Tinker laid down the primary rule for deciding cases involving the free speech rights of students. The Supreme Court held that student expression can be restricted by schools if such speech materially disrupts school activities or substantially affects the rights of other students. Students cannot be disciplined based on the content of their speech, unless it causes disruptions at the school. The Tinker ruling specified that while “students . . . [do not] shed their constitutional rights to freedom of speech or expression at the schoolhouse gate (Tinker, 1969, 506), student speech rights under the First Amendment are subject to more restrictions at school than outside of it.

The Fraser and Hazelwood cases indicated that the Court recognized exceptions to the Tinker rule, as the Court allowed schools to discipline students for certain types of speech regardless of whether the speech disrupted school activities. In Fraser, the Court permitted schools to regulate vulgar and lewd student speech without showing either the threat or the existence of a disruption. The second exception to the Tinker rule was announced in Hazelwood, in which the court ruled that schools can more tightly regulate school sponsored speech, such as newspapers, plays, etc., than student speech that occurred outside of an academic setting (for example, during a lunch time conversation). The Court permitted school officials to restrict the free speech rights of students in activities either related to the school’s curriculum or to acts that the school could be regarded as having endorsed. As with Tinker and Fraser, Kuhlmeier involved First Amendment issues that took place in the school environment, though not necessarily in the classroom.

The Morse case added another exception to the Tinker rule. Morse involved student expression occurring during an Olympic torch relay on a road bordering an Alaskan high school. The school’s principal (Morse) permitted students to attend the relay during school time, either on the school grounds or on the other side of the street. A group of students located across the street unfurled a large banner which carried the message “BONG HiTS FOR JESUS.” Morse immediately crossed the street and told the student to take down the banner. All complied except Frederick, who subsequently was suspended from school based on the incident (Morse, 2007).

A deeply divided1 Supreme Court ruled 5-4 that a school could discipline students for speech promoting drug use even absent a showing that the speech caused a substantial disruption of school activities. The Court stated that the regulation of messages promoting drug use could be regulated due to the dangers of illegal drug use and the requirements for schools to prevent students from being subject to messages promoting drug use. The majority opinion also made it clear that the fact that Frederick stood off of school property when unfurling the banner had no constitutional relevance. The school permitted students to attend the event, which occurred during school hours, and had teachers supervising the students, so the Court considered it to be a school event.

One of the concurring opinions merits mention due to the fact the Justices would limit the reach of the majority opinion. Two members of the five person majority (Justices Alito and Kennedy) joined a concurring opinion in which they stated that they joined the majority opinion only in so far as it limited speech promoting drug use. The two Justices indicated that they would not agree with an opinion that permitted disciplining students for “commenting on any political or social issue, including speech on issues such as ‘the wisdom of the war on drugs or of legalizing marijuana for medicinal use.’” (Morse (Alito opinion), 2007, 422) Therefore, Morse appears to permit students to discuss or debate issues related to drug policies, but not to advocate for or promote the use of illegal drugs.

The four relevant Supreme Court cases set forth a relatively straightforward set of rules for regulating student speech. Schools can discipline students for on campus speech that causes a material disruption to school activities and/or substantially affects the rights of other students. Students also can be disciplined for lewd comments, comments made in school sponsored academic forum (such as plays or school newspapers), and comments promoting the use of illegal drugs, again if such statement are made on campus.

The Supreme Court rulings provide only limited guidance to courts considering cases involving the regulation of student initiated off campus internet communications. The main unanswered question concerns the importance of the location of the speech. The four Supreme Court cases all involved speech that occurred at school or (in Morse) at a school sponsored event during school hours, while the vast majority of student internet communication cases involve communications initiated away from school during the student’s free time. As discussed in the previous paper, most courts have applied the Tinker standard to off campus internet speech and thereby permit schools to regulate a student created web site, if the site causes a significant disruption at the school. Courts rarely have invoked the Fraser and Hazelwood exceptions unless the web sites have a strong connection to the school. The rest of this paper will discuss developments in the law since 2007.

