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In the comments at the link is a response by the father, which reinforces the basis for the negative reaction towards the girl’s conduct, and her parents’ apparent failure to act effectively to deter that conduct. I agree with the legal analysis generally, as this seems to be a situation made for teaching a lesson in acceptable conduct through social consequences. Unfortunately, without the parents’ appropriate involvement the immediate social consequences are likely to be the other mean girls congratulating the perpetrator and harrassing the victim.

Massive FAIL:
His daughter offered to remove it from YouTube. But Mr. Cohen keeps it posted, he said, “as a public service” so viewers can see “what kids get suspended for in Beverly Hills.”

With any luck perhaps the other child’s father will sue Mr. Cohen’s scrotal sac right off. At least one doesn’t have to look very far to see where the daughter got her penchant for bad behavior.

” ‘Justice’ and ‘the Law’ are merely nodding acquaintances…”

That was a lot of reading! After perusing both the Times article and the court’s decision, I wholeheartedly agree that the court was correct in its determination that posting the out-of school-video was within a student’s free speech rights and that $107,000 (including attorney’s fees) was proper compensation for the violation of the student’s rights.
I personally believe that a student has unfettered free speech rights outside of the school, and any governmental punishment, especially suspension, for the student’s speech outside the school is actionable. The Supreme Court held in Tinker v. DesMoines Independent Community School District that a school may regulate a student’s speech or expression if such speech causes or is reasonably likely to cause a “material and substantial” disruption to school activities or to the work of the school. 393 U.S. 503 (1969). That holding, however must be read in conjunction with its oft quoted passage that a student’s rights do not end at the schoolhouse door. Tinker involved students wearing armbands in school to protest the Vietnam War. The school suspended the students and told him that they can return any time without the armbands. The Supreme Court held that silently wearing black armbands IN SCHOOL did not materially disrupt school activities.
Tinker’s holding should not be used to regulate a student’s speech or expression outside of the school environment.
The closest that the US Supreme Court has come to limiting students’ out of school speech rights is Morse v. Frederick, in which the court held that the First Amendment does not prevent educators from suppressing student speech, at a school-supervised event, that is reasonably viewed as promoting illegal drug use. The students in an Alaskan school were given time off from school so that they could view the Olympic torch passing through their town. In full view of the TV cameras, but off school property, a group of students unfurled a banner reading “BONG HiTS 4 JESUS”. The principal seized their banner and suspended the students for five days for promoting illegal drug use against school policy. The Supreme Court upheld the suspension. This is one case where I actually agreed with Stevens, Souter and Ginsburg who dissented. (As an aside, the students won a substantial amount of money on their state law claims).
Suspending a student is a very serious decision indeed, and must be done legally and by the book. It seems to me that one’s right to post a legal video, no matter how reprehensible, outside of the school environment, is the absolute constitutional right of that person, even if (s)he is a student at the school.
My only problem with the decision in this overlawyered post is that $107,000 (plus probably an equal amount spent on the defense of the case) buys many books, lab supplies, and/or discretionary spending for the school district, or results in a lowering of taxes.
The school district probably learned its lesson from this one, and that is: you cannot hire dumb-dumbs as principals. If perchance the school district consulted its attorney before making the decision to suspend, they probably have a good case of legal malpractice against the attorney.

The problem, ultimately, is that a kid simply cannot be put in the position of being forced to attend school (or to forego the benefit of attending school) where they are subjected to this type of behavior. VMS can pontificate all he wants about First Amendment rights of children–but there is a lot to be said for Thomas’ view of the world too. Moreover, VMS, what if the student who is subjected to such taunts decides to fight fire with fire and curse out the offending student? Can the victim be punished for doing so under your view of the Constitution? The victim is forced to go to school–does he or she then check his right to fight speech with speech at the schoolhouse door? I think not. And let’s look at that scenario–Student A is tormented by Student B, and Student A decides to call Student B some name in class—Student A is then punished? What possible justice is there in that? And how do you deal with the parents of Student A who basically are going to want to beat the crap out of the principal doing such a thing?

