Taking it off campus


New court decisions focus on online student expression





When Avery Doninger, then a junior at Lewis S. Mills High School in Connecticut, thought her school was unfairly canceling a Battle of the Bands-style concert called Jamfest, she did what any 21st-century teenager would do: she spoke out, online.

“jamfest is cancelled due to douchebags in the central office,” Doninger fumed in an April 24, 2007 post on LiveJournal.com. She encouraged readers who shared her outrage to “write something or call her [Superintendent Paula Schwartz] to piss her off more.”

Doninger was surprised by the reaction her post generated.

“I just kind of vented,” she explained in a 2007 interview with the SPLC.

But her “venting” led to a high-profile freedom of expression ruling – one of a string of federal court decisions during the spring and summer of 2011 that have reshaped the legal landscape for students’ ability to publish online free from school control.

At least four federal appeals courts issued rulings during the first seven months of 2011 addressing the reach of school authority over students’ online speech.

In each of these cases, students published what they believed to be protected speech from an off-campus location. Every time, the students were punished by their school’s administration, arguing that the students’ speech substantially interfered with the educational process. A central issue in each case: Whether the Supreme Court’s 1969 Tinker ruling, which permitted schools to punish on-campus speech if it crosses the line of causing “substantial” disruption, can be applied to off-campus speech as well.

The battle being fought through these cases, and others like them, will set the standard for student expression rights in the digital age.

Doninger v. Niehoff

At a meeting on April 25, 2007, the day after Doninger wrote her LiveJournal post, principal Karissa Niehoff, Doninger and several other student council members negotiated a new date for the Jamfest concert. The students agreed to send a clarifying email to members of the public they’d contacted seeking to drum up calls and letters to the principal.

Doninger thought that would be the end of it. However, when she went to accept her nomination for class secretary (a post she had held for the previous three years), Niehoff confronted her with the blog post and asked her to withdraw from the race for senior class secretary. Doninger refused, and Niehoff took her name off the ballot.

At a school assembly designed to allow students to make student government campaign speeches, which Doninger was not permitted to speak at, several of her friends wore shirts emblazoned with “Team Avery.” Niehoff demanded the students remove the shirts while attending the assembly, and that Doninger (who had a similar shirt in her backpack but was not wearing it) refrain from putting the shirt on.

In the end, Doninger won the election anyway through write-in ballots, but Niehoff did not permit her to take the office, instead awarding the position to the candidate with the next highest number of votes.

Lauren Doninger, Avery Doninger’s mother, filed a lawsuit against the school district on her daughter’s behalf, arguing that punishing Avery for what she wrote online away from campus infringed on her daughter’s First Amendment rights. She also alleged that preventing students from wearing the “Team Avery” shirts violated the students’ First Amendment rights because the shirts were not disruptive.

“Because she’d done this at home on a home computer, it was just so outside the school’s jurisdiction,” Lauren Doninger told the SPLC in 2007. “They should not be in the business of policing the Internet. That’s not their job. They have a big enough job already.”

In an April 2011 ruling, however, the 2nd U.S. Circuit Court of Appeals found that the school district had been “objectively reasonable” in believing the blog post and shirts might cause a disturbance, granting administrators immunity from any damages. The court refused to decide what legal standard should apply to off-campus speech.

“We do not reach the question whether school officials violated Doninger’s First Amendment rights by preventing her from running for Senior Class Secretary. We see no need to decide this question,” the decision read, adding that any First Amendment protection had not been “clearly established” at the time of the punishment.

Perhaps most significantly for future cases, the court added: “it was reasonably foreseeable that Doninger’s post would reach school property and have disruptive consequences there.”

Layshock and J.S.

Doninger’s case tested online student expression within the confines of her own blog, but two Pennsylvania cases extended the online expression challenge to include social networking sites. Justin Layshock, then 17, created a fake MySpace profile ridiculing his school principal, Eric Trosch. Similarly, “J.S.,” then a 14-year-old middle school student, also created a mock profile for her principal, James McGonigle. Both were punished, and both sued their schools.

