Approximately twenty students at McKay High School in Oregon were suspended last week for “retweeting” a post about an alleged affair between a student and a teacher.
The tweet was posted by “Salem Confessions,” a Twitter account devoted to sharing confessions sent in by students in the Salem-Keizer School District. The majority of the confessions are sexual in nature, but they rarely identify students or teachers by name. In this case, the tweet mentioned a female teacher who, it was allegedl, was very flirtatious with some of her students.
The tweet read: “Ms. [name redacted] always flirts with her students.”
Like most school districts, Salem-Keizer has instituted many policies designed to protect students from potentially abusive teachers, as well as teachers from interacting with students in a manner that gives the appearance of impropriety.
The president of the teacher’s union, Kathleen Sundell, said that the students were suspended because they violated the Salem-Keizer School District’s anti-cyberbullying statute, which defines cyberbullying as the “use of any electronic communication device to harass, intimidate or bully.” It includes behavior that occurs “off school grounds but disrupts or prevents a safe and positive educational or working environment.”
“Cyberbullying is cyberbullying,” Sundell said, “regardless of who it is.”
On Friday, the American Civil Liberties Union of Oregon wrote a letter to the district declaring that suspending students for “retweeting” is “a clear violation of both the United States and Oregon Constitutions.”
“We strongly urge McKay High School to remove all record of the suspensions imposed on students who were unlawfully disciplined and respect the free speech rights of students in the future,” the letter stated.
ACLU of Oregon legal director Kevin Diaz also took issue with the district’s statute that communications that occur off-campus are subject to punishment. “Here, the student speech at issue took place off-campus and involved no threat of violence whatsoever,” he said. “When students are off-campus, their First Amendment rights are equal to everyone else’s.”
The Statesman Journalcontacted a law professor at Willamette University, Steven Green, who said that the problem with Diaz’s argument is that the law as to where school boundaries end is unclear.
“The courts have generally upheld schools in their abilities to sanction students,” he said. “But they have not told us what those parameters are or how far that goes.”
He also noted that suspending the students merely for “retweeting” may unfairly punish some of them. “One student could have tweeted to another, ‘Hey, did you see this? I can’t believe this,’” Green said.
“Does that constitute additional bullying? Or what if they showed it to a parent? Or showed it on their phone to another student? Is any sharing or transmission the equivalent of bullying? School districts are going to be protective of their employees and claim it is bullying, but all of these are still very open questions in the law.”
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Scott Eric Kaufman is the proprietor of the AV Club's Internet Film School and, in addition to Raw Story, also writes for Lawyers, Guns & Money. He earned a Ph.D. in English Literature from the University of California, Irvine in 2008.
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