Requa v kent school district

Chapter 4 Student Privacy and First Amendment Rights

Introduction

The First Amendment protects the freedoms of religion, the press, association, and to petition the government for redress of grievances. This chapter addresses speech and association rights as they apply to public school students on and off campus. Students do have some rights to express their ideas and opinions in schools. However, student rights to expression in school are limited. Achieving the right balance between student freedom of expression and maintaining order is often difficult. But, understanding the importance of student rights to expression is part of being an ethical and humane school leader. Student rights to privacy of personal and academic records are defined by federal law. Understanding these rights is also part of effective school leadership. This chapter presents selected ethical and legal guidelines to aid in this understanding.

Focus Questions

1. Should there be a balance between providing a safe and efficient school and the rights of students to express an unpopular viewpoint?

2. What are the rights of students to confidentiality of their personal and academic records?

3. What rights to expression do students have?

4. When may student rights be suppressed?

5. What is meant by the term true threat?

Key Terms

1. Culture

2. Directory information

3. FERPA

4. Lifeworld

5. School culture

6. Social capital

7. Systemsworld

8. Threat assessment

Case Study Shanna’s Shirt

Ethan Miller finished his phone conversation with the superintendent with a sigh. The case of the Gay–Straight Club and Shanna’s Shirt had turned into a real challenge. Ridge Woods High School served a rural Missouri community with an enrollment of 850 students. In September a group of students petitioned the school board to allow a “Gay–Straight Club” (GSC) to meet during the same times and places and have access to the same communication as the long-established Bible Club. After considerable community uproar, threatened lawsuits, and a dozen emotional meetings, the board of education decided to allow the club to meet during non-instruction time. After the first GSC meeting, two male and three female members of the GSC reported being sexually harassed by other students on campus based on their perceived sexual orientation. At least two parents of the students claiming to be harassed filed suit in federal court. The female teacher who was the GSC sponsor reported being taunted by students in the hallway and receiving harassing phone calls at home. The school district insurance company believed the school district was at risk of a significant jury award and encouraged a settlement with the student-plaintiffs and the sponsor.

The day after the school board agreed to settle, Shanna Tyler wore a T-shirt to school with the imprint “Homosexuality is Shameful. Romans 1:27” on the front and “Be ashamed. Our school has embraced what God has condemned” on the back. The district dress code states only that clothing may not advocate or advertise drugs, alcohol, or tobacco and may not contain lewd, profane, or vulgar language or symbols.

Apparently, several community groups were supporting Shanna’s shirt and her message. Ethan’s conversation with the superintendent had reinforced the point that many community members believed that homosexuality is sinful and were unhappy. At the same time, several members of the Gay–Straight Club reported to teachers and others that they were offended by the message. A few teachers had expressed to Ethan that he should send Shanna home until she agreed not to wear the shirt at school. Angry with the board settlement, several teachers supported Shanna’s right to wear the shirt.

Leadership Perspectives

All schools are composed of complex student societies that have one thing in common: The “accepted” behavior in a school is normative and determined to a great extent by a clique of students, especially in middle school and high school, who formulate, model, and enforce the unofficial norms for acceptable dress and behavior by the rest of the student body. Lyle E. Schaller (2000) summarizes the importance of this point: “Students’ perceptions of their school environment are more likely to influence their behavior than the perceptions of that same environment held by a principal or a school board member or a teacher or a parent or a taxpayer” (p. 14).

As important as student perceptions may be, school leaders have an obligation to maintain good order. In the opening case study, “Shanna’s Shirt,” Ethan Miller must decide to either allow Shanna to wear the shirt or to ban the wearing of the shirt on school grounds. Regardless of his choice, ISLLC Standard 5B requires that Ethan apply self-awareness, reflective practice, transparency, and ethical behavior to the problem of Shanna’s shirt. He also needs knowledge of the various policies, laws, and regulations enacted by state, local, and federal authorities that guide his decision. The conflict presented in “Shanna’s Shirt” is relatively clear. Shanna is expressing her displeasure with what she perceives as an unfair and unwise decision by the school board. She is also expressing her religious view that homosexuality is sinful. Several community members and teachers are supportive of Shanna’s message. Other students report being offended by the message. Ethan Miller is correct in considering balancing the legal rights of students with the need to maintain good order and harmony in the school. Both good order and Shanna’s First Amendment rights are important, but which should prevail? What rights do students have to express their growing independence? What rights do school leaders have to suppress unpleasant or critical speech in order to maintain a “safe, efficient, and effective learning environment”? What ethical principles should guide Ethan’s considerations? This chapter is designed to provide guidance in the often difficult choices inherent in this balance.

ISLLC Standards 5B

ISLLC Standard 5D

ISLLC Standard 3

Lifeworlds and Systems: Policies, People, and School Culture

ISLLC Standard 2 calls for school leaders who “promote the success of every student by advocating, nurturing, and sustaining a school culture . . . conducive to student learning.” There should be little doubt that understanding the importance of school culture is a significant part of effective school leadership. Sergiovanni (2000) states, “Most successful school leaders will tell you that getting the culture right and paying attention to how parents, teachers, and students define and experience meaning are two widely accepted rules for creating effective schools” (p. 11). But, what is school culture, and how do we recognize it when we see it? Rebore (2003) says that school cultures “consist of those attitudes, beliefs and values, feelings, and opinions that are shared by a significant number of their influential members and that are communicated to others” (p. 11). In other words, school culture is the normative glue that holds a particular school together by defining and perpetuating how administrators, teachers, parents, and students interact with one another ( Sergiovanni, 2000 ). The significance of this normative glue is that teachers, students, and parents who are new to the campus are soon influenced and invariably engulfed by the campus culture.

ISLLC Standard 2

The German philosopher Jürgen Habermas (1987) provides a theoretical framework and language system for understanding school culture. Habermas views all social systems, including corporations, football teams, and families, as existing simultaneously as a systemsworld and as a lifeworld. Viewing school districts, schools within a district, and classrooms within a school as social systems is quite compatible with Habermas’s concepts of lifeworlds and systems. The lifeworld is represented by the normative behavior determined and perpetuated by the individuals (employees, students, players, parents, and children) who make up a particular environment. The lifeworld is symbolized by culture, community, and person. Culture represents the learned ways of believing, valuing, and behaving that bind people together ( Gollnick & Chinn, 2004 ). These shared cultural patterns create and normalize a general agreement among the participants that becomes a natural and accepted way of communicating, behaving, and reacting to one another and to the environment. One’s own culture is viewed as natural, correct, and superior to other ways of thinking, believing, and behaving. Consequently, cultural influences become an unconscious blinder and a lens through which participants view and judge the world.

