How Much Should Schools Police Off-Campus Facebook Speech?

Lawyer Wendy Kaminer argues that three Griffith girls expelled for conversation on Facebook have very strong First Amendment case.

Wendy Kaminer, writing in the Atlantic, talks about the increasingly common issue of schools disciplining students for things they say off campus. Schools, universities and workplaces have been struggling to catch up and adjust to social media, and in some cases their reaction to students and employees personal pages has been draconian. At some point it was bound to come to a head and be challenged in court, and now a lawsuit has been filed against Griffith Public Schools on behalf of three girls expelled for a brief Facebook conversation that took place outside school hours, off campus and didn’t involve the use of school owned computers.

the conversation spanned numerous subjects, from the pain of cutting oneself while shaving to the girl’s friendship, before turning to a discussion of which classmates they’d like to kill if they had the chance. At all times, the conversation was purely in jest … as is evidenced by the girl’s repeated use of ‘emoticons’ … abbreviations (like lol) and consistent capitalization intended to represent sarcasm.

The school principal and the ‘expulsion examiner’ both agreed that the three girls should be expelled, despite the protests of one of the ‘victims’ who said he understood the girls had just been joking and had no wish to see them punished.

Ms Kaminer, herself a lawyer, argues that the students have a strong First Amendment case. Despite the fact that student speech rights can be seen to have been eroded since being upheld in a 1968 Supreme Court decision she notes that there is relatively recent case law that accepts that there is no ‘categorical harassment exception’ to the First Amendment and the Griffith rulebook is full of overly vague terms. Also, while schools are required to protect students from harassment this is not a mandate to ignore the First Amendment.

The former Griffith students expelled for their Facebook chatter had not, therefore, been stripped of all speech rights by virtue of their status as students, and those rights should easily prevail over any professed concerns about harassment. Their speech didn’t qualify as harassment, even under the broadened, potentially censorious standards issued by the Obama Administration. It was not “severe, pervasive, or persistent” and apparently presented no bar to any student’s access or opportunities.

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