Technology, Cyberbullying, and Sexting

Technology’ has increased so dramatically since the first edition of this book in 2006 that an entire chapter was added to address these issues in 2014. In this third edition (2021), we have added another two cases on cell phone use, G.C. v. Owensboro (2013) in this chapter and Jackson v. McCurry (2019) in Chapter 15, which deals with governmental immunity, i.e., whether school districts should have to pay monetary damages when they violate individual’s Constitutional rights. We also recommend that readers consider Chapter 7, which addresses free speech and includes a new court decision relative to schools attempting to regulate Internet web sites.

This chapter includes five cases that address legal issues, ranging from cell phones and cyberbullying to misuse of blogs and email accounts to sexting (i.e., sending nude or semi-nude photos of oneself over the Internet). The ethical implications relating to these cases are particularly profound; they relate to the ways people treat one another, a potential loss of civility in society, a disturbing infringement of privacy rights, and what school leaders can do to encourage moral behavior when information moves so quickly as to seem uncontrollable.

The first case, J. C. v. Beverly Hills Unified School District (2010), involves a student who recorded a video of her classmates making rude and hurtful comments about another classmate and then posted this video on the Internet. The issue here is whether the school can regulate such behavior since it was initiated off campus.

In Doninger v. Niehoff (2011), a high school student appropriated an email account to send mass mailings to the school community, urging stu-dents and their parents to protest an unexpected and unwelcomed change of venue for an upcoming school event. Deluged with emails and exposure on the student’s publicly accessible blog, both of which took on an ugly character, the school’s principal and the district superintendent attempted to resolve what had started out as a fairly simple misunderstanding but escalated into epic proportions.

A county prosecutor took on the issue of educating young girls (and some boys) on morality after a school district involved his office in a sexting incident in Miller v. Mitchell (2010). This case and the one following it, A.H. v. State of Honda (2007), address, among other things, whether child pornography laws should apply to minors who send nude or semi-nude pictures of themselves to others. An encompassing ethical issue in both these cases is how to approach this sensitive topic with youth who may not fully grasp the implications of their actions, especially the permanence of Internet postings.

As mentioned earlier, our last case, G.C. v. Owensboro (2013), involves cell phone use and the limit to which school officials may check personal information in a student’s phone. We chose this decision because it effectively bridges the gap between Chapters 10 and 11 by creating a legal and ethical challenge when addressing students’ privacy rights.

CASE STUDY 10.1: J.C. v. BEVERLY HILLS UNIFIED SCHOOL DISTRICT, 711 F. Supp. 2d 1094 (C.D. CALIFORNIA 2010)

J.C., a student at Beverly Vista High School, and several other students gathered at a local restaurant after school. While at the restaurant, J.C. recorded a 4-minute, 36-second video of her friends talking. The video, recorded on J.C.’s personal video-recording device, showed J.C.’s friends talking about a classmate of theirs, C.C. One ofJ.C.’s friends, R.S., called C.C. a “slut,” said that C.C. was “spoiled,” talked about “boners,” and used profanity during the recording. R.S. also said that C.C. is “the ugliest piece of shit I’ve ever seen in my whole life” (J.C. v. Beverly Hills Unified School District, 2010, p. 1098). During the video, J.C. was heard encouraging R.S. to continue to talk about C.C., telling her to continue with her rant.

In the evening on the same day, J.C. posted the video on the web site YouTube from her home computer.1 While at home that evening, J.C. contacted 5 to 10 students from the school and told them to look at the video on YouTube. She also contacted C.C. and informed her of the video. C.C. told J.C. that she thought the video was mean. J.C. asked C.C. whether she would like her to take the video off the web site, but C.C. asked J.C. to keep the video up. C.C.’s mother told her daughter to tell J.C. to keep the video on the web site so that they could show the video to school officials the next day. J.C. estimated that about 15 people saw the video the night it was posted. The video itself received 90 “hits” that evening, many from J.C. herself.

At the start of the next school day, J.C. overheard 10 students discussing the video on campus. C.C. was very' upset about the video and came to the school with her mother that morning. C.C. spoke with Janice Hart, a school counselor, about the video. C.C. was crying and told Hart that she did not want to go to class. The student said that she faced humiliation and had hurt feelings. Hart spent roughly 20-25 minutes counseling C.C. and convincing her to go to class. The record indicates that C.C. likely missed only part of a single class that morning.

School administrators then investigated the making of the video. Lue-Sang, an administrative principal, viewed the video while on the school campus. She called J.C. to the administrative office to write a statement about the video. Lue-Sang and Hart also demanded that J.C. delete the video from YouTube, and from her home computer. School administrators questioned the other students in the video, including R.S., V.G., and A.B., and asked each of them to make a written statement about the video. R.S.’s father came to the school and watched the video with R.S. on campus. He then took R.S. home for the rest of the day.

Lue-Sang and Hart also contacted the school’s principal, Erik Warren, regarding the video. Warren then contacted Amy Lambert, the director of pupil personnel for the district, regarding whether the school could take disciplinary action against J.C. for posting the video on the Internet. Ms Lambert discussed the situation with attorneys and advised Warren that J.C. could be suspended. J.C. was suspended from school for two days. No disciplinary action was taken against the other students in the video.

J.C. had a prior history of videotaping teachers at the school. A month before this incident, she was suspended for secretly videotaping her teachers, and was told not to make further videotapes on campus. During the current investigation, school administrators discovered another video posted by J.C. on YouTube of two friends talking on school campus.

Students at the school cannot access YouTube or other social networking web sites on the school’s computers, as those sites are blocked by means of a filter. At the time of the incident, certain cell phones could access the Internet, including the YouTube web site, and allow the user to view videos. The school was not aware, however, of how many students had cell phones with that capability. Students at the school were prohibited from using their cell phones on campus in any manner. There was no evidence that any student viewed the YouTube video on his or her cell phone while at school. The only instances the video was viewed on campus, to the parties’ knowledge, were during the school administrator’s investigation of the video.

