Hollis Brookline Middle School Violates the First Amendment
The Hollis Brookline Middle School violated the free speech rights of an 8th grade honor student in November 2001 when it demanded, under threat of punishment, that he take his home web site off line.
With the rapid growth of Internet use by students, schools across the country have increasingly taken action against students for off-campus computer use that they disapprove of. A number of recent cases have shown this to be a violation of the students' First Amendment right to free speech unless the speech causes a "substantial" disruption within the school (as established by Tinker). This site includes a comprehensive review of off-campus computer use.
In September 2001, 13-year old Quentin Smith, an 8th grader at the Hollis Brookline Middle School, created an on-line directory of his 8th grade classmates by combining names, addresses and phone numbers from a student directory published by the school with yearbook photos from the previous year. Although initially created for his own use (he was teaching himself about databases), he told other students about it and they asked to see it, so he added password protection and granted access to six students.
Several weeks passed without incident, and Quentin received compliments from students who found the directory to be useful. In November, however, two parents called the school to complain that their "privacy had been violated", and threatened to report this to the police. Quentin was removed abruptly from an ongoing class by the Vice Principal, Lena Vitagliano, who interrogated him sternly and then told him to immediately take the directory offline. He replied that that wasn't possible, as the web site was on a computer in his home and the school's firewall would not permit it. Not willing to accept that, the Vice Principal immediately summoned the network administrator from the High School, who arrived and told her the same thing. "In that case", she told Quentin, "take it offline the minute you get home and return tomorrow with a list of names and passwords for all of the students you gave access to." The Vice Principal told Quentin that the documents he had used to create the directory were "copyrighted" and so it was illegal to reproduce the information contained therein (school administrators enforcing copyright law?) During this meeting, the Vice Principal also told Quentin that the police would probably be contacting him to investigate what he had done.
The Vice Principal met with Quentin's mother at the end of the day, reiterating her demand that the web site be taken offline immediately and a list provided the next day. She went on to say that, although she hadn't yet determined which school rule Quentin had broken, at the very least he had shown "poor judgment" and would therefore have to be punished in some manner, probably by losing his in-school computer privileges.
The parents called the Vice Principal the next morning to say that the directory had been taken offline, as requested, but that no list of names would be provided. They also arranged for a meeting with the Principal, Patricia Goyette, and Vice Principal the following day to discuss what punishment would be meted out.
That evening, the parents faxed a letter to the Superintendent, Dr. Ken DeBenedictis, indicating that the school had overstepped its bounds--that in fact they believed the school had no jurisdiction over the actions of a student in his own home. Furthermore, the suggestion that this password-protected directory had endangered the safety of students in any way was ridiculous, and demonstrated a complete lack of understanding of technology on the part of administrators.
The next day, the parents met with the Principal and Vice Principal. As the directory was now offline, the Principal decided it was no longer necessary to punish Quentin. The parents reiterated that the directory posed no danger and that, in any case, the school had no jurisdiction over Quentin's actions in his home, suggesting that a simple apology to Quentin would go a long way toward undoing the psychological damage that they had caused (which was significant--for example, this site describes the case of a 17-year old student in Texas who became distraught and killed himself after school administrators allegedly led him to believe they were going to discipline him for a web site critical of their handling of disciplinary matters). The Principal looked over at the Vice Principal, who was bristling at the very idea of offering an apology, then said "no, it looks like we won't be able to apologize."
This should have been the end of the story, but it was not--the parents now wanted to be sure that the school district understood it had overstepped its authority so that in the future it would respond more appropriately to incidents involving off-campus computer use. This should only take a phone call or two, right? Guess again:
- 11/7/2001 Parent telephoned School Board Chairman Tom Enright. Mr. Enright didn't want to get involved--"this should be handled by the administrators, as the school board only establishes policies."
- 11/8/2001 Parent telephoned Superintendent Ken DeBenedictis. Arranged to meet on 11/14. The Superintendent told the parent in this conversation that "the school computer network acceptable use policy (AUP), which you signed, gives the school jurisdiction over your child's home computer use."
- 11/12/2001 Parent faxed letter to Superintendent's office. Pointed out that the school network AUP could not possibly apply to students' home computer use, suggested that he invite others more knowledgeable (such as former attorney Mr. Enright) to the 11/14 meeting.
- 11/14/2001 Parent met with Superintendent (alone), who again argued that the school network AUP did give the school jurisdiction and that the directory had "put all those kids at risk". "Their information was out there in cyberspace, on the Wide World Net", he said, waving his arms. As justification for the school's actions, he stated "we're talking about community standards here...community wishes" (not valid reasons, especially when those wishes lead to violation of the constitutionally protected rights of a student, which the school has a legal reponsibility to respect). He said that the school had merely investigated parents' complaints and talked about the "possibility" of punishment (not true--the school had demanded the directory be taken offline under threat of punishment, clearly violating Quentin's free speech rights).
- 11/14/2001 Parent provided a fact sheet to the Principal, spelling out what the parents who complained should be told about the incident. (No response of any sort indicating whether this was ever passed on).
- 12/17/2001 Parent met with Principal "one last time" to make sure she now understood what should have happened. She clearly did not...she commented that she thought it had been "a good compromise"--the web site had been taken offline in return for Quentin not being punished. Parent pointed out that the school in fact had no right to do either--this hadn't been a "compromise" at all. This was disturbing because it showed the school had learned nothing from its mistake.
- 2/19/2002 Letter was sent to two members of the School Board (Chairman Enright and Tim Bevins), detailing exactly what had happened, providing relevant case law, and making three specific requests of the board:
- That the AUP be amended to prevent the Superintendent from ever again using it as justification for restricting the off-campus computer use of students. (Interestingly, only the Superintendent seemed to misinterpret the AUP in this manner).
