A middle-school student, annoyed after being disciplined by her principal for violating the school dress code, vents her frustration by posting a crude MySpace profile on the Internet parodying the principal. The profile, which the student created entirely from home and made available to a small group of friends, includes a photo of the principal but not his name or school. The profile only comes onto school grounds at the behest of the principal. Nevertheless, once the identity of the profile’s author is discovered, the school suspends her from classes for ten days.

Those are the facts of a case, JS v. Blue Mountain School District [PDF], recently decided in the student’s favor by the US Court of Appeals for the Third Circuit. The case squarely presented an issue increasingly confronted by schools and their students: How far can public schools can go in punishing students for speech that they post on the Internet outside of school? On one side are the school districts and school board associations, which argue that schools should be permitted to police their students’ speech no matter where it occurs if the speech is about the school. On the other are groups like the ACLU, which believe putting such far-reaching authority into the hands of school administrators impermissibly infringes on students’ First Amendment right to free speech.

The Third Circuit, unfortunately, did not provide a clear answer to the question. While the Court, sitting en banc, did hold that schools cannot punish students for off-campus speech simply because it is lewd, vulgar, or indecent, the majority stopped short of deciding whether schools can punish students for off-campus speech if it causes a material and substantial disruption inside the school. In a footnote, the majority said it did not need to reach that issue because the parody MySpace profile did not cause any disruption inside the school nor could it have reasonably led school officials to forecast substantial disruption in the school. The “material and substantial disruption” test was created by the US Supreme Court in its 1969 decision Tinker v. Des Moines Independent School District to protect students’ free-speech rights in school while providing some leeway for school officials to maintain order and accomplish their pedagogical mission.

Although the issue of whether the so-called Tinker standard can be used to curtail students’ out-of-school speech has officially been left open by the Third Circuit, there were five votes for a more protective standard for off-campus speech. Four judges joined a concurring opinion by Judge D. Brooks Smith stating the view that students should have the same right as any other person in the community to speak outside of school. Under that standard, students’ Facebook status updates, twitter posts, and even old-fashioned letters to the editor could not be censored by school administrators unless they could show that their actions were narrowly tailored to a compelling governmental interest and represented the least restrictive means of achieving that interest. That is a much tougher test for school districts to meet than the “material and substantial disruption” test, but it is the only standard that adequately protects the free-speech rights of public-school students.

As Judge Smith recognized in his concurring opinion, allowing schools to apply the Tinker standard to out-of-school speech would have “ominous implications”: “Doing so would empower schools to regulate students’ expressive activity no matter where it takes place, when it occurs, or what subject matter it involves—so long as it causes a substantial disruption at school.” Indeed, the Second Circuit, which has applied the Tinker standard to off-campus speech where it was reasonably foreseeable that the speech would come to the attention of school officials, upheld the decision of a school district to bar a student from running for senior class secretary after she criticized school administrators on her personal blog. The student was not permitted to serve as secretary even after she was elected by her classmates as a write-in candidate.

Public schools have a responsibility to teach students about their constitutional rights. Overriding the votes of the senior class or punishing students simply because they posted critical comments about school officials on the Internet sends the wrong message about how our Bill of Rights is supposed to work. School officials who act like Big Brother or retaliate against students who criticize them do a disservice to their students and to the Constitution.

Opinions expressed in JURIST’s Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST’s editors, staff, or the University of Pittsburgh.

The battle to legalize same-sex marriage may be dominating the headlines, but that issue could take years to resolve. More immediately, a growing number of companies have taken it upon themselves to make life a little more equal for their gay employees.

These companies are reaching into their own pockets to pay for an extra tax that their gay employees owe on their partners’ health insurance — something that their married heterosexual co-workers don’t have to worry about because the federal government recognizes them as an economic unit.

To gay employees, gaining equal benefits is about more than the money. The gesture itself validates their relationship with their partners at a time when the government has not.

