Student Blogs Mark a New Frontier for School Discipline

By Elizabeth Kirby and Brenda Kaillio
Archived Article JANUARY 2007....

The Internet has had a profound effect on education and social interaction patterns. Educators struggle to stay abreast of technological advances and navigate the maze of positive and negative aspects of students using the Internet.

The results of a recent survey, released from the Pew Internet and American Life Project, found that 87% of all youth between the ages of 12 and 17 use the Internet. This equates to approximately 21 million teens online. Of those teens, 78% (or about 16 million students) report using the Internet at school.

A new use for the Internet is the relatively recent phenomenon called blogging. Blogging is a widely used means of communication for millions of Internet users around the world. Blogs, which are web sites or weblogs where entries may be posted on a regular basis, frequently serve as online diaries or commentaries and may include text, images, and links to other sources.

Diaries are no longer kept under lock and key. Today's teens seem to prefer a more open approach to life. They have no qualms about posting their personal and private thoughts on the Internet.

Blogs increasingly appeal to teenagers who use them as an informal social networking system. They share their thoughts and opinions on just about everything and often use blogs as creative outlets for music, poetry, photographs, and film.

Sheer Numbers Alone
Why has blogging emerged as an important issue for secondary school principals and educational leaders? First, the sheer number of teens engaged in blogging is significant: Of the 21 million teens online, 19% keep a blog (about 4 million), and 38% read blogs.

Secondly, the content of blogs is unpredictable and potentially offensive or threatening. Educators are wary of blogs because they know that student conduct which takes place outside of school often affects conduct which takes place inside the school.

For example, conflicts that arise on the weekend often appear at school on Monday. When peer relationships are affected, the fallout frequently consumes the students involved and can interfere with the school day. The same is true for blogs. What is posted on a student blog inside or outside of school may result in disruption to normal school operations.

The potential effect of blogs on the school environment became apparent when authorities uncovered situations in several schools where blogs signaled imminent school violence. For example, in April 2006, on the anniversary of the Columbine High School massacre, five teenagers in Riverton, Kansas, were arrested after school officials were alerted to a threatening blog posted on MySpace.com. The content of the blog helped police and school authorities uncover an elaborate plot of an impending shooting rampage at the high school.

Also in April 2006, two Pearl, Mississippi, junior high school students created a blog using the name Luke Woodham, the teen who was responsible for the 1997 shooting rampage at Pearl High School that resulted in three deaths. The two students were arrested and charged with making threatening statements about classmates on the teen website Xanga.

During this same time period, two students accused of plotting a Columbine-style attack at Gulf Shores (Alabama) High School were arrested because of reported threats and a film entitled "Grisly Underground" found on a blog belonging to one of the students.

The film was scrutinized by school officials and law enforcement agents who believed the content included a script that would transfer on-camera violence to real-life violence. Although it remains to be seen whether charges of conspiracy to commit murder will stand, law enforcement officials felt the evidence was sufficient to warrant arrests.

Just two days later, a similar threat was investigated in Fairhope, Alabama, as another student was accused of making cyber threats from the classroom. It was alleged that a student who was being teased by some high school football players created a MySpace web page under the name of "Forsaken Prophet" and made threats toward students at Fairhope High School.

Police investigating the case did not find evidence of a threat and emphasized the word rumor. Speculation by the police was that students may be spreading rumors to get out of school. Some threats on blog sites may be likened to bogus bomb threats posed by students in an attempt to be released from school.
For better or worse, blogs have found their way into public schools. While a student blog can be helpful by providing evidence of a possible violation of the law, a student can also directly violate the law by posting harassing language or use the blog as an instrument of crime, as in stalking; pornography; or the defamation of teachers, principals, school personnel, or students.

The world of cyberspace has added yet another dimension to an already complex and challenging legal environment. Administrators continually find themselves in a delicate balancing act where they must safeguard students' rights, cope with faculty and parental concerns about safety, and avoid potentially messy and expensive First Amendment lawsuits against the district. The tension between technology and the law may be eliminated when educators develop a clear understanding of their legal limitations within the context of the free speech rights of students.

In light of the uncertainty related to the Internet, legal limitations, and student discipline, school administrators need to know where the school's authority and responsibility for blogs begin and where they end. Before this can be determined, it is important to look at the benchmark cases and the statute that courts currently use as a basis for decisions in First Amendment cases that involve blogging.

In 1969, Justice Abe Portas penned the Supreme Court's majority opinion in Tinker v. Des Moines, the First Amendment case where students wore armbands to school to protest the Vietnam war.

Can't Be Argued
In this case, the Supreme Court recognized that although the rights of public school students are not coextensive with the rights of adults, "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," and therefore students are entitled to exercise their rights to freedom of political speech unless that speech causes a material and substantial disruption to the educational environment.

The court, however, cautioned that the "mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint" is insufficient to warrant restriction of students' First Amendment rights.

