NEW YORK — The New York City Department of Education’s decision to adopt a more strict punishment for students who express themselves outside of school grounds using the Internet is raising constitutional questions among some free expression advocates.
The original code, which applies to all public schools in the city, prohibited “Posting or distributing libelous or defamatory material or literature containing a threat of violence, injury or harm (e.g. including posting such material on the Internet).” The punishment for violating the provision ranged from a parent conference to suspension.
The new provision, adopted for this school year, eliminates the “libelous and defamatory” clause but increases possible punishment to a six- to 90-day suspension or possible expulsion.
Students, faculty and community members were able to voice their opinions about changes to the district-wide disciplinary code during an open meeting held Aug. 9, one month before students were back in classes.
Arthur Eisenberg, legal director of the New York Civil Liberties Union, said the provision is clearly unconstitutional. In written testimony, he referred to the 2nd U.S. Circuit Court of Appeals 1979 decision in Thomas v. Board of Education, Granville Central School District, which said that school administrators cannot punish students for expression that takes place off school grounds. Eisenberg argued that the proposal will to reach “beyond the schoolhouse gate’ and seeks to reach behavior “on other-than-school property.’”
“The behavior that the proposed code seeks to regulate includes, in a number of respects, expressive activity,” Eisenberg said in his statement.
Joan Bertin, executive director of the National Coalition Against Censorship, said she agrees “100 percent” that the disciplinary code is unconstitutional.
Jay Worona, the New York State School Board Association’s general counsel, said that a school policy that allows for suspension of students for content that does not contain threats is an issue to be debated in court.
He referenced the landmark 1969 case Tinker v. Des Moines Independent Community School District that said a student’s speech has to be disruptive or infringing on the rights of the other students to justify censorship.
Keith Kalb, press contact for the New York City department of education, said that most often students report Internet-involved incidents to school administrators.
“It’s the same thing as putting flyers up in the neighborhood except it’s on a Web page like Myspace,” Kalb said.
But Bertin said the issue is clear that a school’s authority does not extend beyond the use of its equipment and its four walls.
“What students do outside school and in their own homes should be the subject of general legal restraints,” Bertin said. “Not the school justice system.”
The new policy became effective at the start of the new school year Sept. 5.