Cyberbullying

The Clearing House, 86: 174–178, 2013 Copyright C© Taylor & Francis Group, LLC ISSN: 0009-8655 print; 1939-912x online DOI: 10.1080/00098655.2013.798609

Beyond the Schoolhouse Gate: Students’ First Amendment

Speech Rights in the Digital Age

MARIE L. BITTNER

Abstract: Since 1969, the U.S. Supreme Court has given four rulings on student First Amendment speech rights cases that occurred on school campuses. The so-called information age has changed these geographical bound- aries of student speech. Recently, the U.S. Supreme Court declined to review student free-speech rights cases on the Internet, outside of school. Lower courts have not ruled consistently on this issue. Clarity and guidance is needed for school administrators, parents, and students.

Keywords: student First Amendment speech rights, on-campus speech rights, off-campus speech rights, Internet-based student speech rights

W hen the U.S. Supreme Court considered the sym-bolic speech rights of three secondary students to wear armbands to protest the Vietnam War, they wrote that “while students do not shed their constitutional rights to freedom of speech or expression at the school- house gate,” this right must be balanced against the interest of school officials to prescribe and control con- duct in the schools (Tinker v. Des Moines Independent County School District 1969). The focus of the Tinker case was on the restriction of student speech on campus. The digital age has expanded schools’ traditional

boundaries and blurred our understanding of when, where, and how students can enter the schoolhouse gate. The Internet has both literally and legally moved the schoolhouse to a student’s home computer. Stu- dents’ off-campus online activities raise difficult First Amendment speech issues for school administrators. Before the proliferation of instant messaging, blog post- ings, and social networking sites, the Supreme Court rulings allowed schools to regulate on-campus student speech if the learning environment was disrupted or if

Marie L. Bittner is at Portsmouth City Public Schools, Instructional Resource Center, Portsmouth, VA.

students were physically harmed but did not extend the school’s authority to regulate speech that occurred off campus (Kasdan 2010). The Supreme Court has not considered a case that

involves online student speech, either on campus or off campus. Where one lower court might hold that Internet-related student speech should be restricted, an- other court looking at the same set of facts but applying a different standard might hold that the same Internet- related speech should be protected (Fronk 2010). These conflicting results show that a new and clearer

standard is needed for lower courts to adjudicate Internet-related student speech cases (Lei 2009). This guidance for student off-campus digital media usage is equally important for school administrators, since student speech cases are among the most com- monly litigated cases under the First Amendment and outnumber cases dealing with obscenity, indecency, defamation, commercial advertising, campaign finance, and incitement to or advocacy of unlawful activity (Goldman 2011).

The Supreme Court’s General Student Speech Framework Student free speech rights in public schools have un-

dergone a remarkable transformation from the early twentieth century to the present. For many years, courts held that public school students had no First Amend- ment rights to free speech; in State ex rel Dresser v. Dist. Bd. of Sch. Dist. No 1 (1908), a court held in that a school’s ability to punish students for ridiculing a prin- cipal is “essential to the preservation of order, decency, decorum, and good government in the public schools.” Student speech rights reflect the social and politi-

cal changes in our history. Before World War II, the

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Beyond the Schoolhouse Gate 175

demonstration of patriotism was important to our na- tion. This ideal was shown in the Court’s ruling that Jehovah’s Witness students were required to participate in a school flag salute exercise (Minersville School District v. Gobitis 1940). In light of the political tenor of the times, this trend

began to change during World War II when the Court prohibited schools from requiring students who were Je- hovah’s Witnesses to pledge allegiance to the flag since this activity was against their religious beliefs (West Vir- ginia State Board of Education v. Barnette 1943). The Court has decided four framework student speech

cases: Tinker (1969); Bethel School District No. 403 v. Fraser (1986); Hazelwood School District v. Kuhlmeier (1988); and Morse v. Frederick (2007). These are the landmark cases that set the standards from which all student speech cases are judged, regardless of whether the speech is online. Although none of these cases dealt with student Internet speech, any analysis of students’ free speech rights in an educational setting must begin with these precedents (Starrett 2009). In Tinker the Court ruled that the school administra-

tion’s actions were not constitutionally valid to regu- late students’ speech. The Court’s decision established a two-pronged test that has been used in subsequent cases: protection of other students and protection of the educational environment (Waldman 2011). The Court expanded a school district’s ability to reg-

ulate on-campus student speech that involves school- sponsored activities and events in Fraser, a case that involved a high school student who gave a sexually suggestive speech during a school election assembly and who was subsequently suspended by school of- ficials. In Fraser the Court determined that a school district could limit such speech. The Court distin- guished between the political message involved in Tin- ker and the speech in Fraser by stating that the free- dom to advocate controversial ideas must be balanced by the societal interest of teaching students appropriate behavior. In their decision, the Justices charged public schools

with two responsibilities: “schools must teach by ex- ample the shared values of a civilized social order and inculcate the fundamental values necessary to the main- tenance of a democratic political system.” In the major- ity opinion, Chief Justice Berger stated: “the undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against the society’s countervailing interest in teaching students the boundaries of socially appropriate behavior. Even the most heated political discourse in a democratic soci- ety requires consideration for the personal sensibilities of the other participants and audiences.” If Fraser were extended to off-campus speech, schools could restrict any indecent speech by a student anywhere (Papandrea 2008).

