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Tuesday, July 17, 2007

Students Should Be Seen, Not Heard

How Appealing notes an interesting new lawsuit by a high school student barred from student government for writing a personal blog post calling her school administrators "douchbags" (sic) for cancelling a school event.  This is a subject near and dear to my heart: in 11th grade, I published a school newspaper column criticizing my principal's "totalitarian tendencies" (which was published only after a lo-o-o-ng negotiation session with our faculty advisor, who nevertheless ended up adding, after my "totalitarian" sentence, an additional, out-of-place more conciliatory sentence to "my" article without telling me).

(Before I get to the legal doctrine here:  If you're a government official, is there any better way to prove you're a douch[e]bag than by punishing a teenager for calling you a douchbag on a blog?  If I were the student, I'd be tempted to make the first named plaintiff in my case the unincorporated association, "Students Against Douchebag Bureaucrats," just to make that nomenclature a permanent addition to the web.)

With Morse v. Frederick allowing punishment of a student for his "cryptic" (Chief Justice Roberts's words) "BONG HiTS 4 JESUS" sign, I'm not sure I could win that battle today, and I'm equally unsure about the douchbag-posting student's claim today.  She also may have a problem with two other precedents, though:

(1) Bethel v. Fraser, another fun student speech case (aren't they all fun?), the one in which Matt Fraser was punished for giving a student government speech laced with sexual double entendres (calling people "douchbags" is arguably worse); and

(2) San Diego v. Roe, in which the Court allowed punishment of a police officer for entirely off-duty risque web activities, because those activities involved odd uses of police equipment (again, the First Amendment case law sure is fun -- it's all sex and klansmen and drug-addled bong-boosters) -- which seems relevant to whether a student can be punished for out-of-school speech that nevertheless was about the school.

Relatedly, I've had a brief stroke of very minor luck: I may have the first law review article commenting (verrry briefly) on Morse v. Frederick, better known as the "BONG HiTS 4 JESUS" case; as of last week, I had an existing article at the proofs stage (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=969794) on how the First Amendment applies in three different institutional contexts -- one of them being public schools.  The Editor in Chief was nice enough to let me insert a brief mention and critique of the case -- that Morse, in saying speech can be punished whenever a school official reasonably thinks it could be construed as pro-drug, contrasts starkly with the Brandenburg v. Ohio rule that speech can be suppressed for encouraging illegality only when the speech intended to, and is likely to, produce imminent lawless action.  Justice Stevens's dissent hit the latter two points -- greater "BONG" use was neither a likely nor imminent result of the student's wacky sign -- but it strikes me that the "intent" element is problematic too: Chief Justice Roberts conceded that the sign's message was "cryptic," which seems to undercut any finding that the school proved that the student "intended" to produce lawless action.

UPDATE:  Appellate Law & Practice notes a point I'd neglected: that the school's initial defense arguments, cited in the article I link above, aren't promising (they "make no sense," s/he writes):

Niehoff told WVIT-TV in May that school leadership positions are a privilege, not a right.

"When kids are in a position of privilege, there are certain standards of behavior we expect them to uphold," she told Channel 30. "Our position stands for respect. We're just hoping kids appreciate the seriousness of any communication over the Internet."

Feel free to issue-spot the many holes in these "arguments."

Posted by Scott on July 17, 2007 at 12:40 PM | Permalink


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Tracked on Jul 17, 2007 1:06:06 PM



In my haste to rag on Scott, I probably didn't make the hypo clear enough. Yeah, there is a slippery slope/always an argument that a kid's speech insulting a teacher could always be disruptive. But, as others have said, kids are always mocking teachers behind their backs. So, finding that sort of thing disruptive enough to overcome its value in the First Am. balancing would be a dangerous/overinclusive path to go down.

Of course we're assuming that the speech, in addition to the insult, also has some First Am. value. Otherwise, the decision to discipline or not is really just a policy call by the school, not a legal matter.