Layshock’s profile, created on his home computer in December 2005, ridiculed Trosch and included statements about sexual habits and drug use. When Trosch’s daughter, then a student at the high school, brought the profile to his attention, he conducted an investigation of the profile and three similar profiles that had been created by other students.

When Trosch found out that Layshock had created one of the profiles, he called Layshock and his parents into a meeting. Layshock immediately went to Trosch and apologized, which Trosch later testified he found “respectful and sincere.” He went home, where he faced his disappointed parents and accepted his punishment of grounding and no computer use.

Less than a month later, Layshock discovered that the school district intended to punish him for a string of rule violations including disruption of school, harassment, “gross misbehavior,” and unauthorized use of a photo from the school website.

He was sent to alternative school and told he would not be permitted to attend his high school graduation; the placement was later rescinded and replaced with a long suspension. Previously, Layshock had been an honors student, French tutor and a participant in the interscholastic Academic Games, according to court records.

Layshock’s parents filed suit for him against Hermitage School District and its administrators, claiming that the district violated Layshock’s First Amendment rights and that the district violated the parents’ Fourteenth Amendment rights by preventing them from disciplining their son as they saw fit.

The case of “J.S.” – who is referred to in court filings only by her initials because of her age – followed a similar pattern. In her mock profile, the “McGonigle” character bragged about being a pedophile and other deviant behavior. After the profile was brought to McGonigle’s attention, he called a meeting with J.S., her parents and the school guidance counselor, where she admitted to creating the profile with a friend.

McGonigle determined the girls had violated a school district policy prohibiting “false accusations against school staff members,” as well as the district’s computer use policy. J.S. was suspended for 10 days.

Her parents filed a suit, claiming that the school had unlawfully punished the middle-schooler based on non-disruptive, out-of-school conduct. They also claimed the school had infringed upon their right of parental autonomy, protected by the Fourteenth Amendment.

Both cases were eventually appealed to the 3rd U.S. Circuit Court of Appeals. Because of the similarities between the cases, the Third Circuit court was widely expected to rule the same way on both, though the cases were assigned to differing three-judge panels.

Instead, in February 2010, the two panels issued conflicting opinions. Due to the conflicting messages, the Third Circuit agreed to vacate those rulings and rehear the cases en banc, with all 14 judges taking part.

In June 2011, the full court sided with the students.

“[I]t would be an unseemly and dangerous precedent to allow the state, in the guise of 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,” wrote Chief Judge Theodore McKee in the unanimous Layshock decision, a sentiment echoed by the 8-6 majority in J.S.

However, the court also skirted the issue of whether or not Tinker should be the reigning standard for online, off-campus speech. Instead, the majority said that even if that standard applied, J.S. and Layshock’s speech was not disruptive to the school environment and could not be punished.

Five of the judges went further, arguing that Tinker should not apply to off-campus speech.

The court also appeared to be in broad agreement that the Supreme Court’s 1986 Bethel School District v. Fraser decision, which allows schools to punish “lewd” or “plainly offensive” speech on campus, should not apply to online speech.

Cyberbullying

A new breed of case is trickling in as well: suits by students punished for cyberbullying. The relevance of these cases may not be apparent at first glance, but student journalists could soon find themselves profoundly influenced by them.

The 4th U.S. Circuit Court of Appeals recently decided one such case, Kowalski v. Berkeley County Schools. Kara Kowalski, then a high school student, created a MySpace group called S.A.S.H., which she claims stood for “Students Against Sluts Herpes.” However, the page quickly devolved into a group attacking one student, “Shay N.,” including an allegation that the group’s acronym stood for “Students Against Shay’s Herpes.”

Shay N.’s father brought the page to the school principal the next day and demanded that the school take action. The school determined that the MySpace page was a “hate website,” even though Kowalski had taken steps to remove the page the night before and maintained that it had been created as a forum to discuss STDs, not to attack anyone in particular. Kowalski was suspended for 10 days (a punishment later reduced to five), but she was barred from participating in extracurricular activities – including the cheerleading squad – for the rest of the year.

When the case went to court, the Fourth Circuit sided with the school, holding that Tinker applies to off-campus speech and that Kowalski’s page was disruptive enough for the school to punish her for it.

