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Tuesday, May 8, 2012

How Much Should Schools Police Off-Campus Facebook Speech?


Lawyer Wendy Kaminer argues that three Griffith girls expelled for conversation on Facebook have very strong First Amendment case.

Wendy Kaminer, writing in the Atlantic, talks about the increasingly common issue of schools disciplining students for things they say off campus. Schools, universities and workplaces have been struggling to catch up and adjust to social media, and in some cases their reaction to students and employees personal pages has been draconian. At some point it was bound to come to a head and be challenged in court, and now a lawsuit has been filed against Griffith Public Schools on behalf of three girls expelled for a brief Facebook conversation that took place outside school hours, off campus and didn’t involve the use of school owned computers.
the conversation spanned numerous subjects, from the pain of cutting oneself while shaving to the girl’s friendship, before turning to a discussion of which classmates they’d like to kill if they had the chance. At all times, the conversation was purely in jest … as is evidenced by the girl’s repeated use of ‘emoticons’ … abbreviations (like lol) and consistent capitalization intended to represent sarcasm.
The school principal and the ‘expulsion examiner’ both agreed that the three girls should be expelled, despite the protests of one of the ‘victims’ who said he understood the girls had just been joking and had no wish to see them punished.
Ms Kaminer, herself a lawyer, argues that the students have a strong First Amendment case. Despite the fact that student speech rights can be seen to have been eroded since being upheld in a 1968 Supreme Court decision she notes that there is relatively recent case law that accepts that there is no ‘categorical harassment exception’ to the First Amendment and the Griffith rulebook is full of overly vague terms. Also, while schools are required to protect students from harassment this is not a mandate to ignore the First Amendment.
The former Griffith students expelled for their Facebook chatter had not, therefore, been stripped of all speech rights by virtue of their status as students, and those rights should easily prevail over any professed concerns about harassment. Their speech didn’t qualify as harassment, even under the broadened, potentially censorious standards issued by the Obama Administration. It was not “severe, pervasive, or persistent” and apparently presented no bar to any student’s access or opportunities.

What Right Do Schools Have to Discipline Students for What They Say Off Campus?

APR 30 2012, 11:10 AM ET 96
Three girls in Indiana were expelled for joking on Facebook about classmates they would like to kill. Should districts have the authority to intervene?

Griffith Middle School in Indiana aims to transform "learners today" into "leaders tomorrow." Leaders of which country, I wonder, after reading the Griffith Middle School Handbook. North Korea? The U.S. Constitution appears to have no standing in Griffith.

Idiotic rules like this are bound to be enforced idiotically.
Students who have the misfortune to attend school here have virtually no speech rights, pursuant to vague, arbitrary anti-bullying and intimidation rules that include such cryptic provisions as a ban on "innuendos," for which they may be suspended or expelled. They are subject to rules against using or possessing profanity, pornography or obscenity that include a breathtakingly vague prohibition of "other inappropriate materials" and a ban on "using or writing derogatory written materials." I suppose they could be disciplined for reading this post, which intentionally derogates Griffith School administrators.

Griffith students should perhaps learn to behave like obedient little automatons: They may be expelled for displaying "disrespect" toward staff or other students or for "disruptive behavior," including "chronic lack of supplies" and "arguing;" (so much for the spirit of free inquiry). They may be suspended for "hall misconduct," which includes "boisterous behavior" as well as failure to walk on the right.

Idiotic rules like this are bound to be enforced idiotically, but the consequences for students are not amusing. Griffith Middle School is now being sued in federal court for expelling three 8th grade girls for engaging in a girlish exchange on Facebook that included jokes about classmates they'd like to kill. Their conversation, which lasted less than two hours, was conducted after school, on their own time and on their own computers. According to the complaint in S.M v. Griffith Public Schools, filed by the Indiana ACLU, 
the conversation spanned numerous subjects, from the pain of cutting oneself while shaving to the girl's friendship, before turning to a discussion of which classmates they'd like to kill if they had the chance. At all times, the conversation was purely in jest ... as is evidenced by the girl's repeated use of 'emoticons' ... abbreviations (like lol) and consistent capitalization intended to represent sarcasm.
Nevertheless, they were charged and found guilty of bullying, intimidation, and harassment (even though their conversation was not covered by Griffith's broad definition of bullying which requires "repeated ... negative actions ... over time.") First, the girls were summarily suspended, after the mother of a classmate complained about their exchange. The school principal recommended their expulsion; they appeared before an "expulsion examiner," who agreed and ordered their expulsion, which was approved by the school superintendent.
We are not amused, I can imagine these officials intoning. They were also not persuaded by a letter from one of the students referenced in the alleged threats, explaining that he did not feel threatened, understood that the girls were joking and did not want to see them punished.