J.C. claimed that the school district and the school administrators, Hart, Lue-Sang, and Warren, violated her free speech rights under the First

Amendment, by punishing her for making the YouTube video and posting it on the Internet. J.C. argued that the school had no authority to discipline her because her conduct took place entirely outside of school.

Given this background, a federal district court in California used the standard set forth in the U.S. Supreme Court’s Tinker v. Des Moines School District (1969) decision, noting that Tinker applies to both on-campus and off-campus speech. Clearly, the speech was brought to campus. C.C. and her mother came to the school specifically to make school officials aware of the video. The video was viewed at least two times on the school campus, once by Lue-Sang and once by R.S. and her father in the administration offices.

It was also foreseeable that the video would reach the school. J.C. posted the video on a weeknight and deliberately contacted 5 to 10 students from the school and told them to watch the video on YouTube. She also contacted the subject of the video, C.C., and told her to watch the video. J.C. knew that C.C. was upset by the video. Finally, the content of the video increased the foreseeability that the video would reach the school. The students in the video make derogatory, sexual, and defamatory statements about a 13-year-old classmate. In contrast, J.C. argued that it was not foreseeable that the video would come to campus because students are not able to access the YouTube web site on the school’s computers.

As to whether there was a material and substantial disruption, the California court concluded that:

on the undisputed facts, and viewing all reasonable inferences in favor of the Defendants, the Court finds that no reasonable jury could conclude that J.C.’s YouTube video caused a substantial disruption to school activities, or that there was a reasonably foreseeable risk of substantial disruption as a result of the YouTube video.

(J.C. v. Beverly Hills Unified School District, 2010, p. 1117)

Ruling for the student, this court maintained that the actual disruption was de minimis as a matter of law, and thus did not constitute a substantial disruption. The record showed that the school had to address the concerns of an upset parent, a student who temporarily refused to go to class, and five students who missed some undetermined portion of their classes on May 28, 2008. C.C.’s hurt feelings did not cause any type of school disruption. C.C. did not confront J.C. or any of the other students involved in the video, either verbally or physically, while at school, nor did she indicate any intention of doing so.

While C.C. was undoubtedly upset, it took the school counselor, at most, 20-25 minutes to calm C.C. down and convince her to go to class. Further, there was no evidence that the school’s investigation had any ripple effects on class activities or the work of the school. For example, it appeared that the students involved in the video simply left class when asked, quietly and without incident. The most significant effects of the video were that J.C. and R.S. were sent home from school, and that J.C. was suspended for two days.

Questions for Discussion

  • 1. Do you believe that justice was served in this case from the perspective of the court’s decision? From the perspective of the school authorities’ actions? Why or why not?
  • 2. What might have been the most caring approach to take with J.C.? With C.C.? With others in the school who were involved? Could school officials have approached this situation from a more caring perspective? Why or why not?
  • 3. How might this incident be viewed from a critique perspective?
  • 4. Could this incident have been handled differently (better?) by applying the ethic of the profession? Why or why not?

CASE STUDY 10.2: DONINGER v. NIEHOFF, 642 F.3d 334

(2nd Cir. 2011)

Avery Doninger was a junior at LMHS, a public high school in Burlington, Connecticut. At the time of the incident, she was class secretary and served on the student council. The school district had in place a policy regarding eligibility to represent its schools in such positions. The district’s policy stated:

All students elected to student offices, or who represent their schools in extracurricular activities, shall have and maintain good citizenship records. Any student who does not maintain a good citizenship record shall not be allowed to represent fellow students nor the schools for a period of time recommended by the student’s principal, but in no case, except when approved by the board of education, shall the time exceed twelve calendar months.

(Doninger v. Niehoff, 2011, p. 339)

LMHS’s student handbook specified, further, that the objectives of the school’s student council include: maintaining “a continuous communication channel from students to both faculty and administration, as well as among the students within the school” and directing “students in the duties and responsibilities of good citizenship, using the school environment as the primary training ground” (Doninger v. Niehoff, 2011, p. 339). As an

LMHS student, Doninger signed the handbook, attesting that she had reviewed it with her family.

The dispute in this case arose over the scheduling of Jamfest, an annual battle-of-the-bands concert that Doninger and other student council members had helped to plan. Jamfest was scheduled to take place in the school’s new auditorium on Saturday, April 28, 2007. Shortly before the date of the event, school administration learned that the teacher responsible for operating the auditorium’s sound and lighting equipment, David Miller, would be unable to attend on that date. As a result, at an April 24 before-school student council meeting, the students were informed that Jamfest could not be held in the auditorium without Miller, and that they had the option either to keep the scheduled date and hold the event in the cafeteria or to find a new date.

This announcement upset Doninger and her fellow organizers, who wanted to hold the event in the auditorium that weekend, as planned. Jennifer Hill, the student council’s faculty advisor, recommended that they discuss the situation with Ms Niehoff, the school principal. Ms Hill accompanied the students to the office. They were unable to see Principal Niehoff immediately, but Doninger volunteered to return to the principal’s office during her study hall to help schedule a meeting for later in the day.

In the meantime, four student council members, including Doninger, decided to take immediate action. From LMHS’s computer lab, they gained access to the email account of the father of one of the students. Using that account, the students sent a mass email alerting various LMHS parents, students, and others that the central office had decided that the student council could not hold its annual Jamfest/battle-of-the-bands in the auditorium. The email urged recipients to contact the central office and ask that Jamfest be able to use the auditorium. This correspondence also asked recipients to forward the email to as many people as they could. Contact information (emails and phone numbers) for the principal was included in this message. A subsequent email sent later that day included similar information for the superintendent.

