Dropping the 'F bomb' on your principal

By MICHAEL KIRKLAND   |   Jan. 15, 2012 at 3:30 AM   |   Comments

WASHINGTON, Jan. 15 (UPI) -- Can an eighth-grader lampoon her principal online as a sex pervert, with liberal use of the "F bomb" and still be protected from official blowback by the free speech guarantees of the First Amendment?

A federal appeals court in Philadelphia says she just might, depending on the conditions.

The case of the eighth-grader has drawn the attention of the National School Boards Association and other educational groups, who call on the U.S. Supreme Court to hear the dispute given its importance and "the explosion of social networking."

The Supreme Court ruled in 1969 the First Amendment doesn't prohibit schools from regulating student speech they believe would be disruptive or interfere with the rights of the school or other students. In 1986, the high court ruled schools also could regulate "vulgar and lewd" speech by students.

But those cases didn't answer the question of whether the First Amendment protects student speech, even vulgar and lewd speech, that originates off campus and targets a member of the school community; or is posted online from off campus and targets a member of the school community.

The justices were scheduled to discuss the case behind closed doors last week. They could decide to review the case, as urged by the educational organizations, or leave the the appeals court ruling in place.

The Blue Mountain School District covers several communities in eastern Pennsylvania. The eight-grader, an honor student identified only as J.S. in court documents, was still smarting over two citations for violations of the dress code at Blue Mountain Middle School in March 2007 when she and a fellow eighth-grader, K.L., created a fake profile of Principal James McGonigle on the social networking Web site MySpace.

J.S. used a photo of McGonigle copied from the school's official site on the MySpace profile, court documents said, and listed his "interests" as "being a tight ass, f---ing in my office, hitting on students and their parents." The fake profile had McGonigle saying, "I love children, sex (any kind), being a dick head and my darling wife who looks like a man (who satisfies my needs)." McGonigle's nickname on the profile was "M-Hoe." The fictional principal also said his interests included "riding the fraintrain," a reference to McGonigle's wife Debra Frain, who worked as a guidance counselor at the school.

Though the profile used his photo, McGonigle's name was never mentioned. "M-Hoe" was identified as a bisexual middle school principal in Alabama.

At first the profile could be accessed by anyone; J.S. eventually limited access to about 20 students. The school district said the profile became the topic of discussion among students and claimed it disrupted some classes.

McGonigle was made aware of the profile by another student, who brought a printout of the profile to school.

After J.S.admitted she created the hoax she was suspended for 10 days.

Terry and Steven Snyder, J.S.'s parents, sued in federal court, claiming that the First Amendment barred the school district form disciplining the eighth-grader.

A federal judge granted the school district summary judgment on all claims. A three-judge appeals court panel affirmed the judge, though on different grounds.

But the entire U.S. Court of Appeals for the Third Circuit, headquartered in Philadelphia, ruled 8-6 that the school district violated J.S.'s First Amendment free speech rights when it suspended her for creating the profile.

"Because J.S. was suspended from school for speech that indisputably caused no substantial disruption in school and that could not reasonably have led school officials to forecast substantial disruption in school," the majority said, "the school district's actions violated J.S.'s First Amendment free speech rights."

A bevy of lawyers, including two from the Supreme Court Litigation Clinic at the University of Virginia's Law School, helped the district ask the Supreme Court for review. They asked that a separate but similar case from Pennsylvania's Hermitage School District be included in the high court's review.

"These cases present important and urgent First Amendment questions regarding the scope of school officials' authority over student online speech, questions that involve the rights and responsibilities of millions of students and school officials," the district's petition to the high court said. "Lower courts have given conflicting answers to these questions. The legal uncertainty is generating tremendous confusion and wasting resources in thousands of school districts across the country, where these issues arise on nearly a daily basis. At the moment, school officials are stuck between a rock and a hard place: They are responsible for protecting students and teachers from online harassment, but in doing so, they might trigger a lawsuit from a student claiming that his or her First Amendment rights have been violated."

The petition said the students in both cases "created profiles on the Internet falsely accusing their principals of, among other things, 'f---ing in [the principal's] office,' 'hitting' on students and parents and taking drugs. ... The en banc Third Circuit held that the First Amendment requires that school officials do nothing in response. This is wrong. The Constitution does not demand that school officials remain idle in the face of such vulgar and malicious attacks."

Citing 1986's Bethel vs. Fraser, the petition said "even in the age of the Internet, the Constitution does not require school officials to 'surrender control of the American public school system to public school students.'"

The friend-of-the-court brief by the National School Boards Association -- a federation of state associations of school boards representing the school board members governing approximately 15,000 local school districts serving more than 46.5 million public school students -- was even more emphatic.

The association was joined by the American Association of School Administrators, the American School Counselor Association, the Gay, Lesbian, and Straight Education Network, the National Association of Elementary School Principals, the National Association of Secondary School Principals, the Pennsylvania School Boards Association and the School Social Work Association of America.

"Social networking has fundamentally changed the nature of communication in our society and radically altered how students interact with their peers and the school community," the associations' brief said. "The ubiquity and power of this electronic forum make jurisprudential concepts such as 'off- and on-campus' analytically anachronistic."

The brief said the "difficulty of applying these and other principles from this [Supreme] Court's student speech precedents in this context is reflected in the confusing array of decisions issued by [the lower] courts in cases challenging school officials' regulation of student online speech."

The appeals court decisions in the Blue Mountain and Hermitage cases "have added to the confusion, especially in light of federal and state legislative and agency initiatives emphasizing school districts' responsibilities to address student bullying regardless of its place of origin."

Supreme Court guidance, the brief said, "is critical to assisting school officials in understanding how they may regulate the student expression that now pervades social networking forums without contravening the time-honored principles of the First Amendment."

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