That the district acknowledge in writing that it has no right to punish students who exercise their right of free speech on the Internet while in the privacy of their own homes.
That Quentin's school record would contain no mention of the incident.
The letter also pointed out that Quentin had been "chilled" in the exercise of his free speech rights for four months and that it was the family's desire to place the directory back online as they felt it was their right and they saw no "danger" in doing so.
- 3/27/2002 (5 weeks later) Reply sent to parents by school board chairman Tom Enright. The letter responded specifically only to request #3 above, verifying that no record of the incident was in Quentin's file. As for requests #1 and #2, the letter only offered that "we are reviewing our (internet usage) policy and looking at some suggestions that you have made." The letter also noted "we support our administrators' efforts to consider student safety as a highest priority."
March 2002--Parents sent a letter to the NH office of the ACLU (NHCLU) explaining in detail what had happened, noting the lack of specific action on the part of the School Board, and requesting assistance. Strangely, no response was ever received. Several months later, it was discovered that Ted Comstock, who serves as legal counsel for the Hollis-Brookline School District and as the Executive Director and General Counsel for the NH School Boards Association, has close ties to the NHCLU--he worked closely with Andru Volinsky on the Claremont education lawsuit (in 2002, Mr. Volinsky was legal counsel for and on the Board of Directors of the NHCLU). Curiously, Ted Comstock and Andru Volinsky both appeared at this event on April 26, 2002, just weeks after Quentin's parents sent their request for assistance to the NHCLU.
- April 2002--Parent sent letter to Chairman Enright stating that the Board's response had fallen short of the mark. Five months had now passed since the web site had been forced offline, and the school district had refused to take a position on whether it would punish Quentin if the directory were to go back online, knowing full well that the threat of punishment would keep the password-protected database offline.
- May 2002--Parent located a law firm in Maine specializing in school law, (attorney Bruce Smith, in particular, provides training to schools on computer issues). The firm operates the SchoolLaw.com web site. E-mailed this information to Mr. Enright and Mr. Bevins, suggesting that administrators should be trained. No response.
- The July 31, 2002 school board meeting included a discussion about a paragraph to be added to the AUP to address home computer use by students. The paragraph was not read aloud in the meeting, and so the parent later sent several e-mails to Chairman Enright and Tim Bevins asking for a copy of the paragraph--again with no response--the e-mails were ignored. The paragraph was eventually published several weeks later in the July 31 School Board Meeting Minutes and added to the AUP. Here's an excerpt:
"The school district's acceptable use policy for the Internet and school computers should not in any way be considered to restrict a student's use of a home computer. However, ...the district reserves the right to investigate any parent or student complaint about potential or perceived violations of either a student's privacy or potential or perceived threats to student safety or health arising from use of a home computer by any student in the high school or middle school." from The SAU 41 Computer Network Acceptable Use Policy , revised August 2002.
The paragraph clearly acknowledges that the AUP does not apply to students' use of home computers. As for "reserving the right to investigate complaints", that's not a right, it's a duty, but that complaint investigation should certainly not cover "invasion of privacy" (whatever that means) and concerns about safety should be investigated only to the extent required to determine (1) whether an imminent danger exists and (2) whether the school has jurisdiction. As it stands, we worry that administrators performing an investigation might not stop at "investigating", but might proceed to punish or otherwise pass judgment on the off-campus actions of a student. We also believe that students being interrogated by administrators about home computer use need to know that they have the right not to cooperate--we recommend they simply say "please call my parents immediately--I believe that what I do in my home is their business, not yours."
No-one affiliated with the school or school district ever apologized to Quentin for this obvious error on their part. Were they too afraid of a lawsuit to simply say they were sorry to a student that they terrorized? Have the administrators now been trained to understand concepts such as jurisdiction, public information and free speech? We doubt it, but only time will tell.
UPDATE (October 2006): Quentin eventually recovered from this mistreatment at the hands of ignorant public school administrators. He left the Hollis-Brookline public school system after 8th grade (in 2002), went on to a successful high school career at Lawrence Academy, and is now a student at MIT. He attended the prestigious Research Science Institute at MIT in the summer of 2005, performing research in the Computer Science and Artificial Intelligence Laboratory (CSAIL), and was selected as one of two US Presidential Scholars from NH by the Commission on Presidential Scholars in his senior year of high school, 2006. During the summer of 2006 he was an engineering intern at Google.
So impressed was he with the Superintendent's performance on this and other issues (such as here, here, here, here and here), Hollis-Brookline School Board member Tom Enright nominated Ken DeBenedictis and he was recognized as the "NH Superintendent of the Year" in 2004. Dr. DeBenedictis was the highest paid school superintendent in all of NH when he retired in 2005, and now works for the New England School Development Council (NESDEC), sharing his expertise with school districts around the region.
Although Superintendent DeBenedictis has left the district and Assistant Principal Lena Vitagliano has since moved on to another school, Pat Goyette continues as Principal of the Hollis Brookline Middle School. Tell her what you think of the school's handling of this incident--she can be reached at firstname.lastname@example.org.
"What upset me most was that they treated me like a criminal, even though I knew that I had done nothing wrong." -- Quentin Smith
"School officials may not judge a student's behavior while he is in his home with his family nor does it seem to this court that they should have jurisdiction over his acts on a public street corner." --Sullivan v. Houston Independent School District-- 307 F. Supp. 1328 (S.D. Tex. 1969).
"The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." --Elrod v. Burns, 427 U.S. 347, 373 (1976).
"Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one."--Louis D. Brandeis, concurrence in Whitney v. California, 274 U.S. 357 (1927)