Wisniewski concerns a student (Wisniewski) who was suspended from school for creating an instant messaging icon depicting a gun being fired at a person’s head, blood splattering above the head, and the words “Kill Mr. VanderMolen” (the name of one of Wisniewski’s teachers). Wisniewski shared the message with 15 of his friends (some of whom were classmates), but not the teacher or any other school staff. Another student obtained a copy of the icon and showed it to Mr. VanderMolen, who was disturbed by the image and reported it to the school’s principal. The police became involved in the matter and determined that Wisniewski intended the icon to be a joke and that he posed no real threat to the teacher. A psychologist who examined Wisniewski reached the same conclusion. Despite the findings of the police, Wisniewski was suspended for one semester, in part due to the determination of a hearing officer that the icon was a true threat. The family sued the school district and the superintendent under federal and state law, claiming that their son had been suspended in retaliation for his expression, which was protected under the First Amendment. The trial court dismissed Wisniewski’s federal claims, which the family appealed.2

The Second Circuit Court of Appeals opted not to apply the “true threat” tests to the case because the court stated “school officials have significantly broader authority to sanction student speech than the [true threat] standard allows.” (Wisniewski, 2007, 38) Instead, the court applied the Tinker test to the case. The court stated that the school officials would prevail under Tinker if it was reasonably foreseeable that (a) the icon would reach the school and (b) that it caused a risk of a substantial disruption at the school. The court ruled that it was reasonably foreseeable that the icon would reach the school (as it did) and that it would cause a disruption of the school’s activities (the court did not discuss whether any such disruption occurred). The court affirmed the dismissal of the federal claims for these reasons.

Wisniewski contains some important lessons for web site cases. First, the court required a connection between the icon created off campus speech and the school. However, the icon may not have had to reach the school to satisfy the reasonably foreseeable criterion (the court divided on that issue). Second, the school did not have to prove a substantial disruption had occurred, but only that it was foreseeable that one would occur. Finally, the court applied Tinker to a case involving a threat, without deciding whether the icon constituted a “true threat.” This mode of analysis implies that this court may have been willing to apply either the Tinker standard or the true threat standard to uphold the school’s disciplinary decision.

Bowler involved a student who formed a conservative club at his high school. Members of the club hung up posters at the school to advertise the club. The posters contained, among other things, the web address of a national group with which the conservative club had become affiliated. The web site of the national organization contained links to another web site that showed Islamic fundamentalists beheading people. The school administration viewed the beheadings and took a variety of actions, including blocking the web site of the national organization and removing the posters. Eventually, the club members were allowed to hang posters with the web address crossed out and the word “censored” added to the posters. The club members received some notoriety due to their viewpoints, including what plaintiffs claimed was harassment from teachers with different political views. The club met on several occasions, but eventually stopped meeting due to what it regarded as harassment from the school officials. Plaintiffs sought damages based on a variety of claims related to the school’s censorship. The defendants requested summary judgment, arguing that no reasonable interpretation of the facts would allow the students to prevail.

The court denied the defendants’ summary judgment motion for all of the substantive issues before the court.3 With regard to most of the claims, the court did so because key facts were disputed, meaning the case would need to go to trial to resolve the disputed issues. However, the court issued one definitive ruling in favor of the students: that they possessed a First Amendment right to write the national organization’s web address on the posters. The school argued that the poster had the potential for causing a disruption at school because students would see the web address, access it at home, seek out the terrorist videos, be traumatized by them, and require extra counseling services. The court regarded the required chain of events as requiring extensive voluntary action on the part of the “victims,” which would reduce the culpability of the plaintiffs. It also determined that any potential for additional counseling failed to reach the substantial disruption standard required by Tinker. The school also argued that the web address could be censored based on the offensiveness standard of Fraser. However, the “offensive” material neither was on the posters nor could be viewed at school since the web site had been blocked. For these reasons, the court ruled that the students had the right to display the web address on their posters.

The basic lesson of Bowler seems to be that a court will treat a case in which multiple steps must be taken to access offensive material differently from a case in which the students directly created the offensive material. The decision also makes clear that the provision of a small amount of counseling in the presumably unlikely event of anyone accessing the videos does not rise to the level of a substantial disruption.

O.Z. bears many similarities to Wisniewski, so it will not come as a surprise that the court based its decision to a large extent on Wisniewski. O.Z. involved a situation in which a student, with one of her friends, created a slide show depicting the murder of one of her teachers. The friend posted the slide show on YouTube, where the teacher found it when searching for herself on Google. The teacher became ill after viewing the slide show and notified her principal about the show. The school district suspended the student and transferred her to another school. The student’s parents agreed to the transfer at first, but later sought to her their daughter returned to her original school. The district refused the request, so the parents brought suit for an injunction compelling the district to return the student to her original middle school. At the preliminary injunction stage, the court did not make a definitive ruling regarding constitutionality, but considered whether the student was likely to succeed on the merits.