Community is the heart of a school’s lifeworld ( Sergiovanni, 2000 ). Communities generally have four common elements: styles of dress, music, language symbols, and ritual. Students may be members of several communities including a religious organization, a school volleyball team, and a Boy Scout troop. Students are also members of a school community who often share a common style of dress, have similar tastes in music, communicate in sometimes indecipherable language (at least to the uninitiated adult ear), and have well-understood rituals that govern how students interact with one another.

Community membership is important because the participants know that they are connected to others, feel known and cared for by others, and are part of a social group that is valuable ( Sergiovanni, 2000 ). In short, community membership develops social capital. Social capital refers to the resources, social support networks, and trust that are generated by positive relationships among people ( Sergiovanni, 2000 ). Two potential sources of student social capital are family and school. Access to social capital is particularly important in reducing school violence. As Payne, Gottfredson, and Gottfredson (2003) state:

Supportive and collaborative relationships and common norms and goals reported by teachers [are] internalized by . . . students, resulting in higher levels of student bonding. These higher bonding levels . . . lead to less delinquency. With improvements in communal school organization and student bonding, schools . . . experience a reduction in disorder. ()

Review the case study “Shanna’s Shirt.” Membership in clubs such as the Bible Club and Gay–Straight Alliance can be sources of social capital for students and promote student bonding. Communal school organization and student bonding are the foundations for providing school personnel, students, and visitors with the safe and secure building environment called for in ISLLC Standard 3. In this case study, communal organization and student bonds are being stressed. At least some teachers and students are supporting Shanna. Others are offended by the message. Ethan Miller is faced with a difficult choice. If he bans the shirt, some members of the school community will be unhappy. If he allows Shanna to continue to express her antihomosexual views, those members opposed to or offended by this view will be unhappy. Such is the life of a school principal.

ISLLC Standard 3

Person is represented by the significance, identity, and personal value individuals derive from their community memberships ( Habermas, 1987 ; Sergiovanni, 2000 ). The important point is this: Membership in various subcultures or communities creates and perpetuates the significance, identity, and personal value that all human beings crave. This is an important point. In a school community that promotes social capital, student bonding, and a sense of community, the students and the teachers derive individual value as a person from the interaction of the larger school culture and the various subcultures of which they are members ( Stader, 2011 ).

Membership in one subculture or community can conflict with that in other subcultures ( Gollnick & Chinn, 2004 ). Membership in a community religious organization may conflict with district policy regarding the organization of a Gay–Straight Club. This conflict between school communities sometimes results in harassment, ostracism, and abuse. Such conflict is almost always at odds with good order and discipline in a school. For example, according to a recent National Center for Education Statistics report on school violence, the most common reason reported by students for bringing guns, knives, or other weapons to school is because of bullying by other students or for protection from gangs ( Addington, Ruddy, Miller, Defoe, & Chandler, 2002 ).

In schools, culture is represented by the norms, behaviors, and traditions transmitted from one generation of students and teachers to subsequent generations. School culture defines and perpetuates all student–student and student–teacher interactions on that campus. However, the normative culture of every school is slightly different, and no two school cultures even within the same district or town are exactly alike. It is the differences in individual school cultures that establish and perpetuate the normative behaviors of students, teachers, and administrators in that school.

The systemsworld consists of the management designs, rules, accounting systems, and schedules that provide a framework for teachers and students to engage in the practice of teaching and learning ( Sergiovanni, 2000 ). The systemsworld provides the enforced norms that allow schools to function in a relatively calm and orderly manner. How students are grouped, the lunch schedule, the procedures for checking out of school, and rules against fighting, bullying, and intimidation are examples of school systemsworlds. In other words, the systemsworld is represented by the policies necessary for schools to function.

ISLLC Standards 3, 3A, and 3B

The interrelationship between the lifeworld and the systemsworld establishes the written and unwritten rules that create and perpetuate the normative environment of the school. This relationship is symbolized in Figure 4-1 .

The important point is this: Both the systemsworld (policy designed to promote order) and lifeworld (the needs of people for a sense of belonging and identity) are essential to a positive school culture. When in balance, the lifeworld and systemsworld

FIGURE 4-1 The lifeworld–systemsworld relationship.

function cooperatively for a positive and engaging school culture. However, the systemsworld and the lifeworld are perpetually in competition for dominance of the school culture ( Habermas, 1987 ; Sergiovanni, 2000 ).

People and Policy: A Fight for Dominance

Habermas (1987) contends that much of the controversy concerning school policy can be understood as a fight for or against the system domination (or colonization) of student lifeworlds. Habermas points to the trend toward litigation-proof policy and the overregulation of the curriculum as examples. Rather than leading to a positive school culture, this overregulation leads to depersonalization, inhibition of innovation, breakdown of responsibility, and immobility. This happens because these enforced norms are implemented without consideration of the persons concerned, or of their needs and interests. Overregulation and reliance on systems solutions (policies and rules) result in a dominant systemsworld. Domination by the systemsworld, which Sergiovanni (2000) contends is common, creates an oppressive, dysfunctional, and alienating school culture. In systems-dominated schools, the rules and procedures become a means to an end with little regard for lifeworld issues. In these schools, student lifeworlds are viewed negatively, and social order is constructed exclusively from the system perspective ( Habermas, 1987 ). What is often overlooked in these schools is that culture, community, and person are basic needs. When these needs are not met, students turn to their own subculture, usually at odds with school purposes, in search of belonging and meaning ( Schaller, 2000 ; Sergiovanni, 2000 ). In short, the failure to understand and appreciate the importance of student lifeworlds often undermines the very purpose of the policies designed to promote order.

The relationship between lifeworlds and systems in the normative environment is illustrated in Table 4-1 .

Lifeworld Components

Balanced Lifeworld and System

Systems-Dominated School

Culture

Productive and well-ordered culture, shared goals, legitimate authority.

Loss of cultural meaning, challenges to authority common, legitimacy of authority questioned.

