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Court rules school policy violates pupils' free speech

Friday, February 28, 2003

By Torsten Ove, Post-Gazette Staff Writer

A federal judge has ruled that policies in the Keystone Oaks School District student handbook allowing officials to punish students for offensive or abusive Internet messages posted from home are too broad and violate the First Amendment.

The ruling by Chief U.S. District Judge Donetta Ambrose ends a contentious civil case pitting ex-volleyball player Jack Flaherty against his former school district.

Last year the district agreed to pay $60,000 to settle a suit brought by the American Civil Liberties Union on behalf of Flaherty, who was thrown off the volleyball team in 2001 after participating in an online "trash talk" conversation attacking a rival team and the mother of one of its players.

The settlement didn't end the case because the judge had yet to rule on the constitutionality of the district's policies on Internet use and discipline. She did that this week, saying the handbook prohibitions are too vague.

Under "student responsibilities," the handbook says students must "express ideas and opinions in a respectful manner so as not to offend or slander others." Under the "technology" section, the policy prohibits "technology abuse," defined as the "use of computers to receive, create or send abusive, obscene or inappropriate material and/or messages."

"Simply put, the student handbook policies could be interpreted to prohibit a substantial amount of protected free speech," the judge wrote. "Based on the evidence, the policies are overbroad because they are not limited to speech that causes, or is likely to cause, a substantial disruption with school operations."

The ACLU and attorney Kim Watterson, who represented Flaherty and his parents, were gratified by the decision.

"The court has sent a clear message that the First Amendment limits school officials' authority to punish students who post nonthreatening, but offensive or critical statements on the Internet from their home computers," said Witold Walczak, legal director of the Pittsburgh ACLU. "If schools object to what students are doing at home, their recourse is to contact the parents, not to punish the students."

The school district, which had previously accused the ACLU of misleading the public by downplaying the seriousness of Flaherty's conduct, referred questions to its lawyer, Douglas Nolin.

Nolin said school administrators review the handbook every year and will make the necessary changes. He noted that the language in the handbook is the same as that used in districts across the state.

The case began in March 2001 when the school found out Flaherty posted four messages on a volleyball bulletin board that contained trash talk among players. Flaherty posted three of the messages from home and the fourth from a school computer.

The messages included one saying that rival Baldwin had better "shut their mouths" before the Keystone Oaks team "puts their whole team in the hospital." The posting also said Keystone Oaks team members would "run a train on," or gang rape, the mother of a Baldwin player who is also an art teacher at Keystone Oaks. Flaherty didn't write that particular message, although he did say the woman is a "bad art teacher."

School officials disciplined everyone involved in the conversations.

"We took the substance of the postings seriously," said Superintendent Carl DeJulio last year.

The district kicked Flaherty off the volleyball team and prohibited him from attending school events or using school computers.

After the ACLU filed suit, Ambrose issued a preliminary injunction, saying the school violated Flaherty's right to free speech, and ordered the district to put him back on the team. The coaches and several players then quit, and the district canceled the season.

ACLU asked Ambrose to hold the district in contempt for that action, but she didn't.

Flaherty graduated and is a sophomore at Indiana University of Pennsylvania. His parents continued the suit because they said they feared their other children, who are students in the district, would face similar problems. They also said they wanted to send a message that school officials cannot tell students what they can't say in their own homes.

In praising the judge, Watterson said that aspect of the case has been overlooked.

"Judge Ambrose's decision not only protects students' free speech rights," she said, "but also protects the parents' rights to raise and discipline their children for conduct that takes place in the family's home."

Torsten Ove can be reached at tove@post-gazette.com or 412-263-2620.

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