[author: Aaron Kase]
A school district in Indiana last month finally settled a free-speech dispute over suspensions it handed out to two students who had posted revealing photos of themselves online. How much control can schools actually exert over the things students do and say on the Internet?
District was blocked from disciplining students for social media postings
Supreme Court case from 1969 guides school speech litigation
Student speech must be found disruptive to the school to be subject to punishment
Who knew lollipops could cause such a stir. Three years ago, two students at Churubusco High School in Indiana were horsing around over summer vacation and took photos of each other holding lollipops in a suggestive manner, then posted the pictures on MySpace and Facebook. Little did they know the photos would find their way to the school’s principal, who suspended both from all extracurricular activities for the following school year for violating the code of conduct.
Sensing something fishy about such harsh discipline handed down over an action that used no school resources and really had nothing to do with the school whatsoever, the students took the principal to court for violating their freedom of speech.
Last year, a federal judge ruled that the school’s policy was “unconstitutionally vague and overbroad,” and blocked it from punishing other students for social media postings made off school grounds. This May, the court dismissed the suit after the parties indicated they had reached a permanent settlement.
Speech Tested Nationwide
The Indiana case seems like an easy one to judge, but all across the nation the limits of student speech are being tested. With blogs, email and social media like Facebook and Twitter, statements made by students about their schools and teachers exist in perpetuity, for all the world to see. Should student speech be subject to discipline by schools, even if it’s made off campus, without using school resources? Many schools seem to think so, with innumerable examples of students being punished in recent years for things they said on the internet:
Two middle school students were suspended in Georgia last year for calling a teacher a pedophile and a rapist on their personal Facebook pages, and a third student was expelled for calling the same teacher bipolar.
In a Massachusetts high school, 11 athletes were suspended from competition after posting pictures of themselves smoking and drinking on Facebook.
Last year a San Francisco school retracted a suspension of a student who had posted that a teacher was a “fat ass who should stop eating fast food, and is a douche bag,” after the ACLU intervened.
Tinker vs. Des Moines
The general rule is students have freedom of speech, unless what they say creates a “significant disruption to the school environment.” The interpretation stems from the 1969 Supreme Court case Tinker vs. Des Moines Independent School District, in which students were suspended for wearing armbands to protest the Vietnam War. “In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views,” Justice Abe Fortas wrote in the majority opinion.
Despite the new forms of media that students are using, the Tinker decision is still used to guide the judges’ rulings on Tweets and Facebook posts. “These cases are nothing new,” says Mitchell Rubinstein, an adjunct law professor at New York Law School. “They’re not breaking any new legal ground because there is a lot of established precedent dealing with off-campus speech of students and this is just a different media that it’s occurring in.”
”The manner in which the issues are arising is different because social media is a new type of outlet,” Rubinstein explains, but the results are the same: “Schools have the right to discipline students if there’s a reasonable probability of a disruption or a danger.” Otherwise, tweet away.
Disruption and Danger
In an example of speech that was upheld as disruptive, a student in Mississippi posted a rap video on Facebook and YouTube that criticizes two coaches, claiming in explicit language that the men acted inappropriately around female students, and suggesting they might “get a pistol down your mouth.” A district court ruled that the school had grounds to suspend the student even though the song was produced and distributed off-campus, because it involved “harassment and intimidation of teachers and possible threats against teachers.”
In another case, an eighth grader in New York was suspended for sending instant messages calling for his friends to kill his English teacher. The Second Circuit Court of Appeals upheld the school’s right to discipline the student, ruling that the statement “crosses the boundary of protected speech and constitutes student conduct that poses a reasonably foreseeable risk that the icon [showing the teacher being shot in the head] would come to the attention of school authorities and that it would ‘materially and substantially disrupt the work and discipline of the school.’”
One consideration to keep in mind is that while schools may have to meet a high bar to actually discipline students for their Facebook postings, parents, potential employers and potential colleges might all come across suggestive or explicit messages as well. You might not get suspended, but you could get rejected from a job, or grounded by mom and dad. The Constitution protects your right to free speech, but just because you can say something doesn’t mean it’s a good idea.