Community

Positive and well-ordered student/ faculty and student/student interpersonal relationships.

Lack of purpose, fractured student/ student and student/faculty interpersonal relationships.

Person

Sense of personal worth and belonging. Motivation to conform to written and unwritten school norms, sense of purpose, importance, and individual value gained from positive social interactions in the school.

Sense of anonymity and hopelessness. Withdrawal of motivation to conform to written and unwritten school norms; individual value gained from student-generated lifeworlds. Rule compliance by coercion.

*Note: Based on Habermas, J. (1987 ). The theory of communicative action: Vol. 2. Lifeworld and system: A critique of functionalist reason (T. McCarthy, Trans.) (pp. 142–143). Boston, MA: Beacon Press.

A thin line often separates orderly and positive schools from negative and toxic schools or, at the other extreme, overly permissive school cultures. Make no mistake: There is a time for decisive action, just as there should be times for understanding, compassion, and reasonableness. The leadership challenge is determining when and under what circumstances it is appropriate to choose which action. As illustrated by ISLLC Standard 3, Ethan Miller must balance the needs of the student lifeworld with his obligation to provide a safe and efficient school facility.

ISLLC Standard 3

Linking to Practice

Do:

· Develop objective measures of the relative health of school and classroom culture. For example, student attendance, frequency of office referrals, and levels of cooperativeness of student interpersonal interactions are good measures of the relative health of school culture.

· Develop annual measurable objectives to improve school culture. Use research/ literature-based strategies and measurable evaluative criteria.

· Recognize that a balance between people and policy is necessary for a healthy school culture.

· Understand that student lifeworlds will exist, either supported by school policies or at cross purposes to them.

Do Not:

· Become overly dependent on rules and policy to maintain order. A well-ordered, positive school culture results from a combination of rules and personal interactions, not from rigid rule compliance.

Student Rights

The legal authority of school leaders to develop, implement, and enforce rules, regulations, and policies designed to establish and maintain good order and discipline is well established. This responsibility is reflected in ISLLC Standard 3. At first glance, students may seem to enjoy a broad array of rights. However, court decisions and administrative agency interpretations of statutes typically limit many of these rights to narrow sets of circumstances. The following sections consider these rights.

Student Records

The Family Educational Rights and Privacy Act ( FERPA ) is an example of spending clause legislation designed to protect student educational records. FERPA (20 U.S.C. 1232) was enacted in 1974 by Congress in response to concerns expressed by educators, parents, students, and institutions regarding student academic and personal information. FERPA affects all public and private schools that receive federal funds. Balancing Student Privacy and School Safety: A Guide to the Family Rights and Privacy Act for Elementary and Secondary Schools is available free of charge from http://edpubs.ed.gov . This excellent guide, from which much of this information was taken, presents an overview of student privacy as defined by FERPA. Informal e-mail responses to questions about FERPA are available from the Family Policy Compliance Office. The most germane provisions of FERPA can be summarized as follows:

· Parents have the right to inspect and review their child’s education records, defined as all records, files, documents, and other materials related to a student and maintained by the school. All records regardless of medium including handwriting, videotape, computer files, print and so forth are subject to FERPA. This right transfers to the eligible student at 18 years of age.

· Parents or eligible students have the right to ask for a review of records that they believe to be inaccurate or misleading. Schools must respond promptly to such requests. A formal hearing may be requested if the school refuses to amend disputed records.

· Schools must have written permission from the parent or eligible student in order to release any information from a student’s educational record without consent, except:

· School officials with legitimate educational interest

· Other schools to which a student is transferring

· Specified officials for audit or evaluation purposes

· For compliance with a judicial order or subpoena

· Appropriate officials in cases of health and safety emergencies

· State and local authorities

· Schools must retain a written log with the educational records of each student indicating all individuals, agencies, or organizations that have requested or obtained access to a student’s educational records, including the interest that each has in obtaining the information.

Directory Information

FERPA permits schools to designate certain information, such as names, addresses, telephone numbers, degrees and honors received, major field of study, participation in officially recognized activities and sports, dates of attendance, and weight and height of athletic team members, as directory information . Schools are required to provide a yearly notice to parents and eligible students of any designated categories of directory information and allow a reasonable time for parents or eligible students to refuse to allow release of this information without prior consent. Once this information has been designated as directory information, the school may release this information regarding non-objecting students to any agency or requesting party. For example, schools routinely release honor roll lists, scholarship awards, and individual athletic statistics to local newspapers. Congress now requires public and private secondary schools to release to requesting military recruiters lists of the names, addresses, and telephone numbers of non-objecting students.

The Supreme Court and FERPA

During the 2002 term, the U.S. Supreme Court heard two FERPA cases. The first, Owasso Independent School District v. Falvo (2002) , considered peer grading. The Supreme Court granted certiorari to consider only the legal question “Does peer grading violate FERPA?” The Court held that it does not ( Owasso Independent School District v. Falvo , 2002) . The Court reasoned that student papers being graded by another student are not at this stage maintained by the teacher and that each student grader is not a person acting for an educational institution. Gonzaga University v. Doe (2002) considered whether or not a FERPA violation by an institution creates a private right of action (i.e., the legal right to sue). The case involved a student enrolled in the teacher certification program at Gonzaga University. Washington state law required that all teacher candidates be certified by the graduating college to be of “good moral character.” A Gonzaga official, after overhearing a conversation between two students, revealed to the state agency that student Doe was suspected of sexual misconduct. Doe was denied certification by the state agency. Doe learned of the allegation, brought suit under FERPA, and was awarded $1.155 million by a jury in state court ( Doe v. Gonzaga University, 2001 ). On review, however, the U.S. Supreme Court held that FERPA created no personal rights to enforcement. Consequently, individual students whose FERPA rights have been violated seem to have little recourse to remedy the situation ( Daggett, 2002 ).

Linking to Practice

Do:

· Develop clear district and campus policies concerning the privacy of student records.

· Beware of blanket parental consent forms. These forms may be appropriate for such publications as school sports programs, band/choir memberships, or honor roll lists. However, any publication such as a school newspaper or newsletter that may reveal more personally identifiable information should have parental approval before publication.

· Communicate to parents, students, and teachers the importance of confidentiality, the rights of students and parents, and under what circumstances records will be shared.

· Clearly outline and regularly communicate to parents and students what directory information may be included in school publications.

