A case of a beating on the children with the law.
One morning in May 2008, an eighth-grader walked into Janice Hart's office at a Beverly Hills school crying.
She was upset and humiliated and couldn't possibly go to class, the girl told the counselor. The night before, a classmate had posted a video on YouTube with a group of other eighth-graders bad-mouthing her, calling her "spoiled," a "brat" and a "slut." Text and instant messages had been flying since. Half the class must have seen it by now, she told Hart.
Hart took the problem to the vice principal and principal, who took it to a district administrator, who asked the district's lawyers what they could do about it. In the end, citing "cyber-bullying" concerns, school officials suspended the girl who posted the video for two days. That student took the case to federal court, saying her free speech rights had been violated.
Last month, a federal judge in Los Angeles sided with her, saying the school had gone too far. Amid rising concerns over cyber-bullying, and even calls for criminalization, some courts, parents and free-speech advocates are pushing back. Students, they say, have a 1st Amendment right to be nasty in cyberspace.
"To allow the school to cast this wide a net and suspend a student simply because another student takes offense to their speech, without any evidence that such speech caused a substantial disruption of the school's activities, runs afoul" of the law, U.S. District Judge Stephen V. Wilson wrote in a 60-page opinion.
"The court cannot uphold school discipline of student speech simply because young persons are unpredictable or immature, or because, in general, teenagers are emotionally fragile and may often fight over hurtful comments," he wrote.
Schools' ability to limit student speech, from armbands protesting the Vietnam War to banners promoting marijuana use, is an age-old issue that has been repeatedly tried and tested in the courts. But with teens' social lives moving increasingly to cyberspace, where what might have previously been private bickering is reproduced, publicized and documented for all to see, school officials find themselves on unfamiliar ground in dealing with e-mails, instant messages, profile pages, videos and the like that may result in hurt feelings or something more serious.
Free-speech advocates said the notoriety of recent cases, such as the Missouri girl who committed suicide after a mean-spirited MySpace message was sent, have led schools to overreact and excessively crack down on student expression when it comes to the Internet.
"It's better to have a lawsuit and lose some money than have a situation where a student commits suicide," said Eugene Volokh, a 1st Amendment expert and UCLA law professor who has criticized a bill in Congress that would make cyber-bullying punishable by up to two years in prison. "People don't appreciate how much the 1st Amendment protects not only political and ideological speech, but also personal nastiness and chatter. . . . If all cruel teasing led to suicide, the human race would be extinct."
The murkiness of this area of law and educational policy has resulted in legal challenges across the country over school officials' restriction of student speech or discipline meted out in such cases.
Attorneys and experts said court decisions have been "all over the map," offering little clarity to confused school administrators. The U.S. Supreme Court has yet to take up a case involving student speech online; the governing decision is from the 1969 Tinker vs. Des Moines School District case, which held that student speech could not be limited unless it caused substantial disruption on campus.
"We're in a rapidly evolving area of law with relatively few guidelines and remarkably little that has been charted," said Robert O'Neil, director of the Virginia-based Thomas Jefferson Center for the Protection of Free Expression.
O'Neil said that when a true threat is made, and when speech is made using school computers, schools have clear authority to regulate students' speech. But when something falls in the gray area between an expressed threat and mere teasing, and students are accessing the Internet outside the school's walls, administrators are faced with a tricky calculus.
"Everybody is justifiably confused about what they can and cannot do," said Witold Walczak, an attorney with the American Civil Liberties Union.
In Pennsylvania, a student sued his school district after he was suspended for 10 days and placed in an alternative education program for creating what he claimed was a parody MySpace profile of the school principal. On the website, the student referred to the principal as a "big steroid freak," and a "big whore," among other things, and stated that he was "too drunk to remember" the date of his birthday.
U.S. District Judge Terrence McVerry found that even though the profile was unquestionably "lewd, profane and sexually inappropriate," the school did not have the right to restrict the student's speech because school officials were not able to establish that the profile caused enough of a disruption on campus.
"The mere fact that the Internet may be accessed at school does not authorize school officials to become censors of the World Wide Web," he wrote.
Walczak, the ACLU attorney who argued the case, said censoring is often the "easy way out" for schools that want to be able to say they did something about the situation rather than stand by and watch.
"The Internet doesn't change what students say about other students or school officials, it just makes it more apparent to a larger number of people," he said.
The school district has appealed to the 3rd Circuit Court of Appeals, where a decision is pending.
In Florida, the ACLU sued a principal on behalf of a student who was suspended and removed from her honors class for alleged cyber-bullying. Katie Evans had created a Facebook page criticizing an English teacher as "the worst teacher I've ever met" and invited others to express their "feelings of hatred."
Her attorney, Matthew Bavaro, said the reach of the Web was irrelevant to whether students are allowed to express themselves freely.
"The audience, whether it's one person or 1 billion people, doesn't change that Katie still had a 1st Amendment right," Bavaro said.
In the Beverly Hills case, the student's lawsuit said her "speech" was entirely off campus and off-limits to the school administrators' regulation. The four-minute, 36-second video, in which a group of friends is chatting at a restaurant four blocks from campus, could not even be viewed at school because YouTube is blocked on the school's computers, her attorney contended.
