[authhor: Jackie Wernz]

As Education Week recently reported, the Eighth Circuit Court of Appeals has held that two high school students from Missouri were unlikely to establish a First Amendment violation for discipline based on an inflammatory website they posted off-campus on their own time. In S.J.W. v. Lee’s Summit R-7 School District, the court approved of the school’s discipline even though the bulk of the disruption caused by the website was the result of a post by an unrelated third party. The Court also rejected yet another attempt by proponents of student speech such as the American Civil Liberties Union (ACLU), to argue that all off-campus student speech should be off limits for discipline by public schools. The case provides guidance to school leaders on the challenging question of when discipline is warranted for off-campus, online misconduct by students.

The Facts

In December, 2011, two male high school honor students, who were twin brothers, posted racially and sexually charged slurs on a website. The website – northpress.tk – was reportedly created on a Dutch server that could not be found on a Google search. The boys took this step with the intent of limiting access to six or seven friends and preventing the website from reaching a broader school audience.

A third, unrelated student added a post titled with the N-word which was accessed by multiple students at school and led to a disruption in school that one teacher compared to the aftermath of the September 11 attacks. As the brothers alleged in their complaint, the twins were not aware of the post, which was only on the site for approximately 12 hours before being removed by the third student. The twin brothers were nonetheless suspended, first for 10 days and then for 180 days, when the school found out about the website and a disruption ensued. The boys’ school gave them the option to attend an alternative school, but their parents reportedly filed a lawsuit in March because they believed the academics and extracurricular activities at the alternative school were not up to their standards.

A federal District Court determined that, although the website created a substantial disruption, the students were likely to succeed on the merits of their First Amendment claim and were entitled to an injunction. This decision was important because, with the injunction and the long life-span of federal trials, the students were likely to graduate before the trial court weighed in with a more permanent decision. The Eight Circuit, however, disagreed and held that the students were not likely to succeed on the merits of their claim and, so, were not entitled to an injunction.

A Substantial Disruption

Notably, the court rejected the argument by plaintiffs that all student speech that occurs off-campus and online is outside the reach of public schools. This has been a claim advanced by entities such as the ACLU in a number of off-campus, online student speech cases, and would be a particularly impractical if implicated. As the Eighth Circuit recognized:

The specter of cyber-bulling hangs over this case. The repercussions of cyber-bullying are serious and sometimes tragic. The parties focus their arguments on the disruption caused by the racist comments, but possibly even more significant is the distress theWilsons’ return toLee’s SummitNorth could have caused the female students whom theWilsonstargeted.

The court thus recognized that school administrators cannot sit idly by when off-campus, online speech of students disrupts the educational environment, and so some discipline has to be warranted in some situations.

The court applied the well-known case of Tinker v. Des Moines Independent Community School District to determine when discipline would be warranted. Tinker dealt with on-campus speech (the wearing of black armbands to protest the Vietnam war) but suggested that conduct by a student in any location can be the subject of discipline if it materially disrupts class work or involves substantial disorder or invasion of the rights of other. The Eighth Circuit then cited a number of federal Appellate court cases (which our firm covered in Alerts published by Franczek Radelet (Lessons from Recent Court Rulings on Discipline of Students for Off-Campus, Online Speech; Federal Appeals Court Holds Schools Cannot Punish Students for Offensive MySpace Pages; and Federal Appeals Court Upholds Discipline of Student for Post on Off-Campus Blog) which have all assumed or explicitly held that the Tinker standard applies to off-campus, online speech. Because the speech was “targeted at” the school by the students, the court found the location of the speech “less important.” Because the posts “could reasonably be expected to reach the school or impact the environment,” they could be disciplined if they disrupted that environment.

After setting forth the standard, the Eighth Circuit found that, here, there was in fact a substantial disruption and so discipline was warranted. The case provides some good guidance to school leaders as to what constitutes a substantial disruption in the online context, as well as what evidence is necessary to establish it. In the case, a substantial disruption was shown by the following evidence:

• The District’s computer records showed numerous students accessed the webpage through District computers.
• Teacher testified that they experienced difficulty managing their classes because students were distracted and upset by the postings. At least two teachers described it as one of the most or the most disrupted day in their teaching careers.
• Administrators testified that local media arrived on campus and that parents contacted the school with concerns about safety, bullying, and discrimination for a number of days.
• Administrators expressed concern that the students’ return to school would cause further disruption and might endanger the students.

Notably, as mentioned before, the students were subject to discipline even though the disruption was more closely traced to the comments of a third student on their website, not their own posts.

As always, school leaders should take care to ensure that there is sufficient evidence of a substantial disruption or a foreseeable risk of such a disruption before disciplining students for off-campus, online misconduct. But the S.J.W. case provides another example of a school being vindicated in such discipline when a disruption could be established.