The students have a very strong First Amendment case -- if the First Amendment retains any relevance in public schools. There's no question that those of us not in actual or virtual custody of school authorities have the right to make jokes about killing each other. Student rights, however, are increasingly limited; anxiety about social media and hysteria about bullying or drug use have only been exacerbated by the post 9/11 authoritarianism that permeates our culture and our courts.

The robust, optimistic affirmation of student speech rights in Tinker v. Des Moines, the 1968 Supreme Court decision upholding the right to wear armbands to school in an anti-war protest, has given way to a darker vision of student speech rights as threats to student welfare. Trivial teenage incivilities are condemned as soul destroying bullying. Jokes about marijuana are treated as gateways to drug abuse: In Morse v. Frederick, the Court upheld the power of school officials to punish a student for holding a nonsensical "bong hits for Jesus" banner at an extra-curricular event.

Still, while student rights are limited, they're not supposed to be non-existent. School officials are not supposed to enjoy unfettered discretion to enforce vague prohibitions on "inappropriate" or "offensive" speech. There is no "categorical harassment exception" to the First Amendment, the Third Circuit Court of Appeals ruled in Saxe v. State College Area School District, a 2001 case striking down an over-broad public school harassment policy.
It's worth noting that then Circuit Court Judge Alito wrote for the majority in Saxe, although he is generally no champion of the First Amendment, as his solitary dissents in Snyder v. Phelps and U.S. v. Stevens show. But he has championed the First Amendment rights of conservative christians. InSaxe, he upheld a challenge brought by a christian family to a school policy that could have barred disapproval of homosexuality, and in Christian Legal Society v. Martinez, he dissented from a decision denying a conservative Christian student group the associational right to exclude gay students. This result-oriented appreciation of free speech rights is lamentable, but it's preferable to no appreciation at all.

Alito's opinion in Saxe includes a strong endorsement of speech rights that you don't have to be a christian to enjoy: There is "no question," he wrote "that the free speech clause protects a wide variety of speech that listeners may consider deeply offensive, including statements that impugn another's race or national origin or that denigrate religious beliefs." While schools are required by federal civil rights law to protect students from peer-to-peer harassment, as Saxe notes, this requirement is not carte blanche, much less a mandate, to ignore the First Amendment.

The former Griffith students expelled for their Facebook chatter had not, therefore, been stripped of all speech rights by virtue of their status as students, and those rights should easily prevail over any professed concerns about harassment. Their speech didn't qualify as harassment, even under the broadened, potentially censorious standards issued by the Obama Administration. It was not "severe, pervasive, or persistent" and apparently presented no bar to any student's access or opportunities.

There are other factors empowering schools to punish student speech, but none of them appear to be present in this case. The speech was not disruptive of school activities (officials have generalized power to punish substantially disruptive speech), and it did not, pursuant to any reasonable view of intimidation, constitute an actionable threat. As the complaint in S.M. v Griffith stresses, jokes exchanged between friends ("routine teenage banter") not intended or likely to terrorize anyone do not qualify as "true threats," excluded from constitutional protection.

But while the students in this case should prevail on their First Amendment claims, the Griffith Student Handbook also raises some serious due process questions. Schools do enjoy "very broad" authority to "prescribe and enforce standards of conduct," the Supreme Court has observed, but it "must be exercised consistently with constitutional safeguards," including due process protections of the right to a public education. School policies need not be nearly as clear or precise as public laws, but Griffith school rules are especially, absurdly vague, providing no notice of prohibited speech and behavior. Bans on "inappropriate material," or "derogatory writing," for example, can mean everything or nothing, depending on the subjective opinions of individual officials. This is a "we know it when we see it" speech code, and it makes arbitrary enforcement unavoidable.