Seventeen years later, in Bethel School District No. 403 v. Fraser (1986), the Supreme Court ruled that the sexually suggestive and lewd language used by a student during a school assembly was not protected speech. Even though the Court had previously ruled that students do not shed their constitutional rights at the schoolhouse gate, they found the lewd and sexually explicit language used by the student was not entitled to First Amendment protection because the speech was not political in nature and did not qualify for viewpoint- neutral protections.

The Court determined that public schools are within their rights to appropriately discipline for speech that is "wholly inconsistent with the 'fundamental values' of public school education."

Two years after Fraser, the Supreme Court was asked to determine whether a public school principal had the authority to delete portions of the school newspaper written by the school's journalism class (Hazelwood School District v. Kuhlmeier, 1988).

To read this article in its entirety, please click on View This Issue.

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Prepping For Bar Prep: The Importance of Preparation Rituals

By Stephen F. Wagner, Esq.,

Archived Article JANUARY 2007......

You have just graduated and you have triumphantly thrown your cap in the air and before it hits the ground you're in a bar prep course. Sorry, that was a cold shot. I didn't mean to crash the party. I am just trying to illustrate a valuable point and develop a theme for this article.

Most law school graduates have already chosen a bar prep course well before the third or fourth year of law school. Indeed, the memory of the nonstop bombardment of bar prep literature and teaser materials offered by the many prep courses is as easy to call up as Res Ipsa Loquiter. It must seem like yesterday. The tips and advice that follow assume that you are enrolled in a course and that you are comfortable with the format and method of delivery of the substantive materials. I am assuming that you have chosen the course for a good and sound reason. Nothing that I say should be interpreted as even tacit endorsement of any of the professional bar prep courses available to California law students. In fact, I will assume that each of the bar prep courses has something unique to offer and that they are each worthy of consideration. As you will see, it is the sheer number of bar prep courses available to California law students that inspires me to write this piece. It is mission-critical that as a bar candidate you become familiar with all the component parts of your bar prep course.

One size does not fit all - Caveat Emptor
Bar prep courses are unique. You should already know this because you have value-shopped and decided on a course. After all, you didn't sign up for the AJAX Bar Review Course simply because Mrs. Valedictorian told you to do it - right? Remember why you chose the particular course and keep that in mind as you plan for the road ahead. If you have not yet decided on a particular course then create your own Consumer Reports test based upon your needs. Insist that the course work for you.

Pay close attention to the events calendar for your prep course
All of the general bar prep courses feature substantive reviews of all three testing sections on the California Bar Exam (CBX.) They would not be in business if they failed to cater to the exam as administered. The information is delivered in a variety of ways. The substantive law on all subjects is reviewed via lecture format and the facilitating professor will work off of an outline or often some type of flowchart. Very often, workshops are utilized so that candidates can practice their writing abilities. Most prep courses use these workshops for improving essay and performance test writing.

As you review the events calendar for your particular course, carefully note the sessions devoted to what I call the "hands-on" drills - the essay writing, the performance test writing and multiple-choice drills. You must make the course cater to your exact needs. While it is true that you cannot single-handedly change the curriculum or order of presentation in your prep course, you do have control over setting your own priorities. Make the bar prep experience work for you! I simply cannot overstate the importance of practice writing sessions. You must actively participate in every single writing workshop session that is offered.

You can't "phone it in" - bar prep is intense!
As a pre-bar prep ritual make a point of clearing your calendar and accurately looking at what it takes to do this the right way. By now you realize what it takes for you to master topics, at least to a level where you can perform admirably on law school exams. I share this little saying with my First-Year Criminal Law & Procedure students: Part One of the learning process is getting the materials into your head - Part Two is getting them out (on paper and in a professional manner.) Even if you were in the top of your class in law school you must devote a significant amount of time to honing your writing skills. Be prepared to set aside time for making adjustments and practicing the suggested changes that may be recommended. Look carefully to the substantive topics tested on the bar exam and the likelihood of crossover-styled questions and you quickly become aware of the breadth of the testable material. You must be selfish with your bar prep time and always be mindful of the need to remain disciplined.

Only fools rush in
You should have a full and accurate understanding of the massive undertaking of bar prep. If you address (well in advance) the time commitment and devotion required to truly benefit from bar prep, the bar prep experience will be less daunting. Consider talking to students who have gone on to pass the CBX and ask them to discuss the pros and cons of the bar prep course. You should also consider speaking to students who did not pass the CBX. All good fighters have good men and women in their corners. Openly share your scheduling challenges and coping issues with your cheerleaders and support people. Knowledge is power at a time like this.

Budget significant time for the review of your written work
I have previously mentioned the value of practice writing sessions. With this important phase of bar prep in mind, be careful to budget enough time and energy for the review of your written work. Hopefully you have chosen a bar prep course that places emphasis on practice writing sessions and the value of grader feedback. As a paying customer you have every right to expect the critiques and feedback of your written work to be professional and useful. Make sure that you understand the bluebook or margin comments of the grader of your practice essay responses. Budget your bar prep time so that you can take full advantage of the constructive comments and suggestions that you receive. Note that this often requires doing a rewrite on a series of questions.

