Legal technicality permitted Mont. school board to punish student for Web site

MONTANA — Days after a judge issued a restrainingorder to prevent the punishment of a student who had posted a"10 Hottest Freshman Girls" section on his Web site,a technicality has allowed the Great Falls school board to expelhim from his high school.

The restraining order Kenny Volk had requested — which MontanaDistrict Judge Julie Macek granted on March 8 — only extendedas far as the school board’s March 11 meeting. As soon as thatmeeting convened, the order expired, clearing the way for theboard’s decision.

"It was probably a technical error on my part," saidVolk’s attorney Ron Bissell. "What I should have done whenI got the injunction was have it run throughout the appeal process;I didn’t."

Volk had been suspended by principal Gary Davis on Feb. 20after he posted a section titled the "10 Hottest FreshmanGirls," with photographs and brief biographies, on his personalWeb site. He had taken the pictures at school with a disposablecamera. Davis had previously asked the student not to post thephotographs. In issuing the restraining order, Macek had said,"It was only when Mr. Volk engaged in First Amendment activitythat he was disciplined by the school."

Regardless of the technicality, Bissell said the school board’sactions defied the judge’s order.

"[Macek] wrote an order essentially saying ‘you can’tdo this; you’re violating this kid’s rights,’ and they ignoredit," Bissel said. "They continued to violate his FirstAmendment rights without addressing the issue."

In recent weeks, school officials have stressed earlier disciplinaryproblems unrelated to the Web site as the reason for Volk’s punishment.

"Our argument has been, even if you agree with [allegationsof previous misconduct], and we don’t, you can’t punish him forexercising his rights," Bissell said. "The insubordinationthat they’re citing was [for not giving up] his constitutionalrights, and they can’t ask that from him and they certainly can’tpunish him for doing it."

School board members did not return phone calls.

Bissell said he planned to file a writ of certiori. If thewrit is granted, Macek will review transcripts of the school boardhearing to determine whether or not the board exceeded its jurisdictionin issuing the expulsion, Bissell said.

Volk was ordered to transfer to C.M. Russell high school, wherehe is currently taking classes.

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