Both Superintendent Schwartz and Principal Niehoff received an influx of telephone calls and emails regarding Jamfest. Later that day, Principal Niehoff and Avery Doninger had a conversation in the principal’s office, but their versions of what was said differed. Doninger stated that the principal informed her about the calls and emails that had been received that day and told her that because Superintendent Schwartz was upset, Jamfest was canceled for April 28, but that there was a possibility of Jamfest happening at a later date “if the students play their cards right” (Doninger v. Niehoff, 2011, p. 340). In contrast, Principal Niehoff testified that she never told Doninger that Jamfest was canceled, but rather stressed that the information included in the mass email (to the effect that the auditorium could not be used) was incorrect as there was always an option of rescheduling if students did not want to use the cafeteria.

Principal Niehoff stated that she told Avery that her conduct—sending a mass email from the computer lab that contained inaccurate information, rather than working with the administration to resolve the problem— was unbecoming of a class officer. Doninger denied that Niehoff said anything regarding her responsibilities as a class officer. Finally, Niehoff testified that she requested Avery to compose a new email to correct the misinformation. Niehoff contended that Doninger agreed to do so, while Doninger denied that this conversation took place.

That night, from her home, Avery Doninger posted a message on her publicly accessible blog hosted by livejournal.com, a web site unaffiliated with LMHS. The blog post began as follows:

jamfest is cancelled due to douchebags in central office, here is an email that we sent out to a ton of people and asked them to forward to everyone in their address book to help get support for jamfest, basically, because we sent it out, Paula Schwartz is getting a TON of phone calls and emails and such, we have so much support and we really appriciate [sic] it. however, she got pissed off and decided to just cancel the whole thing all together, anddd [sic] so basically we aren’t going to have it at all, but in the slightest chance we do it is going to be after the talent show on may 18th. anddd [sic] ... here is the letter we sent out to parents.

(Doninger v. Niehoff, 2011, pp. 340-341)

On the blog, Doninger reproduced the email that she and the other student council members had sent that morning and then provided a letter that her mother had sent to the principal with a copy to the superintendent. Doninger later testified that her use of the word “douchebags” in the blog post referred to anyone involved in the cancellation of Jamfest, including Schwartz. She said that the purpose of her blog posting was to encourage more people to contact the administration to change its position regarding whether Jamfest could be held in the auditorium on April 28. Several LMHS students posted comments to the blog, including one that referred to Superintendent Schwartz as a “dirty whore” (Doninger v. Niehoff, 2011, p. 341).

The following morning, April 25, 2007, Schwartz and Niehoff continued to receive phone calls and emails regarding Jamfest, as well as personal visits from students. A group of students gathered outside the administration office. A student later testified that the assembled students were “pretty upset” and “fired up,” although he also said that he didn’t think that they were going to do anything “threatening” (Doninger v. Niehoff, 2011, p. 341). That same morning, Schwartz, Niehoff, Hill, Miller, and David Fortin, LMHS’s director of building and grounds, met with Doninger and the three other student council members who had sent the mass email.

Once again, school officials advised the four student council members that the auditorium would not be available on April 28 and stated that Jamfest could be held in the cafeteria on that date or in the auditorium on a later date. It was agreed that Jamfest would take place in the auditorium on June 8, 2007. During this meeting, Principal Schwartz suggested to Avery and the other students that they should have come to her to resolve the controversy rather than sending a mass email. Schwartz asked the students to send out another email explaining that the situation had been resolved, which they did. Jamfest was successfully held as scheduled on this date, with all but one of the scheduled bands participating.

Doninger’s blog post did not come to the attention of school officials until some two weeks after the meeting with the student council representatives. Principal Niehoff testified that she did not immediately bring the fact to Doninger’s attention because she knew that Avery had advanced placement exams around that time. She did consult with administrators at the school, seeking advice as to an appropriate response. On May 17, 2007, Doninger went to Niehoff’s office to accept her nomination for senior class secretary. At that time, Niehoff confronted Doninger regarding the post and requested that Doninger apologize to Superintendent Schwartz, show the blog entry to her mother, and withdraw her candidacy for senior class secretary. Doninger agreed to comply with the first two requests but did not agree to the third.

In response, Principal Niehoff refused to allow Doninger to run for a senior class officer position, although Doninger was permitted to retain her current position as junior class secretary. Niehoff said that she took this action because she felt that the blog post failed to demonstrate good citizenship, which was significant because Doninger was a class officer when she created the blog and the posting violated principles governing student officers as set out in the student handbook. Niehoff determined that Doninger’s name would not appear on the election ballot nor would she be permitted to give a campaign speech at a school assembly devoted to the election. Doninger was not otherwise disciplined for her blog post.

The day before the student election, Doninger and her mother visited a local television news station where newscasters taped an interview with them for the six o’clock news regarding Doninger’s blog post and Niehoff’s decision to prevent her participation in the class election. Sometime before the start of school the next day, Niehoff learned that an undetermined number of students planned to wear “Vote for Avery” T-shirts to that day’s assembly, where candidates were to give speeches before approximately 600 of their fellow students. It was also rumored that Doninger’s supporters were planning a write-in campaign on her behalf. Principal Niehoff relayed this information to Superintendent Schwartz.