Budget significant time for practice and training for the performance exam
I have reviewed hundreds of practice performance exams (PT's) and reviewed the returned and graded PT's from unsuccessful bar candidates. Although performance levels vary dramatically from applicant to applicant, one universal problem seems to be that bar applicants do not devote enough time to this discipline. Note that I have chosen the word "discipline." Please don't make the mistake of thinking that your clerking or interning experience and motion work will serve as your training ground for the PT's. You must resist the temptation of taking shortcuts in PT training. Look carefully at the point values of the PT's on the CBX. I will not bombard you with numbers, calibration methods or statistics. But you should understand that a score of 55 or 60 on one or more of the PT's could knock you out of contention. Practicing PT's is very time consuming, but it is time well spent.

Multiple-Choice requires major TLC
Most law schools are incorporating multiple-choice style questions into testing or in-class drills. Even if you have had some exposure to this style of testing you must understand the significance of the learning curve and the time that it takes to become comfortable responding to multiple-choice questions. The multiple-choice section (The MBE) tests on very fine line distinctions in the substantive law and recently the subject matter has been expanded (see description of July 2007 CBX at www.calbar.org). Be mindful of the time commitment involved in becoming proficient in this testing environment. You must develop a system that objectively charts your progress. Remember the amount of time required to review all the questions that you have completed in your practice session - this should include keeping a log of the problem areas, topics and subtopics.

A good measuring stick is to envision doing a practice session of thirty-three multiple-choice questions. From a time management perspective this should take one hour, assuming you were to mimic the bar exam time constraints of three hours to complete one hundred questions. In order to effectively review your performance on these thirty-three questions you will need at least one additional hour. My point here is that your review process must be thorough and "thoroughness" by definition requires the allotment of precious amounts of time. It will take time to build up confidence, proficiency and endurance. So plan accordingly!

Understand exactly how the CBX is scored
You can file this tip in "knowledge is power." How do the Bar Examiners determine the overall final score? Carefully review all released information on this topic. What is this concept of "calibration?" What percentages are assigned to each of the phases of the CBX? Do I need a threshold raw number of correct answer choices on the MBE? Visit the Cal Bar Web site and review all this information.

I'm a couch potato - Should I join a gym?
I am often asked about fitness and diet and how they factor in to bar exam prep. I dodge the diet questions because too many people have seen me eat. However, I will, without hesitation tout the value of fitness and rest. I think simple and light aerobic work is the ticket. Things to avoid would be the cool rock climbing wall or taking up fencing or skydiving. These events are way too risky, and besides, you can't study your flashcards at the same time.

I have ended with a mild dose of levity for good reason. Never lose your sense of humor. Trust me, you will need it and it will need you. Now go out there and formulate your "Prepping For Bar Prep" routine so that there will be no surprises.

May a smile be your umbrella.

Stephen F. Wagner is a professor of Criminal Law & Procedure at Monterey College of Law. He welcomes comments and feedback. (swagner@da.co.san-benito.ca.us)

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Perhaps because the American Bar Association was once a nonpartisan organization, short on ideology, the Department of Education granted it monopoly power to accredit law schools. Now it's anything but nonpartisan, but for years the Department of Education has ignored the bar association's increasing partisanship and liberal politics. But we're encouraged that the department found the bar association's new "diversity" standards as a reason to hold up the renewal of its accrediting license. Consider the new standards, which the ABA adopted last year in response to the Supreme Court's Grutter v. Bollinger decision.

Standard 211 (a) says, "Consistent with sound legal education policy" a law school must "demonstrate by concrete action a commitment to provide full opportunities ... by members of the underrepresented groups, particularly racial and ethnic minorities." Part B says essentially the same thing when the matter concerns the hiring of faculty.

Alone, the standards appear relatively minor, but not the bar association's interpretation of the new standards: "The requirement of a constitutional provision or statute that purports to prohibit consideration of gender, race, ethnicity, or national origin in admissions or employment decisions is not a justification for a school's non-compliance with Standard 211." California, Washington, Florida and Michigan bar the use of racial preferences in state university admissions. Are the lawyers suggesting that law schools in these states must break the law or lose accreditation?

That is precisely what Department of Education attorneys were wondering when the accrediting license came up for renewal in December. The association insists that nothing in the new standards requires a law school to create an affirmative action program or break the law. To which Bill James, the department's own attorney, replied at a hearing on the issue, "the language is so vague that [the standards and their interpretations] can be reasonably read to require just that."

The bar association has vigorously defended affirmative action programs and quotas in the past. In a friend of the court brief in the Grutter decision, the bar association wrote that it is "unquestionable that the improvement in minority participation in our law schools ... has been achieved largely by the use of race- conscious admissions policies such as those under attack" in Grutter. The bar association has argued that "consistent with the Supreme Court's decision in Grutter … a law school may use race and ethnicity in its admissions process." How can anyone doubt which "concrete action" the bar association prefers that its applicants for accreditation implement?

Nevertheless, the agency hearing the case set aside the Department of Education's objections and extended the bar association's accreditation authority for another 18 months. That's still less than the usual five-year extension and the department will appeal. Education Secretary Margaret Spellings should take another close look.

From Rominger Legal & The Washington Post.

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