Justice Action Center
Student Capstone Journal
Project No. 11/12-07
Tinkering with Inconsistency:
First Amendment Student Speech
Joseph Mancino
New York Law School
Class of 2012
This paper can be downloaded without charge from:
www.nyls.edu/capstones
Copyright 2012 by Author
THIS PROJECT IS FOR INFORMATIONAL PURPOSES ONLY AND IS NOT A
SUBSTITUTE FOR LEGAL ADVICE. BECAUSE THE LAW CHANGES QUICKLY,
WE CANNOT GUARANTEE THAT THE INFORMATION PROVIDED IN THIS
PROJECT WILL ALWAYS BE UP-TO-DATE OR CORRECT. IF YOU HAVE A
LEGAL PROBLEM, WE URGE YOU TO CONTACT AN ATTORNEY.
Tinkering with Inconsistency: First Amendment Student Speech
By Joseph Mancino1
The First Amendment provides that, “Congress shall make no law…abridging the
freedom of speech.”2 The First Amendment’s protection of freedom of speech applies to the
states through its incorporation into the due process clause of the Fourteenth Amendment.3
Students in schools retain First Amendment rights; however, school officials, acting as parens
patriae, have latitude to discipline students for their speech in some instances. This analysis will
focus on the First Amendment rights of students,4 with particular emphasis on off-campus
speech.5
Broadly speaking, schools have been equated to other authoritarian environments such as
the military and prisons when assessing free speech rights.6 One common factor among these
environments is that attendance is compulsory. Due to this, courts have afforded these
institutions substantial deference in determining how to carry out and administer their
responsibilities. Courts have been reluctant to intervene and engage in judicial second-guessing
of these officials who have expertise in their respective areas.7 However, this begs the question
whether First Amendment rights are being ceded to a policy of unnecessary deference.
Fortunately, for students, the need for control and discipline are less prevalent in schools than in
1
The author is a 2012 J.D. candidate at New York Law School. He would like to acknowledge Professor Udi Ofer,
Advocacy Director of the New York Civil Liberties Union. Professor Ofer provided substantial time, assistance and
feedback during the formulation of this Capstone. The author would also like to thank Professor Richard Marsico of
the Justice Action Center for his guidance. The opinions expressed herein are solely the author’s and should not be
attributed to New York Law School, the Justice Action Center, or the New York Civil Liberties Union.
2
U.S. CONST. amend. I.
3
Gitlow v. New York, 268 U.S. 652 (1925).
4
Students in this context will include those enrolled in kindergarten through high school. This analysis will not
focus on the First Amendment rights of college students.
5
Off-campus speech pertains to speech outside the schoolhouse gate including online speech.
6
GEOFFREY STONE ET AL., CONSTITUTIONAL LAW, 1362-69 (3d ed. 1996).
7
Parker v. Levy, 417 U.S. 733 (1974) (military); Jones v. North Carolina Prisoners’ Labor Union, 433 U.S. 119
(1977) (prisons); Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986) (schools).
1
military or prison settings.8 Additionally, schools foster the free exchange of ideas and such
restrictions on student speech would run counterintuitive to this basic principle of education.9
Yet, courts have struggled with interpreting precedent pertaining to student speech, leading to
inconsistent results, and as such, this issue is ripe for review by the Supreme Court.10
I. Supreme Court Precedent
The most significant student speech case decided by the United States Supreme Court
was Tinker v. Des Moines Independent Community School District.11 The Court enunciated the
oft-quoted proposition that students do not shed their “constitutional rights to freedom of speech
or expression at the schoolhouse gate.”12 In Tinker, the Court held that Mary Beth Tinker, John
Tinker, and Christopher Eckhardt, wearing black armbands to school to protest the Vietnam War,
were protected by the First Amendment.13 While the school district indicated that it feared the
armbands would cause a disruption, the Court indicated that students possess fundamental rights
that the state must respect.14 The Court also questioned the allegations of the school, particularly
given that the black armbands were a form of silent protest that did not disrupt the work of the
school or of any class.15 Justice Fortas articulated a standard that speech would be protected
absent a showing that it would, “materially and substantially interfere with the requirements of
appropriate discipline in the operation of the school.”16 In discussing this test, the Court
concluded that speech can be punished if it was reasonably likely that the speech would cause a
8
ERWIN CHEMERINSKY, CONSTITUTIONAL LAW PRINCIPLES AND POLICIES, 1146-50 (3d ed. 2006).
Id. at 1150.
10
Several scholars have noted the inconsistencies and believe that the issue of the First Amendment and off-campus
speech will soon reach the Supreme Court. While the Court has denied several student speech cases in the current
term, this issue will continue to cause disagreement among lower courts, necessitating review.
11
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969).
12
Id. at 506.
13
Id. at 511.
14
Id.
15
Id.
16
Id. at 505.
9
2
substantial disruption, however, “undifferentiated fear or apprehension of disturbance is not
enough to overcome the right to freedom of expression…Any word spoken in class, in the
lunchroom, or on the campus, that deviates from the views of another person may start an
argument or cause a disturbance. But our Constitution says we must take that risk.”17 This basic
premise has served as the bedrock principle when discussing the First Amendment rights of
students. The substantial disruption standard has been interpreted by later cases.