However, the court used language broader than any of the other circuits, indicating that Fraser and other, more-restrictive precedents could also extend off campus in future cases.

“To be sure, a court could determine that speech originating outside of the schoolhouse gate but directed at persons in school and received by and acted on by them was in fact in-school speech,” and punishable under the Supreme Court’s other student speech cases, wrote Judge Paul Niemeyer in the panel’s unanimous opinion.

Off-campus threats

Shortly after the Fourth Circuit decision came down in July, the 8th U.S. Court of Appeals issued a similarly restrictive ruling citing Tinker.

In D.J.M. v. Hannibal Public School District, a high school student made statements to a classmate via instant message implying that he was thinking about shooting students at their school and then committing suicide. The messages were eventually forwarded to school officials, who determined the student’s actions constituted a threat and called the police. Following the arrest and psychiatric evaluation of “D.J.M.,” the school suspended him for ten days, and then extended the suspension to the remainder of the year. D.J.M sued, arguing that his off-campus speech did not disrupt school activities until the school called the police and his comments became public.

The Eighth Circuit found that the statements were not only “true threats,” and thus not entitled to any First Amendment protection, but that the school would have been justified even if they did not meet that standard. Tinker applies to off-campus speech, the court held, and the threatening comments posed enough risk of disruption to be punishable at school.

What now?

These cases highlight the law’s struggle to stay caught up with evolving forms of media and the blurring lines between on- and off-campus.

“Generally, the law tries to apply bricks-and-mortar standards to the Internet,” explained David Hudson, a legal scholar and author at the First Amendment Center. “Sometimes it works, and arguably sometimes there are differences that may call for a modulation.”

The digital domain reaches farther and is more public than any other forum for communication in history, creating thorny questions about who is intended to see what, and when online events affect on-campus life.

“Before this new technology, I’m sure at some point in my life I got on the telephone and said some very unflattering things about a teacher. Now kids are posting it online, and some of them are getting in trouble,” Hudson said. “What’s at stake is the level of free speech rights they have on the Internet and how far school jurisdiction extends, and whether critical speech of school officials – if those students have the right to engage in that.”

Despite its potentially broader reach, Internet speech is no different than any other off-campus speech, said Vic Walczak, an attorney with the ACLU of Pennsylvania involved in the Layshock and J.S. cases.

“Legally there is no difference between on- and off-line speech,” he said. “I mean, practically, online speech can reach further than your more conventional modes of expression, but legally the protections are the same.”

However, it is proving more difficult for courts to discern where online speech “occurs” than it is with speech on paper. Hudson explained that although the number of cases is growing, courts have not yet developed a definitive standard for online student speech.

Most courts have used the Tinker standard to determine whether the online speech could cause a disruption at school, Hudson said. However, some courts have applied other precedents, such as the Fraser “lewdness” case – a potentially dangerous development, Hudson said.

“If the Fraser standard is applied more broadly, as some other courts have applied it, then anytime you get online and curse then arguably school officials have the ability to regulate that under the Fraser standard,” Hudson said.

Although the current state of online student expression is unclear, Walczak said he thinks emerging cases are helping to form a clear line between what kind of speech is punishable by schools.

“I think what the two Third Circuit cases stand for is that school officials have to have a very strong reason to justify any type of censorship over off-campus speech, and that simply being offended is not sufficient reason,” he said.

The stakes are high as the nation’s highest court is being asked to weigh in. The Supreme Court will decide in the coming months whether to hear one of these cases. Lawyers for both Avery Doninger and the Blue Mountain School District have asked the Court to take their respective cases.

Jon Schoenhorn, who represents Doninger, said that he petitioned for Supreme Court review because the Second Circuit’s ruling conflicts with the Third Circuit’s rulings in the Layshock and J.S. cases, setting up a split in the circuits. He believes the Supreme Court is more likely to take up the case because of potential confusion within the appeals courts.

“I just think the buzz has reached the level where I think it would be certainly possible for the Supreme Court to take the case, and then we’d have the ultimate guidance,” said Hudson. “In simple language, these are extremely important cases, arguably the most important student online speech cases that have been decided to date.”

By Emily T. Gerston, SPLC staff writer


Fall 2011, reports