STUDENT RIGHTS
AND THE INTERNET
by
Bettina Brownstein and Mac Norton
Jimmy was 14, a computer
nerd and a talented one. Almost every minute he wasn't in school, eating
or grooming himself was spent on the computer in his room at home
either with other computer nerd friends or alone. If he didn't actually
hate school, Jimmy found a lot to criticize about the administration
and teachers. One day, in the fall of 1999, while at home after school,
he got the bright idea of parodying the school's web page and did so
in colorful, sometimes pornographic, terms and pictures. No question
about it, Jimmy's web page was adolescent fantasy run amok. Although
occasionally funny, it was just as often disgusting.
Jimmy shared his creation with only a
few friends, but word got out, as it inevitably does. When some angry
parents brought the page to the attention of school officials, they
felt something had to be done, and they did it. They suspended Jimmy
and took away his in-school computer privileges. Jimmy's parents appealed
to the school board, which upheld the school superintendent's decision.
The parents then sued in federal court. The case settled during trial,
with Jimmy returning to school.
The above scenario has been played out several times in
schools across the country in recent years.
The Internet and adolescent angst make
for a potent combination. School boy and girl antipathy toward teachers
and principals has always existed, and these latter individuals certainly
have always been aware of it. However, the widespread reach of the Internet
means that these sentiments can become much more public than before
and that teachers and principals must come face to face with them. Having
no way to ignore the sometimes pornographic and violent expressions
of feeling, school administrators feel compelled to confront them and
go after the perpetrator even if the Internet communication was
done outside of school. School officials often are motivated by apprehension
that the intensity of feeling reflected in some Internet sites will
cause or evolve into violent acts either in or out of school.
Thus a clash of interests occurs: the
administrators' desire to discipline the student and keep order in their
school versus the student's constitutional right of free speech that
even minors and students enjoy. School administrators and school boards
often are surprised that their authority to penalize a student for writing
or saying something they disapprove of is circumscribed, even if the
speech occurred on school grounds during school hours. And the schools
have authority to limit students' expression outside the school, except
possibly in certain instances when the expression works its way into
the campus and causes disorder in the school.
Courts across the country almost uniformly
support a student's right to express him or herself, even if the speech
is obnoxious and pornographic and broadcast to the world via the Internet.
There are limits to the freedom. If the speech directly threatens harm
to another or disrupts the educational process, it can be prohibited
and the perpetrator punished. However, as one commentator has suggested,
"[Teachers and principals must simply grow a thick skin. I tell
people" 'Kids have been saying these things about you for decades,
but now [with the Internet and e-mail] it's just a little easier to
find out about it. And it's a little tougher to wash it off the virtual
bathroom wall.'"1
Students' First Amendments rights at school
stem from the landmark decision in Tinker v. Des Moines Independent
School District,2 in which the wearing of black armbands
by high school students was held to be protected speech for which they
could not lawfully be disciplined. Key to the outcome in Tinker
was the finding that the students' symbolic protest did not "materially
disrupt classwork or involve substantial disorder or invasion of the
rights of others."3
However, no free speech rights are absolute,
and students' are a little less absolute than others - particularly
when on-campus student speech is officially associated with the school
in some way. Thus, disciplining a student speaker for sophomorically
suggestive (but not profane) language in a school assembly speech was
upheld against First Amendment attack in Bethel School District No.
403 v. Fraser 4. In Hazelwood School District v. Kuhlmeier,5
the court upheld censorship of a school-sponsored student publication,
or any other expression that could be understood to "bear the imprimatur
of the school", so long as the censorship related to legitimate
educational concerns.6
In Hazelwood, though ultimately
not applying the Tinker "interference/ disruption"
standard, the court took the view that Fraser had clarified Tinker
to the extent that, "A school need not tolerate student speech
that is inconsistent with its 'basic educational mission,' even though
the government could not censor similar speech outside the school."7
The court did not elaborate on "outside the school." In 1988,
that term probably seemed free of ambiguity.
Along came the Internet and the spread
of computers into schools and homes. Is student speech in cyberspace
beyond "the schoolhouse gate"? Where is the schoolhouse gate
in cyberspace? Is a student's web page, prepared by his own computer
but visible on school computers, on-campus or off-campus? Perhaps more
importantly, does that location matter? Are Tinker and Fraser
even applicable to student speech published off-campus?
As might be expected, courts have recently
had opportunities to answer these questions. As also might be expected,
they have so far found ways not to do so.
Almost everyone who has ever attended
high school has at some point in that experience subscribed to the proposition
that "school sucks." In Beussink v. Woodland R-IV School
District,8 Brandon Beussink took that proposition to
his webpage in vulgar terms aimed at the faculty and administration.
Beussink built the web page entirely on his own computer and on his
own time. The page was accessed at school by a student who brought it
to a teacher's attention. The teacher informed the principal, and the
wheels of discipline began to grind. Meanwhile, students in a computer
class also viewed the page on school equipment, causing the teacher
to devote some class time to a discussion of it. Nothing otherwise disruptive
seems to have occurred. Beussink got a 10-day suspension. The school
got a federal lawsuit.
Applying Tinker the court ruled
that Beussink's First Amendment rights had likely been violated and
issued a preliminary injunction. The court seems to have implicitly
assumed that Tinker's on-campus "disruption" standard
applied because the page had been accessed at school, regardless of
Beussink's personal disinterest in where it was viewed. However, the
court found no proof of sufficient disruption to warrant the school's
disciplinary action.
In Emmit v. Kent School District9
the school suspended a senior, who was captain of the basketball team
and had a 3.95 GPA, over a personally produced web page. In addition
to the usual remarks about administration and faculty, the page contained
mock obituaries of two students and invited a vote on who should be
the next obituary. In a post-Columbine world, the school authorities
apparently regarded the factious obituaries as threatening.
