier than satisfying the three elements of Watts.

Thanks for reading, and best wishes for Christmas and the New Year.


One thought on “Saturday, December 22, 2018

  1. Compulsory school attendance statutes require parents to send their children to a state approved school or have their homeschool curriculum approved by the state giving the state power to direct the intellectual development of future voters.

    Thomas Jefferson considered compulsory attendance in 1817 and wrote, “It is better to tolerate the rare instance of a parent refusing to let his child be educated, than to shock the common feelings and ideas by the forcible asportation and education of the infant against the will of his father.”

    The first U.S. compulsory attendance statute was passed in 1852 in reaction to the Irish and German immigrants.

    Our Constitution isn’t a law, it’s an ideal, a goal. “Those who won our independence believed that the final end of the state was to make men free to develop their faculties;… They believed that the freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile…” Justice Brandeis, 1927

    The United Nations Declaration of Human Rights, 1946, distinguishes education from school attendance saying elementary education shall be compulsory and that, “Parents have the prior right to choose the kind of education that shall be given to their children.”

    Maybe someday we will realize the dream of the state as “we the people” but we aren’t there yet; “we the corporations are people, my friend” doesn’t have the same ring.

    Schools are not prisons. Prisons control how a person acts, schools control how a person acts, speaks and thinks. Prisons control what you are allowed to read, schools control what you are required to read. Parents who have different plans for their children will be prosecuted; I was.

    Parents are forced to surrender their children to state actors who compel belief, coerce consciousness and command compliance. Prisoners, in theory, are being punished for their crimes.

    When the state controls the intellectual development of citizens, then democracy, free speech and liberty itself are illusions.


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