Education & The Law Final Paper

Anson N. Carter

Senior Legal Seminar

Professor Donsky

Culmination Paper-First Draft

March 23, 2012


The impact various forms of Freedom of Speech has on students and administrators in an Educational Setting


The cases I have chosen for this assignment will provide you with a better understanding as to what a person would have to do in order to lose that right to their free expression. Additionally, I have chosen to diagnose this topic from two particular perspectives. The first set of cases that I review will deal with students’ rights and then I will follow that up with cases that approach this topic from a teacher/professors perspective. I will show that although a student and a teacher/professor are on separate levels in terms of the school structure, in the eyes of the law they are virtually treated the same in situations such as in the following.

The first case that I will use to analyze what our true level of freedom granted by the first amendment is Board of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., 235 A.D.2d 734, 652 N.Y.S.2d 412 (3d Dept.1997). In this matter, a student named Josh Herzog was brought up on charges stemming from:

An obscenity-filled publication called the “Sub Station”. An article in the newspaper entitled “Jac of Hearts” called upon students, inter alia, to urinate on the floors, throw garbage in the courtyard, scrawl graffiti on school walls and smoke in the bathrooms. The article also noted that the student population at Monticello High School was almost 1,000 strong and that “[n]ot even the police can handle a crowd of this size.

The publication “Sub Station” was not a school sanctioned paper. The student printed and distributed the paper despite any school policy that may have been in place to prevent students from acting in this way. Furthermore, based on the content of the article “Jac of Hearts” we can instantly tell that this article is more than just a student expressing a few ideas. Through his words he is hoping to incite several forms of behavior that would be detrimental to the well-being of the school. After a hearing on these occurrences took place, it was determined that the student should be suspended for five more days on top of the other five days that the Principal of his school had already proposed. The District Superintendent then upheld that ruling.

Josh was officially charged with conduct endangering the safety, health or welfare of others. Jeffrey and Miriam Herzog followed up with a lawsuit on behalf of their son. In their suit they stated that because the ruling was upheld by the District Superintendent, their sons’ First Amendment rights were violated. This is the ideal scenario to pose the question, “When exactly does a person’s speech go from being protected by federal law to then being subject to punishment from that same law?” The court held that the superintendents’ decision was the correct one and that Josh Herzog should be suspended for his actions the on school grounds.  According to the ruling in this case, the court drew the line between free speech and unprotected speech when the language will “substantially interfere with the work of the school or impinge upon the rights of other students.”

Similarly, the issue in the next case involved statements made in a newspaper distributed on school grounds. The main difference in this upcoming scenario was that the content being argued about was printed in the Staten Island Community College official newspaper. To shed some light on this point of view I researched the case Panarella v. Birenbaum, 37 A.D.2d 987, 327 N.Y.S.2d 755 (2nd 1971). This case is a consolidation of two cases where the main issue was the regulation of school papers in state funded colleges. The articles in question were named “The Catholic Church—Cancer of Society” and “From the Hart.” From the first article title alone, one can assume that its content would follow along those lines and you would be correct. That article went on to refer to the Catholic Church as a “holy mafia” and a “social leech” in terms of money. The “From the Hart” article took a more broad approach in attacking the Catholic Church and all that it represented. The issue in this case revolves around the nature of the publications in a school sanctioned paper and whether the author truly has full control over what they are allowed to say. Another key point considered was, did the papers stance on issues such as religion should be predetermined based on their funding. Since the states are funding the colleges and therefore funding the paper, should the paper be required to maintain the same level of neutrality that the government usually does in situations such as those. In coming to a decision the court considered this reasoning:

These newspapers have been established as a forum for the free expression of the ideas and opinions of the students who attend these institutions of higher learning. It has repeatedly been held that, once having established such a forum, the authorities may not then place limitations upon its use which infringe upon the rights of the students to free expression as protected by the First Amendment, unless it can be shown that the restrictions are necessary to avoid material and substantial interference with the requirements of appropriate discipline in the operation of the school.