· Ensure that student records are accessed only for educationally legitimate reasons.

· Develop a system of accurately logging requests for records and the disposition of each request.

· Consider separating discipline files from academic files. Both are covered by FERPA, but separate files provide another layer of protection for students.

Students and the First Amendment

The freedom of speech is considered so important in our society that some compelling interest must be present before that right can be suppressed. With this high standard of review, there are surprisingly few cases where courts have found that the speech rights of private citizens are not protected. For example, almost 100 years ago, Justice Holmes of the U.S. Supreme Court opined that “falsely shouting fire in a theater” is not protected speech ( Schenck v. United States, 1919 ). Later, the U.S. Supreme Court has held that “fighting words” ( Chaplinsky v. New Hampshire, 1942 ) and “true threats” ( Watts v. United States, 1969 ) are not protected by the First Amendment. Most recently, the Court has held that “hate speech” ( R. A. V. v. City of St. Paul, 1992 ) and intimidating symbols such as cross burnings ( Virginia v. Black, 2003 ) are not protected. With these few exceptions (fighting words, true threats, hate speech, and intimidation) the First Amendment is designed to protect unpopular speech—including student. As District Court Justice Sippel states in Beussink v. Woodland Schools (1998) :

Indeed, it is provocative and challenging speech . . . which is most in need of the protections of the First Amendment. Popular speech is not likely to provoke censure. It is unpopular speech that invites censure. It is unpopular speech which needs the protection of the First Amendment. The First Amendment was designed for this very purpose.

Establishing Student First Amendment Rights

The U.S. Supreme Court first recognized student First Amendment rights in West Virginia Board of Education v. Barnette (1943) . The West Virginia Board of Education required students to salute the flag while reciting the Pledge of Allegiance. After several Jehovah’s Witnesses were expelled for refusing to salute the flag, the court recognized that as a state actor public schools were bound by the Fourteenth Amendment to respect students’ First Amendment rights. However, the U.S. Supreme Court has carved out an entirely different body of First Amendment law for public school students in a series of four cases: Tinker v. Des Moines School District (1969) , Bethel School District No. 403 v. Fraser (1986) , Hazelwood School District v. Kuhlmeier (1988) , and, most recently, Morse v. Frederick (2007) .

The trend toward respecting student First Amendment rights on school grounds continued in Tinker v. Des Moines School District (1969) . This is the famous “black armband” case. Several students, including John and Mary Beth Tinker, planned to wear black armbands to school to protest U.S. involvement in the Viet Nam war. After hearing of these plans, principals in the district met and adopted a policy that prohibited the wearing of armbands to school. John Tinker wore his armband the next day, refused to remove the armband, and was suspended from school (Stader, 2001a). In a well-written decision containing probably the most often quoted citation in education law, Mr. Justice Fortas established the concept that

it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate . . . the constitution says that Congress (and the States) may not abridge the right to free speech. This provision means what it says.

First and foremost, the Supreme Court attempted to validate the First Amendment rights of students while deliberately recognizing that students do not have the same expressive rights inside the schoolhouse gate as they do outside the gate. The Court recognized that unabridged student speech would likely result in chaos. Justice Fortas tempered student First Amendment rights as follows:

[A student] may express his [or her] opinions, even on controversial subjects . . . if he [or she] does so without materially and substantially interfering with the requirements of appropriate discipline in the operation of the school and without colliding with the rights of others. But conduct by the student, in class or out of it, which for any reason—whether it stems from time, place, or type of behavior—materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.

The first prong of Tinker is the material and substantial disruption test. The decisive factor in Tinker was the lack of evidence of disruption caused by the armbands. It is certainly appropriate for students to express their opinions, and some tolerance for minor disruption to the school day seems justifiable. However, at some point it certainly might be appropriate to take action to maintain good order, discipline, and harmony. The problem, of course, is how much disruption must occur to justify taking action? It is clear that school leaders need not wait until complete chaos before acting. In addition, past evidence of unrest or disruption can often suffice as justification for suppressing student speech on school grounds.

The second prong of Tinker considers the collision with the rights of others. The Tinker Court established the concept that schools should be a forum for ideas and that these ideas and expressions should not be suppressed simply because they make school officials uncomfortable. This is particularly important when students peacefully express opinions that are counter to the beliefs or views of others within the school and community. The question then becomes, who is causing the disruption? For example, controversy followed when Aaron Fricke was denied permission to bring a male date to the school prom based on widespread student and community uproar. Justice Pettine stated, in part:

I have concluded that even a legitimate interest in school discipline does not outweigh a student’s right to peacefully express his views in an appropriate time, place, and manner. The First Amendment does not tolerate mob rule by unruly school children.

( Fricke v. Lynch, 1980 )

There is little doubt that Tinker is ambiguous. For example, assume that a student takes an unpopular viewpoint that creates some controversy among community members, teachers, and some students. Schools are supposed to be forums for ideas, and these ideas are not to be suppressed simply because some individuals do not want to hear the message, right? The questions then become: (1) At what point does the controversy become “substantially disruptive,” and (2) who is causing the disruption, the student or those opposed to her views? The answer, of course, is that it depends. The fundamental protections of the First Amendment and the ambiguity of Tinker make balancing the rights of students with good order and discipline to be particularly challenging. One thing is clear: Students do have the right to express unpopular opinions; they just do not have the right to disrupt the school or invade the rights of others.

Lewd or Profane Speech

Student free expression rights do not extend to derogatory, disrespectful, profane, or vulgar speech. Restrictions on this type of student expression were clarified by the U.S. Supreme Court in Bethel School District No. 403 v. Fraser (1986) . Student Fraser, in spite of the warnings from two of his teachers, delivered a sexually explicit nominating speech at an assembly for a fellow student running for elective school office. During his speech, Fraser repeatedly referred to his candidate “in terms of an elaborate, graphic, and explicit sexual metaphor.” Fraser was suspended from school for 3 days. Fraser and his parents, citing a violation of his First Amendment rights, sought judicial relief. On appeal, the Supreme Court ruled in favor of the district. The Court held that schools can discipline students for indecent speech and “nothing in the Constitution prohibits (schools) from insisting that certain modes of expression are inappropriate and subject to sanctions.” In Fraser, the Court established that school officials’ legitimate need to suppress lewd or vulgar speech or speech that runs counter to the educational mission of the school at school-sponsored events outweighs the First Amendment rights of students. The Court was careful to point out that the same speech off-campus would be protected.