Assuming we do have to show the speech is sufficiently disruptive, there are a number of factors to look at, on-school/off-school being just one of them. Unless we think that the Bong Hits for Jesus cass makes a bright-line rule that off-school stuff can't be disruptive.

Posted by: Joseph Slater | Jul 19, 2007 10:07:49 AM

If you want truly disturbing check out this school suspension.


Posted by: Matt | Jul 18, 2007 9:17:03 PM


I guess I misunderstood your hypo just a touch, I thought in your case, the teacher happened to be present at the house where they were talking about him. Without the teacher present, I obviously think you are correct in that this is protected speech but how far removed is it from my case description. If I tell my friend bob that Mr. Jones is a douchebag in my house and he laughes and tells everyone at school the next day what I said, how is that any less disruptive than flipping off the principal at Wal-Mart with a couple of friends looking on later in the day. The effect is the same, I have challenged my principal's authority publicly.

Posted by: Matt | Jul 18, 2007 4:48:43 PM


That's interesting, thanks for the case description. As you describe it, the student was doing something directly to the teacher, which is different than my example of a student talking to other student's at her home or otherwise behind the teacher's back (which, of course, many students do). But to the extent I was making a distinction between behavior on and off school property, yeah, I guess there should be a third category of "off school property but directed toward teachers/school officials, especially if other students are present.

Posted by: Joseph Slater | Jul 18, 2007 2:09:53 PM

I do not read too much into the principal's comments. She was not making a legal argument (at least I sure hope not). She was spinning, hopping to gather and maintain popular support for her actions. And throwing hortatory words like "privilege" and "respect" and "appreciat[ing] seriousness of communication" around is rhetorically effective in getting the public to forget about the underlying issue of self-expression and the need to criticize public authority.

Re: Joseph's point about in-school v. out-of-school: This is going to be the key issue in many case. The internet makes it that much easier for schools to call everything in-school and thus disruptive--and courts, already frightened of the internet, may go along. Pre-internet, there always was a chance that out-of-school comments could find their way in school--one of the students at the house relayed the conversation, someone brought the flyer into school (there are some mid-90s cases involving self-published newsletters critical of the school administration). Post-internet, courts are likely to say everyone is on notice that her speech will be seen widely and will make its way into school. There was a case last spring near Seattle where a student secretly video-recorded his teacher i(and himself making suggestive motions and gestures towards her) in class, then posted the video on YouTube. The district court denied a preliminary injunction, finding that this was disruptive. But the disruption was caused by his out-of-school posting of the video. No one knew if there was an in-class disruption during filming--the court assumed there was after seeing the video posted outside of school.

Finally, this could test the boundaries of Justice Alito's concurring opinion in Morse (widely viewed as the controlling opinion) that attempted to give wide berth to political speech. In context, this pretty clearly is political speech--criticism of those in authority for a governance decision. But a judge trying hard enough to avoid finding political content in a statement (say, C.J. Roberts in *Morse*) could look at this and call it nothing more than a petty insult using a meaningless word that conveys no idea or message of advocacy and simply offends for its own sake--which is disruptive of the school.

Posted by: Howard Wasserman | Jul 18, 2007 11:52:01 AM


I am working on the rewrite of a book on educators and the law that for one of my profs. I am pretty sure I can find it, but it will have to wait till I get home from work tonight.

P.S. I think my original post was directed to Joseph, my bad on reading the signature.

Posted by: matt | Jul 18, 2007 11:50:25 AM

Matt, Was that a 2d Circuit case? I know that I have not been too good about citing in this thread, but maybe you could let me read that one. I never heard of it, and I thought I had a good handle on these.

Posted by: S.cotus | Jul 18, 2007 10:52:40 AM


I disagree with your hypo. There is a case out there where a kid flips off one of his teachers at the mall in front of several of his classmates. He is brought into school and disciplined and the court said that was ok, because he was undermining the authority of the school official.

