II. STUDENT EXPRESSION
Words are the source of misunderstandings.
—Antoine de Saint-Exupery
A. History
In Tinker v. Des Moines Independent Community School District, the Supreme Court famously proclaimed that students "do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."8
In Tinker, three junior high and high school students sought an injunction to prevent school officials from imposing disciplinary action against them for violating the school's dress code by wearing black armbands to protest the Vietnam War.9 Prior to the protest, principals instituted a policy requiring any student who wore the black armband to remove it.10 The administration did not identify any other political or controversial symbols that would trigger the policy's prohibition.11 Students who refused to remove the armband would be suspended until they decided not to wear it.12
A handful of the district's 18,000 students wore the armbands, and only five students received suspensions after refusing to remove them.13 The armbands did not cause a disruption to "the work of the schools or any class," nor were there any "threats or acts of violence on school premises."14 The Court characterized the students' protest as "a silent, passive expression of opinion, unaccompanied by any disorder or disturbance."15
The Supreme Court denounced the action taken by school officials and made clear the rights and responsibilities of the schools and students:
Under our Constitution, free speech is not a right that is given only to be so circumscribed that it exists in principle but not in fact. Freedom of expression would not truly exist if the right could be exercised only in an area that a benevolent government has provided as a safe haven for crackpots. The Constitution says that Congress (and the States) may not abridge the right to free speech. This provision means what it says. We properly read it to permit reasonable regulation of speech-connected activities in carefully restricted circumstances. But we do not confine the permissible exercise of First Amendment rights to a telephone booth or the four corners of a pamphlet, or to supervised and ordained discussion in a school classroom.16
The challenge for the Court was to strike a balance between the First Amendment rights of students and the "comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools."17 The Court determined that, in order to achieve such a balance, student speech could be suppressed only when school officials could prove that the student's exercise of First Amendment rights would "materially and substantially disrupt the work and discipline of the school."18
Thus, the Tinker standard has established the basic analytical framework for the evaluation of student speech. Subsequent cases offered more concrete examples of the types of speech that were not entitled to First Amendment protection. However, the foundation has remained unchanged.
In Bethel School District No. 403 v. Fraser, the Court clarified its holding in Tinker and made a distinction between the "political 'message' of the armbands in Tinker and the sexual content" of the speech at issue in the Fraser case.19 In Fraser, a high school student delivered a speech to the entire student body that contained graphic, sexual innuendos.20 The school suspended the student, citing a violation of a Tinker-styled disciplinary rule that prohibited "conduct which materially and substantially interferes with the educational process . . . including the use of obscene, profane language or gestures."21 In determining that the school did not violate Fraser's First Amendment rights, the Court held that the school could impose discipline for Fraser's "offensively lewd and indecent speech."22 It further reasoned that "[t]he First Amendment does not prevent the school officials from determining that to permit a vulgar and lewd speech such as respondent's would undermine the school's basic educational mission."23
The speech at issue in both Tinker and Fraser occurred within the school building. In Morse v. Frederick, the Court was presented with a situation in which the speech occurred off of school property at a school-sanctioned and supervised event.24 In Morse, school officials allowed students to leave the school building to watch the Olympic Torch Relay as it made its way through the town.25 The route included the street directly in front of the high school.26 When the torchbearers and cameras passed by him, Frederick and his friends displayed a 14-foot banner that read "BONG HITS 4 JESUS."27 In spite of directives from the principal, Frederick refused to take down the banner; he received a 10-day suspension.28
Although there was no finding of a material and substantial disruption caused by the banner, the Court determined that the First Amendment does not prohibit a school from restricting student speech that promotes illegal drug use.29 In reaching its conclusion, the Court pointed out that the government has spent billions of dollars in its attempt to prevent the use of drugs. It further reasoned that, "[s]tudent speech celebrating illegal drug use . . . thus poses a particular challenge for school officials working to protect those entrusted to their care from the dangers of drug abuse."30
B. Online Student Speech31
Our educational system is like an automobile which has strong rear lights, brightly illuminating the past. But looking forward things are barely discernible.
—Hermann Oberth
Technology has forever altered the delivery of instruction and exploded the traditional classroom setting. At the same time, student behavior—and misbehavior—has adapted and grown in this online world. Students can now swiftly transmit information to a large number of recipients, both intended and unintended. These new technologies have presented school officials with the difficult task of determining how to handle, legally and appropriately, student speech that occurs outside of school but that nonetheless finds its way inside the schoolhouse.
In Layshock ex rel. Layshock v. Hermitage School District,32 the Third Circuit33 examined whether a school could punish a student for "expressive conduct that originated outside of the school house, did not disturb the school environment, and was not related to any school sponsored activity."34
High school senior Justin Layshock created a fake MySpace page about his principal, Eric Trosch.35 The profile contained a picture of Trosch and fake answers to a series of questions that presented a less than favorable view of Trosch.36 Other students quickly learned of the page and some took the opportunity to create their own unflattering profiles of Trosch.37 Eventually, school officials learned that Layshock created the initial profile and they suspended him, placed him in an alternative program for the remainder of the year, banned him from extracurricular activities, and refused to allow him to participate in the school's graduation ceremony.38
In determining that the discipline violated Justin's First Amendment rights, the court noted that it would set a "dangerous precedent to allow . . . school authorities to reach into a child's home and control his/her actions there to the same extent that it can control that child when he/she participates in school sponsored activities."39 The court also found that Justin's actions did not create a substantial disruption.40
The Court found significant that, unlike the facts presented in J.S. v. Bethlehem Area School District41 and Wisniewski v. Board of Education of Weedsport Central School District,42 the challenged off-campus speech did not promote violence against teachers.43 In J.S., the teacher was so frightened that she took medical leave, which required the use of substitute teachers.44 The Pennsylvania Court found that this created a disruption by "adversely impact[ing] the delivery of instruction."45 In Wisniewski, the Second Circuit determined that the speech was not protected by the First Amendment because "it cross[ed] the boundary of protected speech and pose[d] a reasonably foreseeable risk [of] materially and substantially disrupting the work and discipline of the school."46
In the Layshock concurrence, Judge Kent Jordan addressed the issue of balancing the need for order in schools with the rights of students. He took issue with using "property lines"47 as a determining factor in the regulation of student speech in light of emerging technology:
With the tools of modern technology, a student could, with malice aforethought, engineer egregiously disruptive events and, if the troublemaker were savvy enough to tweet the organizing communications from his or her cellphone while standing one foot outside school property, the school administrators might succeed in heading off the actual disruption in the building but would be left powerless to discipline the student.48
At the same time, some courts have declined to extend First Amendment protections to online student speech. For example, the Fourth Circuit affirmed the discipline imposed upon a student who, in the privacy of her own home and with the use of her personal computer, created a discussion group web-page on MySpace that ridiculed a fellow student, Shay N.49 The webpage, which included pictures, claimed that Shay had herpes. Upon learning of the webpage, she decided not to attend classes because she was uncomfortable.50 Kara Kowalski, a 12th-grade student, received an out-of-school suspension and a "social suspension" that prevented her from participating in certain school events.51 The court agreed that this was off-campus conduct but framed the issue as "whether [her] activity fell within the outer boundaries of the high school's legitimate interest in maintaining order in the school and protecting the well-being and educational rights of its...
