The insult was written after Tobolski was given an unusually heavy amount of biology homework. He wrote the comments on his home computer and after school hours. The first amendment did not stop Mesa Verde High School Principal Rick Messer from punishing Tobolski.
There is no question that his comments were inappropriate and disrespectful. There is no question that Messer should have called the parents and that they should have assured him that they would punish Donny and guarantee that he remove the posting. However, the use of suspension raises serious free speech issues.
We have seen a steady erosion of the free speech rights of students in the last decade. The Supreme Court accelerated that trend in its Morse decision. Former JDHS Principal Deb Morse suspended Frederick in 2002 during the Olympic Torch Relay for holding up a 14-foot banner across from the high school that read “Bong Hits 4 Jesus.” The case ultimately led to the Supreme Court which ruled in Morse v. Frederick ruling in 2007 for the Board — a decision that I strongly disagreed with and one that has encouraged over-reaching by school officials into protected areas. Frederick, however continued to litigate, claiming among other things that his first amendment speech rights were violated under the Alaskan Constitution.
For a copy of the Morse decision, click here.
Civil libertarians hoped that Obama would appoint someone with a strong commitment to free speech and student rights. However, he appointed Sonia Sotomayor who was heavily criticized on the Second Circuit for her role in the Donniger case where she ruled against high school student Avery Doninger who contested her punishment for posting an objectionable message on an Internet site about Lewis Mills High School. When she objected to the cancellation of a school event in vulgar terms, school officials barred her from running for Senior Class secretary. In Doninger v. Niehoff, the Second Circuit upheld the right of school officials to punish students for out-of–school speech in a major blow to both the first amendment and student rights.
Increasingly, school officials are assuming the authority to police the out-of-school statements of students and punishing speech that they find objectionable (here). Teachers have also been disciplined for their own after-hours postings (here) and here).
We are raising a new generation of citizens in this increasing authoritarian environment of unchecked and at times capricious authority.
Source: ACLU
Jonathan Turley