Posted by: Matt | Jul 18, 2007 9:33:49 AM

“That "it's a privilege not a right" line was used on me and my not-always-entirely-deferential group of friends by high school officials back in the friggin' 1970s, so it must be either hardwired or part of the manual.”

Strangely, it is part of the manual, but also virtually unknown to American jurisprudence.

Posted by: S.cotus | Jul 17, 2007 11:15:08 PM

Re the disruption point, this could be another situation in which material available on the internet doesn't fit neatly into rules and practices which make explicit or implicit distinctions between written and oral speech. If Student X calls her teacher (let's call him "Moss") a douchebag at her house, even if most or all of her classmates were present, we probably wouldn't find that sufficiently "disruptive" to overcome any protection the speech might have. But if she's passing out fliers as students are walking to school that say, "Moss is a douchebag," there's an argument she is being disruptive, even if she's just outside school property when she's doing it.

Where does a blog entry fit on this? Presumably, some students can access it from some parts of the school, but presumably at least as many are reading it from their homes or friends' houses. So, how does this new-fangled technology cut, re the "disruption" factor?

Posted by: Joseph Slater | Jul 17, 2007 10:43:36 PM

I think that Scott's reluctance to seek punishment amplifies my point on policy - usually we only circumscribe free speech when there is a serious and compelling policy to be protected or promoted. Are we really to believe that a school is going to be in serious trouble if a student calls an administrator a douchebag on a non-school blog or even where a student holds up a tongue in cheek bonghits sign?

While I recognize that a line has to be drawn somewhere, it seems that in these cases courts are undermining a serious Constitutional freedom in order to affirm and promote bureaucratic actions that, quite frankly, seem a little impulsive and based in personal motivations. Taken to their logical end, the freedoms of the Constitution seem contingent on pacifying highly discretionary actions by state bureaucrats.

Fortunately, I haven't been called anything too insulting in a student evaluation, but I swear if anyone ever called me a "Moss-Slater," then I might have to file a complaint.... ;-)

Posted by: Jeff Yates | Jul 17, 2007 10:30:52 PM

Jeff poses a verrrry interesting hypo about a public school (like his or mine, for example) punishing students for offensive or intemperate online posts. What's interesting is that I couldn't imagine seeking punishment against a student who called me an offensive name. I suppose ethnic or sex-based epithets would be an exception... but the student in the case we're discussing clearly meant "douchebag" in the same vague negative sense that you might call someone "vile," "jerk," "asshole," or "Joe Slater"; the only difference between those terms is degree of vociferousness, which shouldn't be enough for a public entity to impose punushment.

Posted by: Scott Moss | Jul 17, 2007 9:30:33 PM

(1) That "it's a privilege not a right" line was used on me and my not-always-entirely-deferential group of friends by high school officials back in the friggin' 1970s, so it must be either hardwired or part of the manual.

(2) Moss is a douchebag. Sue me!

Posted by: Joseph Slater | Jul 17, 2007 9:18:20 PM

I think that Paul (and S.cotus) make some excellent points on this matter. I tend to think about such matters from a policy standpoint as much as legal doctrine, and so I tend to question some of the underlying rationales. If the doctrine for non-school related conduct is whether it causes "material and substantial disruption," then what is, realistically, the trigger behavior? Yes, we take cases on their facts as they come (without setting encompassing rules or guidance), but in this situation it seems that courts have chosen to allow imprecise language to place First Amendment protections in jeopardy (or at least causing a chilling effect?).

As a policy matter, does this decision give school officials largely unchecked authority (or auth-thor-it-tae) to quash any sharply worded student criticism of their actions? Is it really all about vulgarity? Is "douchebag" *really* that vulger? (It's not one of George Carlin's "dirty words"); and finally, should Scott's high school diploma be retroactively revoked for his inflammatory "totalitarian" comment? ;-)

Finally, a quick hypo - a number of college students write very harsh and insulting comments about a prof on a "ratemyprofessors" type website (that does not protect anonymity). A university administrator disciplines the students, arguing that their comments cause "material and substantial" disruption of classes. What outcome?