That morning, Niehoff stationed herself outside the auditorium as students made their way in through two entrances to hear the candidate speeches. A few students wearing shirts that said Team Avery attempted to enter the auditorium prior to the beginning of the assembly. Niehoff instructed them to remove their shirts. There is no evidence in the record that Niehoff (or any other school official) made any effort to prevent students from wearing the T-shirts other than at the election assembly. At the time of the assembly, Doninger was not wearing a “Team Avery” shirt but was carrying one with her. She testified that she was going to put it on later, but instead put it in a backpack when Niehoff told her that the shirts were not permitted in the assembly. Doninger was permitted to enter the auditorium wearing the T-shirt she had on, which read, “RIP Democracy” (Doninger v. Niehoff, 2011, p. 343).

Even though Doninger was not a candidate and was not permitted to give a speech at the assembly, students there shouted, “Vote for Avery.” In the words of one student who was present, “there wasn’t screaming or anything, it’s not like there was a riot, but people were yelling Avery’s name, vote for Avery” (Doninger v. Niehoff 2011, p. 343). Niehoff warned these students to be respectful. Even though not on the ballot, Doninger received a plurality of the votes for the position as a write-in candidate. Niehoff, however, in accordance with her earlier decision, awarded the position of senior class secretary to A.K., who received the next-highest number of votes.

Lauren Doninger, Avery’s mother, subsequently filed a motion asking the court to void the election for senior class secretary, to strip the title from the student to whom it had been awarded, and to require a new election in which her daughter could run. In the alternative, she asked that the school be required to grant her daughter “the same title, honors, and obligations as the student elected to the position, including the privilege of speaking as a class officer at graduation” (Doninger v. Niehoff 2011, p. 344). The district court denied this request based on Doninger’s failure to show likelihood of success. The Second Circuit Court agreed. After Avery Doninger graduated from high school, she sought damages for the alleged violation of her constitutional rights. Ruling for the school, the district court denied Doninger’s claim.

The court determined that Doninger’s discipline extended only to her role as a student government representative. She was not suspended from classes or punished in any other way. Given that Doninger, in serving in such a position, was to help maintain a continuous communication channel from students to both faculty and administration, it was not unreasonable for Niehoff to conclude that Doninger, by posting an incendiary blog post in the midst of an ongoing school controversy, had demonstrated her unwillingness to properly carry' out this role. In this case, it was objectively reasonable for school officials to conclude that Doninger’s behavior was potentially disruptive of student government functions (such as the organization of Jamfest) and that Doninger was not free to engage in such behavior while serving as a class representative—a representative charged with working with these very same school officials to carry out her responsibilities.

As to the “Team Avery'” T-shirts, Avery and the students should have been allowed to wear the T-shirts as there was no reason to believe that these actions would have caused a material and substantial disruption. School officials, however, were entitled to qualified immunity on this violation in that their mistake was reasonable.

Questions for Discussion

  • 1. From an ethical perspective, do you believe that keeping Avery from serving as a senior class officer was a just decision? Why or why not? Does the fact that students gave her a plurality vote affect your decision? If so, how? Is Avery correct that democracy is dead in her school? Why or why not?
  • 2. Do you see any ethical concerns related to either allowing or prohibiting students from publicly using offensive terms to describe school administrators?
  • 3. Do you think that Principal Niehoff and Superintendent Schwartz handled this situation well from an ethical perspective? Explain your answer using the frames. Also using the best interests’ model.

CASE STUDY 10.3: MILLER v. MITCHELL, 598 F.3d 139

(3rd Cir. 2010)*

Maryjo Miller, Jami Day, and Jane Doe, mothers of, respectively, Marissa Miller, Grace Kelly, and Nancy Doe, filed suit against the District Attorney of Wyoming County, Pennsylvania alleging retaliation in violation of their constitutional rights. The allegations in their complaint center on the district attorney’s investigation and threatened prosecution of sexting by minors, and his requirement that the girls attend an education program to avoid prosecution on child pornography charges. “Sexting,” as defined by these students, is “the practice of sending or posting sexually suggestive text messages and images, including nude or semi-nude photographs, via cellular telephones or over the Internet” {Miller v. Mitchell, 2010, p. 143).

According to Pennsylvania’s law on sexual abuse of children, it is a crime to cause or knowingly permit a child under the age of 18 years to engage in a prohibited sexual act “if such person knows, has reason to know or intends that such act may be photographed, videotaped, depicted on computer or filmed” (Pennsylvania Consolidated Statutes, 1972). This law also prohibits the use of a communication facility “to commit, cause or facilitate the commission or the attempt thereof of any crime which constitutes a felony” (Pennsylvania Consolidated Statutes, 1972).

In October 2008, school officials in the Tunkhannock School District discovered photographs of semi-nude and nude teenage girls, many of whom were enrolled in their district, on several students’ cell phones. The officials learned that male students had been trading these images over their cell phones and turned the phones over to the Wyoming County District Attorney’s Office. George Skumanick, then district attorney, began an investigation.

In November 2008, Skumanick stated publicly to local newspaper reporters and an assembly at Tunkhannock High School that students possessing “inappropriate images of minors” (Miller v. Mitchell, 2010, p. 143) could be prosecuted under Pennsylvania law for possession or distribution of child pornography or criminal use of a communication facility. A few months later, Skumanick sent a letter to the parents of between 16 and 20 students on whose cell phones the pictures were stored and students appearing in the photographs, threatening to bring charges against those who did not participate in what has been referred to as an education program. The letter read as follows:

[Child’s Name] has been identified in a police investigation involving the possession and/or dissemination of child pornography. In consultation with the Victims Resource Center and the Juvenile Probation Department, we have developed a six to nine-month program which focuses on education and counseling. If you[r] son/daughter successfully completes this program!,] no charges will be filed and no record of his/her involvement will be maintained.

We have scheduled a meeting with all of the identified juveniles and their parents to discuss the program in more detail and to answer your questions. Following the meeting you will be asked to participate in the program. Participation in the program is voluntary. Please note, however, charges will be filed against those that do not participate or those that do not successfully complete the program.