School-Sponsored Speech

The extent of student freedom of expression related to curricular speech or speech that may reasonably be viewed as sanctioned by the school was defined in Hazelwood School District v. Kuhlmeier (1988) . In this case, members of the school newspaper wrote two articles, one concerning divorce, the other teenage sexuality. Principal Reynolds, under pressure of time, elected to delete the articles because he was concerned that the students and parents in the articles could be easily identified. In the process, several other articles were also deleted from the paper. Students petitioned the courts that this censorship violated their First Amendment rights. In a 5–4 decision, the Court held that “educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities.” In short, school personnel control expression that could reasonably be seen as bearing the stamp of approval of the school. The Hazelwood ruling further expanded administrative control of student expression by finding schools to be a non-public forum. Lower courts have been relatively consistent in applying this standard to any student speech that could reasonably be viewed as bearing the imprimatur of the school.

Speech Promoting Drug Use

The most recent U.S. Supreme Court review of student speech rights at school-sponsored events was Morse v. Frederick (2007) . During a school-sponsored outing to watch the Olympic Torch Relay pass through Juneau, Alaska, Joseph Frederick, a high school senior, unfurled a banner reading “Bong Hits 4 Jesus.” Principal Deborah Morse asked Joseph to take the banner down. When Joseph refused, Morse confiscated the banner and suspended Joseph. The Ninth Circuit Court held that Joseph’s speech was protected and that Morse violated Joseph’s free speech rights by confiscating the banner and punishing Joseph. On review, the U.S. Supreme Court held that school authorities may “restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use.” It is important to note that the court refused to go any further and allow the restriction of any speech on school grounds that could plausibly be interpreted as commenting on a political or social issue. In his concurring opinion, Justice Alito (joined by Justice Kennedy) clearly stated that he joined the opinion of court on the understanding that (1) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (2) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue such as speech about “the wisdom of the war on drugs or of legalizing marijuana for medicinal use.” This type of speech would be protected. It is also clear that Frederick’s banner is protected speech outside school.

Hate Speech

Hate speech is a common problem on many campuses, regardless of location. In 2007, 10% of students ages 12 to 18 reported that someone at school had used hate-related words against them, and 35% reported seeing hate-related graffiti at school during the school year ( Robers, Zhang, & Truman, 2010 ). Hate speech is not protected speech, and school leaders have little difficulty justifying disciplinary action. Some speech and symbols are easy to identity as hate speech and generally acknowledged as unacceptable at school. Other speech and symbols, such as the Confederate flag, may be more difficult. However, courts have been supportive of school rules banning the Confederate flag and other symbols from school grounds and school-sponsored activities when school leaders can show that similar symbols in the past have resulted in disruption (see, for example, B. W. A. v. Farmington R-7 School District , 2009 ; Barr v. Lafon , 2008 ; Defoe v. Spiva , 2010 ; Scott v. School Board of Alachua County, 2003 ; West v. Derby Unified School District No. 260, 2000 , cert. denied).

Although courts have virtually unanimously supported bans on Confederate flags and other similar symbols when districts can reasonably forecast disruption, antihomosexual speech as hate speech that invades the rights of sexual-minority and questioning youth is an area of law that continues to emerge. For example, the Ninth Circuit used social science research to support a Poway School District ban on a T-shirt that read “Homosexuality is Shameful. Romans 1:27” ( Harper v. Poway , 2006 ; note that this ruling was later vacated as moot by the U.S. Supreme Court, 2007 ). Student Harper wore the shirt after a student-led Day of Silence activity in support of sexual-minority youth in the school. The court reasoned that the language of the shirt was especially hurtful to sexual-minority and questioning youth. Consequently the message violated the second prong of Tinker by colliding with the rights of others in the school. However, in a similar set of circumstances, the Seventh Circuit Court of Appeals used comparable research and logic to conclude that a “Be Happy, Not Gay” message was not “fighting words,” did not create material and substantial disruption, and did not collide with the rights of sexual-minority and questioning youth in the school. The court concluded that there is no legal right to prevent criticism or “hurt feelings” defense ( Nuxoll v. Indian Prairie School District , 2011 ).

Regardless of the circumstances and/or place of student speech, courts always use the principles that have been set forth on speech in general (fighting words, true threat, hate speech, and intimidation) and the special circumstances of schools (Tinker, Fraser, Hazelwood, and Morse) to reach a decision. Courts consider the amount of the disruption caused by the speech, the content of the speech (lewd or profane or promoting drug use), whether or not the speech is school sponsored, and whether or not any restrictions on speech are viewpoint neutral. Review the case study “Shanna’s Shirt” again. The message on her shirt is not a threat, is not lewd or profane, at least according to the Seventh Circuit is not fighting words, cannot reasonably be viewed as promoting illegal drug use, and one can assume the message is not school-sponsored speech. Therefore, Tinker applies, right?

Now, think about the two prongs of Tinker, “material and substantial disruption” and “collides with the rights of others.” Has enough disruption occurred? Does the message collide with the rights of others? As pointed out, courts are divided on whether or not antihomosexual speech collides with the rights of sexual-minority or questioning youth and their supporters. Some general guidelines exist, but significant areas of ambiguity also exist.

Student Dress

As of 2008, 22 states authorized schools and districts to implement dress code and/or uniform policies ( Colasanti, 2008a ). The U.S. Supreme Court has not ruled on a dress code case and, in spite of several opportunities, seems at this point unlikely to do so. However, since the mid-1980s, and particularly in the wake of the school violence outbreak in 1999, lower courts have consistently empowered school administrators to exercise a great degree of control over student dress ( DeMitchell, Fossey, & Cobb, 2000 ). Unless specifically prohibited by state law (Massachusetts, for example, prohibits dress codes except for health and safety reasons), it can be assumed that school districts may adopt reasonable and viewpoint-neutral student dress codes.

For example, the Sixth Circuit Court recently indicated that three criteria were critical in determining the legality of school dress code policies: (1) a higher level of scrutiny is appropriate only for viewpoint-specific cases, (2) school officials have greater discretion in prohibiting obscene, vulgar, and/or disruptive clothing, and (3) even more discretion is allowed if the speech or dress can be considered school sponsored ( Castorina v. Madison County School Board, 2001 ; also see Blau v. Fort Thomas , 2005 , for similar logic).