Most heterosexuals take for granted that they can add a spouse or children to their employer’s health plan. But gay employees with partners have that option only if they work for an organization that offers domestic partner coverage.

And even when the coverage is available, it costs gay couples more because they are taxed on the value of those benefits.

Over the last year, however, as the word has gotten out about this inequity, more companies have begun to “gross up” these workers, as the policy is known.

“It very quickly became a litmus test among employees for how welcoming their firm was,” said Daryl Herrschaft, director of the workplace project at the Human Rights Campaign. “A lot of folks were very proud of their companies and wanted to tell a lot of people, and in doing so, it sparked some competition.”

The competition has become most apparent in a handful of industries, notably law firms, big consulting companies and in Silicon Valley. More Wall Street firms, meanwhile, are said to be considering the policy. Skadden, Arps, Slate, Meagher & Flom, the New York law firm, is the latest firm to follow suit. And Teach for America, the nonprofit teaching program, adopted the policy earlier this month after initially learning about it on Bucks, the personal finance blog on The New York Times Web site, which has been singling out the companies that gross up and those that do not — the New York Times Company among them.

“We realized that it was the right thing to do and we were in a position to do it, so we did,” said Rex Varner, vice president on the human assets team at Teach for America.

A small number of organizations, including Kimpton Hotels and Cisco, have had the policy in place for several years. But it wasn’t until Google started compensating its employees last June that the movement really began to take off. Apple, Facebook, Barclays, McKinsey and Bain & Company are some of the prominent names that followed suit.

Even more companies have said they publicly support same-sex marriage or equal financial treatment for gay couples, but they haven’t gone as far as adopting the policy.

About 58 percent of Fortune 500 companies extend domestic partner coverage to employees with same-sex partners, according to the Human Rights Campaign. But when you look at a broader group of companies, the numbers shrink: Only about 36 percent of large companies, or those with more than 200 workers, offered the coverage in 2009, according to a Kaiser Family Foundation survey. About 20 percent of small companies offered the coverage.

Even as the number of companies that “gross up” increases, they remain a distinct minority. (The online version of this column links to our running list of companies.) In fact, a large group of major corporations joined a coalition, led by the Human Rights Campaign, that supported legislation to eliminate the tax, but most of them don’t gross up their own employees.

Another group of prominent business leaders recently signed an open letter urging New York lawmakers to legalize same-sex marriage, arguing that it would help attract and retain talent. But not everyone on that list, including Lloyd A. Blankfein of Goldman Sachs, for instance, has started to gross up employees within their own offices. That would also, arguably, help attract and retain talent. Both Goldman and Morgan Stanley (whose board chairman, John J. Mack, also signed the letter) said they were reviewing their policies. So we’ll see what happens.

One of the biggest obstacles to adopting the gross up policy has been concern about the cost and legal implications. Will people rush to sign up? Many firms, for instance, decided to make only same-sex employees with domestic partners eligible since opposite-sex couples have the option to marry.

“To spend money to make up for the inequities for our government and our governmental policies is a very significant thing,” said Ross Levi, executive director of the Empire State Pride Agenda, a gay rights organization in New York. “Companies shouldn’t have to be making up for the ways that government is failing its L.G.B.T. people and our families,” he added, referring to lesbian, gay, bisexual and transgender people. That said, he added that the private sector had historically “led government in terms of equality for L.G.B.T. people.”

Generally, it would cost an employer about $2,000 to $2,500 to gross up an employee who incurred extra taxes of $1,200 to $1,500, according to Joseph S. Adams, a partner at McDermott Will & Emery who specializes in employee benefits. The numbers will vary depending on several factors, including the employee’s tax bracket and state of residence. This example assumes a 25 percent federal tax bracket (and includes rough estimates for state, local, and employment taxes for Social Security and Medicare, bringing the total tax rate to about 40 percent).

