Spring 2001 - Internet
Vol. XXII, No. 2 - Page 20
The Digital Divide
While courts uphold students' free-speech rights on the Internet, school officials keep punishing students for off-campus Web sites
© 2001 Student Press Law Center
The Constitution has spoken, the courts have spoken -- even the TV series
"Boston Public" has spoken. But administrators are not listening.
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."
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