The Capital School District Board of Education tabled its proposed social media policy for students Wednesday night in light of the ACLU’s concern that the policy would violate the First Amendment’s freedom of speech clause.


The Capital School District Board of Education tabled its proposed social media policy for students Wednesday night in light of the ACLU’s concern that the policy would violate the First Amendment’s freedom of speech clause.

American Civil Liberties Union of Delaware Legal Director Richard H. Morse sent an Oct. 11, 2011 letter to the Capital School District Board of Education urging the public body to reject this policy at tonight’s meeting.

“The First Amendment protects the free speech rights of students,” ACLU-DE executive director Kathleen MacRae said in a press release. “If a student in the Capital School District engages in distasteful or disrespectful speech online or through a social media site such as Facebook or Twitter after school hours and away from school property, they cannot be restricted from doing so or punished by the school for doing so.”

Capital Superintendent Dr. Michael Thomas conferred with board President Phillip Martino Jr. after receiving the letter and both agreed the school board should table the matter at the Wednesday meeting, where a third reading of the draft policy was scheduled.

“Ultimately, we want to craft a policy that is legal and meets an appropriate standard for all concerned,” Thomas said. “We certainly don’t mind going back and reviewing the matter.”

Capital School District Attorney Dave Williams will meet with Morse to discuss the policy, he said. The policy could be brought back as early as November or later, depending on how discussions go.

Capital has been considering a policy that would govern student communication both on and off school property and would apply whether school or personal electronic equipment was used. It would prohibit students from making negative statements of any kind against individuals or groups based on race, religion, gender, disability, sexual orientation, national origin or citizenship.

But Morse cited previous legal rulings that have established this type of monitoring is unconstitutional.

“Like any other governmental agency, the Capital School District is required to comply with the United States Constitution at all times,” he wrote. “This means it may not deprive students of First Amendment rights, even when it has a laudatory goal, such as preventing students from using the Internet for distasteful or repulsive speech that may hurt themselves and others.”

The ACLU has raised some valid points, Martino said. Therefore, the board has no problem holding off on this policy.

“We certainly don’t want a policy in place that violates someone’s rights,” he said. “We’ll let the lawyers hash it out. We’re not upset by it. We want a good policy.”

“The idea is to protect students,” Martino added. “Colleges are googling these kids. This is not like stuff in a newspaper that gets thrown away. In the Internet, it’s there forever and can be found with a search.”

However, when Capital resident Dennis S. Hallock Sr.’s two oldest sons, Dennis and Devonn, read the policy they both thought it was unconstitutional as written. Dennis, a junior, and Devonn, a sophomore, both take a criminal justice class at Dover High School.

At the school board’s Sept. 21 meeting, Devonn Hallock expressed his concern about this policy during the public comment portion of the meeting.

“It was a direct violation of our First Amendment rights,” Devonn Hallock told the Dover Post Wednesday. “They’re trying to say what we can’t say about the Capital School District. That’s not up to the school district. It’s actually up to our parents, what they think is right and wrong.

“If the ACLU didn’t write this letter, this policy would have passed without thinking of my concerns,” he said.

Dennis Hallock is proud of his son for exercising his freedom of speech.

“Devonn was the only person to speak up about the policy until the ACLU wrote to the district and, no, we didn't contact them,” he said. “I have received several emails and calls from people in attendance at last months meeting, wanting me to pass thanks to Devonn because he spoke and opened the eyes of someone – even though it was someone outside of the district.”

The ACLU’s Morse has also urged the Capital school board to reconsider a social media policy for personnel that was approved on August 24, 2011 because it violates the First Amendment of the U.S. Constitution as well.

In response, the board will vote to suspend the policy enacted recently for teachers because the wording is similar, Martino said.

Last month, the ACLU sent a similar letter to Dover City Council, which had considered a policy to govern employee speech not just during the workday but also beyond normal business hours on such sites as Facebook and Twitter. That policy died in committee.