Controversial dress usually involves symbolic expression such as choice and style of wearing apparel or T-shirt messages. Unfortunately, guiding case law is significantly intertwined and does not provide clear guidance. Courts have supported bans on “sagging pants” ( Bivens v. Albuquerque Public Schools, 1995 ), the wearing of “Drugs Suck” T-shirts ( Broussard v. School Board of City of Norfolk , 1992 ), and the banning of Marilyn Manson T-shirts ( Boroff v. Van Wert City Board of Education, 2000 ). Clothing or symbols linked to gang membership can usually be banned when the district can demonstrate a gang problem or when the dress or symbol can be linked with disruptive behavior ( Chalifoux v. New Cancy Independent School District, 1997 ; Jeglin v. San Jacinto Unified School District, 1993 ).

Other courts have supported student rights. The Western District Court of Oklahoma, in recognizing that the banning of wearing apparel advertising alcoholic beverages was not unconstitutional, held that a school district ban on apparel with alcohol symbols did not apply to a senior class T-shirt that read, “The Best of the Night’s Adventures are Reserved for People With Nothing Planned.” This slogan was for Bacardi rum ( McIntire v. Bethel School District, 1992 ). In another example of supporting student rights, the Third Circuit Court held that a Jeff Foxworthy T-shirt did not violate a “racial harassment policy” established in response to a history of racial disturbances at a high school ( Sypniewski v. Warren Hills Regional Board of Education , 2002 ).

A similar line of reasoning was applied by the Eastern District Court of Michigan to a T-shirt with a message critical of President George W. Bush. Using Tinker v. Des Moines (1969) , the court held that the banning of the shirt based on an unsubstantiated fear that a minority viewpoint may create opposition does not justify a preemptive ban on a clearly political message ( Barber v. Dearborn, 2003 ). Following the same logic of lack of evidence of disruption, the District Court of Minnesota ordered an injunction barring a school principal from banning a “straight pride” sweatshirt in a Minnesota high school. The court refused to state that such a message could not be legally banned. But, absent any evidence that the decision was based on a reasonable belief of disruption other than a few complaints from students, the court had no option but to issue the injunction ( Chambers v. Babbitt, 2001 ).

The concept of school uniforms has also gained acceptance and judicial support. Numerous states allow districts to implement school uniform policies, but no state requires that districts do so ( Colasanti, 2008a ). Proponents believe school uniforms (1) decrease violence, (2) prevent gang-related attire, (3) instill discipline, (4) help students concentrate, and (5) aid in the recognition of intruders. Regardless of the efficacy of these benefits to schools, courts have consistently supported school uniform policies. For example, a district court in Texas concluded that choice of clothing in school is not protected by the First Amendment ( Littlefield v. Forney Independent School District, 2000 ). In a similar decision, the Fifth Circuit Court concluded that school boards, not the federal courts, have the authority to decide what constitutes appropriate dress in schools ( Canady v. Bossier Parish School Board, 2001 ).

Linking to Practice

Do:

· Create opportunities for open discussion with parents, community members, teachers, and students regarding appropriate school attire.

· Honor diverse views. Beware of viewpoint discrimination.

· Maintain accurate records documenting disruption created by various symbols. These records may be invaluable in justifying decisions to ban certain expressive items.

· Develop policies that address clothing items with symbols that are profane, vulgar, sexually suggestive, or advocate alcohol, tobacco, and other drug use. These policies are almost always defensible.

· Consider dress code and uniform policies as part of a comprehensive plan to promote a safe, orderly, and positive school culture.

· Understand that dress code and uniform policies are not “silver bullets” to solve all school discipline and safety concerns.

· Objectively evaluate the effectiveness of dress code and uniform policies.

· Beware of dress code and uniform policies that can become troublesome enough (significant enforcement time, student time out of class, disagreements among faculty, and parent dissatisfaction, to name a few) to outweigh the potential or actual benefit gained from having the policy in the first place.

Do Not:

· Overreact.

· Suppress the peaceful expression of minority viewpoints simply because some individuals do not wish to hear the message.

· Wait for complete chaos before banning disruptive speech.

Library Books

The U.S. Supreme Court considered the balance between the authority of a school board to determine the content and subject matter of books in a school library and the First Amendment rights of students in Board of Education v. Pico (1982) . In 1975, Three Island Trees School District sought removal from the high school library of several books that a politically conservative organization had determined to be objectionable. The board appointed a review committee. The committee recommended returning several of the books, placing a few on restricted shelves, and removing two from the library. The board voted to remove all but one book. The U.S. Supreme Court upheld the challenge to the board action by declaring,

Local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books and seek by their removal to prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.

Using Pico as a guide, an Arkansas federal district court reached a similar decision in Counts v. Cedarville School District (2003) . The district board had voted to restrict students’ access to the Harry Potter books. The court ordered the return of the books to the unrestricted section of the library on the grounds that the restrictions violated students’ First Amendment rights to read and receive information. The court noted that school boards do have considerable discretion in the operation of the school district. However, the school board is still bound by the Bill of Rights.

Threats

In light of recent acts of school violence, statements or writings that could once be passed off as adolescent braggadocio must be taken seriously ( Stader, 2000 ). The U.S. Supreme Court has established that a threat that is not true is protected speech ( Watts v. U.S., 1969 ). The Court later defined true threats in Virginia v. Black (2003) as follows: “True threats encompass those statements where the speaker means to communicate a serious expression of intent to commit an act of unlawful violence to a particular individual or group of individuals.” The most common approach taken by the courts is based on the vantage point of the speaker and/or the vantage point of the recipient ( Hyman, 2006 ). In student threat cases, courts use the “reasonable person” standard. For the speaker’s vantage point, if a reasonable person could foresee that his or her words could be taken as a threat, then it is a threat. For the recipient’s vantage point, if a reasonable person could perceive the statement as a threat, then it is a threat.