This explanation is one that the courts seem to lean on a great deal when faced with these scenarios. As was proven by the ruling in the first case, harsh action is only taken when the expression of the individual causes some kind of disturbance within the school. In this situation the court ruled that the First Amendment protected the papers from censorship as it related to their articles on religion.

            Now that I have shown you what truly constitutes free expression in printed form, the attention should be shifted now onto verbal statements. In the case of Ansorian v.Zimmerman, 215 A.D.2d 614, 627 N.Y.S.2d 706 (2nd Dept., 1995.), Rosette Ansorian brought a suit against one of her students because the student and her parents made some negative statements about her teaching ability. In addition to those statements, they also requested that she be removed as the teacher for their daughter. When deciding this case, the court said that the statements made by the respondents could be more classified as opinions rather than defamatory comments. Furthermore, they held that because their comments were accompanied by facts, the Zimmerman’s were not in violation of any law. The decision to dismiss the chargers was upheld.

            Up this point, the cases that I have reviewed involved students’ rights to free expression while they are on school grounds. After those examples, we are now aware that a schools ability to limit a students’ expression is severely limited. That point was highlighted in the second case because of the extreme language used in the articles. It showed that even though the language in the paper was controversial, it did not meet the standard for material that could be censored by law. At this point it is pretty clear how this law applies to students; now it is important to see how these same laws are applied to the instructors in an educational setting.

            The first case referenced case to demonstrate the teacher/professors role in these situations is In re Watt (East Greenbush Cent. School Dist.)85 A.D.3d 1357, 925 N.Y.S.2d 681  (3 Dept., 2011.). In this case, a gym teacher named Bernard Watt was accused of inappropriate behavior involving two separate students. In the first instance, he was accused of making suggestive comments along with accompanying gestures towards a female student. He then followed that up by touching that individual in a sexual fashion. The second instance involved an additional statement that Mr. Watt made to a second student. The questionable statement came during a game of soccer when he said “hey, Hispanic kid, you run like you’re running to the border,”

            Naturally, you would say that his behavior towards the young female and his statement during the soccer game were unacceptable but the question here is: Are they legally protected statements? According to the courts’ following ruling, they were not. In order to determine whether these statements were legally protected, hearings were held to judge the actions taken by Mr. Watt. Ruling on his actions regarding both scenarios, the court said “Finding petitioner guilty of a charge of conduct unbecoming a teacher based upon this conclusion is rational, and is consistent with the state’s public policy to protect minors from harmful sexualized conduct by teachers”. The hearings conclusion was that he was guilty of inappropriate sexual behavior as well as making inappropriate remarks about a student’s ethnicity. We can now see that teachers’ statements are judged harsher and are therefore subject to severe penalty in comparison to those made by a student. It is evident that the reasoning behind that idea stems from the thought that teachers are held to a higher standard due to their educational superiority. As a result of this case, petitioner was terminated from his employment.

            Continuing down the path of teacher to student expression, we look at the case of Rubino v. City of New York, 34 Misc.3d 1220(A), Slip Copy, 2012 WL 373101(Table) (N.Y.Sup.,2012.). This case addresses the topic in a whole new way because of the integration of technology. We live in a time full of technological interaction and it is slowly making its way into the legal field. In this instance, Christine Rubino posted some negative comments on her Facebook related to taking her fifth grades class to beach a day after a child had drowned on their class fieldtrip to the beach. Those posts were done after the school day was over and while Ms. Rubino was at home. One of her Facebook friends who was also a teacher saw the post and informed the assistant principal of the school. As a result of a thorough investigation into this matter, it was recommended by a hearing officer that Ms. Rubino be fired from her job. The court held that although they did not condone the comments made by petitioner, there are several reasons why she should not be terminated from her position. The reasons they gave were as follows: She was employed for fifteen years with this department and had a clean record, the post were made after the school day was over therefore they did not directly affect her teaching and there was no evidence to prove that she would ever engage in conduct similar to this again.

