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Regulating Student Internet Communications: A 2010 Update

Module by: William Glenn. E-mail the author

Summary: This article updates my 2007 paper that discussed the First Amendment rights of students to publish controversial web sites and the related power of public schools to police this form of student expression. The relevant cases decided over the past three years expand the discussion beyond student created web site to consider circumstances such as instant messaging icons and YouTube videos that depict the fantasy murder of teachers (Wisniewski v. Weedsport Central School District, 2007; O.Z. v. Long Beach Unified School District, 2008), a fake MySpace profile in which a “principal” implies that he’s a pedophiliac (J.S. v. Blue Mountain School District, 2010), and the removal of posters making reference to the web site of a conservative group (Bowler v. Town of Hudson, 2008). In addition, the United States Supreme Court, while still not having ruled on the specific topic of students and the internet, issued a fourth landmark case in the area of the First Amendment speech rights of students. This article again synthesizes the holdings of the relevant cases, points out issues about which the courts have disagreed, and provides updated guidance regarding how to determine whether student created web sites can be regulated by schools.

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Note:

This manuscript has been peer-reviewed, accepted, and endorsed by the National Council of Professors of Educational Administration (NCPEA) as a significant contribution to the scholarship and practice of education administration. In addition to publication in the Connexions Content Commons, this module is published in the International Journal of Educational Leadership Preparation, Volume 5, Number 3 (July - September, 2010). Double-blind reviewers were Dr. Linda Searby, University of Alabama Birmingham and Dr. Donnie Snider, Abilene Christian University. Formatted and edited in Connexions by Theodore Creighton and Brad Bizzell, Virginia Tech.

Introduction

The paper is organized into four sections. The first section provides a brief overview of the three Supreme Court cases (Tinker v. Des Moines Independent Community School District (Tinker),Bethel School District No. 403 v. Fraser (Fraser), and Hazelwood School District v. Kuhlmeier (Hazelwood) that for two decades have guided the consideration of schools’ regulation of student expression (see Author 2007) for a more complete discussion of theses cases), followed by a more complete discussion of the most recent Supreme Court ruling regarding student speech, Morse v. Frederick. The second section provides an overview of how courts handled such case prior to 2007 and introduces eight new cases that were decided after the publication of the earlier paper. The third section focuses on the doctrine of qualified immunity, which protects school administrators from awards of monetary damages to students. The final section synthesizes the rulings and provides updated recommendations for administrators regarding the regulation of student created web sites.

Morse and Prior Supreme Court Rulings

Since the 1980s, three U. S. Supreme Court cases, Tinker, Fraser, and Hazelwood, have defined the contours of the First Amendment rights of students. These cases shared two important common features: they involved on campus speech and did not have to do with the internet. In 2007, the Court decided Morse, which added another foundational piece to the law.

Tinker, Frasier, and Hazelwood

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.

Morse

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.

Synthesis of Supreme Court Cases

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.

Recent Cases

This section of the paper discusses eight cases that the courts decided between 2007-2010 involving the issue of student created websites or matters closely related to that topic. The modes of speech will prove to be more varied than in the previous paper due to the use of a several different types of technology.

A brief summary of the state of the law prior to 2007 will be helpful for those who have not read the prior paper. Most courts chose to apply the Tinker rules in cases involving student created web sites, even though the Supreme Court has not opined regarding how courts should approach cases involving off campus speech (Author, 2007). Some courts required a “nexus” or connection between the web site and the school (such as the student viewing it at school and/or encouraging other students to do so) in order to invoke Tinker, but other courts simply applied Tinker with minimal consideration of the importance of the location of the speech (Author, 2007). Courts tended to regard the Fraser and Hazelwood exceptions to the Tinker rule as applying only to on campus speech, making the exceptions of limited importance for the matters discussed in this paper.

The prior article touched briefly on the issue of “true threats” due to the violent nature of some of the web sites at issue in cases (such as those containing threats to kill a teacher). A true threat is a statement that, considered as a whole, would cause a reasonable person to regard the statement as showing an immediate, unequivocal attempt to cause harm (Lovell by and Through Lovell v. Poway Unified School District, 1996). The threat must be clear and directly threaten the victim in order to qualify as a true threat. True threats do not have First Amendment protection, so schools can discipline students making true threats in the absence of an actual or threatened disruption to school activities.

The rest of this section consists of a discussion of eight relevant cases decided from 2007-2010. Each involves a form of technology used in a way deemed inappropriate by the school.

Wisniewski v. Weedsport Central School District

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 v. Hudson

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. v. Long Beach Unified School District

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 v. Niehoff

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.