(Miller v. Mitchell, 2010, pp. 143-144)

The education program was divided into a female group and male group. The “female group” syllabus listed among its objectives that the participants “gain an understanding of what it means to be a girl in today’s society, both advantages and disadvantages” (Miller v. Mitchell, 2010, p. 144).

In the first session, students would be assigned to write a report explaining why they are here, what they did, and why it was wrong. They would be asked to state whether their action victimized someone, who the victim was, and how their actions affected the victim, the school, and the community. The first two sessions would focus on sexual violence, and the third on sexual harassment. The fourth session was titled “Gender Identity-Gender Strengths”; the fifth was called “Self-Concept” and included an exercise on “gender advantages and disadvantages” {Miller v. Mitchell, 2010, p. 144).

At the group meeting referred to in the letter, Skumanick repeated his threat to bring felony charges unless the children submitted to probation, paid a $100 program fee, and completed the education program successfully. One parent, whose daughter had appeared in a photo wearing a bathing suit, asked how his child could be charged with child pornography based on that picture. Skumanick responded that she was posing provocatively. When plaintiff Marissa Miller’s father asked Skumanick who decided what “provocative” meant, Skumanick refused to answer and reminded his audience he could charge all the minors with felonies, but instead was offering the education program. He told Mr Miller that “these are the rules, and it is too bad if you don’t like them.” He then asked the parents to sign an agreement assigning the minors to probation and to participation in the program. Only one parent did so. Skumanick gave the other parents one week to sign.

Before this meeting, Skumanick had shown Maryjo Miller and her ex-husband the two-year-old photograph, in which Marissa Miller and Grace Kelly, aged 12 or 13 at the time, are shown from the waist up wearing white, opaque bras. Marissa was speaking on the phone, while Grace was making a peace sign. Despite Mrs Miller’s protests that her daughter and friend were merely being goofballs and were not naked, Skumanick claimed the image constituted child pornography because they were posed provocatively. He promised to prosecute them on felony child pornography charges if they did not agree to his conditions and attend the proposed program. After the meeting, Skumanick showed Jane Doe the photograph of her daughter Nancy, taken about a year earlier. In the photograph, Nancy is wrapped in a white, opaque towel, just below her breasts, appearing as if she just had emerged from the shower.

These parents, on behalf of their children, filed suit on March 25, 2009, and immediately sought a temporary restraining order (TRO) enjoining the district attorney from initiating criminal charges against plaintiffs for the photographs. The federal district court granted the requested relief on March 30, 2009. A party seeking a preliminary injunction must satisfy the traditional four-factor test: (1) a likelihood of success on the merits; (2) he or she will suffer irreparable harm if the injunction is denied; (3) granting relief will not result in even greater harm to the non-moving party; and (4) the public interest favors such relief. The Third Circuit Court of Appealsagreed with the district court’s analysis of irreparable harm, harm to the non-moving party, and the public interest, and therefore focused its discussion on the first factor, likelihood of success on the merits.

The court rejected the district attorney’s argument that irreparable injury would not occur if felony charges were filed because juvenile proceedings are closed, rehabilitative in nature, and Doe would have the right to counsel, the right to put the state to its burden of proof, and the benefit of state appellate court review. The Does demonstrated a likelihood of success on the merits of their retaliation claim and have necessarily shown that irreparable harm would result absent an injunction. The Circuit Court contended that the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.

The court then turned to the students’ claims of retribution. First, they considered retaliation in violation of the minors’ First Amendment right to be free from compelled speech, the speech being the education program’s required essay explaining how their actions were wrong; and, second, retaliation in violation of the parents’ Fourteenth Amendment substantive due process right to direct their children’s upbringing, the interference being certain items in the education program that fall within the domain of the parents, not the district attorney.

Unlike a constitutional claim, a retaliation claim asks not whether the exercise of a right has been unconstitutionally burdened or inhibited, but whether the government is punishing the plaintiffs for exercising their rights. This appeals court agreed with the district court that the plaintiffs had shown a reasonable likelihood of establishing that coercing Doe’s participation in the education program violated (a) Jane Doe’s Fourteenth Amendment right to parental autonomy and (b) Nancy Doe’s First Amendment right against compelled speech.

As to the first issue, parents have a Fourteenth Amendment’s substantive due process right “to raise their children without undue state interference” (Miller v. Mitchell, 2010, p. 151, citing Gruenke v. Seip, 2000, p. 303). “Choices about marriage, family life, and the upbringing of children are among asso-ciational rights this Court has ranked as of basic importance in our society, rights sheltered by the Fourteenth Amendment against the State’s unwarranted usurpation, disregard, or disrespect” (Miller v. Mitchell, 2010, p. 151).

Here, Jane Doe objected to the education program’s lessons regarding why the minors’ actions were wrong, what it means to be a girl in society today, and non-traditional societal and job roles. She particularly opposed these value lessons from a district attorney who has stated publicly that a teenage girl who voluntarily posed for a photo wearing a swimsuit violated Pennsylvania’s child pornography statute. The program’s teachings that the minors’ actions were morally wrong and created a victim contradicted the beliefs she wished to instill in her daughter.

The court agreed that an individual district attorney might not coerce parents into permitting him to impose on their children his ideas of morality and gender roles. An essential component of Jane Doe’s right to raise her daughter—the “responsibility to inculcate moral standards, religious beliefs, and elements of good citizenship” (Miller v. Mitchell, 2010, p. 151, citing Gruenke v. Seip, 2000, p. 307) was interfered with by the district attorney’s actions. While it may have been constitutionally permissible for the district attorney to offer this education voluntarily (that is, free of consequences for not attending), he was not free to coerce attendance by threatening prosecution.