Despite this ruling, several Supreme Court cases that followed carved out specific
exceptions to Tinker. In Bethel School District No. 403 v. Fraser, at issue was a vulgar speech
delivered by a student, Matthew Fraser, before an assembly of the entire student body.18 His
speech, nominating a classmate for student body vice president, was considered obscene and
provocative as it included lewd language and sexual innuendo.19 As a result, Fraser was
suspended for three days and his name was withdrawn from a list of possible student speakers at
commencement.20 The Supreme Court held that Fraser’s free speech rights were not violated by
the school’s actions.21 Predicating its decision on cases such as Ginsberg and Pacifica
Foundation, the Court expressed the need to protect students from this kind of language.22 In
distinguishing Tinker, the majority expressed the view that Fraser was not being punished for his
political viewpoint, noting the armbands in Tinker protested the Vietnam War. Rather, Fraser
was being punished for his inappropriate words that were delivered at a school assembly before
17
Id. at 508.
Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986). Matthew Fraser’s speech: “I know a man who is firm -he's firm in his pants, he's firm in his shirt, his character is firm -- but most...of all, his belief in you, the students of
Bethel, is firm…Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he'll take an issue and nail
it to the wall. He doesn't attack things in spurts -- he drives hard, pushing and pushing until finally -- he
succeeds…Jeff is a man who will go to the very end -- even the climax, for each and every one of you…So vote for
Jeff for A.S.B. vice-president -- he'll never come between you and the best our high school can be.”
19
Id. at 678.
20
Id.
21
Id. at 687.
22
Id. at 683.
18
3
more than 600 students, many of them around the age of 14— “only at the threshold of
awareness of human sexuality.”23 The Court also pointed to Justice Black’s dissenting opinion in
Tinker where he indicated that the “federal Constitution does not compel teachers, parents and
elected school officials to surrender control of the American public school system to public
school students.”24 The Fraser decision was the first exception to Tinker.
However, a firm line was drawn by Justice Brennan’s concurring opinion in Fraser.
While distancing himself from the majority’s language calling Fraser’s speech obscene, vulgar
and lewd, Justice Brennan stated that if Fraser had given the same speech “outside of the school
environment, he could not have been penalized simply because government officials considered
his language to be inappropriate.”25 Justice Brennan even posited that had Fraser not given the
speech at a high school assembly but rather, some other area of the school, it may well have been
protected. This highlights the unique character of schools and the ability to discipline students
for particular speech, where if spoken in another setting would likely be protected by the First
Amendment.26
Another exception to Tinker came in 1988, when the Court decided Hazelwood v.
Kuhlmeier. The Court held that school administrators may edit the content of school
newspapers.27 In Kuhlmeier, the principal of Hazelwood East High School edited two articles in
the school newspaper, The Spectrum, after deeming the articles inappropriate. The articles dealt
with three students’ experiences with teen pregnancy and the impact of divorce on a student at
the school.28 The principal believed that the students’ identities should be confidential, believing
23
Id. at 684.
Id. at 686.
25
Id. at 688 (Brennan, J., concurring).
26
Id. at 689.
27
Hazelwood v. Kuhlmeier, 484 U.S. 260 (1988).
28
Id. at 263.
24
4
that based on the information in the articles the students could be identified. Additionally, he felt
that the discussion on sexual activity and birth control were inappropriate for the younger
students, and that the article about divorce should have given the divorced parent the opportunity
to respond.29 The student authors argued that the restrictions imposed by the principal violated
their First Amendment right to freedom of speech.30 The Court disagreed, holding that school
administrators can edit materials that reflect the values of the school.31 In ruling, the Court stated
that the Tinker standard is not the standard to use when determining when a school may refuse to
lend its name and resources to the dissemination of student expression.32 Instead, the Court
articulated the standard that the “First Amendment was not violated by exercising editorial
control over the style and content of student speech in school-sponsored expressive activities[,]
so long as the[ir] [schools] actions are reasonably related to legitimate pedagogical concerns.”33
This creates a substantial carve out of Tinker, which affords school officials authority when the
imprimatur of the school is involved in the message being disseminated. Kuhlmeier did not
require any finding of a substantial disruption, rather it was enough that the speech was related to
the school and learning environment.
Most recently, nearly 40 years after Tinker, the Supreme Court had occasion to address a
student speech case. In Morse v. Frederick, at issue was a banner displayed by a student, during
a school event.34 Students were assembled outside of the school to view the Olympic Torch
Relay as it passed through Juneau, Alaska.35 Principal Morse observed Joseph Frederick, a
student at Juneau-Douglas High School, unfurl a banner which read, “BONG HiTS FOR
29
Id. at 262.
Id.
31
Id. at 267.
32
Id.
33
Id. at 273.
34
Morse v. Frederick, 551 U.S. 393 (2007).
35
Id. at 397.
30
5
JESUS.”36 Principal Morse demanded that Frederick take down the banner. He refused and
Principal Morse confiscated the banner and suspended Frederick for 10 days for his actions.37
In the Court’s decision, Chief Justice Roberts framed this case as Frederick’s statement
advocating the use of illegal drugs, directly contravening district policy.38 Chief Justice Roberts
outlined Tinker, Fraser, and Kuhlmeier. The Court expressed the notion that student speech
celebrating illegal drug use would pose a challenge for school officials working to protect
students from drug abuse.39 A test was fashioned that allows schools to “restrict student
expression that the[y] [officials] reasonably regard as promoting illegal drug use.”40
Additionally, the Court clearly noted that attendance at the event was compulsory, making the
Olympic Torch Relay an official school event.41 Further evidencing the dichotomy between
compulsory school events and speech or conduct outside the schoolhouse gate, the Court
reaffirmed Justice Brennan’s concurrence in Fraser, stating that “[h]ad Fraser delivered the same
speech in a public forum outside the school context, it would have been protected…In school,
however, Fraser’s First Amendment rights were circumscribed in light of the special
characteristics of the school environment.”42 While opening the discussion to distinctions
between on- and off-campus speech, the Court failed to answer whether Tinker applies
off-campus. Morse has been criticized for its minimalistic approach, creating a new categorical
exception to student speech rights.