J.S. v. Blue Mountain and Layshock v.Hermitage

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 v. Bayer

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.

J.C. v. Beverly Hills

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.

Qualified Immunity

A common defense by school officials to lawsuits such as those discussed above consists of invoking the qualified immunity doctrine. To defeat the qualified immunity defense, a plaintiff would have to prove that a constitutional violation occurred and that a reasonable school official would not have thought that his/her action was legal in the light of “clearly established” law (Saucier v. Katz, 2001). It must be understood that qualified immunity shields public officials from awards of money damages, but not from other types of relief (J.C. v. Beverly Hills). For example, qualified immunity can protect a principal from paying a monetary award for violating a student’s First Amendment rights, but it cannot shield the principal from other sorts of reliefs, such as an injunction enjoining the principal from enforcing a suspension.

In four (Bowler, Layshock, Evans, J.C.) of the eight recent cases discussed, the court found that a constitutional violation had occurred, plus in Doninger the court ruled that the plaintiff had a factual question regarding such a violation that needed to be tried. Therefore, in these cases, the first prong of the test (proving a constitutional violation) was met (or potentially could be met), so the courts considered the issue of qualified immunity.

The uncertain state of the law in the area of student internet communications greatly helps school officials when making this defense. As the court wrote in Doninger when ruling that the administrators were protected by qualified immunity,

[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)

In general, the courts that faced the issue of qualified immunity ruled in the same manner as the Doninger court. The two key factors giving rise to these rulings has been the lack of a Supreme Court opinion covering, off campus internet communications by students, school responses, and the First Amendment and the highly factual nature of establishing that a substantial disruption occurred or was foreseeable. Qualified immunity will remain a strong defense until the Supreme Court clarifies how the lower courts should approach these cases and perhaps thereafter given the unique factual context of these cases.

School officials should not be misled, however, into thinking that qualified immunity functions as an absolute bar to monetary damages. The Evans case is the only one of the five cases discussed in this section in which the defense was not upheld. The court’s reasoning is instructive in terms of showing the limitations of the doctrine. The court conceded that the standards governing off campus speech lack clarity, but stated that whatever the standards prove to be, school officials will not have more freedom to act in off campus cases than in on campus cases. Therefore, the principal could suspend Evans for her speech only if it caused, or foreseeable could have caused, a substantial disruption on campus. At the pleadings stage of the case, the facts showed that the web site had not caused any disruption on campus while it was active and that it was not foreseeable to cause future disruptions since it was no longer on line.4Evans shows that the qualified immunity defense can succeed only if the school officials have a reasonable argument showing that a substantial disruption has occurred or could occur, but that punishment cannot be vindictive in the absence of a disruption.

Recommendations for Schools

The foregoing discussion permits the formulation of a few guidelines that can help schools cope with the issues related to student created web sites. These should be considered in conjunction with the first three guidelines from the previous paper, none of which would change based on the recent cases.