The ACLU lawsuit does not include a facial challenge to Griffith's handbook; it simply seeks damages for the three expelled students, who are all pursuing their educations elsewhere. So even if they win their case, as I hope they do, Griffith students will remain under the shadow of the school's unpredictably harsh, repressive rules, which they and their parents are required to acknowledge in writing and agree to obey, accepting penalties for whatever school officials determine to be violations. Students at Griffith Middle School and other anti-libertarian public schools across the country may not be taught regard for civil liberty, but some will acquire it the hard way.

TIME Exposes Pearson Memo On The Pineapple and The Hare Test Questions

Pineapplegate: Exclusive Memo Detailing the “Hare and the Pineapple” Passage

Test maker Pearson defends the controversial questions and details how many states have been using them in recent years

April 22, 2012
Mr. Ken Slentz
Deputy Commissioner, Office of P-12 Education
New York State Education Department
89 Washington Avenue
Albany, New York 12234
Dear Ken,
Pearson is confident that the NYS Grades 3-8 English Language Arts (ELA) and Mathematics assessments have been developed to support valid and reliable interpretations of scores for their intended uses. The “Hare and the Pineapple” passage and associated items were placed on the Grade 8 ELA test after the NYSfield test data associated with the multiple choice items and the feedback from the “final eyes” committee determined that this was an appropriate passage and set of items to include on the test. Detailed background information about the passage and items are provided below.
Background on SAT 10 Items and Use in New York State
When the contract was awarded to Pearson in March 2011, part of the scope of work was to include norm-referenced items that would be administered each spring in the New York State
Grades 3-8 English Language Arts (ELA) and Mathematics assessments. These items would serve two purposes – to provide national normative data and to contribute to the student’s operational score. Form B of SAT 10 was planned to be used intact to meet both requirements. Likewise, due to the planned inclusion of these normed items, Pearson planned to meet the item development target numbers with a combination of both normed and custom developed items.
In fall of 2011, the New York State Education Department (NYSED)made a determination that the SAT 10 Form B would not be used in total on the 2012 operational assessment. This decision was made due to the fact that not all SAT 10 items are aligned to 2005 New York State standards and having such items contribute to an operational score was not ideal. With this decision, two shifts resulted. The first is that if any SAT 10 Form B items were used on the operational assessment, they would not yield normative data (as the complete SAT 10 Form B is needed to establish this). Secondly, it was determined that custom developed passages and items should be placed on the operational test forms first, and if there weren’t enough eligible custom items, to use the field tested SAT 10 Form B items.
Why the “Hare and Pineapple” Passage was Chosen
During test construction it was determined that with the exclusion of the SAT 10 items on the operational form there were not enough custom items developed to assess Strand 2, therefore
“The Hare and the Pineapple” passage and associated items were chosen for the operational form. This was a sound decision in that “The Hare and the Pineapple” and associated items had been field tested in New York State, yielded appropriate statistics for inclusion, and it was aligned to the appropriate NYS Standard.
“The Hare and the Pineapple” passage is intended to measure NYS Standard “interpretation of character traits, motivations, and behavior” and “eliciting supporting detail”. The associated six multiple choice items are aligned to the NYS Reading Standards, specifically to Strand 2. The NYS performance indicator assigned to the items is “Interpret characters, plot, setting, theme, and dialogue, using evidence from the text”.
It is important to note that the use of SAT 10 items as operational items will not occur going forward as Pearson is developing an adequate number of custom items aligned to the Common Core Standards.
Concerns with Items Associated with “Hare and Pineapple”
There have been two items of the set of six that have been challenged by NY teachers and students as the test was under way April 17-19, 2012 -Item 7 and Item 8. The correct answers and rationales to Item 7 and Item 8 are as follows:
• Item 7: The correct answer is C. The question regarding the animals’ possible motivation for eating the pineapple requires a reader to infer the correct answer from clues conveyed in the text. While all of the options are plausible motivations, the most likely answer is that the animals were annoyed. Paragraph 13 indicates that the animals support the pineapple to win the race because they assume the pineapple has a clever plan. However, the pineapple never moves during the race. From these clues and events, a reader can infer that the animals are annoyed. The text does not support the inference that the animals are motivated by hunger, excitement, or amusement.
• Item 8: The correct answer is D. The question regarding the wisest animal requires the reader to apply close analytic reading skills to determine which of the choices represents the wisest animal based on clues given in the text. The moose and the crow are the two animals that present the incorrect idea that the pineapple has a clever plan to win the race. This idea is proven false when the hare wins the race. The hare is presented as incredulous that a pineapple would challenge him to a race, but overconfidently agrees to race a pineapple.
Finally, the owl declares that “Pineapples don’t have sleeves,” which is a factually accurate statement. This statement is also presented as the moral of the story, allowing a careful reader to infer that the owl is the wisest animal.
Previous Use of “Hare and Pineapple” Passage and Items
The Stanford 10 Form B, which contains the passage and the six multiple choice items, is used exclusively as a secure form. This means that this form is available only for state-wide or large district customers who agree to maintain security of the documents at all times. Between 2004 and 2012 the form was previously used in six other states and three large districts. In 2012, the only state-wide use of this form was in NY State. Until the events of this past week, we did not have any prior knowledge that the passage entitled “The Hare and the Pineapple” had any controversy associated with it from any prior use.
State administrations include:
• Alabama 2004-2011
• Arkansas 2008-2010
• Delaware 2005-2010
• Illinois 2006-2007
• New Mexico 2005-2007
• Florida 2006
Large District Administrations:
• Chicago 2006-2007
• Fort Worth
• Houston