Posted by: Jeff Yates | Jul 17, 2007 9:03:18 PM

Unfortunately, I am going from memory here, but there are a couple of cases which hold that where the off-campus activity creates a real risk that the school's auth-thor-it-tae and ability to main-tain order is threatened, they can act to remove the student. But, in this case, they didn't act to remove the student, but rather to discipline the student by keeping her IN the school, but just trying to diminish her political influence (which is arguably constitutionally protected as well).

In looking at that stupid rights v. privileges quote, I am beginning to think that the school just bought themselves a loss on this one, unless the officials can claim that they were misquoted. They seem to be asserting that they have an unrestrained right to inhibit expression of certain students for any reason at all, which is not the law.

Also, in most of these school cases, there is vagueness issue.

Posted by: S.cotus | Jul 17, 2007 8:00:05 PM

But this is off campus speech (unlike Morse which - at least according to the court - was at a school sponsored event). The school has no authority here at all.

Posted by: anon | Jul 17, 2007 7:31:24 PM

Strangely, I think that any "disruption" already existed.

Also, (and I have not researched this), I don't think the school has as much interest in preventing disruptions to non-scholastic activities.

But, who do these administrators think that they are kidding -- OF COURSE students will have bad things to say about them -- and OF COURSE, they will say them on the internet! Moreover, students HAVE BEEN saying bad things about schools on the internet from the first time someone got a CompuServe (or access to Fidonet). Yet, despite the fact that students have been talking trash, very few schools have descended into anarchy because someone called the principal a douche bag.

Posted by: S.cotus | Jul 17, 2007 7:09:15 PM

I would like a court to simply hold there is no right for school bureaucrats to be douschebags in the Constitution and remand on that basis.

Posted by: Hate School Officials Now! | Jul 17, 2007 4:22:57 PM

My thoughts are that the student might lose regardless of Morse. I think you are permitted to engage in political speech that doesn't cause a material and substantial disruption post-Tinker, but that right is tempered by the Fraser limit on using profane language and the school's right to insist on decorum in debates before impressionable audiences. The Court said in Fraser: "Surely it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse." Certainly, "douchbags" is a vulgar and offensive term to many (but perhaps not to Scott given his hardened NYC persona :) )

Also see Poling v. Murphy, 872 F.2d 757 (6th Cir. 1989), a case involving a high school student disqualified from a school election because of "rude" and "discourteous" remarks: "The art of stating one's views without indulging in personalities and without unnecessarily hurting the feelings of others surely has a legitimate place in any high school curriculum, and we are not prepared to say that the lesson Unicoi High tried to teach Dean Poling and his captive audience was illegitimate."

Further, I think City of San Diego is inapplicable because it is a public employment case, not a student case. The courts have been increasingly unwilling to apply Pickering and its progeny outside of the public employment context.

The student's best argument is that use of the Internet outside of the school instructional program may be beyond the reach of school regulation. For a student-friendly precedent, see Buessink v. Woodland R-1 Sch. Dist., 30 F. Supp. 2d 1175 (E.D. Mo. 1998) (homepage created by student at home including crude and vulgar language about high school officials protected by First Amendment under Tinker).

Posted by: Paul M. Secunda | Jul 17, 2007 4:21:06 PM

I think this student still wins post-Morse, simply because the student was engaging in some actual kind of political critique. "Elsewhere in its opinion, the dissent emphasizes the importance of political speech and the need to foster 'national debate about a serious issue,' post, at 16, as if to suggest that the banner is political speech. But not even Frederick argues that the banner conveys any sort ofpolitical or religious message."

The problem is that non-lawyer administrators are emboldened by Morse.

Posted by: S.cotus | Jul 17, 2007 12:57:35 PM

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