The Student Press Law Center and the American Civil Liberties Union of Northern California asked a California school district Monday to immediately cease enforcing a “draconian and constitutionally infirm” regulation that requires any student taking part in sports or other extracurricular activities to sign a “contract” agreeing to be punished for any online speech that the school district deems “inappropriate.”
In a letter to the school board and superintendent of the Lodi Unified School District near Stockton, Calif., the SPLC and ACLU-NC caution that continuing to force students to sign the policy will expose the school district and its employees to legal action for violating the First Amendment, the California Constitution, and California statutes that protect the free-expression rights of students both on and off campus.
The letter was sent on behalf of the SPLC and ACLU-NC by San Francisco attorney Thomas R. Burke, a partner with Davis Wright Tremaine LLP, one of the nation’s preeminent law firms representing the interests of news-media clients in California and across the country. Burke and his firm are members of the SPLC’s volunteer Attorney Referral Network, providing legal assistance to student journalists at no charge.
Last spring at the end of the 2013 school year, the Lodi school district adopted a new regulation, “Social Networking by Student-Athletes and Co-Curricular Participants,” that all students and their parents must sign as a requirement to take part in sports or clubs. Under the agreement, students agree to submit to the school’s disciplinary authority for what they say on social networking sites, even off-campus on their personal time. Among the types of speech the policy purports to ban are: (1) speech making references to violence or to alcohol or drug use, (2) speech indicating knowledge of cyberbullying, (3) speech that is “demeaning” about any person, (4) “liking” or “retweeting” a social media post that contains prohibited speech, and (5) “subtweeting,” or posting a comment on Twitter that refers to a person who is not named.
Students at Lodi’s Bear Creek High School have led grassroots opposition to the policy, and spoke Aug. 6 at a meeting of the district’s Board of Education asking that the policy be revamped or rescinded. Board members say the policy may return for consideration of revisions at the board’s next meeting Aug. 20.
Monday’s letter cautions the school district that its “incredibly broad” list of prohibited speech “fails to withstand the most basic First Amendment scrutiny.” Among the policy’s flaws, the letter explains, are failure to differentiate between speech that “refers to” violence versus speech that actually threatens or solicits others to commit violence, and failure to allow leeway for “demeaning” speech addressing issues of public concern, such as criticism of celebrities or political figures. The letter points out that a federal appeals court with jurisdiction over California has already ruled (in the 2006 case of Pinard v. Clatskanie School District) that athletes may not be denied participation in school sports as punishment for speaking out in a non-disruptive way (in that case, petitioning for the removal of an abusive coach).
“Online bullying is a genuine concern, but this policy goes so greatly beyond any speech that could be considered bullying that it would leave students entirely at the mercy of subjective, and potentially retaliatory, punishment for speech that crosses some mysterious line of ‘inappropriateness,’” said attorney Frank D. LoMonte, executive director of the Student Press Law Center.
“We’ve seen far too many instances of school administrators intimidating student whistleblowers, journalists and commentators who are trying to inform the public about the shortcomings of schools. The threat of being kicked out of extracurricular activities, which might make the difference between college admission and rejection, will cause students to censor themselves for fear that their criticism of school policies will be labeled ‘inappropriate,’” LoMonte said.
Since 1974, the Student Press Law Center has been devoted to educating high school and college journalists about the rights and responsibilities embodied in the First Amendment, and supporting the student news media in covering important issues free from censorship. The Center provides free information and educational materials for student journalists and their teachers on a wide variety of legal topics on its website at www.splc.org.
Executive director, Student Press Law Center