Justice Alito, joined by Justice Kennedy, wrote a concurrence in Morse, in which he
stated that the opinion goes no further than restricting speech that a reasonable observer would
36
Id.
Id. at 398.
38
Id. at 399.
39
Id. at 403-08.
40
Id. at 409.
41
Id. at 405.
42
Id.
37
6
interpret as advocating illegal drug use.43 Justice Alito was concerned with the breadth of the
decision and expressly stated that it stands at the far reaches of what the First Amendment
permits.44 While it is clear that schools are responsible for the safety of students, schools are still
state actors and not empowered to censor any student speech that is contrary to the school’s
education mission.45 The concurrence can be viewed as a limiting principle that makes Morse a
very narrow exception to Tinker.46
Given the foregoing Supreme Court precedent, it is clear that the constitutional rights of
students in public schools are not “automatically coextensive with the rights of adults in other
settings.”47 Yet, despite this, Tinker’s language regarding students not shedding their
constitutional rights in schools was reaffirmed in Morse. Restrictions on student speech fit into
the following five categories. First, student speech can be restricted if it is reasonably anticipated
to or causes a substantial disruption in the school.48 Second, school officials can discipline a
student for speech that is deemed lewd or vulgar during a high school program.49 Third, schools
can further impose restrictions on expressive activities that individuals may perceive would bear
the imprimatur of the school (i.e., speech that would be perceived as the school’s own), provided
that the actions are reasonably related to “legitimate pedagogical concerns.”50 Next, student
speech that can reasonably be interpreted as advocating illegal drug use can be restricted.51
Lastly, student speech can be restricted if it constitutes a true threat. True threats are outside the
43
Id. at 422 (Alito, J., concurring).
Id. at 423-25.
45
Id.
46
Id.
47
Fraser, supra note 18, at 682.
48
Tinker, supra note 11.
49
Fraser, supra note 18.
50
Kuhlmeier, supra note 27. However, the Court expressly acknowledged that the government could not censor
similar speech outside the school environment.
51
Morse, supra note 34.
44
7
scope of First Amendment protection.52 A true threat is a statement that a reasonable person
understands as an expression of intent to commit unlawful violence. These are the different
approaches in which student speech can be limited in the school context.
II. Federal District and Appellate Court Approaches
Lower courts are experiencing difficulty when interpreting Tinker and its progeny. Legal
scholars and commentators suggest that due to a lack of clear direction from the High Court,
there exists a plethora of inconsistency among lower courts in properly applying Tinker.53 An
example of this inconsistency can be seen in two cases with virtually indistinguishable facts
where the Court reached divergent opinions.54
In particular, the Supreme Court has never addressed the appropriate First Amendment
analysis for student speech that occurs outside the school-house gate. Further, aside from
Tinker’s “substantial disruption” test, further guidance was not provided in the forty years that
followed. This led one court to note that “[W]hen it comes to student cyber-speech, the lower
courts are in complete disarray, handing down ad hoc decisions that, even when they reach an
instinctively correct conclusion, lack consistent, controlling legal principles.”55 Likewise, Justice
Thomas stated that the lack of clear guidance leads the public to conclude that, “students have a
right to speak…except when they don’t.”56 This is underscored by that fact that the number of
52
Watts v. United States, 394 U.S. 705 (1969) (per curiam); Virginia v. Black, 538 U.S. 343 (2003); Doe v. Pulaski
Cmty. Special Sch. Dist., 306 F.3d 616 (8th Cir. 2002) (en banc). The thought behind this theory is that the school
need not wait for an act of violence before being able to step in and take appropriate action.
53
Lee Goldman, Student Speech and the First Amendment: A Comprehensive Approach, 63 FLA. L. REV. 395, 396
(2011).
54
Compare J.C. v. Beverly Hills Unified Sch. Dist., 711 F. Supp. 2d 1094 (C.D. Cal. 2010) (court applied Tinker to a
student’s YouTube video, which included profanity and disparaged a fellow student, by reasoning that school
administrators could access the video at school and therefore it was the equivalent of on-campus speech), with
Emmett v. Kent Sch. Dist. No. 415, 92 F. Supp. 2d 1088 (W.D. Wash. 2000) (court declined to apply Tinker to a
student-created website that contained mock obituaries of fellow students because while the speech was about the
school and its students, it was entirely outside of the school’s supervision or control).
55
Doninger v. Niehoff, 594 F. Supp. 2d 211, 224 (D. Conn. 2009), aff’d in part, rev’d in part, 642 F.3d 334 (2d Cir.
2011).
56
Morse, supra note 34, at 418 (Thomas, J., concurring).
8
Kindergarten to 12th grade public school discipline cases reaching appellate courts have
surpassed the 1970s, a period in time when appellate courts were often confronting civil rights
issues in schools.57
A significant amount of student speech litigation has occurred in the Second Circuit. The
Court of Appeals for Second Circuit considered a student speech case just one decade after
Tinker was decided. The court in Thomas held that a school official’s “arm of authority does not
reach beyond the school house gate. When an educator seeks to extend his dominion beyond
these bounds, therefore, he must answer to the same constitutional commands that bind all other
institutions of government.”58 While the speech in Thomas pertained to a satirical school
newspaper which contained articles on topics ranging from school lunches to masturbation, the
court looked to the fact that the newspaper was distributed outside the school.59 While the school
initially disciplined the students, the Second Circuit reversed, holding that the students’ First
Amendment rights were violated. The court indicated that the school “ventured out of the school
yard and into the general community where the freedom accorded expression is at its zenith.”60
In further recognizing the students’ right to speak outside the school, the court concluded that
students are free to speak their mind when the school day ends.