            In this paper, several different scenarios involving someone’s First Amendment rights within an educational setting were addressed. We see that students get the freedom to say what they want as long as it’s not detrimental to the schools well-being; while teachers have to walk a fine line when saying anything to a student. Our right of free expression is important to us and quite fittingly, the only thing that can stand in the way of that expression is the educational system that is was developed from.


Famous Trials Assignments

Anson N. Carter

Apr. 29, 2012

Legal Seminar Honors

The Earp-Holliday Trial

For this assignment I researched the O.K Corral Trial of Tombstone, Arizona. It is more commonly known as the Trial of Wyatt Earp. When these famous trials assignments were initially handed out, I expected a majority of them to be more recent; some that we would know like the back of our hand from the mere mention of the party’s names. While I have heard of the O.K. Corral and Wyatt Earp, I didn’t know enough about it to write a full report. The chance to dive into this case was a unique opportunity to see how the laws of today mixed with the gun slinger Wild West style that was so common to the people in those times.

The best way to understand this case is to first understand the cast of characters involved in this situation. On one side we have Virgil, Wyatt and Morgan Earp along with Doc Holiday, and on the other side we have Billy Clanton, Tom and Frank McLaury. The Earps and their close friend Holiday were respected men of the law. On the other hand, even the most favorable accounts of this case paint Clanton and the McLaury’s as reckless cowboys. Due to their status in the community, Earp and Holiday were allowed to exercise a certain level of power over the citizens in Tombstone. The issues between these two groups started when the McLaury’s were found to have stolen and then re-branded several mules after they brought them to their ranch. What I found interesting about this particular situation is that Frank didn’t deny stealing them but he did have a problem with the Earps involvement in his personal matters. He didn’t view the Earps as law enforcers. He viewed them as average citizens who were overstepping their boundaries by taking the law into their own hands. For weeks there were bad feelings and negative words going between both groups and the situation finally came to a head when the gentleman encountered each other at the O.K. Corral. Reports say that Earp had told the band of cowboys to put their weapons down and put their hands in the air but their demands were dismissed. One person’s perspective would say that the Earp’s were doing their job in trying to disarm the cowboys since average citizens were not allowed to carry guns. After a hail of gunfire was exchanged between the groups, several men were injured but only Billy Clanton, Tom and Frank McLaury succumbed to their injuries and would later pass away.


After a showdown of that magnitude, the citizens in Tombstone were clearly divided as to who they felt was to blame. Soon after the coroner determined the cause of death for the three men, charges were brought against all three Earp’s and Holiday. Although someone would classify the circumstances that led to this case being brought as wild, the events within the courtroom would prove to be the most exciting of them all. The defendants were represented by Thomas Finch. Up to that point he had a pretty good reputation as a lawyer and his actions during these court proceedings would only enhance that well-earned reputation. The two attorneys for the prosecution were Lyttleton Price and Ben Goodrich. The man that was given the responsibility in deciding this case was Wells W. Spicer. Early on the defense realized that they had an advantage with this judge so the typical mundane procedures of a preliminary conference were thrown out the window. Besides just changing his timing in presenting evidence for this case, Finch also proved to be a master in the art of cross examination. After the prosecutions witness was done with direct examination, Finch would proceed to poke holes in their testimony to a point where you began to doubt every word they said. If that wasn’t enough, he would then attack their character in a way that I’m pretty sure wouldn’t be allowed in today’s court rooms. As a result of Finch’s’ crafty work in the courtroom, the charges against his clients were dropped.

After seeing how this scenario played out from begging to end, I think the judge absolutely made the right decision. I will admit though that Finch’s expertise in discrediting the prosecutions witness made it hard for the judge to find any legitimate charge that the defendants could be convicted of. As far as technology goes, if there was a camera set up near the O.K. Corral then we could easily refer to that tape and see exactly what transpired. As old as this case is, the concept at work here is simple and very relevant. The prosecution could not meet their “beyond a reasonable doubt” standard and the case was dismissed.



Work Cited

The Earp-Holliday Trial: An Account

Gunfight at the OK Corral

Gunfight at the O.K. Corral