NO. 15-648
_________________
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM 2015
_________________
JEREMY JOSLIN,
Petitioner,
v.
SKYVIEW SCHOOL DISTRICT,
Respondent.
_________________
On Writ of Certiorari to the
United States Court of Appeals
for the Fourteenth Circuit
_________________
BRIEF FOR PETITIONER
_________________
TEAM NO. 5
Counsel for Petitioner
QUESTIONS PRESENTED
I. Whether school officials have jurisdiction to discipline a student for his off-campus, online
creation of a poem when nothing in the record suggests he intended to or actually brought the
poem to the school campus.
II. Whether, under the Tinker substantial-disruption test, the First Amendment prevents school
officials from disciplining a student for creating and posting a poem from his home that
disparaged a teacher when the teacher did not feel threatened and only minor incidents
caused by other students occurred.
i
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ............................................................................................................ i
TABLE OF AUTHORITIES .......................................................................................................... iv
JURISDICTION STATEMENT .................................................................................................. viii
OPINIONS BELOW .................................................................................................................... viii
CONSTITUTIONAL PROVISIONS INVOLVED ..................................................................... viii
STATEMENT OF THE CASE.........................................................................................................1
SUMMARY OF THE ARGUMENT ...............................................................................................4
ARGUMENT ...................................................................................................................................7
I. THE SCHOOL OFFICIALS LACK THE JURISDICTION TO PUNISH JEREMY JOSLIN
FOR OFF-CAMPUS EXPRESSION THAT HE DID NOT DISSEMINATE AT SCHOOL ..................8
A. Jeremy‘s Poem Is Not School Speech Under This Court‘s Jurisprudence .................9
1. Tinker‘s substantial-disruption standard does not confer jurisdiction on
school officials to punish students for off-campus expression posted to
the Internet ..........................................................................................................10
a. Nothing in the Tinker opinion supports applying the substantialdisruption standard to off-campus speech because the case
evaluated on-campus disruption caused by on-campus speech .................... 11
b. The record contains no evidence that Jeremy purposefully directed
his speech toward the school community, which are the type of
facts some circuit courts have used to extend Tinker‘s substantialdisruption standard to off-campus speech.....................................................12
c. The reasonable foreseeability standard some courts have used to
extend Tinker‘s substantial-disruption standard to off-campus
speech is unconstitutionally overbroad because the simple act of
posting speech to the Internet would invoke the school‘s authority .............14
2. The Facebook post is outside the reach of the Fraser, Kuhlmeier, and
Morse exceptions ................................................................................................15
ii
B. Public Policy Considerations Weigh Against Extending the Definition of
School Speech to Include Any Student-Created Expression Posted to the
Internet ......................................................................................................................16
1. Allowing school officials to impose discipline for off-campus Internet
speech leaves no principled limit for school authority .......................................16
2. Allowing discipline for off-campus Internet speech infringes upon
parental rights......................................................................................................18
3. Limiting the authority to censor off-campus expression will not render
school officials powerless to address on-campus problems ...............................19
II. EVEN IF JEREMY‘S POEM WAS SCHOOL SPEECH, THE SCHOOL OFFICIALS‘
DECISION TO PUNISH HIM WAS UNCONSTITUTIONAL ......................................................20
A. Jeremy‘s Poem Did Not Cause Actual Substantial Disruption .................................21
B. School Officials Could Not Reasonably Forecast That Jeremy‘s Poem
Would Cause Substantial Disruption ........................................................................25
C. The Poem Did Not Impinge upon the Rights of Other Students ..............................27
CONCLUSION ..............................................................................................................................28
iii
TABLE OF AUTHORITIES
Page(s)
CASES:
Anderson v. Liberty Lobby, Inc.,
477 U.S. 242 (1986) .............................................................................................................7
Ashcroft v. Free Speech Coalition,
535 U.S. 234 (2002) ...........................................................................................................14
Bell v. Itawamba Cty. Sch. Bd.,
No. 12—60264, 2015 WL 4979135
(5th Cir. Aug. 20, 2015) (en banc) ...............................................................................12, 13
Bethel Sch. Dist. No. 403 v. Fraser,
478 U.S. 675 (1986) ...............................................................................................15, 19, 21
Burge v. Colton Sch. Dist. 53,
No. 3:14—00605—ST, 2015 WL 1757161
(D. Or. Apr. 17, 2015)........................................................................................................22
Celotex Corp. v. Catrett,
477 U.S. 317 (1986) .............................................................................................................7
Corales v. Bennett,
567 F.3d 554 (9th. Cir. 2009) ............................................................................................25
Dariano v. Morgan Hills Unified Sch. Dist.,
767 F.3d 764 (9th Cir. 2014),
cert. denied, 135 S. Ct. 1700 (2015) ..................................................................................24