Without addressing whether the web page
had ever been accessed at the school, but emphasizing that the speech
was entirely outside the school's control, the court applied Tinker
in temporarily restraining the suspension. The application of Tinker
was mixed with a Watts10-type "true threat"
analysis - as if the absence of a threat equated to the absence of Tinker
disruption.
Instead of a web page, Killion v. Franklin
School District11 involved a student's e-mail. The plaintiff
had compiled a "Top Ten List" of the personality flaws and
other perceived deficiencies of the school's athletic director. Apparently,
without the plaintiff's knowledge or participation, the e-mail found
its way to the school and even into the faculty lounge. The plaintiff
received a ten-day suspension, and sued.
Reviewing what it deemed to be the relevant
cases, including the two above and J.S. v. Bethlehem, discussed
below, the court concluded that:
Although plaintiffs urge that a heightened standard
applies because the speech at issue occurred off school
grounds, we need not resolve this issue. The overwhelming weight of
authority has analyzed student speech (whether on
or off campus) in accordance with Tinker. Further, because the
[Top Ten] list was brought on campus, albeit by an
unknown party, Tinker applies.12
Finding no disruption of or interference
with educational activities the court held the suspension inconsistent
with the First Amendment. As against the school district's argument
that the lewd nature of the site justified suspension, the court held
that while that might be true had the student made the offensive remarks
on campus, the school had no authority (absent disruption) to punish
lewd comments made off-campus. Finally, in J.S. v. Bethlehem Area
School District,13 the student's website featured profane
and vulgar criticism of a certain teacher and "contained a picture
of her severed head dripping with blood, a picture of her face morphing
into Adolph Hitler, and a solicitation, whether serious or otherwise,
for funds to cover the cost of a hit man."14 Aside from
being viewed by the principal following an anonymous tip, however, there
was no indication that the site had ever appeared at the school in any
form. (" . . . the matter presently before us involves speech that
occurred off of school premises and was communicated to others via the
Internet."15)
Nevertheless, the Pennsylvania intermediate
appellate court applied a Tinker interference/disruption analysis.
Citing a case in which a suspension was upheld for loudly cursing a
teacher in an off-campus public place16 and others where
the student publication did end up in the school, the court observed
that "courts have allowed school officials to discipline students
for conduct occurring off of school premises where it is established
that the conduct materially and substantially interferes with the educational
process."17 It upheld the school's finding that the
student's website hindered the educational process and the school's
decision to expel the student. The decision is on appeal to the Pennsylvania
Supreme Court at this writing. So far, then, the strong inclination
of courts in student speech cases involving the Internet has been to
apply Tinker without regard to whether the speech was on campus.
(Although, whether on or off school grounds, as shown by Beussink, remains
a factor the courts at least give lip service to, indicating a reluctance
to allow the schoolmaster jurisdiction over students beyond the school
grounds). The manner and results of that application have not been altogether
consistent and the number of cases is still small, but this inclination
among lower courts may be taking Tinker, with its emphasis on
"the schoolhouse gate." Fraser, with its on-campus
incivility emphasis, and Hazelwood, with its school-sponsorship
distinction, to places where the Supreme Court had not intended to go.
On the other hand, a school computer connected to the Internet could
access almost any student website. If the content of the site is such
as to cause, or realistically threaten, actual and substantial disruption
of the educational process, should the points of access be critical
to the analysis? If the content of a website is truly threatening to
a person or persons or is an independent cause of genuinely material
disruption of school activity, the extent of its occurrence or distribution
inside "the schoolhouse gate" may be an incidental consideration.
Whether the Supreme Court would maintain that demarcation line in an
Internet case is an open question.
Schools who are sued are prone to claim
that a suspended student's webpage disrupted the educational process.
Schools however, should be careful asserting that the page, rather than
their reaction to it, was the cause of a disruption. Superintendents,
principals, and deans risk overreacting to offensive Internet musing
and ironically causing whatever commotion occurs by overzealous investigative
and disciplinary measures, which become the talk of the school and distract
from the classroom.
For the most part, the courts appear willing
and able to delineate the former from the latter and are hesitant to
punish the student for uproar caused by administrators. So in addition
to maintaining thick skin, school officials should bear in mind that
their students have First Amendment rights and exercise restraint in
instituting any measures that would abridge them. Indeed, as a practical
matter, the authors suspect that in many of these cases litigation would
have been avoided had the webpage been brought to the attention of the
student's parents before the formal disciplinary process was engaged.
Endnotes
1 "Courts Differ on Student Discipline for Disparaging Humor
Over the Internet, " The Legal Intelligencer, April
13, 2001.
2 393 U.S. 503 (1969).
3 Id. at 513. 4 478 U.S. 675 (1986). One could read Fraser to
hold that, given the legitimate need to maintain
civility in school proceedings, lewd speech is per se disruptive in
a Tinker analysis.
5 484 U.S. 260 (1988).
6 Id. at 272.
7 Id. at 266.
8 30 F. Supp.2d 1175 (E.D. Mo. 1988).
9 92 F. Supp.2d 1088 (W.D. Wash. 2000).
10 Watts v. U.S., 394 U.S. 706 (1969).
11 136 F. Supp.2d 446 (W.D. Pa. 2001).
12 Id. at 455.
13 757 A.2d 412 (Pa. Commw. Ct. 2000)
14 Id. at 421.
15 Id. at 419 (emphasis in original).
16 Fenton v. Stear, 423 F. Supp. 767 (W.D. Pa. 1976).
17 757 A.2d at 421.
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