However, this broad pronouncement was diluted by subsequent decisions within the
Second Circuit. Nearly thirty years later, the Second Circuit upheld a semester long suspension
of a student for off-campus speech in Wisniewski. The student utilized an instant messaging
program and displayed a buddy icon, which depicted a pistol firing a bullet at a head with blood
57
RICHARD ARUM & DOREET PREISS, STILL JUDGING SCHOOL DISCIPLINE, in FROM SCHOOLHOUSE TO
COURTHOUSE: THE JUDICIARY’S ROLE IN AMERICAN EDUCATION (Joshua M. Dunn & Martin R. West, eds.,
Brookings, 2009).
58
Thomas v. Bd. of Educ., Granville Cent. Sch. Dist., 607 F.2d 1043, 1044-45 (2d Cir. 1979).
59
Id.
60
Id. at 1050.
9
spattering from the head, with the words below the image: “Kill Mr. VanderMolen.”61
VanderMolen was Wisniewki’s English teacher. Wisniewski communicated with fifteen people
on the internet, where the buddy icon was visible to them. One student reported the buddy icon
to school administrators and the school disciplined Wisniewski. Considering Tinker, the court
held that the icon crossed the boundary of protected speech and “constitutes student conduct that
poses a reasonably foreseeable risk that the icon would come to the attention of school
authorities and that it would ‘materially and substantially’ disrupt the work and discipline of the
school.”62 Wisniewski argued that the Supreme Court in Morse failed to consider the
circumstances under which school authorities may discipline students for off-campus activities.63
However, the Second Circuit, relying on a footnote in Thomas, indicated that the fact that the
internet icon occurred away from school property does not insulate Wisniewski from
punishment.64
More recently, the Second Circuit held that a high school student, Avery Doninger, could
be barred from running for class secretary based on her use of a blog service to post a “vulgar
and misleading message about the supposed cancellation of an upcoming school event.”65
Doninger referred to school administrators as “douchebags” and encouraged students to call the
administration to protest the decision to cancel Jamfest, an annual school event.66 The court held
that its previous decision in Thomas did not stand for the proposition that “off-campus speechrelated conduct may never be the basis for discipline by school officials.”67 Utilizing the Tinker
substantial disruption test, the court reasoned that the incendiary nature of Doninger’s blog post
61
Wisniewski v. Bd. of Educ., 494 F.3d 34 (2d Cir. 2007), cert. denied 552 U.S. 1296 (2008).
Id. at 38.
63
Id. at 39 n. 3.
64
Id. at 39, quoting Thomas, 607 F.2d at 1052 n. 17 (2d Cir. 1979) (“We can, of course, envision a case in which a
group of students incites substantial disruption within the school from some remote locale.”).
65
Doninger v. Niehoff, 642 F.3d 334 (2d Cir. 2011), cert. denied 132 S. Ct. 499 (2011).
66
Id. at 340.
67
Id.
62
10
and the misleading information that it contained, was enough to foreseeably risk substantial
disruption to the work and discipline of the school.68 The court also noted that Doninger’s
punishment dealt with a restriction on her participation with respect to an extracurricular activity,
a privilege, as opposed to an imposition on her right to pursue an education. The court noted that
in this case it had “no occasion to consider whether a different, more serious consequence than
disqualification from student office would raise constitutional concerns.”69 Ultimately, Doninger
was being punished for her off-campus online speech. Doninger petitioned the Supreme Court
for review, citing a direct conflict with two Third Circuit decisions. However, the Supreme Court
denied certiorari.70
The Circuit split cited by Doninger was in reference to the Third Circuit’s decisions in
J.S. v. Blue Mountain School District and Layshock v. Hermitage School District. The Court of
Appeals for the Third Circuit decided these two student speech cases on the same day. In J.S. v.
Blue Mountain School District, the court sitting en banc ruled that a middle school student who
created a fake MySpace profile of her principal engaged in off-campus speech and therefore
could not be punished.71 The profile contained, “crude content and vulgar language, ranging
from nonsense and juvenile humor to profanity and shameful personal attacks aimed at the
principal and his family.”72 The lower court ruled that this case should be analyzed under Fraser.
Yet, the en banc court ruled that the Fraser lewdness standard cannot justify punishing J.S. for
68
Id. at 343.
Id.
70
132 S. Ct. 499 (U.S. 2011).
71
J.S. v. Blue Mountain Sch. Dist., 650 F.3d 915 (3d Cir. 2011) (en banc).
72
Id. at 920. The dissent indicated that the profile included the following: “[J.S.] accused her principal of having sex
in his office, "hitting on students and their parents," and being a "sex addict." She called him a "dick head," stated
that he was "put on this world with a small dick," and called him a "fagass." She stated that his wife "looks like a
man" and that his son "looks like a gorilla." She stated that the principal enjoys "riding the fraintrain," — a reference
to his wife Debra Frain, who worked at the school as a guidance counselor — and that "it's a slow ride but you'll get
there eventually.”
69
11
her use of profane language outside of school, particularly during non-school hours.73 Without
deciding the applicability of Tinker to off-campus speech, five concurring judges argued that the
majority should have gone further and expressly declared that Tinker does not apply to this type
of speech.74 The court concluded that J.S.’s web posting did not cause an actual disruption in the
school and there were not “facts which might reasonably have led school authorities to forecast
substantial disruption or material interference with school activities.”75 The majority supported
its argument by indicating that the profile was so outrageous that no one could have taken it
seriously.