D.J.M. ex rel. D.M. v. Hannibal Pub. Sch. Dist.,
647 F.3d 754 (8th Cir. 2011) .............................................................................................23
Doninger v. Niehoff,
527 F.3d 41 (2d Cir. 2008)...............................................................................12, 14, 23, 24
Emmett v. Kent Sch. Dist. No. 415,
92 F. Supp. 2d 1088 (W.D. Wash. 2000) ...........................................................................18
Evans v. Bayer,
684 F. Supp. 2d 1365 (S.D. Fla. 2010) ................................................................................9
iv
Hazelwood Sch. Dist. v. Kuhlmeier,
484 U.S. 260 (1988) ...........................................................................................................15
J.C. ex rel. R.C. v. Beverly Hills Unified Sch. Dist.,
711 F. Supp. 2d 1094 (C.D. Cal. 2010) .............................................................................21
J.S. ex rel. H.S. v. Bethlehem Area Sch. Dist.,
807 A.2d 847 (Pa. 2002) ..............................................................................................19, 23
J.S. ex rel. Snyder v. Blue Mountain Sch. Dist.,
650 F.3d 915 (3d Cir. 2011) (en banc).........................................................................15, 26
Klein v. Smith,
635 F. Supp. 1440 (D. Me. 1986) ......................................................................................22
Kowalski v. Berkeley Cty. Schs.,
652 F.3d 565 (4th Cir. 2011) .............................................................................................14
LaVine v. Blaine Sch. Dist.,
257 F.3d 981 (9th Cir. 2001) .............................................................................................25
Layshock v. Hermitage Sch. Dist.,
650 F.3d 205 (3d Cir. 2011).....................................................................................9, 13, 17
Mardis v. Hannibal Pub. Sch. Dist.,
647 F.3d 754 (8th Cir. 2011) .............................................................................................14
Meyer v. Nebraska,
262 U.S. 390 (1923) ...........................................................................................................18
Morse v. Frederick,
551 U.S. 393 (2007) ...........................................................................................7, 15, 16, 19
N.Y. Times Co. v. Sullivan,
376 U.S. 254 (1964) .............................................................................................................8
Nixon v. Hardin Cty. Bd. of Educ.,
988 F. Supp. 2d 826 (W.D. Tenn. 2013)............................................................................11
Perry Educ. Ass’n v. Perry Local Educs. Ass’n,
460 U.S. 37 (1983) ...............................................................................................................8
Pierce v. Soc’y of Sisters,
268 U.S. 510 (1925) ...........................................................................................................18
v
Porter v. Ascension Parish Sch. Bd.,
393 F.3d 608 (5th Cir. 2004) .............................................................................................17
Reno v. ACLU,
521 U.S. 844 (1997) ...........................................................................................................24
Saxe v. State Coll. Area Sch. Dist.,
240 F.3d 200 (3d Cir. 2001).........................................................................................25, 27
Settle v. Dickson County,
53 F.3d 152 (6th Cir. 1995) ...............................................................................................22
S.J.W. ex rel. Wilson v. Lee’s Summit R-7 Sch. Dist.,
696 F.3d 771 (8th Cir. 2012) .............................................................................................25
Thomas v. Granville Bd. of Educ.,
607 F.2d 1043 (2d Cir. 1979).................................................................................11, 13, 16
Tinker v. Des Moines Indep. Cmty. Sch. Dist.,
393 U.S. 503 (1969) ................................................................................................... passim
Troxel v. Granville,
530 U.S. 57 (2000) .............................................................................................................18
T.V. ex rel. B.V. v. Smith-Green Cmty. Sch. Corp.,
807 F. Supp. 2d 767 (N.D. Ind. 2011) ...............................................................................21
West v. Derby Unified Sch. Dist. No. 206,
206 F.3d 1358 (10th Cir. 2000) .........................................................................................25
Wisneiwski v. Bd. of Educ.,
494 F.3d 34 (2d Cir. 2007).................................................................................................14
CONSTITUTIONAL PROVISIONS:
U.S. Const. amend. I ........................................................................................................................8
STATUTORY PROVISIONS:
Fed R. Civ. P. 56(c) .........................................................................................................................7
vi
SECONDARY SOURCES:
Clay Calvert,
Punishing Public School Students for Bashing
Principals, Teachers and Classmates in Cyberspace:
The Speech Issue the Supreme Court Must Now
Resolve,
7 First Amend. L. Rev. 210 (2009) ........................................................................14, 18, 20
Mary Rose Papandrea,
Student Speech Rights in the Digital Age,
60 Fla. L. Rev 1027 (2008) ................................................................................................16
Jamin B. Raskin,
No Enclaves of Totalitarianism: The Triumph and
Unrealized Promise of the Tinker Decision,
58 Am. U. L. Rev. 1193 (2009) .........................................................................................11
vii
JURISDICTION STATEMENT
A Formal Statement of Jurisdiction has been omitted in accordance with the Rules of the
Washington College of Law‘s Burton D. Wechsler First Amendment Moot Court Competition.
OPINIONS BELOW
The decision and order of the United States District Court for the District of Atlantis is
unreported but is set out in the record. Dist. Atl. at 1–7. The opinion of the United States Court
of Appeals for the Fourteenth Circuit, Wechsler Division is also unreported, but is set out in the
record. 14th Cir. at 1–11.
