Court Upholds Student Suspension For YouTube Video of Teacher

By John Ottaviani

Requa v. Kent School District No. 415, 2007 WL 1531670 (W.D. Wash. May 24, 2007).

“The Court takes judicial notice that “booty” is a common slang term for buttocks.”

High school students secretly take video footage of a teacher at school in a classroom. The video footage is edited, graphics and musical soundtrack are added, and the result is posted on YouTube. According to the court, the completed product includes commentary on the teacher’s hygiene and organization habits, and also features footage of a student standing behind the teacher making faces, putting two fingers up to the back of her head, and making pelvic thrusts in her general direction. Additionally, there are several shots of the teacher’s buttocks as she walks away from the videographer and as she bends over, accompanied to a rap song entitled “Ms. New Booty”.

Eight months later, a local news channel discovers the video and airs a news segment featuring the video and others. Students responsible for the video are suspended for 40 days, with 20 days “held in abeyance” if the student completes a research paper while on suspension.

Student exhausts administrative appeals and tries to stop his punishment by filing a lawsuit in federal court alleging violations of his First Amendment rights and Constitutional right to due process. Student loses.

One would think that, given the number of these stories that have come to light in the past year or two, high school students would consider this practice “lame” and move on to some other form of amusement. However, the continuing stream of cases and news reports indicates otherwise.

A few thoughts:

• It looks like the court got this one right. The court went through a fairly standard analysis of the plaintiff’s claims. On the First Amendment issue, the main U.S. Supreme Court cases dealing with public school students is Tinker v. Des Moines Independent Community School District, where the U.S. Supreme Court held that public school students “don’t shed their constitutional right to freedom of speech or expression at the schoolhouse gate.” However, the Court’s decision does permit the free speech rights of students to be limited when the speech “materially disrupts class work or involves substantial disorder or invasion of the rights of others.” For example, in a later case, Bethel School District No. 403 v. Fraser, the Court held that a public high school student running for a student government position could be suspended after he gave a nomination speech that included “obscene, profane language or gestures.”

• Here, the court found that the School District properly suspended the students for their conduct in videotaping in the classroom against a written school policy, not for publishing the video to YouTube or for posting the link to the YouTube video. (In fact, other students who only republished the link and who were not involved in the filming were not suspended.). Apparently, the school’s conduct code contains prohibitions against sexual harassment as well as having cell phones or other video recorders turned on during school hours.

• The court had no difficult here finding that the video constitutes a material and substantial disruption to the work and discipline of the school. “The ‘work and discipline of the school’ includes the maintenance of a civil and respectful atmosphere towards teachers and students alike—demeaning, derogatory, sexually suggestive behavior towards non-suspecting teacher in a classroom poses a disruption of that mission whenever it occurs.”

• The court also found that the video could not be characterized as “criticism” of the teacher because of the footage of the students dancing behind the teacher’s back and making “rabbit ears” and footage of the teacher’s buttocks with the “Booty” rap song, characterizing these as “lewd and offensive and devoid of political or critical content.”

• The court was careful to state that the ability of students to critique the performance and competence of their teachers is a legitimate and important right, one that should not only be tolerated but encouraged by the schools whose mission it is to educate them. In this case, however, the court decided that the students needed to find another way to voice their opinions.

• While this case did not address the issue, the actions by the school district also served to protect them from claims of sexual harassment by the teacher in question. By doing nothing, a school district, like any other employer, risks being accused of creating a “hostile environment” and incurring potential liability for harassment claims.

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