The Digital Divide


While courts uphold students' free-speech rights on the Internet, school officials keep punishing students for off-campus Web sites





In a recurring storyline on "Boston Public," Fox's new series chronicling the lives of teachers working in an urban public high school, a student finds a way to irk administrators each week with a Web site ridiculing school staff. Fed up with animations on the site, including one depicting an elderly male teacher in a bra and panties, the principal finally decides to suspend the student. She sues the school for violating her First Amendment rights -- and wins.

For a series that focuses on events ripped from the headlines, an episode about a student who riles school officials with an irreverent Web site was a good call. And for a television show that often depicts the more sensational aspects of high school life, it was pretty realistic: Administrators routinely punish students for off-campus Web sites they dislike -- and the students who sue almost always win.

Since 1998 at least 18 students have been disciplined by school administrators for Web sites created on home computers, including four since January. Because this estimate does not include punishments for which students did not seek legal assistance or incidents that were not reported by the media, it is likely their number is much higher.

School officials say they have the right to punish students for conduct that is disruptive to the school -- even if that conduct occurs outside of school. First Amendment advocates, on the other hand, say students' off-campus free-speech rights should not be limited just because of their status as students.

The widespread popularity of the Internet, coupled with the ease of posting Web pages, has given teen-agers a new outlet for expression that is capable of reaching more people than at any other time in history. That is a pretty heady prospect for a 15-year-old who finds herself routinely censored in a school newspaper distributed to only 1,000 students. It is no wonder then that many students have created off-campus Web sites that discuss the most pervasive institution in their lives: school.

As technology blurs the line between home and school, what happens when students cross that line? In other words, can administrators punish students for what they say outside of school when that speech is about-and possibly accessible from-school?

Most courts have said no. Although only five courts have ruled on the issue, four of the five rulings have favored the student. (See Cyberlaw)

Yet despite court rulings that say administrators do not have the right to discipline students for independent Web sites, many continue to do just that.

In most cases when students are disciplined for off-campus Web sites, it is because the sites criticize or ridicule school administrators or the school itself.

A federal judge recently awarded a Pennsylvania high school student $20,000 in damages plus $43,000 in attorney's fees and costs after ruling that school administrators violated his First Amendment rights when they suspended him for an e-mail he wrote off campus (Killion v. Franklin Regional Sch. Dist., 2001 WL 321581 (W.D. Pa., 2001).

Zachariah Paul, a former student at Franklin Regional High School, was suspended in 1999 after an e-mail he sent to 23 of his friends containing a "Top Ten" list circulated throughout the school. The e-mail ridiculed the school's athletic director, naming 10 reasons why he is "always so pissed off" that included comments about his weight and sex life.

Paul received a 10-day out-of-school suspension, five Saturday morning detentions and a 20-hour in-school suspension.

Paul sued the school district to get the suspension lifted, arguing that his free-speech rights were violated. A judge agreed.

In a similar incident in Florida, a Belleview High School student was punished in February after he posted a Web site that the principal considered "disruptive to the school environment."

Seventeen-year-old Aaron Fiehn was suspended for 10 days after administrators saw his Web site, which included foul language and derogatory comments about Belleview.

Fiehn was reinstated with no penalties after serving four days of the suspension following several meetings between principal Jim Whorley and attorneys for the American Civil Liberties Union of Florida, who were contacted by Fiehn.

In March, a 12-year-old student at Halsey Junior High School in New York was suspended for two days after administrators found a Web site he created that made fun of school faculty members.

The site included an altered photo of a teacher with the word "slut" inserted over her dress, a comment referring to another teacher as a stripper with a partial picture of a real stripper and comments about a male teacher implying he engaged in oral sex.

In most cases, administrators claim they punished the students because their sites were -- or possibly could have been -- disruptive to the school.

Marc Abrams, a Portland (Ore.) School Board member and former executive director of the Student Press Law Center, said that is the problem.

"Principals frequently overstate what disruption is," Abrams said. "Disruption has to be imminent and must disrupt the educational process.

"Disrupting the educational process has nothing to do with fervent debate in the halls, it means you can't conduct your math class," he added.

But Michael D. Simpson, general counsel for the National Education Association and another former SPLC executive director, said school administrators are allowed to take action against students if they can show they used "reasonable judgement" in determining that the speech is disruptive to the school environment.

"[Criticism of school administrators] is not the sort of speech the courts will allow administrators to punish," Simpson said. "But the cases say that if the school administrator reasonably believes that the students' speech on these off-campus Web sites may have a disruptive effect on the school or may interfere with the rights of others, then the student can be punished."

Defenders of the First Amendment disagree.

"Various courts have already held that you can't suspend or punish a student for speech off campus," said Randall C. Marshall, legal director of the ACLU of Florida. "The school may have some ability to control what students write as part of a school-sponsored newspaper or a school-sponsored Web site, but certainly, students don't lose their constitutional rights simply because they're students."

According to Doug Honig, a spokesman for the ACLU of Washington, there are already laws in place to punish students who make libelous statements on their sites, and schools should not have the authority to punish students for defamatory remarks.

But Web sites critical of school administrations are not the only ones under fire.

In light of recent school shootings, students are also being suspended for off-campus Web sites that include things school officials consider threatening. Sites containing hit lists, most-hated lists and violent pictures or stories have all led to student suspensions.

But deciding whether a story, picture or list of names is truly threatening is not easy to determine.

In July, a Pennsylvania state court judge ruled against a student who sued his school district after he was expelled for a Web site that featured, among other things, a list of reasons why his math teacher should be fired and a request for donations toward hiring a hit man to kill her.

"Regrettably, in this day and age where school violence is becoming more commonplace, school officials are justified in taking very seriously threats against faculty and other students," Judge Jess S. Jiuliante said in his decision.

But Honig argued that administrators cannot punish students for off-campus speech simply because they sense a threat.

"We are in a political climate where administrators feel a lot of pressure to take actions that appear to protect school safety," Honig said. "But sometimes people overreact, and that's what's been going on here."

Simpson, who said determining whether speech should be punished is harder in some cases than in others, said it is not a matter of overreacting. Rather, administrators have to use their judgment to decide what constitutes a threat in order to protect their school.

Direct threats are easier to handle, Simpson said.

"I don't think that administrators have to prove that a student has the current capacity to carry through with the threat," Simpson said. "If the fact that some students are named on a hit list is upsetting to them and it interferes with their ability to get an education, then administrators have the right to punish."

But Honig contends that those students are subject to criminal charges and that there is no need for schools to take these matters into their own hands.

In fact, disciplining students for Web sites made off school grounds has many long-term effects-not just for the student being punished-but also for schools and other students.

If school administrators decide they have the authority to punish students who create Web sites on their own time using home computers, they run the risk of being held legally liable for other off-campus activities that students get involved in, Abrams said.

"As a school board member, I think the real problem is if we start exerting control off campus, we will be liable for what happens off campus," Abrams said. "They go hand in hand."

"I don't think that's our authority," he added. "We are not the kids' parents, and we are not law enforcers."

According to Honig, the more serious long-term effect will be the dissipation of students' First Amendment rights. As the number of students punished for off-campus Web sites increases, more and more students may refrain from exercising their free-speech rights for fear of being reprimanded.

"Students' ability to speak their minds and say things critical of the school would be chilled," Honig said.

He believes, however, that punishing students for off-campus speech violates the First Amendment and that administrators will eventually realize this.

"It's a new area of law," Honig said. "And as with any new area, it takes a while for people to get the message."


reports, Spring 2001