CONSTITUTIONAL PROVISIONS INVOLVED
This case involves the Freedom-of-Speech Clause in the First Amendment to the United
States Constitution, which provides: ―Congress shall make no law . . . abridging the freedom of
speech . . . .‖ U.S. Const. amend I.
viii
STATEMENT OF THE CASE
I.
STATEMENT OF THE FACTS
This appeal involves a school punishing a student for off-campus, online speech. Dist. Atl.
at 2–4. Dr. Theodore Chadwick, the Principal at Skyview High School, suspended Jeremy Joslin
for posting a poem about his English teacher on his Facebook page from home. Dist. Atl. at 2–4.
The Student. Jeremy Joslin has maintained a good student record throughout his high
school career. 14th Cir. at 4. With one exception, he neither faced school discipline, nor
received a grade lower than a ―B.‖ Dist. Atl. at 1. That one exception gives rise to this case; it
occurred during his sophomore year. Dist. Atl. at 1.
During that year, Jeremy took an English class taught by Ms. Cornelia Vanderweghe. 14th
Cir. at 2. Ms. Vanderweghe, who had taught at Skyview for over 20 years, earned a reputation
as a strict disciplinarian and a tough grader. Dist. Atl. at 2; 14th Cir. at 2.
The Poem. After receiving a poor grade on an essay, Jeremy met with Ms. Vanderweghe
several times to improve his writing. Dist. Atl. at 2. But in those meetings, Ms. Vanderweghe
―was condescending, and not very helpful.‖ Dist. Atl. at 2. She ultimately gave Jeremy a ―C‖ in
the course—his lowest grade in high school. Dist. Atl. at 1–2.
Upset with his grade, Jeremy returned home and wrote a poem venting his frustrations.
Dist. Atl. at 2. He then posted his poem on his Facebook page from his home computer:
Working hard for the grade to stay on track,
Most of my teachers were cool and had my back;
But was a different story in English class;
Had to deal with a mean old ass
This tramp was tripping, out of control
Creativity halted, slowed my roll;
I tried to learn and adapt to her style;
But, she crapped on me all the while;
1
I know I can write, I got the rhyme,
But she chewed me up on the vine,
Fuck That B----, I’m still great
Don’t need her class to motivate;
I got potential, I’ll be cool
She’s just a dried up old shrew
Living the dream, I will survive
Fuck that B----, I’ll never lose my drive.
Dist. Atl. at 2. Jeremy‘s older sister saw the poem on Facebook. 14th Cir. at 3. Disappointed
with her younger brother, she scolded him and suggested that he delete the post. Dist. Atl. at 3.
He complied and removed the post that evening. Dist. Atl. at 3. The poem was only accessible
on Facebook for about three hours. Dist. Atl. at 3.
The Reaction. In that short time, several students viewed it. 14th Cir. at 3. Some
anonymous students printed off copies of the poem and brought them to school. 14th Cir. at 3.
Several teachers seized copies of the poem, and one teacher showed it to the school‘s principal,
Dr. Chadwick. 14th Cr. at 3.
Dr. Chadwick spoke to Ms. Vanderweghe about the poem, and she readily admitted she did
not feel threatened by it. Dist. Atl. at 3. She expressed only the concern that the poem ―might
make it more difficult for her to maintain proper discipline in class‖ in the future. Dist. Atl. at 3.
One of Ms. Vanderweghe‘s students had already asked about the poem during class, and another
cursed at her in the hallway. Dist. Atl. at 3. The one who cursed at her was suspended. Dist.
Atl. at 3. The girls‘ restroom was vandalized with the words ―Vanderweghe Sucks.‖ Dist. Atl.
at 3. A social sciences teacher also reported that he spent a large portion of class discussing the
incident. Dist. Atl. at 3.
Dr. Chadwick summoned Jeremy to his office to discuss the poem. Dist. Atl. at 3. He
lectured Jeremy about showing respect for authority figures and the importance of civility and
2
good manners. 14th Cir. at 4. Jeremy apologized for the poem and promised to refrain from
similar conduct in the future. Dist. Atl. at 3. Despite ―not[ing] that Jeremy had a good student
record and no prior suspensions or expulsions in his file,‖ Dr. Chadwick suspended Jeremy for
three days under the school‘s no-disruption policy and based on his disrespectful conduct toward
a school official. Dist. Atl. at 3–4. Jeremy‘s suspension caused him to miss junior-varsitybasketball practice and debate-team practice. Dist. Atl. at 4.
Jeremy‘s mother, Madeline, believed the situation was one of parental discipline. 14th Cir.
at 4. She had already punished her son by revoking his internet privileges, grounding him for a
week, and forbidding him from going to a student party the next weekend. 14th Cir. at 4–5. She
appealed Dr. Chadwick‘s decision. Dist. Atl. at 4. But the superintendent upheld the decision.
Dist. Atl. at 4. Ms. Joslin then sued on her son‘s behalf, asserting that the school had violated
Jeremy‘s First Amendment free-speech rights. Dist. Atl. at 4.
II.