On average, a typical employee with a domestic partner will pay about $1,069 more a year in taxes than a married employee with the same coverage, according to a 2007 report by Lee Badgett, research director of the Williams Institute, which studies sexual orientation policy issues. (That figure, which is bound to be higher now given escalating health care costs, includes taxes on the benefit itself as well as the money employees would save if they could pay for their benefits using pretax dollars like heterosexual employees can. There is an exception: If the partner is considered a dependent, the extra taxes aren’t levied.)

At Barclays, which began compensating gay employees at the beginning of the year, the team working on the policy considered how it might affect their expenses. But when Barclays looked at the numbers, they concluded the cost was “not material.” And, in any case, they said it was the right thing to do.

“Too often people come with ideas requiring creativity and people start explaining obstacles about why you can’t do it,” said Jeffrey G. Davis, managing director and co-chairman of Barclays’ L.G.B.T. employee group. So they worked with their human resources department to find ways to make it as simple as possible. Instead of reimbursing employees in every paycheck, for instance, they provide a lump sum at the end of the year.

His advice to others who want to lobby their own employers is to “anticipate peoples’ concerns and questions before you go to them for approval, so you have the right answers.”

“That is the biggest part of the effort,” he said.

The Human Rights Campaign has materials on its Web site to help guide employees and their companies through the process, too.

With more companies adopting the more generous policy, others are now looking at whether they’re offering the basics for gay employees. As Cynthia Yeung, a San Francisco resident who is on the steering committee of her employer’s L.G.B.T. group, put it, “When you raise the bar, everyone has to jump a little higher to be average.”

Team 4 investigator Paul Van Osdol reported that the e-mail in question was circulated last summer while the federal government was trying to contain the massive Gulf oil spill. It showed an image of Obama walking along a Gulf beach with the caption, “Another tar ball washed up on the shore.” In a memo, a Centers for Rehab Services official called it “an inappropriate e-mail that contained political and discriminatory content.”
The lawsuit said the e-mail led the company to fire Deborah Bonanno and James Sprung, who received the e-mail and forwarded it to co-workers.

In court papers, an attorney for Bonanno and Sprung said, “The motivation behind CRS’ termination was to stifle (the employees’) freedom of expression on a matter of public concern” — namely, the Gulf disaster.
Vic Walczak, the ACLU’s legal director in Pennsylvania, said employees have “very few” rights to sound off at work.
Walczak said he had not seen the lawsuits, but he said the Constitutional right to free speech does not apply when someone uses a workplace computer.

“They can say, ‘We don’t want any political discussion, we don’t want any religious discussion, we don’t want any discussion of Democrats, you’re free to talk about Republicans.’ Again, while you couldn’t do that if you were the government, when you’re a private employer, you call the shots,” Walczak said.
Companies also have the right to control some personal behavior outside the workplace.
A spokeswoman for UPMC — which is affiliated with Centers for Rehab Services — did not comment on the lawsuit but said that UPMC has a long-standing zero-tolerance policy for e-mails that are racially, sexually or otherwise offensive.

You know that photo of you, bleary-eyed and smiley, red plastic cup in hand? You know the one. You look like a hot, drunk mess, your friend keeps tagging you in it, it’s on Facebook for the whole Internet to see? That one. I bet you’d be having words with your tag-happy little pal if the UA administration were keeping tabs on your profile.

According to The Chronicle of Higher Education, much of the discussion at the National Conference on Law and Higher Education centered around issues presented by Facebook, Twitter and other social networking sites. These issues have colleges wondering if there is a need to police the Internet in order to monitor what their students and faculty members are doing or posting online.

In May 2006, Stacey Snyder was a student at Millersville University in Pennsylvania, just days away from her graduation at the time. Then the university denied her a teaching degree. The university claimed it was because a photo on her MySpace profile. Remember, it was 2006 and people still used MySpace.

The photo in question was captioned “Drunken Pirate” and featured Snyder in a pirate hat and drinking from a red plastic cup. According to the university, it promoted underage drinking. Snyder was 25 years old then, and working as a student teacher at a high school. She maintained the photo was taken off campus and after school hours at a costume party.