Judge Wilson ruled that school officials had the authority to investigate the matter because the student told several of her classmates to watch the video, and it was foreseeable the video, or talk of it, would quickly make its way to the campus of Beverly Vista School. The video was "designed in such a manner to reach many persons at once," making it different from earlier cases involving school newspapers or a violent drawing, he found.
However, he ruled that the chatter in the video did not rise to a level that would cause enough disruption at the school to warrant the discipline.
"The fear that students would 'gossip' or 'pass notes' in class simply does not rise to the level of a substantial disruption," he wrote.
The plaintiff's attorney, Evan Cohen, who is also her father, said the case highlighted the school district's failure to realize the limits of its authority.
"Yeah, sure, they can fall back on cyber-bullying, but when you actually ask them questions and dig down deep into their understanding, they think it's OK for them to be a super-parent," he said.
Cohen's daughter, now a high school sophomore, is glad to put the case behind her and move on with her life, he said. She will be awarded nominal damages of $1 from the school, he said, and her two-day suspension will probably soon be removed from her academic record.
Attorney Gary Gibeaut, who represented the Beverly Hills Unified School District, declined to comment, saying the district had not decided whether to appeal the decision.
|
Convictions overturned after probe .
And that's a fact!
03/27/2009 12:00:00 AM PDT
ALLENTOWN, Pa. - Pennsylvania's highest court on Thursday overturned hundreds of juvenile convictions issued by a corrupt judge who took millions of dollars in kickbacks from youth detention centers.
The state Supreme Court ruled that former Luzerne County President Judge Mark Ciavarella violated the constitutional rights of youth offenders who appeared in his courtroom without lawyers between 2003 and 2008.
"Today's order is not intended to be a quick fix," Chief Justice Ronald Castille said in a statement. "It's going to take some time, but the Supreme Court is committed to righting whatever wrong was perpetrated on Luzerne's juveniles and their families."
In one of the most egregious cases of judicial corruption ever seen, federal prosecutors charged Ciavarella and another Luzerne County judge, Michael Conahan, with taking $2.6 million in payoffs to put juvenile offenders in privately owned lockups.
The judges pleaded guilty to fraud last month and face sentences of more than seven years in prison.
The Supreme Court approved the recommendations of Berks County Senior Judge Arthur Grim, whom the justices appointed in February to review cases handled by Ciavarella.
He decided that expungement was the most appropriate remedy for low-level offenders who appeared in Ciavarella's courtroom without lawyers.
Under Pennsylvania law, a juvenile may not waive his right to an attorney unless the decision is made "knowingly, intelligently and voluntarily." The judge must also formally question defendants to make sure they understand their rights, something Ciavarella routinely did not do.
Just like Judge Matz failed to do.
In a report to the Supreme Court released Thursday, Grim said he has determined that "a very substantial number of juveniles who appeared without counsel before Judge Ciavarella ... did not knowingly and intelligently waive their right to counsel."
Prosecutors have described a scheme in which Conahan, the former president judge of Luzerne County, shut down the county-owned juvenile detention center in 2002 and signed an agreement with PA Child Care LLC to send youth offenders to its new facility outside Wilkes-Barre.
"In analyzing the Luzerne County debacle," Judge Grim said. "It is clear that the judicial process had run amok and in essence was governed by the wanton exercise of power, dominated by greed, and with little or no concern for the welfare of juveniles and with little or no adherence to the time-honored precepts of juvenile justice."
Contact the writer: msisak@citizensvoice.com
UPDATE:2011
SCRANTON, Pa. — A disgraced Luzerne County, Pa., judge was sentenced to 28 years in federal prison Thursday for his conviction on charges of taking hundreds of thousands of dollars in payments in connection with the operation of the counties' juvenile centre.
The ex-judge, Mark A. Ciavarella, Jr., 61, was given the harsh sentence after he told the judge that he apologized for unethical behavior but had never taken "cash for kids."
He was found guilty in February of twelve counts of racketeering, conspiracy, fraud and filing false tax returns. The jury acquitted him on 27 other counts of bribery and extortion, as he pointed out to the judge before he was sentenced.
Ciavarella, for years the head of juvenile court in the county, was charged with the former president judge there in a $2.8 million scheme to enrich themselves through their control of juvenile justice in Luzerne County.
The other ex-judge, Michael T. Conahan, 59, pleaded guilty and is awaiting sentencing, as are other key conspirators in the plot, including the builder and an owner of a for-profit juvenile detention center that was at the heart of the corruption.
Federal prosecutors, saying that Ciavarella has used children as "pawns to enrich himself" showed the jury how the two judges had used their political and judicial power to shut Luzerne County's government-run juvenile facility a decade ago. This created a business opportunity for a developer, Robert Powell, and a builder Robert Mericle.
After Mericle built a new center for Powell, the judges made sure that the place was kept filled with youthful detainees.
Juvenile justice advocates, in criticism later affirmed by the state Supreme Court, said Ciavarella ran a kangaroo court for teens and children, shipping them to the facility with no regard for fairness.
Prosecutor Gordon Zubrod told the sentencing judge, Edwin Kosik, that Ciavarella had sold kids wholesale and deserved to be sentenced "for the rest of his natural life."
© Copyright (c) McClatchy-Tribune Information Services
|
 |