  1. As discussed in the previous paper, schools can discipline students for true threats regardless of whether the web site was created or disseminated on campus. A true threat only exists if it involves an unequivocal intention to harm someone. A general statement, such as “I’m so angry that I could kill someone,” does not constitute a threat. Also, threatening statements that are made in jest or as a parody retain First Amendment protection. However, Wisniewski and O.Z. demonstrate that the Tinker standard of causing a substantial disruption can be applied to threat cases that may not reach the level of being a true threat. A school can discipline a student for making such a threat if the threat causes a substantial disruption.
  2. Other student created internet speech can be regulated only if it causes a material disruption to the educational process or impinges upon the rights of other students. It can be difficult to translate the rulings by the various courts into a comprehensive doctrine, but the remainder of these recommendations will attempt to distill the broad contours that should be understood by school administrators.
  3. The fact that a web site was created off campus does not in and of itself mean that schools cannot discipline students for creating such sites. There seems to be a consensus that the Tinker standard applies to on and off campus speech, but that Fraser, Hazelwood, and Morse apply only to on campus speech or speech at school sponsored events that occurs off campus.
  4. The Tinker standards do not apply to all off campus speech. Some courts, especially the Second Circuit (Connecticut, New York, and Vermont), require that a nexus be established between the off campus speech and the campus. Other courts do not examine whether a nexus exists as a separate prong of the reasoning. All courts agree, however, that the off campus speech must cause a substantial disruption at the school site, so any off campus speech subject to discipline must impact the school campus in some way.
  5. Schools face a tricky proposition because the threat of a substantial disruption can be very difficult to prove, especially when early proactive responses may have prevented disruptions from occurring. The courts have shown an inclination to consider the foreseeability of such a disruption even if future developments indicated the absence of an actual disruption (J.S. v. Blue Mountain). Nevertheless, school administrators must consider whether there is a reasonable chance that a substantial disruption will occur when balancing the First Amendment rights of students versus the functioning of the educational process and/or the rights of other students to be free to learn.
  6. Discipline must be based on the possibility or actuality of a substantial disruption. Punishments that occur without disruption and after the threat of disruption has evaporated will not find favor with the courts. Administrators following this course of conduct risk losing their qualified immunity, as in Evans.
  7. The threat of the disruption must be the reason for the discipline. The Doninger court permitted the plaintiff to proceed to trial because she had an argument that the school used the substantial disruption justification as a pretext for an unconstitutional infringement of her speech rights. Schools need to be careful not to consider extraneous reasons for suspension and must be doubly careful not to place any such reasons in a written communication, such as a memo or an email. Bowler arguably presents another example of a court suspecting that the discipline occurred due to the content (conservative viewpoint) of the speech.
  8. The courts are not entirely clear about what constitutes a substantial disruption. Specific threats to teachers and administrators seem to be frowned upon by the courts more than other types of speech. Specific statements that could impact the ability of personnel to run a school (the principal engages in pedophilia) (J.S. v. Blue Mountain) threaten a substantial disruption more than vague, immature statements (the principal has a small dick and smokes a big joint) (Layshock v. Hermitage).
  9. School officials must be very careful when dealing with teasing that occurs off campus. The J.C. court would keep schools out of the business of deciding off campus teasing between students due to the risk of schools trampling on the First Amendment rights of students. However, the court hinted that the outcome likely would change if the behaviors led to on campus issues. The J.C. ruling may be considered especially problematic due to the degree to which it makes the First Amendment rights of one student depends on the response of another. The victim in J.C. did not confront her tormentors or create a disruption on campus, but it is conceivable that she could have responded in a far more dramatic way and created a huge disruption. The J.C. decision raises the possibility that one’s speech is protected when bullying someone who won’t fight back, but one’s speech is not protected if bullying someone who will defend him/herself.

The legal intricacies in the field of student communications remain undefined to a large extent. Some parameters have begun to take shape in the lower courts, in particular the importance of Tinker in this area of the law. Until a definitive Supreme Court opinion comes down, school administrators should always consider these cases in terms of whether a substantial disruption is foreseeable or has occurred in fact.

References

Glenn, W. J. (2007, May 31). Regulating Student Created Websites: Free Speech in Cyberspace. Connexions. Available on-line at: http://cnx.org/content/m14559/latest/

Legal Cases

Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986).

Bowler v. Town of Hudson, 514 F. Supp. 2d 168 (D. Mass. 2007).

Doninger v. Niehoff, 594 F. Supp. 2d 211 (D. Conn. 2009).

Evans v. Bayer, 684 F. Supp. 2d 1365 (S.D. Fla. 2010).

Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988).

J.C. v. Beverly Hills Unified School District, 2010 U.S. Dist. LEXIS 54481 (C.D. Cal. 2010).

J.S. v. Blue Mountain School District, 593 F.3d 286 (3rd Cir. 2010).

Layshock v. Hermitage School District, 593 F.3d 249 (3rd Cir. 2010).

Lovell by and Through Lovell v. Poway Unified School District, 90 F.3d 367, 372 (9th Cir. 1996).

Morse v. Frederick, 551 U.S. 393 (2007).

O.Z. v. Long Beach Unified School District, 2008 U.S. Dist. LEXIS 110409 (C.D. Cal. 2008).

Saucier v. Katz, 533 U.S. 194 (1969).

Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).

Wisniewski v. Weedsport Central School District, 494 F.3d 34 (2nd Cir. 2007).

Footnotes

  1. The Court issued five opinions in the case. In addition to the two discussed in this section, Justice Thomas argued that school children lack First Amendment rights and would reverse Tinker; Justice Breyer would have avoided the First Amendment issues y ruling that the principal was protected by the doctrine of qualified immunity (all 9 Justice would agree that doctrine protected the principal with respect to monetary damages); Justice Stevens dissented against the drug related exception to Tinker announced by the majority.
  2. On a technical note, the dismissal of the federal claims enabled the federal court to refuse to hear the state law claims. The family would have to pursue any state law remedies in state court after this ruling.
  3. The court’s ruling regarding qualified immunity will be discussed in the qualified immunity section of this paper.
  4. The court left open the possibility that the discovery of additional facts could change the ruling at a later point in the proceedings.

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