NATURE OF THE PROCEEDINGS
The District Court. Ms. Joslin sued in the United States District Court for the District of
Atlantis, naming as defendants the Skyview School District, and Dr. Chadwick in both his
individual capacity and in his official capacity as Principal of Skyview High School (collectively
―school officials‖). Dist. Atl. at 1. The parties filed cross-motions for summary judgment. Dist.
Atl. at 5. Ms. Joslin argued that the school officials did not have jurisdiction to punish Jeremy for
off-campus expression that he did not disseminate at school. Dist. Atl. at 5. She also argued that
the school officials failed to establish a sufficient nexus between his online posting, which was
viewable for only a few hours, and actual activities at the school. Dist. Atl. at 5.
The school officials countered in two ways. First, they argued Jeremy‘s poem substantially
disrupted school activities. Dist. Atl. at 5–6. And second, they argued that they have the
3
authority to discipline students for vulgar, lewd, and profane speech. Dist. Atl. at 5–6. The
district court found that the defendants did not provide evidence of a substantial disruption, but
rather, Jeremy‘s poem ―created a minor distraction.‖ Dist. Atl. at 6. Further, the Court ruled that
Jeremy‘s few profane words, used off-campus, did not come within the school officials‘
authority to punish. Dist. Atl. at 7. The school officials appealed to the United States Court of
Appeals for the Fourteenth Circuit. 14th Cir. at 1.
The Appellate Court. The court of appeals reversed the district court‘s judgment and
remanded the case with instructions to grant the school officials‘ summary-judgment motion.
14th Cir. at 9.
Reasoning that Jeremy‘s language ―was quite connected with real-world
discipline problems at the school,‖ the court of appeals concluded that there was a sufficient
nexus between his online expression and the activities at the school so as to give the school
officials authority to punish Jeremy.‖ 14th Cir. at 7. Further, the court of appeals held that the
subsequent conduct of other students was ―sufficient to meet the reasonable forecast of a
substantial disruption,‖ that school officials must demonstrate before restricting students‘ speech.
14th Cir. at 8–9 (internal quotation marks omitted). The court of appeals, therefore, found that
Dr. Chadwick had sufficient authority to punish Jeremy for his speech. 14th Cir. at 9.
SUMMARY OF THE ARGUMENT
This case presents the ideal opportunity for this Court to reaffirm that when students are
not on campus, they enjoy First Amendment protections. A school‘s authority to regulate
student speech ends at the schoolhouse gate.
I.
The First Amendment guarantees that the government will not abridge citizens‘ freedom of
speech, except for a few narrowly defined categories. For example, the State, through school
4
authorities may restrict on campus student speech where it is reasonably foreseeable to cause a
substantial disruption. But postings on the Internet exist outside the school‘s physical and
electronic boundaries. Where those postings do not target campus, they are purely off-campus
speech. As this Court‘s precedent makes clear, schools‘ cannot suppress off-campus student
speech; thus, the school officials exceeded their authority by punishing Jeremy for purely offcampus speech.
The court of appeals erred when it characterized Jeremy‘s poem as on-campus student
speech. This Court has created three narrow exceptions to the substantial-disruption standard.
Schools may suppress on-campus student speech if it is vulgar, if it will carry the school‘s
imprimatur, or if it advocates illegal conduct and occurs at a school-sponsored event. Here,
Jeremy created and shared the poem with select friends while at home. The school does not own
or sponsor the website on which he posted the poem, Facebook. These facts fit none of the
exceptions to the Tinker substantial-disruption standard.
This Court should not extend a school‘s ability to regulate off-campus online speech
because that will remove any principled limit on school authority. There is, and must remain, a
line over which school officials cannot transgress into the views and daily lives of students and
parents.
That line is the schoolhouse gate, or where students cease to act as formal
representatives of the school. To rule otherwise would clash with a parent‘s right to decide how
to raise and discipline a child. It would allow school authorities to become the Internet police—
granting control far beyond what a school may legitimately exercise over its students. Limiting a
school‘s authority to censor off-campus expression will not render schools powerless in
addressing on-campus disruptions.
5
Schools must justify any restrictions on off-campus student speech by demonstrating a
compelling governmental interest narrowly tailored to achieve a legitimate governmental
objective. That is, where students are not on campus or formally representing the school, the
First Amendment protects them to the same extent as adult members of the community. The
school officials have failed to carry this burden.
This Court should reverse the court of appeals‘ judgment extending jurisdiction over offcampus online student speech and hold that the punishment violated Jeremy‘s First Amendment
rights.
II.
Even if the school officials had jurisdiction over Jeremy‘s poem, their decision to punish
him is still unconstitutional. Under this Court‘s precedent, school officials must demonstrate an
actual and substantial disruption with the school‘s functionality, that it was reasonable
foreseeability that Jeremy‘s poem would cause such a disruption, or that Jeremy‘s poem
infringed on the rights of other students. They failed to do so here.
The school officials cite several minor distractions as being substantial disruptions. Several
teachers were asked questions regarding the poem, an offensive phrase was scribbled in the girls‘
restroom, and one student cursed at Ms. Vanderweghe. These minor incidents fall far short of
constituting an actual substantial disruption. The school officials do not allege, let alone show
any evidence, that the school‘s functionality was substantially disrupted. No school officials
devoted a substantial time dealing with the incidents nor were any officials forced forego school
activities.