Let us take a brief look at two cases that illustrate these two vantage points. A good example of the vantage point of the speaker may be Lovell v. Poway Unified School District (1996) . At the end of a long day, in an effort to change her schedule, student Lovell (then 15) arrived before the school counselor. The counselor informed Lovell that the classes she had finally arranged were overloaded and refused to change Lovell’s schedule. At this point Lovell either said, “I’m so angry, I could just shoot someone” (Lovell’s version) or, “If you don’t give me this schedule change, I’m going to shoot you” (counselor’s version). Both parties agree that Lovell immediately apologized, and the counselor made the schedule changes. In upholding the suspension of Lovell, the court reasoned that the central issue is not whether the student actually meant what he or she said; rather, the entire factual context, including the reaction of listeners, must be considered. Basically, the result turns on whether a reasonable person under the circumstances should have foreseen that her words would appear threatening.

In a rare en banc review using the vantage point of the recipient, the Eighth Circuit Court supported the expulsion of a middle school student (Doe) for writing a threatening letter at home describing the rape, sodomy, and murder of his ex-girlfriend. The letter remained at home and was allegedly not meant to become public. When a third party delivered the letter to the girl, she became frightened, went home early from school, and slept with the lights on for several nights. Doe was expelled for the remainder of his eighth-grade year. The trial court concluded that the letter was not a “true threat” and ordered Doe reinstated. On appeal, a divided panel of the Eighth Circuit Court affirmed the district court’s decision. On further review, this ruling was vacated and the entire Eighth Circuit Court conducted an en banc rehearing. Citing the Lovell reasonable person standard, the court concluded that based on the tone of the letter, they were not surprised that those who read it interpreted it as a threat. Considering the facts and the reaction of the girlfriend, the court upheld the expulsion of Doe ( Doe v. Pulaski County Special School District, 2002 ). The important point is that the reaction of the recipient clearly established that the letter was perceived as a true threat. As Stader (2011) writes, “In reality, it is the reaction of the participants and the impact of the statement on others that is important. If it sounds like a threat, if the speaker appears threatening, or if others react as if a threat has been made, then it is a threat” (p. 145).

A general decision-making guide is presented in Figure 4-2 .

Threat Assessment

Regardless of the circumstances, even frivolous threats can create considerable apprehension among students, teachers, and parents. The stakes are high. Failure to properly remove a student who is a true danger from the school setting is a recipe for disaster on several fronts. Yet depriving a student of a public education when he or she is guilty of nothing more than poor judgment creates several legal and ethical dilemmas. A proper decision is often difficult. However, a threat assessment policy can provide guidance ( Fein et al., 2004 ). Threat assessment starts with determining whether or not a true threat has been made. If, for example, a reasonable person would not view the action as a threat, this model recommends contacting parents to explain the situation. Some disciplinary action may be warranted to address the behavior. If, on the other hand, a reasonable person and the reaction of others indicate a potential threat, then contacting parents is mandatory. Short-term or emergency suspension or expulsion should be considered. At this point, Fein et al. (2004) and Stader (2000, 2001a) recommend that the student (or students) be referred to local law enforcement and to a local counseling or mental health agency with experience working with students of a similar age. At the same time that these agencies are making their independent assessments, this model recommends an internal school-based assessment that gathers as many facts as possible. The evidence and assessments of law enforcement and mental health professionals, and the facts and information gathered by school personnel, should be objectively considered to support either further suspension or expulsion or a return to school. The central question of a threat assessment is whether a student poses a threat, not whether the student made a threat. Threats should never be taken lightly. However, all threats may not be created equal.

In a case illustrative of this approach, the Ninth Circuit Court held the emergency suspension of Washington high school student Bruce LaVine to be sufficiently justified ( LaVine v. Blaine School District, 2001 ). Bruce wrote a poem describing scenes of

FIGURE 4-2 Responding to threats.

violence in his high school. His mother warned him not to take the poem to school, fearing overreaction on the part of teachers and administrators. Bruce did not follow his mother’s advice, and on a Friday he submitted the poem to his English teacher for her comments. When his teacher read the poem that evening, she decided to contact school officials. The principal decided to invoke a provision of Washington state law providing for emergency expulsions. The principal informed Bruce and his parents of the expulsion on Monday morning. Both Bruce and his father became angry, belligerent, and profane. After Bruce was expelled, his parents hired an attorney, who immediately began communicating with the school district’s attorney. After several conversations, it was agreed that Bruce should be evaluated by a psychiatrist at school district expense. After meeting on several occasions with Bruce, the psychiatrist recommended that he return to school. The expulsion was shortly rescinded, and Bruce returned to school. On judicial review, the Ninth Circuit Court concluded:

We must take care when evaluating a student’s First Amendment right . . . against school officials’ need to provide a safe school . . . not to overreact in favor of either. Schools must be safe, but they are educational institutions after all, and speech—including creative writing and poetry—is an essential part of the educational fabric. Although this is a close case in retrospect, we conclude that when the school officials expelled Bruce LaVine they acted with sufficient justification . . . not to punish Bruce for the content of the poem, but to avert perceived potential harm.

( LaVine v. Blaine School District, 2001 )

Threat assessment is difficult, but a necessary application of balancing school safety with the legal rights of students. For example, the school officials in LaVine v. Blaine School District (2001) prevailed primarily because they used a sensible and defensible approach to the poetry of Bruce LaVine.

Linking to Practice

Do:

· Understand the balance between people and policy to promote a cooperative, supportive school culture where students feel comfortable confiding in at least one adult in the school. In almost all cases of actual violence, other students knew or had information regarding the attack but failed to confide in a responsible adult ( Fein et al., 2004 ).

· Use the “reasonable person” standard to define threat. Violence stems from an interaction among the person, the situation, the setting, and the target ( Fein et al., 2004 ).

· Use the reactions of others as a predictor of the likelihood of disruption.

· Consult outside professionals. Violence is the end result of an understandable, and oftentimes discernible, process of thinking and behavior ( Fein et al., 2004 ). Most educators are not qualified to make this assessment. Develop positive working relationships with qualified mental health professionals willing to provide such assessments of K–12 students.

· Develop positive working relationships with law enforcement. Trained law enforcement officers are often excellent judges of behaviors, ways of thinking, and access to weapons and can be invaluable in making threat assessments ( Stader, 2000 , 2001a ).

· Involve parents or guardians in a cooperative relationship with the best interest of their child and the school as the desired outcome of any threat assessment process.

· Insist that parents or guardians give written permission for a sharing of information among school, law enforcement, and mental health professionals.

· School districts should provide training for at least one person to serve as a “threat assessor” for the district.