Snyder sued Millersville University for refusing her a degree, citing it as a violation of her right to free speech. She eventually earned an English degree instead. A federal judge ruled against her in 2008. According to The Washington Post, university officials said the case was not an issue of First Amendment rights, but of performance. The photo, they said, was just one example of many that Snyder did not deserve a degree in education.

Some colleges have codes of conduct and policies pertaining specifically to social media. Concordia University expects students to “assume the responsibility for the content posted and are subject to sanctions” if that content violates Concordia’s conduct code.

These policies also sometimes attempt to address online harassment, especially in response to cases like Tyler Clementi, a Rutgers University student who killed himself after his roommate secretly recorded him with another man on a webcam. The problem is defining what online bullying is, and where to draw the line between offensive speech and speech that legitimately interferes with someone else’s education.

Cases like Snyder’s or Clementi’s, and discussions like the one at the National Conference on Law and Higher Education, ask: How should a university babysit what its students and employees post on the Internet? Should there be any obligation to do so?

I don’t actually know how much of a reach a social media policy should have. While universities wrestle with the wording of policies that people won’t read anyway, students ought to take responsibility on an individual basis, of their own accord. You’ve had a few too many if you think an employer should be able to find your record for tequila shots via Google.

There are existing precautions for making sure anything that the university, or a future employer, could deem inappropriate and against any code of conduct is hidden. Set your profile to private. Google yourself. If you can still find your Facebook, be more private. The same applies to every hash tag you use on Twitter, each photo you reblog on Tumblr, everything.

But more importantly, remember that privacy settings only go so far. The fact that university administrations are beginning to wonder if they are obligated to include social media clauses in their student and faculty conduct policies should be an embarrassment to all of us. Only the most naive people expect you to avoid all college kid shenanigans. But everyone should expect you to keep them offline.

For the sake of making sure you don’t lose your degree because you had to be a drunken pirate, think before you post.
— Kristina Bui is the opinions editor of the Arizona Daily Wildcat. She can be reached at letters@wildcat.arizona.edu.

Senator Chris Dodd (D-CT) today, along with Senators Frank Lautenberg (D-NJ), Bob Casey (D-PA), and Jeff Merkley (D-OR), introduced the Sober Truth on Preventing (STOP) Underage Drinking Act Reauthorization, legislation designed to prevent underage drinking. According to the Monitoring the Future (MTF) survey released yesterday, the largest national survey of adolescents regarding their drug and alcohol use, underage drinking has decreased significantly and alcohol use among 12th graders marks the lowest level of alcohol use since the study’s inception in 1975.

The reauthorization builds upon the success of the original STOP ACT, which Dodd shepherded through Congress in 2006. The bill will continue federal government efforts to combat underage drinking and increase prevention activities in states and local communities, including college campuses. It would also continue public service media campaigns to increase adult awareness of the threat alcohol poses to their children, as well as increase research and data collection done at the federal level on adolescent alcohol use and brain development.

“Each year, approximately 5,000 young people under the age of 21 die as a result of underage drinking and underage drinking contributes to the four leading causes of deaths among 15 to 20 year-olds,” said Senator Dodd. “The Stop Act has made great strides to combat underage drinking nationwide but we must continue to build upon these successes to ensure more communities are better equipped to prevent underage drinking. If we can keep one kid from drinking, make one school a better and safer place to learn, help one community break the cycle of dependence, then we are closer to fully addressing the problem. I thank Senators Lautenberg, Casey, and Merkley for championing this important legislation in the next Congress.”

“The STOP Act is helping put the brakes on underage drinking. It is a program that has helped reduce the number of high school students who drink, and it is a program that deserves our continued support,” said Senator Lautenberg, who authored the law that changed the legal drinking age to 21. “Underage drinking is a significant and widespread threat to public health and safety. I will continue fighting to protect teens from the dangers of alcohol and support prevention programs.”