The school officials could not reasonably forecast that Jeremy‘s poem would create a
substantial disruption.
Suppression of student speech may not be based on the mere
6
apprehension of disruption. Schools must identify specific facts creating a reasonable forecast of
substantial disruption.
Here, Dr. Chadwick suspended Jeremy because Ms. Vanderweghe
expressed concern that failure to discipline Jeremy might make it more difficult to maintain
discipline in the future. Such a justification is the definition of what this Court has explained
does not permit a school to tread on a student‘s free-speech rights. Further, no students have
alleged that Jeremy‘s poem infringed on their rights.
As there has not been a substantial disruption and there is no reason to forecast a
substantial disruption, The school officials have unconstitutionally suppressed Jeremy‘s speech.
This Court should reverse the court of appeals‘ judgment and hold that the punishment violated
Jeremy‘s First Amendment rights.
ARGUMENT
The district court resolved the dispute by granting one of two cross motions for summary
judgment. Dist. Atl. at 7. A reviewing court applies the same standard as the district court.
Morse v. Frederick, 551 U.S. 393, 400–01 (2007). Summary judgment is appropriate if the
evidence, viewed in the light most favorable to the non-moving party, demonstrates no genuine
issue of material fact exists and that the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(c). A genuine issue of material fact will exist if a fair-minded jury could
return a verdict for the non-moving party on the evidence presented. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252 (1986). The only issues before this Court are legal in nature; therefore
fact analysis is unnecessary. This Court reviews these underlying questions of law de novo. See
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Additionally in First Amendment cases, this
Court independently examines the statements in issue and the circumstances under which they
7
were made to ensure that ―the judgment does not constitute a forbidden intrusion on the field of
free expression.‖ N.Y. Times Co. v. Sullivan, 376 U.S. 254, 285 (1964).
I.
THE SCHOOL OFFICIALS LACK THE JURISDICTION TO PUNISH JEREMY JOSLIN FOR OFFCAMPUS EXPRESSION THAT HE DID NOT DISSEMINATE AT SCHOOL.
The First Amendment guarantees, ―Congress shall make no law . . . abridging the freedom
of speech.‖ U.S. Const. amend. I. Despite this language, this Court has recognized that in light
of the ―special characteristics of the school environment,‖ public schools may punish certain
types of student speech. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506
(1969).
But this Court has never limited a student‘s free-speech rights on the Internet,
particularly when the expression was created off-campus on a computer or website not connected
to the school.
Schools must be required to justify restrictions on off-premises student speech by
demonstrating a compelling governmental interest narrowly tailored to achieve a legitimate
governmental objective. See Perry Educ. Ass’n v. Perry Local Educs. Ass’n, 460 U.S. 37, 45
(1983). In other words, unless students are on school property, or formally representing the
school system, student speech outside the schoolhouse gates cannot be restricted any more than
the legitimate restriction of utterances by adult members of the community in the same forum.
Id. Discipline designed to maintain order in the classroom or on school premises is inappropriate
for a student‘s expression in places away from the school grounds. Likewise, punishment for
off-campus expression of a viewpoint that conflicts with the school system‘s preferred message
constitutes unlawful viewpoint discrimination.
Jeremy posted his personal thoughts to his personal Facebook page he created to
communicate with others online. Dist. Atl. at 2. He did so from his home on a personal
computer through a website the school district neither owned nor controlled. Dist. Atl. at 2–3.
8
As a result, he enjoyed the full protections of the First Amendment. The school officials thus
lacked the jurisdiction to discipline Jeremy for his off-campus speech. They may not reach into
a student‘s home and suppress speech just because they disagree with it.
A. Jeremy’s Poem Is Not School Speech Under This Court’s Jurisprudence.
This Court has held that a school‘s ability to regulate speech ends at the ―schoolhouse
gate.‖ Tinker, 393 U.S. at 506. For this reason, the Court has drawn a critical distinction
between on-campus and off-campus speech. See Evans v. Bayer, 684 F. Supp. 2d 1365, 1372
(S.D. Fla. 2010) (―It 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 they can control that child when he/she participates in school sponsored activities.‖).
If speech occurs on campus, a school generally has the jurisdiction and discretion to discipline
students for disrupting the educational mission. Tinker, 393 U.S. at 506. If speech occurs off
campus, a school gets no special status and must follow general First Amendment principles to
restrict speech.
The fundamental mistake the court of appeals made was that it characterized this a studentspeech case. It is not. This Court has never characterized speech originating at a student‘s home
as school speech. See Layshock v. Hermitage Sch. Dist., 650 F.3d 205, 210 (3d Cir. 2011).
Rather, this case presents a straight-forward free-speech case where the speaker just happened to
be a high-school student. The school officials unconstitutionally infringed upon Jeremy‘s right
to free expression when they punished him on campus for his purely off-campus speech.
Upholding their actions under these circumstances would fundamentally alter this Court‘s First
Amendment jurisprudence.