While the Tinker ruling was a victory for student First Amendment speech rights, the Court decision in Hazel- wood limited student speech rights in a public school. In this case, a high school principal censored several student-authored articles in the school newspaper. The articles were about students’ experiences with preg- nancy and the impact of divorce on students at the school; they were subsequently withheld from publica- tion in the high school newspaper. The Court ruled that the students’ First Amendment speech rights were not violated because the newspaper was part of the school curriculum and school officials could regulate both the “style and content of student speech in school spon- sored activities as long as their actions are reasonably related to legitimate pedagogical concerns.” In Morse, high school students were permitted to leave

the campus during school hours to watch the Olympic Torch Relay pass on the street in front of the school. One student unfurled a banner that read “Bong Hits 4 Jesus” in view of the students and television cameras. After the student was disciplined for advocating the

use of illegal drugs, the student’s family sued the school for violating his speech rights since his speech occurred off campus and was outside the purview of the school’s authority. The Court disagreed, and considered the ban- ner to be “school” speech since the school sanctioned the event as an approved class trip during school hours and since teachers and administrators were supervising the students. The Court saw the deterrence of drug use by students as a compelling interest. Since the Court fo- cused heavily on the promotion of illegal drug use, they seemed to establish the additional standard of the so- cial responsibility of school districts to educate students about drug use (Moss 2011). In the Morse case, the Court wrote that schools may

take steps to “safeguard” students from speech that can be regarded as encouraging illegal drug use. Using the term safeguard, the Court began crafting a new standard to analyze student speech cases (Negron 2009). This new standard came from the Court’s statement that stu- dent speech is unprotected if it advocates a harm that is a special danger to the safety of students in their school environment. Student welfare can form the basis for public schools to regulate student expression. If a stu- dent’s speech proposes a harm to the school population, school officials can restrict the speech without determin- ing the disruptive potential of it. Immediate protection is the first goal. Some lower courts have begun to mold an expansion

of this new standard established by the Morse court to include restrictions on student speech that endangers the welfare of individuals at the school (Howell 2008). These courts applied nondrug-related speech that re- lated to student safety. Following are examples of two of these court de-

cisions. In Ponce v. Socorro Independent School District

176 The Clearing House 86(5) 2013

(2007), the Fifth Circuit Court held that a high school student who had written about his desire to com- mit a “Columbine-style” attack at his school had no First Amendment speech protection for his threaten- ing words. A classmate read the student’s diary and informed some teachers. A school administrator sus- pended the student and recommended that he be trans- ferred to another school. The Fifth Circuit stated that the punishment for the student’s speech would send a mes- sage that the school administration would not tolerate any threat of violence directed toward the school. At another high school, a student wrote in her note-

book about shooting her math teacher. After collecting the notebooks, a teacher informed the principal about the threat to the other teacher. The Eleventh Circuit Court ruled that the school could suspend the student since the school had a compelling interest to prevent violence on school property. The school needed to act before a possible shooting happened (Boim v. Fulton County School District 2007).

Although the Morse court held that a school can re- strict student speech that promotes illegal drug use and can take steps to safeguard students from speech that encourages this special danger, some lower courts have expanded the limited scope of the special danger of ille- gal drug use to other types of dangers that are threats to the school population. While the Morse decision does not erode students’ First Amendment speech protection, courts are obligated to carefully review the nature of the speech, the importance to school security, and the type of restriction imposed. These four cases established the case law standards

of substantial disruption (Tinker), offensive language (Fraser), curricular control (Hazelwood), and speech during a school-sponsored activity (Morse). These stu- dent speech standards set the stage for student Internet speech cases. In January 2012 the Court declined to review three

appeal cases that involved school discipline of Internet- related student speech of three high school students: Layshock v. Hermitage School District (2010), J.S. v. Blue Mountain School District (2010), and Kowalski v. Berke- ley County Schools (2011) (Walsh 2012). The three cases were similar in that the students in the Layshock and J.S. cases created off-campus fake MySpace profiles that ridiculed their respective principals; the student in the Kowalski case created a fake MySpace profile that ridiculed a classmate. In all three cases, the profiles were created on the students’ home computers, but other stu- dents at the three schools had access to the sites. In all three cases, the students were expelled from their schools. Although the Layshock and J.S. cases were Third Cir-

cuit Court decisions, had similar fact patterns, and both students were expelled from school, the Third Circuit reached conflicting rulings. In Layshock, the Third