Based largely on Wisniewski, the court ruled that the student was unlikely to succeed on the merits. The O.Z. court, however, applied a slightly different standard than the Wisniewski court. Recall that the latter employed a two step analysis about whether it was reasonably foreseeable that the icon would reach the school and whether it would cause a substantial disruption of school activities. The O.Z. court considered only whether it was reasonably foreseeable that the slide show would cause a substantial disruption of school activities though the issue of whether the slide show would reach the school was incorporated as part of that analysis. The court ruled that the transfer appeared to be justified because it was reasonable to believe that the show would disrupt activities at the school and because the school faced concerns related to the safety of the teacher that would lead to severe disruptions if the worst came to pass.

O.Z. followed Wisniewski in a relatively straightforward manner. The only new issue raised in this case was whether the issue of the link between the off campus speech and the school must be established explicitly.

Doninger arose after a high school barred a student (Doninger) from running for student council due to a posting on a blog.. Doninger was Junior Class Secretary when a dispute arose between the student council and the school administration over the necessity of postponing a concert sponsored by the student council. Doninger protested the postponing of the concert by, among other things, publishing a blog on LiveJournal that alleged that the concert had been cancelled, referred to the district administrators as “douchebags” and encouraged people to send emails and make phone calls to the school protesting the cancellation (Doninger, 2008). The administration fielded numerous phone calls and emails regarding the incident and had to cancel meetings to deal with the protest, though it did not learn of the blog entry for a week or two after it had been posted. After the principal learned about the blog, she refused to permit Doninger to run for Senior Class Secretary due to her failure “to display the civility and good citizenship expected of class officers” (Doninger, 2008, 46), referring to the foul language, inaccurate information, and use of improper channels of protest. Despite not being on the ballot, Doninger won the election as a write-in candidate, but was not permitted to take office. Doninger sued to be permitted to take her place on the council and for monetary damages.

The Doninger court denied the school district’s motion for summary judgment despite finding that the Tinker standards had been met in the case. Doninger was filed in the Second Circuit (the same one as Wisniewski), so the court applied the two step test. The school met the burden of showing that the blog could be reasonably expected to reach the school (it did reach the school) and cause a disruption (it caused a disruption). However, the court ruled that the facts were not clear regarding whether Doninger was punished by the school because of the disruption (which would be constitutional) or because of the content of the blog (which would not be constitutional). For that reason, the court let the case proceed to trial.

The key point from Doninger consists of the fact that schools can discipline students for speech using the disruption argument if the disruption is the reason for the discipline. However, a disruption cannot be used as a pretense for discipline based on content.

This subsection combines the discussion of J.S. and Layshock because the cases were announced by the Third Circuit (though not the same three judge panels) on the same day and the cases have facts patterns that are somewhat similar. Both cases involved students creating mock MySpace profiles of their school’s principal. Both students included a picture of their respective principal on their site, which each downloaded from a district web site. J.S. originally set her site up as “public,” meaning anyone had access to it, but soon changed it to require one to become a “friend” to view the site. Layshock required friend status from the time of publication. The profile created by J.S. contained several allusions to the principal’s sex life, including implying that he had sex with children. Layshock’s profile contained more flippant comments alluding to drug and steroid use and some sexual innuendo, though less explicit than that of J.S. and without mentioning sex with children. The school attended by J.S. blocked MySpace, so students could not access her site on campus (though the administration could and did), while students were able to view Layshock’s site on campus. The disturbances at the school of J.S. amounted to two teachers having to stop their students from discussing the issue, having a counselor proctor an exam during a meeting between the principal, J.S., and her mother, two students congratulating the plaintiff by decorating her locker when she returned from her suspension, and the principal having to field phone calls regarding his alleged pedophilia. The disruptions at Layshock’s school consisted of limiting student computer use to the library and computer labs and using the technology coordinator’s time to block the profile from entering the school. Both students received 10 day suspensions, while Layshock also was assigned to an alternative high school, barred from extracurricular activities, and barred from participating at graduation (all of Layshock’s punishments, except the suspension, were rescinded by the school as part of a pretrial agreement). Both students sued to prevent their suspensions from taking place; each case reached the appellate court on an appeal of a summary judgment: awarded in favor of the school in J.S. and in favor of Layshock in his case.

The court in J.S. express declined to follow the two step process set forth in Wisniewski and moved straight to the issue of whether a disturbance at the school was reasonably foreseeable given these facts. The court acknowledged that no serious disturbance had occurred, but argued that the lack of a disturbance was not determinative because the quick response of the administration may have quelled a disturbance. Instead, the court ruled that it was reasonable to expect that a disturbance would have been foreseeable given the nature of the comments made in the web site alluding to the principal having sex with children.