9
1. Tinker’s substantial-disruption standard does not confer jurisdiction
on school officials to punish students for off-campus expression posted
to the Internet.
This Court first recognized students‘ right to free speech in Tinker v. Des Moines
Independent Community School District. 393 U.S. 503. There, a group of students planned to
express their objections to the Vietnam War by wearing black armbands to school. Id. at 504.
Upon learning of the students‘ plan, school officials adopted a policy that any students wearing
such armbands must remove them or face suspension. Id. The students pursued their plan and
were suspended from school until they agreed to return without the armbands. Id. Their parents
sued, arguing the discipline violated their children‘s constitutional right to free speech. Id.
In Tinker, this Court examined ―the area where students in the exercise of First Amendment
rights collide with the rules of the school authorities.‖ Id. at 507. Acknowledging the tension
existing in this area, the Court issued the famous statement that students do not ―shed their
constitutional rights to freedom of speech or expression at the schoolhouse gate.‖ Id. at 506. Yet
the Court also ―emphasized the need for affirming the comprehensive authority of the States and
of school officials . . . to prescribe and control conduct in the schools.‖ Id. at 507. The Court
balanced these competing concerns and ultimately found the suspension unconstitutional because
the students‘ plan to wear armbands did not ―concern speech or action that intrudes upon the
work of the schools or the rights of other students.‖ Id. at 508. This conclusion was based on
the fact that nothing in the record ―might reasonably have led school authorities to forecast
substantial disruption of or material interference with school activities, and no disturbances or
disorders on the school premises in fact occurred.‖ Id. at 514.
10
a.
Nothing in the Tinker opinion supports applying the
substantial-disruption standard to off-campus speech
because the case evaluated on-campus disruption caused by
on-campus speech.
Although this Court in Tinker held that the school lacked a constitutionally valid reason to
restrict the students‘ freedom of expression in that particular case, the decision acknowledged
that student speech is not absolutely protected. The fundamental premise of Tinker, however, is
that the student speech occurred at school—the students wore armbands to class. When school
officials venture ―out of the school yard and into the general community where freedom
accorded expression is at its zenith, their actions must be evaluated by the principles that bind
government officials in the public arena.‖ Thomas v. Granville Bd. of Educ., 607 F.2d 1043,
1050 (2d Cir. 1979) (preventing school district from sanctioning students for an off-campus
newspaper circulated outside school); see also Nixon v. Hardin Cty. Bd. of Educ., 988 F. Supp.
2d 826, 839 (W.D. Tenn. 2013) (holding that where speech was ―not made at school, directed at
the school, or in involved the use of school time or equipment‖ it was not on-campus speech and
traditional First Amendment standards applied).
As the United States Court of Appeals for the Second Circuit explained,
When schools are authorized only to punish speech on school property, the student is
free to speak his mind when the school day ends. In this manner, the community is
not deprived of the salutary effects of expression, and educational authorities are free
to establish an academic environment in which the teaching and learning process can
proceed free of disruption. Indeed, our willingness to grant school officials
substantial autonomy within the academic domain rests in part on the confinement of
that power within the metes and bounds of the school itself.
Thomas, 607 F.2d at 1044–45; see also Jamin B. Raskin, No Enclaves of Totalitarianism: The
Triumph and Unrealized Promise of the Tinker Decision, 58 Am. U. L. Rev. 1193, 1220 (2009)
(―[Tinker] challenges us to make the promise of democratic freedom real in all of society‘s
11
institutions, even those most determined to operate as ‗enclaves of totalitarianism.‘‖) (citing
Tinker, 393 U.S. at 506).
b.
The record contains no evidence that Jeremy purposefully
directed his speech toward the school community, which are
the type of facts some circuit courts have used to extend
Tinker’s substantial-disruption standard to off-campus
speech.
Although this Court has never done so, some courts have extended the Tinker standard
beyond the confines of the literal ―schoolhouse gates.‖ But the student‘s actions in directing the
speech to campus is what conferred jurisdiction on school officials to address the conduct. See,
e.g., Doninger v. Niehoff, 527 F.3d 41, 44–45 (2d Cir. 2008) (finding school had jurisdiction to
punish off-campus blog post where student referred to school administrators as ―douchebags‖
because student encouraged others to contact the principal to ―piss her off more‖).
The United States Court of Appeals for the Fifth Circuit recently adopted this rationale and
used Tinker‘s substantial-disruption test to evaluate Internet speech in the case of Bell v.
Itawamba County School Board. No. 12—60264, 2015 WL 4979135 (5th Cir. Aug. 20, 2015)
(en banc). That case involved the posting of a rap recording to Facebook and YouTube. Id. at
*1. The video accused teachers of molesting students. Id. But in the recording, the student
specifically named two teachers and described violent acts to be carried out against them. Id.
The context of the message indicated that the rap video encouraged action on campus. Id. at *15.