Circuit ruled that since the speech was created off cam- pus and was nonthreatening, the school district had violated the student’s First Amendment speech rights. In the J.S. case, the Third Circuit ruled in favor of the

school district since it was foreseeable that the website would cause substantial disruption at the school. There was a severe deterioration in discipline and the Third Circuit wrote that the speech was so reckless, vulgar, and damaging that the principal needed to regulate it. Since contradictory results were reached by two dif-

ferent Third Circuit panels, the Third Circuit vacated both opinions and met en banc, full membership of the Court, to resolve the different rulings (Tomain 2010). In Layshock v. Hermitage School District (2011), the Third Circuit held that the school district was not justified in disciplining the student for off-campus speech because a sufficient nexus to the school had not been created. The Third Circuit wrote that school officials cannot dis- cipline a student for speech that occurs “outside the school context.” In J.S. v. Blue Mountain School District (2011), the en-

tire Third Circuit reversed its earlier panel decision. The Third Circuit decided that the school district had failed to demonstrate that it could reasonably forecast that the student’s profile would cause substantial disruption at school. School officials can restrict lewd, vulgar, and of- fensive speech at school, but cannot do so if student speech occurs off campus. In Kowalski the Fourth Circuit Court pointed out that

the student’s role in the creation of the webpage was particularly mean spirited and damaged the targeted student’s ability to interact with other students in class and to have a suitable learning experience. The Fourth Circuit held that the student could be expelled since the school’s harassment, bullying, and intimidation policy put the student on notice of the type of behavior that could be punished by school authorities. Since the stu- dent’s webpage interfered with the school’s work and conflicted with the rights of other students, the Fourth Circuit stated that this type of behavior should be taken seriously by school administrators in order to preserve an appropriate pedagogical environment. The explosion of social networking in the informa-

tion age has changed the nature of communication so quickly for today’s students that there is a need for the Supreme Court to render a standardized ruling on off- campus Internet-based student speech. The lack of a definitive ruling has widened the judicial chasm that contributes to the confusion of school administrators, parents, school boards, as well as lower courts across the nation.

Themes in Court Rulings on Student Internet Speech Cases During the last decade, lower courts have employed

three theme-based approaches to their rulings on

Beyond the Schoolhouse Gate 177

student off-campus online speech cases. These themes are the geographical approach, the substantial disrup- tion approach, and the relational/duty to the student approach (Heidlage 2009).

The Geographical Approach

This judicial approach was used by courts during some of the earliest student online speech cases. It ap- pears that the courts chose this approach because the litigation was less complicated and the rulings were less susceptible to potential appeals cases. These courts ruled in favor of the students since they made a simple deter- mination: If the student speech was not made on school property and came from an off-campus computer, the school had no authority to discipline the student. In Emmett v. Kent School District No. 415 (2000) a stu-

dent was suspended after he posted mock “obituaries” of a few of his classmates. A local news channel misre- ported the incident as a “hit list” against the student’s classmates. Overall, there was a gross misunderstanding of the nature of the student’s Internet posting. The stu- dent was inspired by his creative writing class in which students were assigned to write their own obituary. The district court ruled in favor of the student because

his website was created on an off-campus computer and the speech was entirely outside of the school’s super- vision or control. The judge noted that the student’s speech did not pose a threat to anyone nor was it given at a school assembly.

The Substantial Disruption Approach

This approach is derived from the Tinker court’s student-speech standard. The Tinker court held that stu- dent speech that causes substantial disruption of the instructional process or invasion of the rights of others will not be given First Amendment freedom-of-speech protection. In J.S. ex rel. H.S. v. Bethlehem Area School District

(2002), a student created a website on his home com- puter that made derogatory, offensive, and threatening comments about his principal and one of his teach- ers. The student told other students about the site and showed it to some of his classmates. Expulsion pro- ceedings were initiated, but the student’s family sued the school district because the website was created off campus. The Pennsylvania Supreme Court ruled that the web-

site was aimed at a specific school and its personnel—the content of the site was circulated among students and teachers on school property; therefore, the speech was on-campus speech. The court also found that a substan- tial disruption of the educational process of the students occurred because the teacher who was threatened took a medical leave and the school was forced to utilize three substitute teachers.

This court decision is an example of other cases that signaled a major change in how courts rule on student off-campus Internet-based speech rights. Previously, if the student speech was created on an off-campus com- puter, the student’s First Amendment speech rights were usually protected. Under the substantial disruption ap- proach, courts determine that there is a sufficient con- nection of the off-campus student speech to the disrup- tion created at school for the speech to be considered on-campus speech, which then falls under the school’s authority.