School officials have a secondary responsibility in the upbringing of children, and “in certain circumstances the parental right to control the upbringing of a child must give way to a school’s ability to control curriculum and the school environment” (Miller v. Mitchell, 2010, p. 151). The district attorney is not imbued with that same responsibility. The district attorney is not a public education official, but a public law enforcement official. The court refrained from expressing a view on the propriety of this program had it been offered as part of the school curriculum, but did note that Jane Doe has a constitutionally protected right to choose the school her child attends, a choice lacking in the current context. The court concluded that Jane Doe is likely to succeed in showing that the education program required by the district attorney impermissibly usurped and violated her fundamental right to raise her child without undue state interference.

The court agreed that Nancy Doe likely could show that the education program would violate her First Amendment freedom against compelled speech. She would be required to explain why her actions were wrong (presumably as a moral, not a legal, matter) in the context of a program that purports to teach what it means to be a girl, sexual self-respect, and sexual identity. In drawing this conclusion, the appeals court noted that:

What it means to be a girl in today’s society, while an important sociological concern, in this case is a disconnect with the criminal and juvenile justice systems. This mismatch is all the more troubling given the age of the program’s participants. Minors often are more susceptible to external influences, and while this susceptibility may weigh in favor of certain educational or rehabilitative programs, it also cautions against allowing actors in the juvenile and criminal justice systems to venture outside the realm of their elected authority.

(Miller v. Mitchell, 2010, p. 152)

In sum, absent an injunction, the Does would have had to choose either to assert their constitutional rights and face prosecution as a punishment, or to forgo those rights and avoid prosecution. The court found this choice likely to be unconstitutional and granted a preliminary injunction. The court also found that the threat of prosecution as described in this case is retaliation.

Questions for Discussion

  • 1. How would you analyze this case through a justice framework? Do you agree with the way school officials handled this matter? Why or why not? Is there anything that you might have done differently had you been the school leader? Explain.
  • 2. Did the school apply an ethic of care in this case? Why or why not? Did the count}’ prosecutor apply an ethic of care? Why or why not? Did the court apply an ethic of care? Why or why not? Might the school have approached this issue differently had school leaders privileged an ethic of care?
  • 3. How does the ethic of critique apply to this situation? Who has the power? Explain.
  • 4. How does the ethic of the profession apply here? Whose profession has a stake in this issue? Were the students’ best interests considered? If so, how? If not, why not?

CASE STUDY 10.4: A.H. v. STATE OF FLORIDA, 949 SO. 2d 234 (FLORIDA CT APP. 1st DIST, 2007)

A.H., a 16-year-old high school student, and J.G.W., her 17-year-old boyfriend, were charged as juveniles under child pornography laws. The charges were based on digital photos that A.H. and J.G.W. took of themselves, naked and engaged in sexual behavior. The state alleged that, while the photos were never shown to a third party, A.H. and J.G.W. emailed the photos to another computer from A.H.’s home. A.H. and J.G.W. were each charged with one count of producing, directing, or promoting a photograph or representation that they knew to include the sexual conduct of a child, in violation of Florida Statutes (Florida Statutes, 2012). A.H. filed a motion to dismiss, arguing that this section of the Florida Statutes was unconstitutional as applied to her. She contended that her privacy interests were implicated in the charges, that she was younger than her alleged victim, J.G.W., and that criminal prosecution was not the least intrusive means of furthering a compelling state interest. The trial court denied this motion.

A.H. argued that the court was wrong. Given the lack of a significant age difference or of any allegation that the pictures were shown to a third party, the only compelling state interest that could be involved here was the protection of the co-defendants from engaging in sexual behavior until their minds and bodies had matured. A.H. argues that prosecuting her for the second-degree felony of promoting a sexual performance by a child was not the least intrusive means of furthering this interest. Implicit in A.H.’s argument is that this law protects a minor’s right to have sexual intercourse and that this right of privacy extends to situations where the minor memorializes the act through pictures or video.

The Florida state appeals court did not accept this argument. Florida’s right to privacy is a fundamental right that requires evaluation under a compelling state interest standard. Before the right to privacy attaches and the standard is applied, however, a reasonable expectation of privacy must exist. Whether an individual has a legitimate expectation of privacy is determined by considering all the circumstances, especially objective manifestations of that expectation. Several factors led this court to conclude that there is no reasonable expectation of privacy under these circumstances.

First, the decision to take photographs and to keep a record that may be shown to people in the future weighs against a reasonable expectation of privacy. Second, the photographs were shared by the two minors who were involved in the sexual activities. Neither had a reasonable expectation that the other would not show the photos to a third party. Minors who are involved in a sexual relationship, unlike adults who may be involved in a mature committed relationship, have no reasonable expectation that their relationship will continue and that the photographs will not be shared with others intentionally or unintentionally. One motive for revealing the photos is profit. Unfortunately, the market for child pornography in this country, according to news reports, appears to be flourishing.

In addition, some teenagers want to let their friends know of their sexual prowess. Pictures are excellent evidence of an individual’s exploits. A reasonably prudent person would believe that if you put this type of material in a teenager’s hands that, at some point either for profit or bragging rights, the material will be disseminated to other members of the public.

Distribution of these types of photos is likely, especially after the relationship has ended. It is not unreasonable to assume that the immature relationship between the co-defendants would eventually end. The relationship has neither the sanctity of law nor the stability of maturity or length. A.H.’s subjective belief that these photos might not be shared does not solve this issue. In fact, she expressed her concern to law enforcement that her boyfriend, J.G.W., might do something disagreeable with the photographs.

The mere fact that the defendant may have subjectively believed that the pictures would remain private does not define the case; rather, the matter rests on whether society is willing to recognize an objective expectation of privacy. The fact that these photographs may have or may not have been shown in no way affects the minor’s reasonable expectation that there was a distinct and real possibility that the other teenager involved would at some point make these photos public.