In applying the substantial-disruption standard, the appellate court relied on the fact that
[T]here is no genuine dispute of material fact that Bell intended his rap recording to
reach the school community. He admitted during the disciplinary committee hearing
that one of the purposes for producing the recording was to ―increase awareness of
the [alleged misconduct]‖ and that, by posting the rap recording on Facebook and
YouTube, he knew people were ―gonna listen to it, somebody‘s gonna listen to it,‖
remarking that ―students all have Facebook.‖ In short, Bell produced and
disseminated the rap recording knowing students, and hoping administrators, would
listen to it.
12
Id. at *15 (citations omitted). Ultimately, the court upheld the school‘s punishment of the
student based primarily on the threatening nature of the video. Id. at *18. Even so, the holding
was met with a spirited dissent, which maintained Tinker‘s substantial-disruption standard was
not appropriate for any off-campus speech:
Even in the most repressive of dictatorships, the citizenry is ―free‖ to praise their
leaders and other people of power or to espouse views consonant with those of their
leaders. ―Freedom of speech‖ is thus a hollow guarantee if it permits only praise or
state-sponsored propaganda. Freedom of speech exists exactly to protect those who
would criticize, passionately and vociferously, the actions of persons in power. But
that freedom is denied to Bell by the majority because the persons whose conduct he
dared to criticize were school teachers.
Id. at *25 (Jolly, J., dissenting) (citations omitted).
Tinker‘s substantial-disruption test, if applicable to off-campus speech at all, is wholly
inapplicable without something that is missing in this case—a specific act by the student speaker
to bring off-campus speech to campus. Thomas, 607 F.3d at 1045 (―The power [to regulate
student speech under Tinker] is denied to public school officials when they seek to punish offcampus expression simply because they reasonably foresee that in-school distribution may
result.‖). Unlike the situation in Bell, no facts demonstrate that Jeremy had any purpose or intent
for the poem to reach campus. The poem was not threatening. Under these circumstances, the
First Amendment does not tolerate a school stretching its authority into a student‘s home and
punishing her for expressive conduct engaged in while she is sitting at her computer after school.
Layshock, 650 F.3d at 216.
13
c.
The reasonable foreseeability standard some courts have used
to extend Tinker’s substantial-disruption standard to offcampus speech is unconstitutionally overbroad because the
simple act of posting speech to the Internet would invoke the
school’s authority.
Despite this Court‘s commands, some courts have given school officials jurisdiction to
discipline students if it was reasonably foreseeable that the off-campus speech would reach
campus, regardless of what the student did. See Wisniewski v. Bd. of Educ., 494 F.3d 34, 39–40
(2d Cir. 2007) (applying Tinker where it was reasonably foreseeable that the speech would reach
campus); Doninger, 527 F.3d at 51 (―[I]t was reasonably foreseeable that [the student‘s] posting
would reach school property.‖); Kowalski v. Berkeley Cty. Schs., 652 F.3d 565, 573 (4th Cir.
2011) (finding a sufficient nexus where it was reasonably foreseeable that the speech would
reach campus); Mardis v. Hannibal Pub. Sch. Dist., 647 F.3d 754, 766 (8th Cir. 2011) (finding it
reasonably foreseeable that the student‘s speech would be brought to school authorities‘
attention).
This ―reasonably foreseeable‖ standard goes too far.
Clay Calvert, Punishing Public
School Students for Bashing Principals, Teachers and Classmates in Cyberspace: The Speech
Issue the Supreme Court Must Now Resolve, 7 First Amend. L. Rev. 210, 237 (2009). Under the
standard these courts have applied, nearly anything that a student posts on the Internet is subject
to school discipline because it is reasonably foreseeable that anything posted on the Internet may
fall into the wrong hands. Id. Permitting a school to discipline students for comments made offcampus and unconnected with school events is unconstitutionally overbroad. ―The overbreadth
doctrine prohibits the Government from banning unprotected speech if a substantial amount of
protected speech is prohibited or chilled in the process.‖ Ashcroft v. Free Speech Coalition, 535
U.S. 234, 255 (2002). If a school district can punish a student for engaging in an off-campus
14
private communication with friends, outside of any school-sanctioned event or school policy,
then Tinker‘s promise of preserving the constitutionality of student speech has been eviscerated.
2. The Facebook post is outside the reach of the Fraser, Kuhlmeier, and
Morse exceptions.
Although Tinker‘s substantial-disruption standard covers the vast majority of studentspeech scenarios, this Court has created three exceptions to address specific situations when a
school may discipline student speech that is not substantially disruptive. See Bethel Sch. Dist. v.
Fraser, 478 U.S. 675, 682 (1986) (holding school did not violate student‘s free speech rights by
disciplining him for sexually-explicit speech made at school assembly), Hazelwood Sch. Dist. v.
Kuhlmeier, 484 U.S. 260, 263 (1988) (holding school did not violate student writers‘ free speech
rights by prohibiting publication of an article describing students‘ experiences with pregnancy);
Morse, 551 U.S. at 403 (holding school may discipline speech that promotes illegal drug use at a
school-sponsored event). But for these exceptions to apply at all, the speech at issue must be
student speech. And to be student speech the expression must take place on campus, at a schoolsponsored event, or as part of a school activity. See J.S. ex rel. Snyder v. Blue Mountain Sch.
Dist., 650 F.3d 915, 937 (3d Cir. 2011) (en banc) (Smith, J., concurring).