The Relational/Duty to the Student Approach

The relational/duty to the student approach supports the First Amendment speech rights of students while it focuses on the relationship between students and schools, as well as the duties schools have to their stu- dents. For example, the Supreme Court decisions in Fraser, Hazelwood, and Morse were based, respectively, on the following relationships/duties: teaching levels of decorum and values of civility, regulating speech if it is related to legitimate pedagogical concerns, and protect- ing the health and safety of students from illegal drugs. In D.J.M. v. Hannibal Public School District No. 60

(2011), a high school student sent an online message to a classmate that he wanted to shoot several people at the school because he had been spurned by his girlfriend. The student named specific students who he “would have to get rid of.” A classmate showed the messages to the principal and the student was expelled for ten days. The expulsion, however, was extended for the rest of the school year. In light of the increased frequency of cy- berbullying, courts began to weigh off-campus student speech rights against the safety and security of students, teachers, and administrators. The off-campus nature of the student speech was no longer a guaranteed shield against disciplinary action. The Eighth Circuit Court ruled that the statements

constituted a “true threat.” The student claimed that his off-campus messages removed him from the authority of the school. The court wrote that the need for a safe school environment overrode the student’s free speech rights. The Tinker standard was used by the court be- cause it was foreseeable that the conversations would cause substantial disruption at the school. Students and parents expressed concerns for safety and the school had to impose additional security measures.

Conclusion Although it is well established by more than 40 years

of U.S. Supreme Court precedent that public school stu- dents retain a First Amendment right to free speech while at school, judicial standards for student on- line speech created off campus are undeveloped. On- line speech is not limited by geography, and this

178 The Clearing House 86(5) 2013

geographical distinction is no longer a viable border to school jurisdiction over student speech. Since lower courts differ in what Supreme Court

precedents are applicable to their particular student off- campus online speech cases, school officials can review and monitor their policies so that they are clear, equi- table, and not vague or overbroad. For example, a law or statute is vague or overbroad if a person does not reasonably know if his or her conduct falls within or outside the law because of unclear wording. Over the past decade, litigation themes and trends

in student online off-campus speech cases have moved from protecting student speech if it was initiated off campus, to allowing schools to discipline student off- campus speech if it caused a substantial disruption of the educational process, to giving schools more lati- tude to punish students’ off-campus speech if the safety and security of students, teachers, and administrators is threatened. Since lower courts differ in what Supreme Court

precedents are applicable to their particular online off- campus speech cases and the Supreme Court has de- clined to review off-campus online speech cases, the following recommendations can provide guidance to school officials when considering the imposition of stu- dent discipline.

1. Review the language of the Student Handbook and Code of Conduct to ensure that the policy about off- campus online speech is coherent and understood by students, teachers, administrators, and parents or guardians. Clarity is needed to avoid potential prob- lems and possible litigation. The policy should not be vague or overbroad, and should be specific enough so the reader will know exactly what action is allowed and what action is not allowed.

2. If a threat has been made through online off-campus speech (acknowledged by the person who made it and the person who received it), the school district generally can suspend and/or expel the student.

3. If the online off-campus speech caused an actual dis- ruption of the educational process or interfered with the rights of other students, the district can suspend and/or expel the student. The district has a greater chance of succeeding in a potential legal action.

4. If the student encourages other students in school to visit the off-campus site or works on the website from school, there is greater likelihood that the student’s actions will be considered on campus and, therefore, fall within the school’s authority to take disciplinary action.

5. If the school district demonstrates that the student’s off-campus website or harassment causes another student to be afraid, miss school, seek counseling,

or experience an impact on his or her grades, the school district has a better chance to discipline the student and to seek legal intervention. The same con- sequences apply if a school staff member takes a leave of absence or quits in reaction to the harassment.

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Emmett v. Kent School District No. 415. 2000. 2d 1088 (W.D. Wash.). Fronk, N. 2010. Doninger v. Niehoff : An example of public schools’ pa- ternalism and the off-campus restriction of students’ First Amend- ment rights. University of Pennsylvania Journal of Constitutional Law 122(5): 1417–42.

Goldman, L. 2011. Student speech and the First Amendment: A com- prehensive approach. Florida Law Review 63(2): 395–430.

Hazelwood School District v. Kuhlmeier. 1988. 484 U.S. 260. Heidlage, B. 2009. A relational approach to schools’ regulation of youth online speech. New York University Law Review 84(4): 572–608.

Howell, R. 2008. After Morse v. Frederick: The United States Court of Appeals for the Fifth Circuit takes another step toward abrogating the Tinker standard for student speech by permitting restrictions on speech which poses a “special danger” to the school environment. Baylor Law Review 60(3): 1046–67.

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