2011 General Assembly Update - Virginia Association of Secondary ...

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at a school-sponsored event and that caused no substantial disruptionat school…. An opposite holding would significantly broaden schooldistricts’ authority over student speech and would vest school officials withdangerously overbroad censorship discretion.Court Upholds Discipline of Student over Internet BullyingThe most recent case is one from the 4 th Circuit Court of Appeals, which includes Virginia, wherethe court upheld the school discipline of a student who allegedly bullied a classmate with anInternet page describing her as a “slut” with herpes. Information about the case noted below isedited from the Education Law Association’s School Law Blog.“Such harassment and bullying is inappropriate and hurtful and ... it must be taken seriously byschool administrators in order to preserve an appropriate pedagogical environment,” said theunanimous opinion by a three-judge panel of the U.S. Court of Appeals for the 4th Circuit, inRichmond, VA.The 4th Circuit case involves a student who was disciplined for creating a MySpace pagetargeting another student at Musselman High School in Berkeley County, WV. According tocourt papers, in 2005 the student created a page called “Students Against Sluts Herpes” andinvited other MySpace participants from her school to join it. About two dozen Musselman Highstudents joined the group, including one who accepted his invitation on a school computer. Thatmale posted photos of the female student who was the target of ridicule by the group.The parents of the targeted girl complained to school officials, who disciplined the creator of thewebsite. School officials concluded that the student had created a “hate” website in violation ofschool policies against harassment, bullying, and intimidation. She was suspended from schoolfor five days and given a “social suspension” of 90 days, meaning she was barred from certainschool activities, including the cheerleading squad.The student sued the Berkeley County school district and various officials, alleging that she waspunished for speech that was created outside of school in violation of the First Amendment.A federal district court granted summary judgment to the defendants. In its July 27 opinionin Kowalski v. Berkeley County Schools, the 4th Circuit court also upheld the right of schooladministrators to punish such harassing behavior.“Kowalski used the Internet to orchestrate a targeted attack on a classmate, and did so in amanner that was sufficiently connected to the school environment as to implicate the schooldistrict’s recognized authority to discipline speech which materially and substantially interfereswith the requirements of appropriate discipline in the operation of the school and collides withthe rights of others,” the court said, citing language from Tinker v. Des Moines IndependentCommunity School District, the landmark U.S. Supreme Court decision on student speech rightsin school.While Kowalski created the MySpace group at home, she knew that the group would includefellow Musselman High students and that the discussion targeting a female student would resultin fallout at school, the court said. “Given the targeted, defamatory nature of Kowalski’s speech,aimed at a fellow classmate, it created actual or nascent substantial disorder and disruption inthe school,” the court said.A PUBLICATION OF THE VIRGINIA ASSOCIATION OF SECONDARY SCHOOL PRINCIPALS, INC.Copyright © 2011 by the Virginia Association of Secondary School Principals, Inc. All rights reserved.
The court called the “S.A.S.H.” web page “particularly mean-spirited and hateful” and expresseddisapproval that Kowalski sued school officials rather than “respond constructively to theschool’s efforts to bring order and provide a lesson after the incident.”“School administrators are becoming increasingly alarmed by the phenomenon” of harassmentand bullying, the court said. “Where such speech has a sufficient nexus with the school, theConstitution is not written to hinder school administrators’ good faith efforts to address theproblem.” (Editor’s Note: In making their decisions, the federal courts still rely on the fourmajor United States Supreme Court student freedom of speech cases: Tinker v. Des Moines,393 U.S. 503 (1969), Bethel v. Fraser, 478 U.S. 675 (1986), Hazelwood v. Kuhlmeier, 484 U.S.260 (1988), and Morse v. Frederick, 551 U.S. 393 (2007). Lower courts have generally ruled infavor of the student in these cyberbullying cases unless school officials can show a significantdisruption on school operations. The most recent case in the 4 th Circuit, Kowalski v. BerkeleyCounty, No. 10-1098 (4 th Cir. July 27, 2011), is very important for all Virginia principals. It is,however, always best before disciplining students for off-campus speech to talk to the divisionsuperintendent and to seek competent legal counsel).Dear Colleague LetterOFFICE OF CIVIL RIGHTS GUIDANCE DOCUMENTU.S. Secretary of Education Arne Duncan sent a “Dear Colleague” letter this summer to schooldistricts nationwide warning school officials against taking steps to ban students from forminggay-straight alliances and similar support groups in their schools. The letter states: “Officialsneed not endorse any particular student organization, but federal law requires that they affordall student groups the same opportunities to form, to convene on school grounds, and tohave access to the same resources available to other student groups.” The letter is basedon the Equal Access Act and references the verbal and physical abuse these students oftenexperience. (Editor’s Note: Federal courts have consistently found in favor of these studentgroups when schools have denied them the opportunity to form. Should a request be submittedin a school, principals should talk with the superintendent before making a decision).About the EditorRoger E. Jones (rjones@vassp.org) has been the Director of the Virginia Association ofSecondary School Principals Center for Educational Leadership at Lynchburg College since2003. Dr. Jones is a former VASSP president and has served as an assistant superintendentand principal at the middle and high school levels. He has been VASSP’s legal editor since1988.For More InformationFor more information about the impact of laws passed by the Virginia General Assembly,policies and regulations passed by the Virginia Board of Education, and laws passed byCongress, log-on to VASSP’s website at www.vaprincipals.org. Postings are made regularly onthe website by VASSP Director of Government Relations Elizabeth “Bet” Neale(bneale@vassp.org). Ms. Neale and VASSP Executive Director Dr. Randy Barrack(rbarrack@vassp.org) are General Assembly lobbyists.A PUBLICATION OF THE VIRGINIA ASSOCIATION OF SECONDARY SCHOOL PRINCIPALS, INC.Copyright © 2011 by the Virginia Association of Secondary School Principals, Inc. All rights reserved.
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