OREGON — In a settlement reached earlier this week, an Oregon school has apologized for a policy that restricted what student dance team members and their families could post on social media.
Scappoose High School’s dance team instituted the policy prior to the 2013-14 season. It required all dancers and parents agree to “not participate in any negative comments either verbally or written via social media.”
Dance team member Marissa Harper and her mother Alicia Harper refused to sign the agreement.
“I couldn’t believe they’d create a policy that would leave kids so vulnerable,” Alicia Harper said. “I felt like the policy was basically telling the kids that their voice didn’t matter.”
Along with the American Civil Liberties Union of Oregon, the Harpers filed a federal lawsuit against the school.
“It took a lot of courage from Marissa to stand up for this,” said Anthony Stark, an attorney representing the Harpers. “When put in this situation, most kids would just go along with the rules. They subjected themselves to a lot of public scrutiny. It took a lot of courage to stand up and not just go along when someone threatened our constitutional rights.”
The district removed the policy in January. As part of the settlement, reached earlier this week, the school district admitted it violated students’ and parents’ First Amendment rights. The district also sent a written apology letter to the school community and agreed to pay the Harpers’ legal fees.
Scappoose School District officials could not be reached for comment.
The school’s policy was probably well intentioned, but its overly broad wording had the potential to chill speech protected by the First Amendment, said Darin Sands, another attorney who represented the Harper family.
Cases of schools monitoring the students online have come up before, but a unique aspect of the Scappoose policy was that it required the parents to sign the agreement in addition to the students.
“I hadn’t seen that before,” Sands said. “In addition to the student speech concerns, one of our real concerns was any implication that the policy may have on the ability of students to communicate with their parents about issues they may have or parents or students being able to communicate with the administration about legitimate issues that were occurring on the dance team.”
In many cases, school officials’ attempts to regulate social media and off-campus speech come because of pressures to combat different kinds of bullying, Stark said.
“I think it’s kind of a hot button issue right now as schools are trying to respond to bullying concerns,” Stark said. “But there the Supreme Court says students have to disrupt the educational process for (school officials) to restrict speech … this policy just went too far regardless of whether there was a disruption or not.”
In Tinker v. Des Moines Independent Community School District, the Supreme Court ruled that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate” and that schools can restrict student expression only if it “materially and substantially” disrupts the school environment or invades the rights of others.
“The courts are actually still grappling with that question of what has a substantial disruption,” Sands said. “The different circuit courts of appeals have taken pretty different positions on that. So in the Ninth Circuit, the law is pretty unclear about what the tie has to be back to the school.”
The rise of social media has complicated how courts decide what speech is tied to the school, especially when done off school grounds, Sands said.
“Ultimately I think in the next five or 10 years the Supreme Court is probably going to have to take up this question and address how far the school’s reach goes outside the schoolhouse doors,” Sands said.
Sands said he hopes this case can start a dialogue about how to protect First Amendment in light of bullying concerns, Sands said.
“I think without that dialogue it’s hard for administrators to see all the contours of it.” Sands said. “So, I’m hoping this debate plays out in the public sphere and school administrators are willing to have that discussion because there needs to be legal clarity.”
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