“The success of the original STOP Act speaks for itself,” said Senator Casey. “Our children and teens deserve our continued commitment to the programs in the STOP Act that reduce and prevent underage drinking. Even one death due to underage drinking is too many. I am dedicated to working with my colleagues to pass the reauthorization of the STOP Act. I would like to thank Senator Dodd for his continued efforts on behalf of America’s children and for introducing this critically important legislation.”

“Too many families are torn apart as a result of youth drinking. By partnering with proven community organizations, the federal government can help reduce senseless deaths. The STOP Act has already helped Oregon programs that reduce youth alcohol use. This legislation will make sure the program continues,” said Senator Merkley. “I commend Senator Dodd for his long time leadership and continuing efforts to prevent drug and alcohol abuse.”

Throughout his nearly three decades in the Senate, Dodd has backed federal programs and legislation aimed at preventing alcohol and drug abuse as well as underage drinking. Dodd fought to incorporate substance abuse prevention and treatment into the health care reform bill. He has also introduced several pieces of legislation focused on reducing substance abuse in communities, including the Safe and Drug-Free Schools and Communities Program in addition to the STOP Act, both of which were signed into law.

State College attorney Andrew Shubin said Centre County police officers are too concerned with generating a high number of student arrests for low-level offenses at the University Park Undergraduate Association-sponsored town hall meeting Monday night.

“What the students don’t understand is that Penn State is not Pittsburgh or Philadelphia. State College is like Mississippi — the prosecutors, defense attorneys and jurors are very conservative,” Shubin said.

Shubin, a guest attorney at the meeting, said that if he was defending a client in a Philadelphia county, the first thing that he would tell the judge is that his client is a student at Penn State because it is highly recognized institution.

But he said if he were representing a student in Centre County, it would not matter that the student attended Penn State because his client’s background would be nearly identical to that of 40,000 other students.

Shubin said that it is important for students to realize that State College is a school zone, so low-level offenses, such as drinking and selling marijuana, are treated much more harshly. If his client lived in Philadelphia and was caught selling a quarter pound of marijuana, he would get a misdemeanor charge at the most, Shubin said. If his client was caught selling the illegal substance in State College, he would most likely receive a two to four year mandatory prison sentence.

“I hate that I am paying taxes to incarcerate engineering majors,” Shubin said.

Shubin said he stresses the importance of students knowing their rights, which are the same for all citizens regardless of age. He also offered three rules for interacting with the police when questioned by authorities.

“Never give a statement to a police officer if you are the suspect of a crime. The answer to every question after you give your name should be lawyer, attorney or counselor. Always be cooperative with the police officer — anything you say will be used against you,” he said.

UPUA President Christian Ragland said it is important that students do not misinterpret Shubin’s advice.

“We should still set the precedent that wrong is wrong, Ragland (senior-political science) said. “Students should know their rights, but above all, they shouldn’t do wrong.”

Shubin said times have changed since he and parents of Penn State students were in college.

“We’re living in a totally different world now — but I’m not convinced that it is a better world, Shubin said. “The government can put so much destruction in your life when we did the same thing when we were younger and grew up to be law-abiding citizens.”

UPUA Programming Committee Chairwoman Ali Cook said she believes students will find Shubin’s advice helpful.

“I think he provided a valuable service for students and I don’t think he encouraged students to engage in illegal activities,” Cook (sophomore-finance and economics) said.

Ragland also discussed the issue of student safety and handed out surveys to collect data on students’ feelings regarding campus safety. The surveys are also available online at UPUA’s website for completion.

Seventy-seven years after the end of prohibition the battle of the “wets” versus the “drys” is alive and well in those states considering ending their government monopolies over the sale of liquor. Though not as colorful as the epic battles between Al Capone and Elliot Ness, the underlining debate continues over whether government control of liquor sales has measurable societal benefits.

As one of 18 monopoly control states (only government sale of liquor allowed), this question is front and center in Washington State where not one, but two ballot measures are being considered on whether to end the state’s liquor monopoly. A similar debate is occurring in the control states of Virginia and Pennsylvania.