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SEE YOU IN COURT! - July 2008

July 2008

Authors: Thomas B. Mooney

Bob Bombast is a veteran member of the Nutmeg Board of Education, and he relishes the role of deal-maker. During the last budget deliberations, Bob played a key role in getting the Board’s budget passed. Sadly, the price for that success was high. It had been Bob’s bright idea during budget deliberations to eliminate funding for girls’ lacrosse and girls’ badminton. The budget passed, but Bob has been pounded by the students and their parents ever since. Student athletes and their parents have spoken out at each Board meeting and urged the citizens of Nutmeg to vote Bob out of office.

Then, an anonymous caller left Bob a message telling him that he should check out the blog of Sally Student, and Bob did just that. He was horrified to see a picture of his face superimposed on the Grim Reaper, with the caption “Bob Bombast Kills Girls’ Sports.” To make matters worse, Sally’s blog included a place for postings to protest the elimination of these girls’ sports teams. Postings on Sally’s blog included a number of comments about Bob and the other Board members that ranged from vulgar to threatening. Bob immediately sent Mr. Superintendent a link to Sally’s blog with a terse message – “Call me . . . .”

Mr. Superintendent took one look at Sally’s blog and realized that he had to take decisive action. He summoned Sally and her parents to a meeting with him and Mr. Principal. At the meeting, Mr. Superintendent warned Sally and her parents that Sally would be suspended if she did not immediately take down her blog. Sally refused, stating that the Board’s eliminating the lacrosse program was devastating to her because she had been hoping to attend college on a lacrosse scholarship. Her father piped up, telling Mr. Superintendent and Mr. Principal that Bob and the others deserved what they got and worse. Moreover, he claimed, Sally and her “public” have free speech rights. But Mr. Superintendent informed Sally that she was suspended indefinitely until she takes down the blog.

Sally’s parents did not accept Mr. Superintendent’s decision. Rather, they hired local legal scourge Bill Alot, who informed them that they have two claims, not one. Bill advised that the suspension was a violation of Sally’s rights under the First Amendment. In addition, Bill gleefully explained, Title IX prohibits discrimination against girls’ sports teams. By singling out girls’ teams in the budget cuts, Bill claimed, the Board had violated Title IX. For that, he claimed, Bob and the Board would pay big. Sally’s parents promptly paid Bill his retainer, and Bill sent the standard threatening letter.

Mr. Superintendent brought copies of the letter to the next executive session of the Board, and he asked Bob and the other Board members for direction. Does Nutmeg have a problem here?

                                                               * * *

The Board does have a problem, but on the facts presented, it is not clear that Sally’s rights under the First Amendment or Title IX rights were violated.

Mr. Superintendent clearly violated Sally’s rights when he suspended her indefinitely. Any exclusion from school for more than ten days is an expulsion, and there is no provision in the law for an “indefinite” suspension. Moreover, Mr. Superintendent created an additional problem by discussing this matter with the Board in executive session. The Board members will now be hard-pressed to act as an impartial judge in any expulsion hearing. The Board members have already heard about Sally’s blog and discussed Mr. Superintendent’s decision that she be excluded from school. Accordingly, if Mr. Superintendent recommends expulsion, the Board’s only option may be to appoint a hearing officer.

In addition, the Board must be aware of its obligations under Title IX, which prohibits discrimination against persons in educational programs on the basis of gender. Elimination of two girls’ teams is not a problem per se. However, the question is whether opportunities for girls remain substantially proportionate to those for boys despite the elimination of these two girls’ teams.

The key question posed by this situation is whether and how the Board can restrict Sally’s speech on her blog. Two recent decisions of the Second Circuit Court of Appeals (the federal appellate court for Connecticut) provide some guidance. In Doninger v. Niehoff, school officials declared a student ineligible to run for class secretary after she posted vulgar statements on her blog, urging others to contact the superintendent to “piss her off more.” The court affirmed the trial court decision in favor of school officials, finding (1) that it was reasonably foreseeable that the comments would be read by other students, given the connection to school, and (2) that the comments themselves were disruptive of school operation. In Wisniewski v. Weedsport Central School District, the court considered the expulsion of a student who had created an instant messaging icon that depicted a shooting and stated, “Kill Mr. VanderMolen,” one of his teachers. While the icon was created off-campus, the court rejected the appeal, finding that it was reasonably foreseeable that students would see the icon, and that the IM icon was a threat not protected by the First Amendment.

From these cases, we can draw some general conclusions. First, to have jurisdiction to take disciplinary action, school officials must connect off-campus student conduct to school operation. When the conduct relates directly to school affairs, as was the case in both Donniger and Wisniewski, school officials may take disciplinary actions in the normal course. By contrast, if the conduct does not directly relate to school (e.g., off-campus criminal behavior), the off-campus conduct must be seriously disruptive of the day-to-day operation of the school (the Packer standard) or it must fall within the mandatory expulsion provisions of state law (e.g., sale of drugs).

Second, threats of any sort must be taken seriously, and school officials may take disciplinary action against students who make threats, on or off campus. It may even be appropriate to report some threats to the police for possible prosecution.

Finally, students continue to have significant free speech rights. As infuriating as it may be, vulgarity alone is not generally seen as disruptive, even if the vulgar comments are directed at board members or school administrators. While the Doninger court refers to the possibility of regulating vulgarity, it decided the case on the basis of the Tinker standard, finding that the student’s speech was not protected because it was disruptive of the educational process. At this point, we simply don’t know whether and when school officials can regulate vulgar speech off campus. Stay tuned.

Thomas B. Mooney is a partner in the firm's Labor and Employment Law Practice and heads the firm's School Law Practice.

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