Even assuming, for argument’s sake, that a reasonable expectation of privacy existed, the statute in this case serves a compelling state interest. A.H. asserted that the state only has a compelling interest when the photograph or video is shown to a third party. The legislature has, however, recognized a compelling interest in seeing that the videotape or picture including “sexual conduct by a child of less than 18 years of age” is never produced (Florida Statutes, 2012).

The reasonable expectation that the material will ultimately be disseminated is by itself a compelling state interest for preventing the production of this material. In addition, the statute was intended to protect minors like A.H. and J.G.W. from their own lack of judgment.

With neither foresight nor maturity, A.H. engaged in the conduct at issue, then expressed concern to law enforcement personnel that her codefendant may do something inappropriate, i.e., disseminate sexually explicit photos that were lodged on his computer. A.H. was simply too young to make an intelligent decision about engaging in sexual conduct and memorializing it. Mere production of these videos or pictures may also result in psychological trauma to the teenagers involved. Further, if these pictures are ultimately released, future damage may be done to these minors’ careers or personal lives. These children are not mature enough to make rational decisions concerning all the possible negative implications of producing these videos.

In addition, A.H. and J.G.W. placed the photos on a computer and then, using the Internet, transferred them to another computer. Not only could the two computers have been hacked, but also by transferring the photos using the Internet the photos may have been and perhaps still are accessible to the provider and/or other individuals. Computers also allow for long-term storage of information, which may then be disseminated at some later date. The state has a compelling interest in seeing that material that could have such negative consequences is never produced. Using this logic, the appeals court affirmed the decision of the trial court.

In a strongly worded dissenting opinion, Judge Phillip Padovano points out that while this section of the Florida statute was designed to protect children from abuse by others, the court has used it to punish a child for her own mistake. He points out that other Florida law has shown that it is unconstitutional to prohibit a minor from engaging in sexual intercourse; therefore, it seems that the minor should not be prohibited from taking a photo. Moreover, just because the photo might be exploited or that the child used poor judgment, these possibilities do not constitute a reduced expectation of privacy. Any privacy expectation has the potential of being violated.

Questions for Discussion

  • 1. Why do you think this case has been included in the Best Interests book, even though it does not take place in a school? If this incident took place in the town where your school district is located, might there be an effect on the schools? What do you think it would be?
  • 2. Does the Florida Statute treat these students in a just manner? Why or why not?
  • 3. If news of this incident reached their school, what might be the most caring approach to take with these students? With others in the school who knew about the incident?
  • 4. How might this issue be viewed from a critical lens? What does our profession expect of us, if anything, in these types of circumstances?

CASE STUDY 10.5: G.C. v. OWENSBORO PUBLIC SCHOOLS, 711 F.3d 623 (6th Cir. 2013)

G.C., a male high school student, attended the Owensboro Public School District in Kentucky as an out-district-freshman starting in 2005. He and his parents lived in Daviess County, which had a reciprocal agreement to send some of its students to Owensboro. Throughout his time at Owensboro, G.C. had discipline problems.

On September 12, 2007, the first incident in the record, G.C. was given a warning for using profanity in class. In February 2008, G.C. visited the office of Assistant Principal Christina Smith, stating “that he was very upset about an argument he had with his girlfriend, that he didn’t want to live anymore, and that he had a plan to take his life” (p. 627). In this same meeting, G.C. told Smith “that he felt a lot of pressure because of football and school and that he smoked marijuana to ease the pressure” (p. 627). As a result of this interaction, Smith met with G.C.’s parents and suggested that he be evaluated for mental health issues. G.C.’s parents took him to a treatment facility that day.

During the 2008-2009 school year, G.C. was involved in several disciplinary incidents. In November 2008, he was given a warning for excessive tardiness and in a second incident later that month w’as disciplined for fighting and arguing in the boy’s locker room. On March 5, 2009, he walked out of a meeting scheduled with the high school’s prevention coordinator and left the high school building without permission. He called his father and was found in his car in the school parking lot with tobacco products in plain view’. G.C. then went to Assistant Principal Smith’s office. Smith stated that she “was very’ concerned about [G.C.’s] well-being because he had indicated he was thinking about suicide again. I, therefore, checked [G.C.’s] cell phone to see if there was any indication he was thinking about suicide” (p. 627). Following this incident, school officials met with G.C. and his parents. School officials placed G.C. on probation with four days of in-school suspension. A month later, in April 2009, G.C. was suspended after yelling and hitting a locker.

At the end of the 2008-09 academic year, Principal Anita Burnette recommended that Superintendent Vick revoke G.C.’s authorization to attend Owensboro High School. Instead of following this recommendation, Vick met with G.C.’s parents to discuss “what was expected of [G.C.] to be permitted to continue attending the [Owensboro Public School District] as an out-of-district student” (p. 627).

Superintendent Vick described his expectations as follows:

At this meeting, I explained to [G.C.’s] parents that they had three options regarding their son’s education. First, I told them they could send [G.C.] to the [Daviess County Public School District] since they resided in that school district with their son. I told them their second option was to actually move into the [Owensboro Public School District] and that, upon so doing, [G.C.] would be entitled to all the rights of a resident student. Finally, I told them that despite ... Burnette’s recommendation, I would allow [G.C.] to continue to attend school in the [Owensboro Public School District] as a non-resident student for the 2009-10 school year on the condition and understanding that, if he had any further disciplinary infraction, this privilege would be immediately revoked and he would be required to return to his home school district.

