Posts tagged freedom of expression

Tony Orsini, the Ridgewood principal, learned about a devastating Facebook group last November, two months after it started.

“I had a 45-year-old father crying in my office,” Mr. Orsini said. “He kept asking, ‘Why would someone do this to my son?’ ”

A Facebook page had sprung up about the man’s son, who was new in town. The comments included ethnic slurs, snickers about his sexuality and an excruciating nickname. In short order, nearly 50 children piled on, many of them readily identifiable. “Kids deal with meanness all the time and many can handle it,” said Mr. Orsini, 38, a father of two children. “But it never lasts as long as it does now, online.”

The boy could not escape the nickname. At soccer and basketball games around town, opposing players he’d never met would hoot: “Oh, you’re that kid.”

The boy began missing school. He became ill. After weeks, he reluctantly told his parents.

“We don’t always get to address these problems until the damage is done,” Mr. Orsini said.

Because the comments had been made online and off-campus, Mr. Orsini believed that his ability to intervene was limited.

Rulings in a handful of related cases around the country give mixed signals.

A few families have successfully sued schools for failing to protect their children from bullies. But when the Beverly Vista School in Beverly Hills, Calif., disciplined Evan S. Cohen’s eighth-grade daughter for cyberbullying, he took on the school district.

After school one day in May 2008, Mr. Cohen’s daughter, known in court papers as J. C., videotaped friends at a cafe, egging them on as they laughed and made mean-spirited, sexual comments about another eighth-grade girl, C. C., calling her “ugly,” “spoiled,” a “brat” and a “slut.”

J. C. posted the video on YouTube. The next day, the school suspended her for two days.

“What incensed me,” said Mr. Cohen, a music industry lawyer in Los Angeles, “was that these people were going to suspend my daughter for something that happened outside of school.” On behalf of his daughter, he sued.

Last November, Judge Stephen V. Wilson of Federal District Court found that the off-campus video could be linked to the school: J. C. told perhaps 10 students about it; the humiliated C. C. and her mother showed it to school officials; educators watched it and investigated.

But the legal test, he wrote in his 57-page decision, was whether J. C.’s video had caused the school “substantial” disruption. Judge Wilson ruled in favor of the young videographer, because the disruption was only minimal: administrators dealt with the matter quietly and before lunch recess.

This legal test comes from a 1969 Supreme Court case, Tinker v. Des Moines Independent Community School District, in which a school suspended students for wearing black armbands to protest the Vietnam War.

The court overturned the suspension, but crafted a balance between a school’s authority and a student’s freedom of expression. When a student’s speech interferes substantially with the school’s educational mission, a school can impose discipline.

The district had to pay J. C.’s costs and lawyers’ fees: $107,150.80.

Judge Wilson also threw in an aside that summarizes the conundrum that is adolescent development, acceptable civility and school authority.

The good intentions of the school notwithstanding, he wrote, it cannot discipline a student for speech, “simply because young persons are unpredictable or immature, or because, in general, teenagers are emotionally fragile and may often fight over hurtful comments.”

The lesson Mr. Cohen hopes his daughter learns from the case is about the limits on governmental intrusion. “A girl came to school who was upset by something she saw on the Internet,” Mr. Cohen said in a telephone interview, “and these people had in their mind that they were going to do something about it. The school doesn’t have that kind of power. It’s up to the parents to discipline their child.”

He did chastise his daughter, saying, “That wasn’t a nice thing to do.”

He describes her video as “relentlessly juvenile,” but not an example of cyberbullying, which he said he did not condone. His daughter offered to remove it from YouTube. But Mr. Cohen keeps it posted, he said, “as a public service” so viewers can see “what kids get suspended for in Beverly Hills.”

The J. C. decision has ignited debate. Nancy Willard, an Oregon lawyer who consults with schools, said that the judge could have applied another, rarely cited prong of the Tinker standard: whether the student’s hurtful speech collided with “the rights of other students to be secure.”

The Supreme Court has not yet addressed online student speech. Lower-court judges in some districts have sided with schools that have disciplined students for posting threatening videos about educators from their home computers.

In two recent cases, students were suspended for posting parodies of their principals. Each case reached the Court of Appeals for the Third Circuit. But one three-judge panel sided with a school for disciplining a student whose site suggested the principal was a pedophile; another panel sided with its case’s student, whose site suggested the principal used steroids and smoked marijuana. To resolve the contradictory rulings, both cases were re-argued earlier this month before 14 judges on the Third Circuit, whose jurisdiction includes New Jersey, Delaware, Pennsylvania and the United States Virgin Islands.

Nationwide, principals have responded to students who demean others online in dramatically different ways.

In January, 28 Seattle middle school students who wrote noxious comments on Facebook about one student received suspensions. The school also held assemblies about digital citizenship.

But when the mother of a seventh-grade boy in Fairfax County, Va., who requested anonymity to protect her son’s identity, sent his principal the savage e-mail messages and Facebook jeers that six boys posted about her son, the principal wrote back that although the material was unacceptable, “From a school perspective this is outside the scope of our authority and not something we can monitor or issue consequences for.”

Many principals hesitate to act because school discipline codes or state laws do not define cyberbullying. But Bernard James, an education law scholar at Pepperdine University, said that administrators interpreted statutes too narrowly:

“Educators are empowered to maintain safe schools,” Professor James said. “The timidity of educators in this context of emerging technology is working to the advantage of bullies.”

Whether suspension is appropriate is also under discussion. Elizabeth Englander, a psychology professor at Bridgewater State College in Massachusetts and founder of the Massachusetts Aggression Reduction Center, believes that automatic discipline for cyberbullies is wrong-headed.

“We tend to think that if there’s no discipline, there’s no reaction,” she said. “But discipline should never be the only thing we consider in these cases. There are many things we can do with children first to guide and teach them about behavior and expectations.”

Tony Orsini wanted to help his middle school student who was being teased mercilessly on Facebook. But he believed he had to catch the bullies at school.

He alerted teachers. At lunch, they spotted the three ringleaders as they forced the boy from their table.

“I called them into my office,” Mr. Orsini said, “and talked to them strongly about the lunchroom incident. Then I lied. I said I heard that the cops were looking at a Facebook group they had posted.

“It came down the next day.”

He rubbed his face in his hands. “All we are doing is reacting,” he said. “We can’t seem to get ahead of the curve.”