When people start talking about the “rights” of children as if they are adults, I wonder if people should have their heads examines. Parents can hit their kids, for Pete’s sake–does anyone think that the framers really thought that schools can’t deal with this issue?

So, if I see a child misbehaving, can I smack them? If not, how does pointing out that parents can hit their kids support your argument? (And it’s the only rationale you’ve cited for giving children fewer speech rights than adults.)

“So, if I see a child misbehaving, can I smack them” if you are the parent, as specified in the comment above. The main reason that children should have fewer free speech rights than adults is that they are children. Get a grip. Neither children nor animals have the same rights as adult humans. I’m not sorry for this.

Let’s look at this case with a hypothetical different result. Girl A makes video off-campus encouraging and containing the trashing of Girl B and subsequently posts on ‘net where all classmates may view. Girl A is suspended, but Girl B is overwhelmed anyway and kills herself (not an unheard of result, right?). School puts into place counseling services etc.

In this scenario, was the suspension of Girl A also a suspension of her civil right to free speech? The video did disrupt the school.

I’d say that the court decision was correct, but the awarding of attorneys fees (functionally to the litigant) indicates that society (as in the legal system) views the “mean girl” conduct as honored. To discourage behavior that is legal but to be discouraged and kept out of litigation, an award of $.01 in attorneys fees would have been more appropriate.

“The main reason that children should have fewer free speech rights than adults is that they are children.”

Okay, so we’ve gone from an obviously invalid argument to no argument at all. I’m not sure if that’s progress or not.

You can make this same argument about slaves. At one time, their masters could lawfully whip them for misbehavior. And, of course, they’re slaves. Plenty of people weren’t sorry for that either.

If either of you have some kind of reasoned argument, I’d love to hear it.

As for your hypothetical, we have laws against harassment. We have laws against true threats. In your hypothetical, it’s not possible to tell if the “trashing” crossed any of these lines. If you want to live in a civil society, you have to learn how to respond non-violently to other people’s lawful speech.

David S, your argument comparing one’s own children to slaves is specious at best. The ability to punish your own children, who by their very age are immature and typically lacking judgement on appropriate behavior versus using violence to control adults is, in my opinion, deplorable.

That said, many of the problems presented to school personnel are the result of a two-fold problem. One, the mixed signals from the politicians, so-called experts, and courts on exactly how a school administrator is to handle any discipline problem and two, the fact that many of these problems are mired in a technology that is out pacing our ability to respond to its effects. And let us not forget a third causative agent, dumb-a$$ parents of the “not-my-little-snowflake” ilk or the helicopter variety or the crack-head, trailer trash, welfare state, “I brought’em in, now you raise’em for me”, type.

Clarity always makes it easier to solve a problem, eh?

Bumper: Any analogy will always have some difference between the two things analogized. To show that this invalidates the analogy, you have to show that this difference is relevant to the purpose the analogy was used.

People of any age can lack judgment on appropriate behavior. The issue is simply whether they have free speech rights upon which the government may not infringe. If there’s a reason they shouldn’t have these rights, nobody has stated what they are.

If anything, the argument that they are subject to their parents strengthens the argument against the state. Not only are the childrens’ rights being trampled on but their parents’ right to raise their children as they please (absent an individualized finding of abuse or neglect) is trampled on as well.

Kids don’t have the same rights as adults–I just chose the susceptibility to corporal punishment as one example. They also don’t have freedom of movement etc. As for the inability to live in a society without committing violence, well, in the adult world, I can always choose to absent myself from a humiliating situation–children forced to go to school cannot–moreover, my hypo didn’t involve violence on the child victim’s part, but response in kind. (If you’re going to argue for the constitutional rights of children and speech, certainly the ability to respond to attacks is a constitutional right.)

And the issue is not so simple. Kids are forced to attend school. So you’re basically saying that society can force a kid to attend a school and be abjectly humiliated? I don’t see that.