The concurring judges took issue with the majority failing to answer the question of
whether Tinker applies to off-campus speech. The concurring judges urged that applying Tinker
to off-campus speech would create ominous results, allowing school administrators to discipline
students for any expression—wherever it may occur and whatever the subject-matter—provided
that it causes a substantial disruption at school.76 On the other hand, the dissenting judges
criticized the majority by stating that the ramifications of this decision would leave school
officials defenseless to protect teachers from “malicious and unfounded accusations about their
character in vulgar, obscene, and personal language.”77 The dissenting judges also indicated
concern with the ruling by acknowledging that this decision created a direct circuit split with the
Second Circuit in Doninger.78 The dissent noted that given twenty-first century technology, the
line between on-campus and off-campus is often blurred.79
73
Id. at 933.
Id. at 937 (Smith, J., concurring).
75
Id.
76
Id.
77
Id. at 941 (Fischer, J., dissenting).
78
Id. at 950.
79
Id.
74
12
That same day, the Third Circuit decided Layshock v. Hermitage School District, a case
involving a high school junior who made a fake MySpace profile of his principal.80 The student,
Justin Layshock, accessed the school’s website to get a photograph of the principal.81 The lower
court ruled that even though the profile was viewed on school computers and created a general
buzz on campus, the action was not sufficient to create a substantial disruption of the school
environment. The school district argued that Layshock entered school property when accessing
the picture online and asserted that the lewd profile should fall under Fraser.82 However, the en
banc court stated that the school district was not asserting that it could punish Layshock under
Tinker, nor can the school district seek to use Fraser to punish Layshock, as Fraser cannot be
construed to cover off-campus speech that has no real ties to school property.83 Chief Judge
McKee wrote that, “under these circumstances, the First Amendment prohibits the school from
reaching beyond the schoolyard to impose what might otherwise be appropriate discipline.”84
A concurring opinion, however noted that “an issue of high importance on which we are
evidently not agreed and which [has not] been resolved by either [Blue Mountain] or our
decision here. The issue is whether [Tinker] can be applicable to off-campus speech. I believe it
can, and no ruling coming out today is contrary.”85 Judge Jordan’s concurring opinion warns that
by taking Blue Mountain and Layshock together, it may send an “anything goes” signal to
students, faculties, and administrators of public schools. However, despite these concerns
expressed by the concurrence and the apparent split with the Second Circuit, the Supreme Court
denied review of these cases.86
80
Layshock v. Hermitage Sch. Dist., 650 F.3d 205 (3d Cir. 2011).
Id. at 208.
82
Id.
83
Id.
84
Id.
85
Id. at 220 (Jordan, J., concurring).
86
132 S. Ct. 1097 (U.S. 2012).
81
13
Like their sister circuits, the Fourth and Eighth Circuits also had recent occasion to
consider out-of-school student speech cases. In Kowalski v. Berkeley County Schools, the Fourth
Circuit considered a “cyber bullying” case.87 The court upheld a school superintendent’s decision
to suspend a student for creating a MySpace page aimed at disparaging a particular student,
“Shay N.”88 The court found that the actions of the reigning school charm queen, Kara Kowalski,
were sufficiently connected to the school environment to warrant application of Tinker.89 The
student’s out-of-school speech, creating a MySpace page and inviting 100 students to join,
constituted a substantial disruption and as a result, the school was able to punish Kowalski.90 The
Fourth Circuit held that Kowalski’s actions could “have a snowballing effect, in some cases
resulting in copycat efforts by other students…creating actual or nascent substantial disorder and
disruption in the school.”91 Further, the court indicated that the school could punish Kowalski,
notwithstanding where the speech occurred, because the speech was materially and substantially
disruptive, interfering with both the school’s work and other students’ security and right to be let
alone.92 The language from Tinker which allows speech to be regulated when it collides “with
the rights of other students to be secure and let alone” has never been used as the sole basis for
limiting speech.93 Despite having the occasion to answer whether Tinker applies to off-campus
87
Kowalski v. Berkeley County Schs., 652 F.3d 565 (4th Cir. 2011).
Id. The webpage was entitled SASH which petitioner indicated stood for Students Against Sluts Herpes. Yet,
according to another witness, the title stood for Students Against Shay’s Herpes.
89
Id. at 567.
90
Id. at 572.
91
Id. at 574.
92
Id. at 572.
93
Nixon v. N. Local Sch. Dist. Bd. of Educ., 383 F. Supp. 2d 965, 974 (S.D. Ohio 2005) (“In fact the Court is not
aware of a single decision that has focused on [the‘rights of others’ prong] in Tinker as the sole basis for upholding a
school’s regulation of student speech”). But see Harper v. Poway Unified Sch. Dist., 445 F.3d 1166, 1178 (9th Cir.
2006) (anti-homosexuality message on a student’s shirt held to collide with the rights of others and could be
constitutionally punished under Tinker), vacated as moot, 549 U.S. 1262 (2007).