Do Not:

· Overreact. Not every adolescent utterance, poem, or drawing is a precursor to school violence.

· Fail to follow school board policy and state law.

Student Off-Campus Speech

Student speech off campus receives more protection than student speech on campus ( Hyman, 2006 ). As Justice Brennan (citing Cohen v. California, 1971 ) cautioned in Fraser, just because profane speech can be banned on campus does not mean that the same speech conducted off-campus is subject to censorship by school authorities. For example, a federal district court held that school officials lack authority to punish a student for conduct that does not occur on school grounds or during the school day when the district cannot establish that the conduct would adversely affect the orderly operation of the school (Smith v. Klein, 1986).

Underground newspapers created off-campus have similar protections (see Thomas v. Board , 1979 , for example). However, if the publication can be linked to substantial disruption in the school, then it could be banned. The Seventh Circuit Court took this approach when a Wisconsin school district expelled Justin Boucher for 1 year after Justin wrote an article in an unofficial school newspaper distributed on campus describing how to “hack” school computers ( Boucher v. School Board, 1998 ). The article, according to school officials, provided instruction on unauthorized access to the school district computers. Boucher argued that his speech was created off-campus and was innocuous. The Seventh Circuit Court was not impressed by these arguments, finding that school officials had legitimate concerns over disruption. The court upheld Boucher’s 1-year expulsion.

The Second Circuit Court recently upheld the banning of an independent student newspaper being distributed on campus containing a sexually explicit cartoon. The school newspaper sponsor had earlier banned the cartoon from the official school paper. The court, citing Bethel v. Fraser (1986) , concluded that the cartoon was “unquestionably lewd” and therefore banning the distribution of the newspaper on campus did not offend the First Amendment ( R. O. v. Ithaca , 2011 ).

Student Internet Speech

Speech on the Internet is entitled to the same First Amendment protections as other speech ( Reno v. ACLU , 1997 ). Not only has the proliferation of the Internet in schools and homes empowered students and citizens to freely access information, it has also created an unfettered and uncensored forum for expression. Expression that was at one time limited to relatively small groups of people can now be almost instantaneously and indiscriminately broadcast worldwide. Although this power holds great potential, it also holds particular challenges for school leaders when students use the Internet to engage in controversial speech. Justice Cappy succinctly captured the challenge the Internet creates for school leaders: “Tinker’s simple armband, worn silently and brought in to a Des Moines, Iowa classroom, has been replaced by [a] complex multi-media website, accessible to fellow students, teachers, and the world” ( J. S. v. Bethlehem Area School District, 2002 ). This challenge is compounded by the emergence of communication technologies such as Twitter, Facebook, and MySpace that make access to student comments almost instantaneous anywhere, including school hallways, lunch rooms, playgrounds, and classrooms.

Unfortunately, the U.S. Supreme Court has not ruled on a student online speech case, and lower courts have been inconsistent. Consequently, student off-campus online speech cases are usually decided along two lines of reasoning: (1) true threats (serious expression of intent to commit violence) are not protected speech, or (2) the material and substantial disruption standard of Tinker apply. In other words, simply disliking the message or fearing disruption is not enough to trump student off-campus speech rights. Thus, school authorities must either demonstrate that the off-campus communication is a true threat, or show a direct link between the off-campus speech and substantial disruption at school ( Graca & Stader, 2007 ).

Regardless of the off-campus communicative medium, courts usually start with a threat analysis. If the speech can be considered a threat, the court usually stops the inquiry and supports banning the speech and whatever punishment the school district elects to apply. For example, the United States Northern District Court of New York supported the one-semester suspension of Aaron Wisniewski for posting on the Internet a threat to kill one of his teachers ( Wisniewski v. Board of Education , 2006 ). The posting included an icon depicting a gun pointing to a head, a bullet leaving the gun, and blood splattering from the head. The message was “Kill Mr. VanderMolen.” The court had little trouble recognizing the message as a true threat. Similarly, a high school student sent several instant messages to a classmate threatening to get a gun and kill everyone he hated, then kill himself. The student receiving the messages forwarded the messages to school administrators. The student sending the messages was suspended. The federal court had little difficulty determining that the message constituted a true threat ( Mardis v. Hannibal School District , 2010 ).

If the message is not considered a true threat, courts generally turn to the substantial disruption prong of Tinker. Numerous examples are available. The Supreme Court of Pennsylvania upheld the expulsion of an eighth-grade student who created a website titled Teacher Sux ( J. S. v. Bethlehem Area School District, 2002 ). The website, developed at the student’s home, consisted of several pages that made derogatory comments about the student’s math teacher and his principal. The website solicited $20 contributions for a “hit man,” and contained a picture of the math teacher with a severed head dripping with blood, and her picture morphing into Adolf Hitler. The math teacher reported fear, short-term memory loss, an inability to mingle with crowds, and headaches, and she was required to take anti-anxiety medication. She was unable to continue in her position, forcing the school to hire a variety of substitute teachers with sometimes less than stellar results. On judicial review, the Pennsylvania Commonwealth Court concluded that, though it was offensive, the website was simply a “sophomoric . . . highly offensive and misguided attempt at humor.” Consequently, the website created by J. S. did not rise to the level of a true threat and was protected by the First Amendment. The court next considered the impact of the website on the school. Given the effect the website had on the math teacher, student learning, and school morale, the school district was within its rights to expel the offending student.

Not all off-campus speech results in disruption. Joshua Mahaffey was referred for expulsion from Waterford Kettering (Michigan) High School for contributing to a website entitled Satan’s web page ( Mahaffey v. Aldrich, 2002 ). As part of his contribution to the web page, Joshua listed “People I wish would die” as well as “People that are cool.” A parent notified the local police about the website. The police then notified school authorities. School authorities notified Joshua that he was being recommended for expulsion from Waterford School District. On judicial review, the district court concluded that a reasonable person in Joshua’s place would not foresee that the statements on the website would be interpreted as threatening harm to anyone. Simply stated, Joshua’s list of “people I wish would die” did not constitute a threat any more than his list of “people who are cool” made them more attractive. In a similar case, the Western District Court of Washington prohibited Kent School District from enforcing an emergency expulsion for intimidation, harassment, and disruption to the educational process against Nick Emmett after he created “mock obituaries” of some of his friends ( Emmett v. Kent School District, 2000 ).