David S,

By virtue of the special considerations afforded children because of their age I believe that your premise fails. Children cannot drive, cannot drink adult beverages, before certain ages. If they commit a crime their punishment is less than if committed by an adult. And often because of these exceptions children are not afforded the same protection as an adult (sometimes less, sometimes more). So while people of all ages can exhibit poor judgement, children are afforded more protection from the consequences of that poor judgement.

If a minor murders someone, they will probably be sent to juvie until they are 21. If an 18 y/o commits the same crime he or she will probably get life w/o benefit of parole. I am sure you can think of other examples.

And yes one of the equalizers of parenthood is that in most American jurisdictions if YOUR child exhibits a lack of good judgement you can, within reason, smack ’em on the butt a bit. However, I can attest to the fact that for boys born within the last 35 years corporal punishment is about as effective for changing behavior as is top kill is for stopping the flow of oil a mile below the sea.

In most states children are no longer forced to attend school, their parents can sidestep this by home schooling. As an aside, public education was created for the purpose of turning out good little socialists not necessarily smart soon to be adults.

As stated previously, part of the problem is that the courts and legislators have been all over the place with these issues. Some courts have even held that a child who has been attacked may not defend themselves, as such a defense constitutes equally aggressive behavior. This fact is born out just about every Sunday in the fall as we all know the player who throws the first punch seldom get the flag, it’s the poor sucker who pushes back. Some judges say nasty t-shirts are a no-no, others say that’s their right to freedom of expression, etc., etc.

There are no hard and fast rules that govern these events. The point being that in the case that started this discussion a child behaved badly. Rather than seek redress directly the parents of the aggrieved sought justice from a third party who really had no business getting involved and should have bowed out, letting the parents duke it out however they choose to do so.

One thing that I forgot to mention was that a defendant can stop lawsuits under most of these fee-shifting statutes dead in their tracks in federal court by making an “offer of judgment.”

If the School District at the commencement of the lawsuit offered $10,000, for damages, that would put Plaintiff in a predicament. If she failed to get more than $10,000.00 in damages, then the costs and attorney’s fees get reversed after the offer of judgment is made.

I once represented a physician whose office worker was fired for being excessively absent from her work area during the day. She was actually working for more than one employer in close proximity to each other at the same time.

She got a lawyer and sued him under the Fair Labor Standards Act for his failure to pay her for time and a half for 100 hours of overtime that she allegedly worked. He paid her straight time at $14.00 per hour.

When I was retained, I told him we were giving her an offer of judgment for $700.00 and to abide by the court’s decision to award attorney’s fees. The attorney was the one protesting because under the FLSA, attorney’s fees are mandatory, and those employers that chose to fight may see a $700 payment to the employee and a $70,000 attorney billl at the end of the case.

The judge advised him that under no uncertain terms that he had to accept the offer. He could not get more than was asked, and if he did not take it, the attorney’d fees woudl be reversed at the end of the case.

He took the offer and the judge gave him an additional $250 for drafting filing and serving the Complaint since he ran a mill that routinely did this.

What would a $700 offer of judgment have achieved in this case, where the plaintiff recovered substantially more than $700 in damages VMS?

It isn’t a panacea. Even under federal rules it merely shifts costs (court reporting and in the court’s discretion expert witness fees), which are a paltry portion of the expense to defend a typical case.

They’re good for contractual cases, but the “offer” mechanism is broken for tort claims. It doesn’t achieve its goal because it doesn’t result in automatic fee shifting.

@ 15 Patrick

The $107,000 was comprised mostly of attorney’s fees.

Let’s assume that the school district offered $7,500. The Plaintiff now has to make a decision as to whether they have a near 100% chance of collecting more than $7,500. If Plaintiff fails to collect the $7,500, then she is responsible for all the District’s costs and attorney’s fees from the time of the offer of judgment forward.
Would a sane Plaintiff chance this, knowing that many of these cases end in Defendants’ verdicts?