Rhode Island education department rejects student’s First Amendment appeal

RHODE ISLAND — After losing a First Amendment appealwith the state Department of Education, high school sophomoreDerek Dubois is serving the remainder of a 10-day suspension fora song he wrote about his eighth-grade English teacher.

"In our opinion," the decision states, "thesong that [Dubois] has made available to the entire CumberlandHigh School community is not only a degrading personal assaultagainst [the teacher], it is a vile subversion of her role asa teacher."

Cumberland High School had suspended Dubois, then a freshman,based on the district’s sexual harassment policy. The song’s lyricsincluded sexual references to the teacher, which the school citedas a violation of its sexual harassment policy.

Dubois made the song available through Napster, a file-sharingservice, where several students downloaded and listed to it. Accordingto the Department of Education decision, as the song’s popularityspread, one student brought a copy of the recording on compactdisc to the teacher.

Attorney John Dineen, who represented Dubois on behalf of theAmerican Civil Liberties Union, had argued that because Duboisrecorded the song on his own outside of school and posted it ina place where the public had access, the suspension infringedon the student’s First Amendment rights.

The decision, however, concluded that the song, which existedas a file on Dubois’ computer that others could download, wentbeyond freedom of speech.

"The song was not a private communication," the decisionstates. "[Dubois] posted it on the Internet. By doing so,[Dubois] extended the ramifications of his conduct far beyondthe computer at his home."

Dubois, who apologized to the teacher and has expressed remorseabout the incident, served one day of the suspension before heappealed to the school and later to the Department of Education.He will return to school Sept. 11 when the suspension concludes.

Cumberland Schools Superintendent Joseph M. Nasif Jr. saidthe decision affects "every single educator in the classroom."

"We understand that students have rights," Nasifsaid. "We want to make sure there’s a balance, so teachersare protected and students will also have certain rights withinlimits."

Dineen’s case centered on the argument that Cumberland schoolofficials cannot punish Dubois for actions taken outside of school.Dineen also attempted to reduce the suspension, claiming 10 dayswas too harsh a punishment compared to other sexual harassmentcases.

"The decision didn’t deal with a number of the issueswe raised," Dineen said. "To the extent that it dealtwith the jurisdictional issue, it seems to say that when you arecommunicating on the Internet, you’ve given the entire world jurisdictionover you. That’s a bizarre and strange notion in terms of freespeech."

Dineen said that because the case was not tried in court, theDepartment of Education decision is not a legally binding precedent.