The domain game


Some say administrators overstep boundaries in punishing students for home speech; experts give advice for Web-savvy students





When it comes to online speech, high school administrators are advancing past the schoolyard gates to clamp down on controversial statements made by students. 

As a result, the lines of where school authority ends and parental authority begins are blurring for Internet-savvy high school students, leaving them vulnerable to discipline by school administrators for material posted online from home computers during non-school hours.

Among the most popular sites for students who create online content are Facebook and MySpace, two social networking sites where students can post photos and profiles of themselves, and can also create interest groups and invite other students to join.

While most disputes involving student online content result in meetings, suspensions and in-school discipline, a handful of cases have moved to the courts, where students have challenged school punishment and cited their First Amendment right to express themselves online.

In most recent incidents that have gone to court, schools have countered free speech claims by asserting the material has created a “substantial disruption” at the school, language taken from Tinker v. Des Moines Independent Community School District, the landmark 1969 Supreme Court case that recognized the First Amendment rights of high school students at school.

In the words of the Tinker decision, student speech that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others is … not immunized by the constitutional guarantee of freedom of speech.” The Court said the burden is on school officials to show that they have met the Tinker standard before they censor or discipline the student. 

Some schools argue the limitations of Tinker should apply to speech that occurs outside of school but has an effect on school grounds.

But Vic Walczak, a staff attorney for the American Civil Liberties Union of Pennsylvania, said schools are overstepping their bounds when they discipline students for home computer use. Any student behavior that occurs at home is the “parent’s domain,” he said, and schools have no authority to punish students for out-of-school speech (See box below).

The “substantial disruption” standard was cited by school officials in court proceedings for Pennsylvania student Justin Layshock, who sued his high school in December 2005 after he was suspended for posting a parody profile of his principal on MySpace from his grandmother’s computer. 

Among other comments posted, under “birthday” the profile said, “too drunk to remember.” In response to the question, “in the past month have you smoked?” the profile said, “big blunt.”

A preliminary court decision supported the school district’s claim that the online content “substantially disrupted” school proceedings for a week at Hickory High School in Hermitage, Pa., when word of the profile spread and students tried to access the site from school computers. 

The school claimed it had to shut down its computer system to student use and the school’s technology coordinator spent 25 percent of his time addressing disruptions caused by the content on MySpace.

But according to Walczak, whose organization is representing Layshock, the school district “greatly exaggerated” its claims of disruption.

“Kids talking in school about something is not disruption,” he said. “If a whole lot of students are talking and getting passionate about an issue, you can imagine there will be problems in schools. But schools are places to discuss things.” 

Student speech should not be suppressed for a minor disruption or the threat of disruption, said John Tinker, one of the original plaintiffs in the Tinker case. The publicity and distractions that often follow in the wake of controversial student speech are problems that schools have the duty to address, he said.

Tinker’s case started when Tinker, his sister Mary Beth and their friend Christopher Eckhardt wore black armbands to their Iowa schools in 1965 to protest the Vietnam War. When they refused to remove them, school officials suspended the trio.

“Solving those disruptions is part of the education [about] democracy,” Tinker said. “To think that the correct solution is to clamp down is a totally wrong lesson for students on how a democracy should be dealing with conflict.”

Twenty middle school students in Costa Mesa, Calif., were suspended in March 2006 for viewing out-of-school speech when they accessed from home and subsequently joined a MySpace group created by a classmate. 

The profile, called “I hate [girl’s name],” contained an expletive, an anti-Semitic reference and a post that said, “Who here … wants to take a shotgun and blast her in the head over a thousand times?”

Jane Garland, a spokeswoman for the school district, said there was no indication the students ever accessed the site from school. Administrators were able to discipline the students, she said, because their primary connection was through the school. 

“The nexus of their getting together is the school, so they are part of the problem and integrally involved,” she said. “They are all in some way culpable.” 

Drawing the lines

Some media experts say that student speech posted on the Internet — with its infinite audience, easy access and rapid dissemination — makes substantial disruption easier for school officials to argue.

It is also easier for tech-savvy administrators to track the Internet activity of students and use documentation to support claims of substantial disruption, said Herb Strentz, a retired media law professor at Drake University in Des Moines, Iowa.

Additionally, the wealth of computers found at most high schools has increased student accessibility to online content, consequently blurring the home-school distinction even further, Strenz said.

“It used to be a lot easier to draw lines between what is done out of school and inside school,” he said.

The clamping down of online student speech — either at home or school — is particularly problematic because the Internet is the chosen medium for the expression of young people across the country, said Kurt Opsahl, a staff attorney with the Electronic Frontier Foundation, a non-profit organization based in San Francisco that advocates for technology and free speech issues.

“What is unique and different about online speech is that it reaches a far wider audience,” Opsahl said. “Students can get on a soapbox and speak to an audience of millions. It has greatly empowered people to become participants in public debate.”

The Electronic Frontier Foundation receives dozens of calls every week from students concerned about disciplinary action for online content they post from home computers, Opsahl said.

School administrators too often make efforts to limit Internet access and online speech when student-created online content shifts to criticism of schools, teachers and administrators, he said.

Any efforts to squelch that speech are futile efforts, he said.

“Schools are unable to stop students from accessing these resources,” he said. “Even if they successfully ban MySpace, another [Web site] will take its place.”

Gossip v. political speech

A better approach for school response to critical online speech is to teach students to be better critics, said Opsahl.

“If you want to criticize a school official, posting a picture of them with their head chopped off may lead to trouble, while a well-reasoned critique of their core teaching skills might not,” he said. 

School officials should make efforts to teach students the difference between personal attacks and legitimate criticism, he said.

The Electronic Frontier Foundation has resources on its Web site for student bloggers and content-creators that outline the legal rights and restrictions involved with student Internet activity. The Student Press Law Center also provides Internet resources (visit www.splc.org/webguide for more information).

Although the student guide cites Tinker and other legal cases that have upheld First Amendment rights for student bloggers, the organization also warns student bloggers against using “vulgar language” or material that could be seen as obscene or threatening.

“Before you start cussing or bagging on people, take a second to cool off,” the site advises. “Although we think you have a right to use coarse language to describe people at school, and several courts have agreed with us, it will still increase the chance that your school will try to punish you.”

Tinker echoed that warning and said when he speaks to high school students about his experiences, he clearly states that he is not interested in “seeing how far you push the limits.” Student expression that personally attacks other students and staff is “distasteful,” he said.

“The irresponsible and mean attitudes that people take with each other, they’re not admirable attitudes,” Tinker said. “I will defend the free speech issue as far as it goes, but I won’t say, ‘This is a wonderful thing you’re doing.’” 

Strentz said highly publicized instances of students using Web sites to personally attack fellow students and staff make it difficult to connect modern student speech with the groundbreaking speech of the past.

High school students today may be more likely to use Internet forums to discuss salacious rumors about classmates or teachers than abortion or the war in Iraq, he said.

But that continued perception might impede students who try to use the Internet to tackle world issues or legitimately criticize their schools or teachers, he said.

“There are those instances where kids might question school policy, but those questions about school or government policies are swept along with concerns about personal attacks,” Strentz said. “We might be having more restrictions on student political speech because it’s lumped together with stuff that’s just plain gossip.”


reports, Spring 2006