John Williams now realizes how close Ocean Lakes High School in Virginia Beach, Va., came to being sued for violating a student-athlete's First Amendment rights. ...
John Williams now realizes how close Ocean Lakes High School in Virginia Beach, Va., came to being sued for violating a student-athlete's First Amendment rights. After two photographs of the girl with a shot glass appeared on Facebook several years ago, an anonymous email was sent to the team's coach with the photos in question and these words: "Is this the kind of student-athlete you promote at your school?"
"We didn't know where it came from; it could have been sour grapes from a teammate," says Williams, student activities coordinator at Ocean Lakes, who forwarded the email to the school's principal after the coach forwarded it to him. "But we called in the young lady, told her how disappointed we were and then dismissed her from the team. Knowing what I know now, if she and her parents had challenged that decision in court, we probably would have lost. And that disturbs me."
What Williams knows now is that the 1969 U.S. Supreme Court case Tinker v. Des Moines Independent Community School District defined the free-speech rights of public school students when it ruled that administrators may limit First Amendment rights only when the speech (or in today's world, the post) substantially disrupts the school environment. Almost 45 years later, that ruling remains the standard.
"I think we did the right thing. But what we thought was the right thing and what was actually enforceable by the law were different, because there was no real disruption," says Williams, who last fall introduced an expansive social media position statement that incorporates specifically prohibited behaviors such as cyberbullying and the posting of sexually explicit, profane, lewd, indecent, illegal or defamatory comments or photos, as well as social media guidelines to help student-athletes make smart decisions. (Those guidelines apparently were established by St. Thomas Aquinas High School in Dover, N.H., and used by Williams with permission.)
Adopted by the Beach District Principals' Association for all 11 district high schools, the position statement is "probably the most detailed one I've seen at the high school level," says Lee Green, an attorney specializing in sports law who also is a professor of business and economics at Baker University. "Maybe 20 percent of high schools in the country actually have included a social media policy in their student-athlete codes of conduct. But it's increasing all the time. As more and more problems pop up around the country, athletic directors are becoming aware of the need to incorporate a policy."
While many college and university athletic departments have adopted official social media policies - some have even gone so far as to hire outside firms to monitor student-athletes' tweets - Green says high school administrators still struggle to determine what authority they have to sanction students for inappropriate postings on social networks. The National Federation of State High School Associations offers no guidelines on the topic, and many school districts and individual schools address the issue only via one or two sentences in student and student-athlete handbooks.
"Unfortunately, that's probably a little too vague," Green says, adding that coaches need to regularly include social media discussions in team meetings. "In a lot of situations in which schools actually impose sanctions - suspension from school or sports - the students will challenge them in court, citing a lack of advance notice of what was prohibited. But more commonly, they actually challenge on free-speech grounds."
Green cites five 2011 U.S. Court of Appeals cases and one 2011 U.S. District Court case (not all of them involving student-athletes) that could motivate administrators to become more proactive in this area - especially regarding the documentation of on-campus disruptions created by off-campus policy violations.
The five appeals cases were decided using the Tinker test: Did the students' conduct result in a substantial disruption within the school or among a team? In two of the cases, the appellate court ruled that it did not and determined that the plaintiffs' free speech rights had been violated.
And in Smith-Green Community School Corp. v. T.V. & M.K., the U.S. District Court in the Northern District of Indiana, Fort Wayne Division, ruled that an Indiana high school's "code of conduct" was too vague to justify administrators suspending two female volleyball players for posting lewd photos of themselves on the social networking site MySpace in 2009. Green adds that school officials failed to document how the volleyball players' behavior, which did not occur while they were wearing school-issued uniforms, created a substantial disruption.
The losers in all the appellate court cases appealed to the U.S. Supreme Court but were turned down. "I was hoping the Supreme Court would hear at least one of those cases, because that would really help set some national standard on the authority of schools to sanction students for the inappropriate posting of social media," Green says. "I think the Court thinks that the substantial disruption standard is enough to work with. But the big question remains: Are courts going to uphold those policies when students make the postings away from school?"
That question could take on added significance, given a high-profile rape case in Steubenville, Ohio, in which tweets and online videos and photos posted by at least one member of the Steubenville High School football team played a crucial role in gathering evidence against two players charged in the case. "If it weren't for social media," Steubenville police chief William McCafferty told the Pittsburgh Tribune Review in February, "we might not have even known about the case."
"I haven't seen anything else that even approaches what's happened in Steubenville," Green says. "Courts have said that a general buzz does not constitute a substantial disruption, but I have a feeling that at Steubenville High School, this has gone way beyond just a general buzz."
Some schools' social media policies are more sports-specific than Beach District's. For example, Oil City (Pa.) High School's policy states that it is the student-athlete's responsibility "to not use any form of social media ... to be critical of teammates, coaches, game officials, school administrators, opponents, opposing schools or any other personnel involved in the athletic program."
That's exactly what occurred at Akins High School in Austin, Texas, last fall, when volleyball players were suspended for "using social media to disrespect coaches ... by tweeting certain phrases they often use in practices or games," athletic director David Peavy told school newspaper The Eagle's Eye.
Williams, who credits a presentation Green gave at the 2012 Virginia Interscholastic Athletic Administrators Association for motivating him to make social media oversight a major priority, stresses that he and his Beach District colleagues are not on a witch hunt. "I think we have enough to deal with every day without having to go out and look for things," he says. "We're not creating a police state for kids. Our social media position statement is a deterrent and sends the message that if you dare to violate it - and we find out about it - there are consequences."