88
14
speech, the Supreme Court denied review of this case, on the very day that the Third Circuit
cases were denied.94
The Eighth Circuit similarly concluded that out-of-school speech could be punished in
D.J.M. v. Hannibal Public School District No. 60.95 In D.J.M., the court was concerned with a
tenth grader who used his personal home computer to send instant messages to a classmate.96
The messages described D.J.M.’s desire to obtain a gun and kill other students.97 In holding that
D.J.M. could be punished as a result of his comments, the court indicated that they constituted
“true threats” lacking any protection under the First Amendment. Additionally, the court held
that the comments rose to the level of substantial disruption under Tinker.98 Commenting on the
substantial disruption standard, the court noted that the First Amendment did not “require the
District to wait and see whether [a student’s] talk about taking a gun to school and shooting
certain students would be carried out” before taking necessary action.99 Essentially, the court
concluded that Tinker governs “conduct outside of school or a school sanctioned event.”100
However, the Fifth Circuit reached a contrary conclusion regarding an instance of
off-campus student speech and discipline in Porter v. Ascension Parish School Board.101 This
case involved Adam Porter, a high school student, who was punished for a drawing which
depicted the school under siege by a tanker truck, missile launcher, helicopter and various armed
persons.102 The drawing also contained profanity and a picture of a brick being thrown at the
principal. Porter originally showed the drawing to his mother, brother and close friend. He
94
Kowalski, supra note 87, cert. denied 132 S. Ct. 1095 (2012).
D.J.M. v. Hannibal Pub. Sch. Dist. No. 60, 647 F.3d 754 (8th Cir. 2011).
96
Id. at 764.
97
Id. at 762.
98
Id. at 764-67.
99
Id. at 761-64. The decision acknowledged the tragic events that transpired in Columbine and Jonesboro.
100
Id. at 761.
101
Porter v. Ascension Parish Sch. Bd., 393 F.3d 608 (5th Cir. 2004), cert. denied 544 U.S. 1062 (2005).
102
Id.
95
15
subsequently placed the drawing in his closet. Two years later, without Porter’s knowledge, his
brother took the picture to school and showed it to a fellow student on the bus. The student
reported Porter and school officials threatened to expel him. As a result, he transferred
schools.103 In hearing this appeal, the Fifth Circuit indicated that Tinker’s substantial disruption
test did not apply to Porter’s conduct, student expression which occurred away from the school
premises.104 Ultimately, the court referred to the drawing as “not exactly speech on campus or
even speech directed at the campus.”105 The court looked to the fact that the drawing was
composed off-campus and stayed there for two years; it wasn’t for happenstance that the drawing
entered the school premises. However, the court underscored that this is an open question and
acknowledged that “a reasonable school official would encounter a body of case law sending
inconsistent signals as to how far school authority to regulate student speech reaches beyond the
confines of the campus.”106
Likewise, in T.V. v. Smith-Green Community School Corporation, the court held that the
off-campus speech which gave rise to the case could not be punished by school officials. Judge
Simon began his decision by setting the scene where the speech took place: “[n]ot much good
takes place at slumber parties for high school kids.”107 He further lamented the fact that a federal
case was being made out of a suspension from volleyball games and extracurricular activities.
However, he noted that the case was ripe for review. In this case, sixteen-year-old T.V. and
fifteen-year-old M.K., were photographed posing in suggestive positions with phallic-shaped,
rainbow lollipops. These photographs were later posted online on T.V.’s MySpace or Facebook
accounts. The photographs had inartful captions. When the Smith-Green Community School
103
Id. at 612.
Id. at 615 n. 22.
105
Id.
106
Id. at 620.
107
T.V. v. Smith-Green Cmty. Sch. Corp., 807 F. Supp. 2d 767 (N.D. Ind. 2011).
104
16
Corporation learned of the photographs from a parent, Churubusco High School suspended both
students from extracurricular activities for a portion of the upcoming school year.108 Principal
Couch indicated that T.V. and M.K. brought discredit to their school and violated the
Extra-Curricular Code of Conduct which makes it a violation to “…act in a manner in school or
out of school that brings discredit or dishonor upon yourself or your school, you may be removed
from extra-curricular activities…”109 The court quickly dismissed the school’s claim that Fraser
should apply because the speech occurred off-campus.110 Turning to a Tinker analysis, the court
assumed without deciding that Tinker applied to off-campus speech, and held that the school
officials violated T.V. and M.K.’s First Amendment rights.111 Judge Simon addressed the fact
that the application of Tinker to off-campus speech was an open question, but the school officials
could not have shown even the remote possibility that the speech would cause a substantial
disruption. Rather, the court held that a few complaints from two parents and petty sniping
among fifteen- and sixteen-year-olds could not have been what the Tinker Court intended when
discussing “substantial disruption.”112 Additionally, the court invalidated the school’s Code of
Conduct because it was unconstitutionally vague.113
III. State of Student Speech Litigation
The October 2011 Supreme Court term began with the Court denying a petition for
certiorari in Defoe v. Spiva.114 In this case, the Sixth Circuit upheld a school policy which
prohibited students from wearing Confederate Flag t-shirts. The court indicated that a student
108
Id. at 771.
Id. at 773.
110
Id. at 780.
111
Id. at 781.
112
Id.
113
Id. at 790.
114
Defoe v. Spiva, 625 F.3d 324 (6th Cir. 2010), cert. denied 132 S. Ct. 399 (2011).
109
17
wearing a Confederate Flag shirt could cause a substantial disruption under Tinker.115 This
decision directly contrasts with Zamecnik v. Indian Prairie School District No. 204, where the
court held that it was too speculative to conclude that students wearing T-shirts that said “Be
Happy, Not Gay” would have even a slight tendency to provoke a substantial disruption, or to
poison the educational atmosphere.116 While the High Court denied review in Defoe, despite an
apparent circuit split, it appears that student speech and expression cases will continue to come
before the Court. In January 2012, the Supreme Court denied review of J.S., Layshock and
Kowalski. This denial was preceded by the Court’s denial of review of the Doninger case in
November.