(pp. 627-628)

On September 2, 2009, G.C.’s teacher caught him texting in class, thus violating the school’s cell phone policy. The phone was handed over to Assistant Principal Melissa Brown. Ms Brown stated that she read four messages on the phone to see if she could help him. Brown was aware of G.C.’s previous use of drugs and angry outbursts, further stating that: “I also knew [he] drove a fast car and had once talked about suicide to [Smith].... I was concerned how [he] would further react to his phone being taken away and that he might hurt himself or someone else” (p. 628). As a result of this infraction, Superintendent Vick finally revoked G.C.’s out-of-district status, thus barring him from attending Owensboro High School.

Shortly thereafter, G.C. brought claims against the school district, Superintendent Vick, Principal Burnette, and Assistant Principals Smith and Brown. A federal court for the Western District Kentucky heard G.C.’s claims and granted summary judgment in favor of the school. In other words, the parties agreed on the facts and the law was clear enough to render summary judgement. G.C. appealed the district court’s determination on three claims: (1) his Due Process rights under Kentucky state law were violated in that he was not given a hearing prior to his expulsion; (2) his Fourth Amendment rights under the U.S. Constitution were violated when school officials read the text messages on his phone without reasonable suspicion; and (3) school officials failed to identify G.C. as disabled under § 504 of the Rehabilitation Act.

After a brief analysis, the Sixth Circuit Court agreed with the lower court’s summaryjudgment on G.C.’s § 504 claim, stating that G.C. had not provided sufficient evidence to support his eligibility. This left the Due Process and Fourth Amendment claims. In its due process analysis, the circuit court relied on Goss v. Lopez (1975), a U.S. Supreme Court decision that conferred students with a property interest in education. This decision required that students be given notice and a right to be heard for suspensions lasting no more than ten days.

Wliile the Court did not elaborate on the process for longer suspensions or expulsions, it did state that they “may require more formal procedures” (Goss, p. 584). For the most part, these procedures have been left up to the states to define. Relying on case law in this circuit, Kentucky state statutes, and an opinion from Kentucky’s attorney general, this Sixth Circuit Court determined that revocation of G.C.’s status as a student at Owensboro amounted to an expulsion which, in turn, required a “pre-expulsion hearing before an impartial trier-of-fact” (G.C., 2013, p. 626, quoting Newsome, 1988, p. 927). Concluding that the district court erred in granting summary judgement on the Due Process issue, this court reversed the lower court’s determination.

The court then turned to the Fourth Amendment claim that the search of G.C.’s cell phone violated the U.S. Constitution. Here, the Court deferred to the U.S. Supreme Court’s decision in New Jersey v. T.L.O. (1985), which set the standard of reasonableness for searches of students in public schools. To meet this requirement, searches must be justified at their inception and reasonable in scope. School officials claimed that their knowledge of G.C.’s past problems with depression and drug abuse justified the search. The court stated that:

We disagree, though, that general background knowledge of drug abuse or depressive tendencies, without more, enables a school official to search a student’s cell phone when a search would otherwise be unwarranted. The defendants do not argue, and there is no evidence in the record to support the conclusion, that the school officials had any specific reason at the inception of the September 2009 search to believe that G.C. then was engaging in any unlawful activity or that he was contemplating injuring himself or another student. Rather, the evidence in the record demonstrates that G.C. was sitting in class when his teacher caught him sending two text messages on his phone.

(pp. 633-634)

Accordingly, the Sixth Circuit Court reversed summary judgement on the Fourth Amendment claim and remanded this case to the district court to assess what, if any, injury that G.C. incurred and any damages that might be due to him under § 1983 (Civil Rights Act, 1871).

Questions for Discussion

  • 1. Was the Sixth Circuit Court’s decision fair for this student? For the school personnel? Answer this question through a justice lens. Do you agree with Superintendent Vick’s initial decision to give G.C. a second chance to stay in the school? Why or why not?
  • 2. Did school personnel treat G.C. in a caring manner? Why or why not? Provide examples as you explain your answer.
  • 3. How might the ethic of critique be applied to the facts of this case?
  • 4. What would you, as a school leader, do in this situation? School personnel had good intentions to act in G.C.’s best interests, but the court said that what they did was wrong.
  • 5. Is there a better way to handle this situation that might have been legal? What would you have done if you were in the same position?

NOTE

  • 1. YouTube is a publicly available web site where members of the public can post video clips for viewing by the general public.
  • * This legislation was revised in 2019 to exclude transmission between minors under the age of 18. Pennsylvania Consolidated Statutes, Title 18, §6312(b) (2019).

REFERENCES

A.H. v. State of Florida, 949 So. 2d 234 (Florida Ct App. 1st Dist., 2007).

Civil Rights Act of 1871, 42 U.S.C. §1983.

Doninger v. Niehoff, 642 F.3d 334 (2nd Cir. 2011).

Education Amendments of 1972, Title IX, 20 U.S.C. §§1681-1688 (1972).

Florida Statutes (2012). Title XLVI, Chapter 827.071 (3).

G.C. v. Owensboro Public Schools, 711 F.3d 623 (6th Cir. 2013).

Goss v. Lopez, 419 U.S. 565 (1975).

Jackson v. McCurry, 762 Fed. Appx. 919 (11th Cir 2019).

J.C. v. Beverly Hills Unified School District, 711 F. Supp. 2d 1094 (C.D. California 2010).

Klump v. Nazareth Area School District, 425 F.Supp.2d 622 (E.D.Pa 2006).

Miller v. Mitchell. 598 F.3d 139 (3rd Cir. 2010).

Newsome v. Batavia Local School District, 842 F.2d 920, 927 (6th Cir. 1988).

Pennsylvania Consolidated Statutes, Title 18, §6312(b) (2019).

Pennsylvania Consolidated Statutes, Title 18, §7512(a) (1972).

Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).

Chapter

 
Source
< Prev   CONTENTS   Source   Next >