The Layshock ruling hinged on the fact that Layshock and the district agreed that no disturbance occurred within the school. The district argued that the web site fell under the domain of Fraser, due to being lewd and offensive. The court ruled that the downloading of the photograph constituted very small minor contact with the school that did not change the nature of Layshock actions from out of school to in school, therefore, Fraser did not apply and Layshock prevailed.

The similarity of the cases makes for an interesting contrast that yields a few important lessons. First, a district should not concede the Tinker argument unless it plans to concede the entire case because the substantial disruption argument almost always offers the best chance for success. Second, the content of the speech appears to be an important factor in the cases. The pedophilia related content of the profile created by J.S. appeared to be very important to the court, if for no other reason than it increased the probability of a disruption occurring. As will be discussed in more detail in the final section, the content of the speech appears to carry a good deal more weight than would appear proper from the isolated language of the legal rules. Finally, the rulings show that cases with rather similar, though not identical, facts can be decided quite differently.

Evans involved a student who created a Facebook group from her home dedicated to the proposition that a certain teacher was the worst teacher ever. The student received responses on the site that defended the teacher and put down the student for creating the site. The student removed the site after two days. The teacher never saw the posting, which caused no disruption at school. Subsequently, the principal (Bayer) found out about the group. He suspended Evans for three days and forced her to transfer from AP courses to honors courses, which impacted the weighting of the classes for GPA purposes. Evans sued to have the suspension removed from her record and for nominal damages.

Bayer’s only real defense consisted of a claim of qualified immunity. To defeat this defense, one element that the plaintiff must prove is whether a constitutional violation occurred. The court considered whether the speech came on campus and found that it did not (and had no chance of doing so in the future because it had been removed from the internet prior to when Bayer learned of it). The court also took a somewhat novel approach by considering whether the Facebook group was aimed at an audience at the school. The court found that the site was not aimed at a school audience because it was not accessed on campus or created as part of a school sponsored activity. The court deemed the creation of the group off campus speech. The court than considered the issue of disruption and held that no disruption occurred nor was there a reasonable expectation that one would occur after the web site had been removed. For these reasons, the court determined that a constitutional violation had occurred. The discussion of the case will be completed in the qualified immunity section.

The Evans case simply shows a principal going too far. Once the web site was removed from the internet without any disruption having occurred, the principal lacked authority to discipline the student. One might consider it curious that the courts more readily found a constitutional violation of speech in this case where the student voluntarily stopped speaking before Bayer violated her rights than in the cases in which the speech was ongoing when the alleged constitutional violations occurred.

The final case to be discussed is J.C., in which the plaintiff video recorded some of her classmates speaking in an extremely derogatory manner about another classmate. The recording was made off campus outside of school hours and posted on YouTube. The plaintiff notified several classmates regarding the video, including the victim. The victim came to school upset the next day and required 20-25 minutes of time with a counselor before going to class. There was no evidence that anyone other than school administrators viewed the tape on campus, in part because the school blocked that web site. Plaintiff was suspended for two days; she sued for injunctive relief and for damages against the school administrators.

The court noted that the standards for deciding First Amendment cases lack clarity since different courts use somewhat different standards when deciding the cases. The court did not clearly specify whether it followed the two-step approach, although it analyzed the foresee ability of the video reaching campus. The court determined that it was foreseeable that the video would reach the campus since it was posted on the internet, the plaintiff informed several classmates about the video, and, as a confirmation, and the video reached the campus. The fact that the school blocked YouTube was not considered important since the web site could have been accessed through handheld devices or through the unblocked computers of the administrators. The court then moved to the issue of substantial disruption. The court ruled that the actual disruption (an angry parent, 20-25 minutes of counseling, questioning of some students) was not substantial, in part because the victim did not confront the plaintiff or any of the other students appearing on the video while at school. The court also determined that the foreseeable impacts of the video on the campus (gossip, note passing, and a whisper campaign) did not rise to the level of a substantial disruption, so a substantial disruption on campus was not foreseeable legally.

J.C. shows that the court was hesitant to allow the school to intervene in a dispute between students that occurred off campus. The court may have feared that enabling a school to protect the feelings of a student for off campus speech would obliterate First Amendment protections for students, given the often emotional nature of students. Interestingly, the court noted in its reasoning that the victim did not confront anyone at school about the video as one factor that kept the disruption from rising to the level of being substantial. This begs the question of how the result would have changed if the girl and/or a group of her friends had confronted the video makers, especially in a threatening manner.

[i]f courts and legal scholars cannot discern the contours of First Amendment protections for student internet speech, then it is certainly unreasonable to expect school administrators, such as Defendants, to predict where the line between on and off-campus speech will be drawn in this new digital era. (p. 224)

Legal Cases