While there will be no explanation as to why the Supreme Court denied review of these
cases, it is more than likely that the Court will eventually be confronted with the question of
Tinker’s applicability to off-campus speech. Lower courts are increasingly being called upon to
determine whether school officials are abridging the First Amendment rights of students when
making disciplinary decisions. Nationally, court dockets are seeing a rise in student speech
litigation. The Court must provide guidance to lower courts to ensure that the First Amendment
rights of students are being adequately safeguarded. School officials also need to understand the
line between free speech and appropriate discipline.
Unfortunately, what we are left with is a patchwork where identical speech may be
protected in one jurisdiction and punished in the other. More alarming, the state of student
speech jurisprudence in some jurisdictions may provide for the punishment of speech if the claim
is pursued in one forum (state) versus if litigated in another forum (federal).117 This underscores
115
Id.
Zamecnik v. Indian Prairie Sch. Dist. No. 204, 636 F.3d 874 (7th Cir. 2011).
117
Compare J.S. ex rel. H.S. v. Bethlehem Area Sch. Dist., 807 A.2d 847 (Pa. 2002) (Pennsylvania Supreme Court
held that student could be punished for off-campus website that was accessed on school grounds), with Layshock v.
116
18
the need for the Court to step in and speak one way or the other on Tinker’s applicability to
off-campus speech. It is also important to understand what factors the Court will consider, such
as the location of the speech, or whether it was purposefully directed at the school, when
determining whether the speech qualifies as student speech.
At this point it is likely that a student speech case will not reach the High Court until next
term, at the earliest. Until then, lower courts will be left guessing whether or not students are free
to speak when they are away from the campus. While the schoolhouse gate and defined
geographical boundaries are not what they were when Tinker was decided in 1969, a clear
standard must be enunciated to account for our rapidly evolving world.
IV. School Administrators Response and an Analysis of the
New York City Department of Education’s Policy
Constitutional guidance is essential for school administrators who are responsible for the
health, safety, and overall learning environment for all students. However, these officials must
simultaneously respect students’ free speech rights. Given the unclear precedent, school officials
have little practical guidance on how to strike the appropriate balance.118 This uncertainty puts
school administrators in an untenable catch twenty-two, either act to discipline a student who is
bullying another student or face possible litigation for infringing on the bully’s First Amendment
rights.
Moreover, in recent years, courts have seen an explosion in the number of suits related to
disciplining students for off-campus speech.119 The advent of technology is one factor why
disciplining students based on where their speech takes place is difficult. Further, some argue
Hermitage Sch. Dist., 650 F.3d 205 (3d Cir. 2011) (Third Circuit held that student could not be punished for
off-campus website), and J.S. v. Blue Mountain Sch. Dist., 650 F.3d 915 (3d Cir. 2011) (same).
118
Michelle R. Davis, Schools Tackle Legal Twists and Turns of Cyberbullying, EDUC. WK’S DIGITAL DIRECTIONS,
Winter 2011, at 28, 29, available at http://www.edweek.org/dd/articles/2011/02/09/02cyberbullying.h04.html.
119
Jan Hoffman, Online Bullies Pull Schools Into the Fray, N.Y. TIMES, June 27, 2010, at A1; Lee Goldman,
Student Speech and the First Amendment: A Comprehensive Approach, 63 FLA. L. REV. 395, 396 (2011).
19
that federal and state governments’ targeted response to bullying has exacerbated litigation.120
The United States Department of Education issued a “Dear Colleague Letter” in 2010 stating that
school officials should police speech among students including “verbal acts and name-calling” as
well as “graphic and written statements, which may include [the] use of cell phones or the
Internet.”121 The expansive language, without defined temporal or geographic limitations, caused
some legal scholars to caution about extending the reach of the school beyond the campus.122
Commentators keep coming back to the lack of guidance provided by the Court, particularly the
Morse decision which raised more questions than it answered.123
The New York State Department of Education similarly expressed difficulty in protecting
students from cyberbullying, while respecting their First Amendment rights.124 The State
Department of Education has stated that responding to off-campus cyberbullying and sexting in a
legally and effective manner poses the greatest challenge for school administrators.125 However,
the Commissioner has upheld the punishment of students for their off-campus conduct.126
Further, the Commissioner also supports the proposition that the Department is able to punish
students for conduct that occurred outside of school when such conduct may endanger the health
120
Sameer Hinduja & Justin W. Patchin, CYBERBULLYING RESEARCH CTR., State Cyberbullying Laws: A Brief
Review of State Cyberbullying Laws and Policies, 1 (2011), available at
http://www.cyberbullying.us/Bullying_and_Cyberbullying_Laws.pdf.
121
Letter from Russlynn Ali, Asst. Sec’y for Civil Rights, U.S. Dep’t of Educ., Dear Colleague Letter: Harassment
and Bullying, (Oct. 26, 2010), available at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.html.
122
Letter from Eugene Volokh, to U.S. Comm’n on Civil Rights, (May 13, 2011), available at
http://www.eusccr.com/27.%20Eugene%20Volokh,%20UCLA%20School%20of%20Law.pdf.
123
Brannon P. Denning & Molly C. Taylor, Morse v. Frederick and the Regulation of Student Cyberspeech, 35
HASTINGS CONST. L.Q. 835, 837 (2008).
124
N.Y. State Dep’t of Educ., Guidance on Bullying and Cyberbullying Prevention, available at
http://www.p12.nysed.gov/technology/internet_safety/documents/cyberbullying.html.
125
Id.