Item Performance
Item statistics are provided for the six items related to the Hare and the Pineapple, both based on New York state field test in 2011, and a representative sample at the national level (2002). As can be observed from the statistics on the following page, the items performed reasonably well. Based on the New York State students’ performance, item p values range from 0.32 to 0.86, indicating a good selection of easy and challenging items related the passage. The discrimination powers (based on point biserial values) of the items are also high, ranging from 0.27 to 0.47. The industry standard requires point biserial values to be higher than 0.20.
Background to SAT 10 Development
The National Research Program for the standardization of Stanford 10 took place during the spring and fall of 2002. The purpose of the National Research Programs were to provide the data used to equate the levels and forms of the test series, establish the statistical reliability and validity of the tests, and develop normative information descriptive of achievement in schools nationwide. Testing for the Spring Standardization Program of all levels and forms of Stanford 10 took place from April 1, 2002, to April 26, 2002. Testing for the Equating of Levels Program, Equating of Forms Program, and Equating of Stanford 10 to Stanford 9 took place from April 1, 2002, to May 24, 2002. Approximately 250,000 students from 650 school districts across the nation participated in the Spring Standardization Program, with another 85,000 students from 385 school districts participating in the spring equating programs. Some students participated in more than one program
Testing for the Fall Standardization Program took place from September 9, 2002, to October 18, 2002. Testing for the Equating of Levels Program, Equating of Forms Program, and Equating of Stanford 10 to Stanford 9 took place from September 9, 2002, to November 1, 2002. Approximately 110,000 students participated in the Fall Standardization and Equating Programs. Some students participated in more than one program.
The majority of individuals who wrote test items for Stanford 10 were practicing teachers from across the country with extensive experience in various content areas. Test item writers were thoroughly trained on the principles of test item development and review procedures. They received detailed specifications for the content area for which they were writing, as well as lists of instructional standards and examples of both properly and improperly constructed test items.
As test items were written, and received, each test item was submitted to rigorous internal screening processes that included examinations by:
• content experts, who reviewed each test item for alignment to specified instructional standards, cognitive levels, and processes;
• measurement experts, who reviewed each test item for adequate measurement properties;
• editorial specialists, who screened each test item for grammatical and typographical errors.
The items were then administered in a National Item Tryout Program which provided information about the pool of items from which the final forms of the test were constructed. The information provided by the Stanford 10 National Item Tryout Program included:
• The appropriateness of the item format: How well does the item measure the particular instructional standard for which it was written?
• The difficulty of the question: How many students in the tryout group responded correctly to the item?
• The sensitivity of the item: How well does the item discriminate between students who score high on the test and those who score low? .
• The grade-to-grade progression in difficulty: For items trie~ out in different grades, did more students answer the question correctly at successively higher grades?
• The functioning of the item options: How many students selected each option?
• The suitability of test length: Are the number of items per subtest and recommended administration times satisfactory?
 In addition to statistical information about individual items, information was collected from teachers and students concerning the appropriateness of the questions, the clarity of the directions, quality of the artwork, and other relevant information.
We trust this information is helpful to you. Please know that Pearson is ready to assist you and answer any additional questions you may have. As such, don’t hesitate to contact me at
Most Sincerely,
Jon S. Twing, Ph.D.
Executive Vice President & Chief Measurement Officer