126
See e.g., Appeal of K.S., 43 Educ. Dep’t Rep 492, Decision No. 15,063 (upheld suspension of student for being
involved in a fight off-campus and possession of a pocketknife); Appeal of Ravick, 40 Educ. Dep’t Rep 262,
Decision No. 14,477 (upheld suspension of student for his anti-Semetic and threatening e-mail which was sent to
students outside of school); Appeal of Orman, 39 Educ. Dep’t Rep 811, Decision No. 14,389 (upheld suspension of
student for possessing a discharging a BB pistol multiple times off-campus).
20
or safety of pupils within the educational system or adversely affect the educative process.127 The
Department recognizes an outward boundary to its actions, and disciplining students for this type
of behavior implicates the right to free speech and expression. For this reason the State
recommends that school districts consult with their attorneys when developing policies on
bullying, cyber bullying and sexting, to ensure that these policies are consistent with prior
decisions of the Commissioner and legal precedent.
Likewise, these very same problems arise in New York City. The Department of
Education serves nearly 1.1 million public school children and the Chancellor is responsible for
setting policy for these students. Each year, the Department distributes Citywide Standards of
Discipline and Intervention Measures.128 These standards lay out the Student Bill of Rights and
Responsibilities for students from K to 12th grade. Among these rights are the right to a free
public school education, the right to freedom of expression and religion, and the right to due
process. Within the right to freedom of expression, some of the rights are limited with a
reference to, “…except where such material is libelous, obscene or materially disrupts the
school, causes substantial disorder or invades the rights of others.” Essentially, it seems that this
language is an apparent nod to Tinker. However, the reach of these standards arguably go beyond
Tinker, as they apply “…during school hours, before and after school, while on school property,
while traveling on vehicles funded by the Department of Education, at all school-sponsored
events and on other-than-school property when such behavior can be demonstrated to negatively
affect the educational process or to endanger the health, safety, morals, or welfare within the
127
Appeal of Ravick, citing Matter of Coghlan v. Bd. of Educ. of Liverpool Cent. Sch. Dist., 262 A.D.2d 949 (4th
Dep’t 1999), citing Pollnow v. Glennon, 594 F. Supp. 220, 224 (S.D.N.Y. 1984), aff’d 757 F.2d 496 (2d. Cir. 1985).
128
N.Y. City Dep’t of Educ., Citywide Standards of Discipline and Intervention Measures, available at
http://docs.nycenet.edu/docushare/dsweb/Get/Document-101/Disc%20Code%202006.pdf.
21
school community.”129 While it is understandable that the Department would assert broad
disciplinary authority over students, any action must still comport with the rigors of the First
Amendment and applicable student speech precedent. Any reach beyond the schoolhouse gate is
suspect because outside of school students retain their First Amendment rights, underscored by
Tinker and its progeny.
In New York City public schools, students can be punished for violating the Chancellor’s
Regulations. There are specific regulations that pertain to student speech and conduct. The
regulation that addresses student disciplinary proceedings provides:
The Chancellor is committed to ensuring that school is a safe and secure
environment for all students and staff. Toward that end, students must be
taught that they are responsible for their behavior, that there are standards
of behavior with which they must comply and that there are consequences
when they do not meet those standards.
This Regulation and the relevant Discipline Code apply to prohibited
actions of students in school or on school property before, during, or after
school hours; while traveling on vehicles funded by the Department of
Education; and to misbehavior that occurs off school premises when it
negatively affects the educational process or endangers the health, safety,
morals or welfare of the school community. (emphasis added).130
While commending the Department of Education’s work to combat student harassment,
the explicit reference and inclusion of off-campus speech is disconcerting. In the Second Circuit,
under Doninger, before punishing off-campus speech, the speech must first materially and
substantially interfere with the work or discipline of the school, and second, it must have been
reasonably foreseeable that the speech might enter the school. A review of New York City
student speech cases has not revealed cases challenging disciplinary action taken under A-443 of
the Chancellor’s Regulations. The scant cases asserting violation of free speech rights under
129
Id.
N.Y. City Dep’t of Educ., Chancellor’s Regulation A-443, available at
http://docs.nycenet.edu/docushare/dsweb/Get/Document-22/A-443.pdf.
130
22
A-443 were primarily teachers appealing instances of discipline. Similarly, a review of the
decisions of the Commissioner of the State Education Department did not reveal students
challenging instances of discipline due to their off-campus speech.
There can be several explanations to the lack of cases. First, students and their families
may accept the punishment for the student’s conduct and see no need to challenge the discipline.
Next, the student and family may be unaware of the ability to challenge disciplinary actions of
school administrators. Third, students and families may be unable or reluctant to devote the
considerable resources necessary to pursue litigation challenging a suspension or expulsion.
Lastly, it is possible that the regulation is being enforced in a fair and equitable manner. While
the language is quite broad, the application of the enforcement is most pertinent. It is plausible
that the regulation is being applied consistently with the appropriate student speech precedent.
However, any indication that school officials are overreaching would necessitate revision of this
policy and require limiting the expansive language with the existing leading precedent.
When the school punishes students for their speech outside of school, this treads into
precarious waters. The nexus to the school community is paramount to ensure that students are
not merely being punished for their personal viewpoints. As Justice Brennan’s concurrence in
Fraser stated, “[I]f respondent had given the same speech outside of the school environment, he
could not have been penalized simply because government officials considered his language to
be inappropriate.”131 This veritable point was echoed by the en banc Third Circuit in Layshock:
“[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.”132 It is beyond
131
132
Fraser, supra note 18, at 688.
Layshock, supra note 80, at 205.
23
dispute that school officials must maintain the integrity of the education system. Likewise,
students do not completely cede their free speech rights as a condition of being a student. Until
the Supreme Court steps in and speaks emphatically on students’ right to speech outside of
school, the reach of school officials remains unclear.
24