Outside those narrow exceptions, no authority permits a principal to use the power of his
office to silence criticism of a teacher—just as there is no authority for the President of the
United States to use the power of his office to punish citizens who post attacks about him on the
Internet.
Holding otherwise means that students may never enjoy the benefit of the First
Amendment—anyplace, anytime—but rather that they labor under the infirmity of second-class
citizenship so long as they remain enrolled in school.
Off-campus student speech—emanating far from school grounds or activities—is and
should remain more protected. Morse, 551 U.S. at 405 (―Had [the student in Fraser] delivered
15
the same speech in a public forum outside the school context, it would have been protected.‖). In
punishing Jeremy for his off-campus speech, the School Officials departed from this Court‘s
precedent, stepped out of the role as educators, and became the thought police of the World Wide
Web.
B. Public Policy Considerations Weigh Against Extending the Definition of
School Speech to Include Any Student-Created Expression Posted to the
Internet.
At the school officials‘ request, the court of appeals improperly extended Tinker to Internet
speech. 14th Cir. at 5, 7. This extension is unwarranted. ―Although social networks, blogs, and
text messaging are relatively new technologies, what young people do with them is, at bottom,
not that much different from what prior generations did without technology.‖ Mary Rose
Papandrea, Student Speech Rights in the Digital Age, 60 Fla. L. Rev. 1027, 1036 (2008).
More importantly, extending school authority to purely off-campus speech raises serious
public-policy concerns. Public schools cannot be expected to cure all of America‘s social ills.
There is, and must remain, a line over which school officials cannot transgress into the views and
daily lives of students and parents. That line is the schoolhouse gate, or where students cease to
act as formal representatives of the school. Outside of the schoolhouse gate, the discipline of
students away from school is the job of parents and law enforcement officers, not school
officials. See Thomas, 607 F.2d at 1051. This Court should not extend Tinker to reach offcampus, Internet speech.
1. Allowing school officials to impose discipline for off-campus Internet
speech leaves no principled limit for school authority.
If schools have the jurisdiction to sanction a student‘s off-campus Internet speech, there is
no end to what schools may regulate. School authorities would become censors of the Internet
and could sanction speech anywhere simply because the speakers are students. If ―substantial
16
disruption‖ extends to the Internet, then schools will be able to regulate student speech on any
medium due to the effect it has on other students. Speech, whether spoken from one student to
another, written in a pamphlet, or posted to the Internet, has the same ability to lead a school to
conclude that speech could cause a substantial disruption in school functionality. Thus, this
would open the door for schools to hunt for disparaging student expression wherever it exists and
cite Tinker to punish the speech.
Further, if this Court extends Morse or Fraser to internet speech, schools become ultimate
authorities on what constitutes offensive expression or promotion of illegal activity throughout
student society. These standards are broad because schools must be able to remove illegal and
offensive speech from debate in the educational setting. But if applied off campus, schools could
project their own view of offensiveness to general society. Thus, if schools feel speech is
offensive or can connect it to a particular crime, schools could punish student speakers regardless
of where or how the speech occurs. Schools would assert their interest in preventing offensive
and illegal activity, and the corresponding speech, no matter how attenuated to the school.
Extending school authority outside the school necessarily diminishes First Amendment
rights. For that reason, courts have refused to allow schools to extend their jurisdiction from the
school campus on to the World Wide Web. See Layshock, 650 F.3d at 205 (holding speech
merely directed at a student audience does not allow schools to sanction student speech); Porter
v. Ascension Parish Sch. Bd., 393 F.3d 608, 615 (5th Cir. 2004) (prohibiting school punishment
for a picture drawn and stored at home); Emmett v. Kent Sch. Dist. No. 415, 92 F. Supp. 2d 1088,
1090 (W.D. Wash. 2000) (holding a private website parodying the school not subject to school
sanction). These courts recognize that students would not feel free to exercise their First
17
Amendment rights for fear that the school will find their speech disruptive or offensive if the
school‘s jurisdiction were extended to the World Wide Web.
2. Allowing discipline for off-campus Internet speech infringes upon
parental rights.
An expansion of school authority beyond the school setting conflicts with one of the
―oldest fundamental rights protected by this Court.‖ Troxel v. Granville, 530 U.S. 57, 65 (2000)
(citing Meyer v. Nebraska, 262 U.S. 390, 399, 401 (1923)). Parents have the fundamental right
to care for and guide their children. Id.
To be sure, school officials act in place of the parent—in parens patriae—during school
hours. Pierce v. Soc’y of Sisters, 268 U.S. 510, 533–34 (1925). But once students step outside
school, their authority over student conduct reverts to the parents. Otherwise, allowing school
officials to punish student actions outside school would infringe upon fundamental rights of
parents to raise their children for two reasons.
First, parents retain full authority over children outside of school. When children act
inappropriately, parents have authority over that conduct. Troxel, 530 U.S. at 65. Parents, not
schools, have the necessary authority to sanction student messages posted to nonschool websites
from home computers. Particularly offensive messages may give rise to rights that can be
protected at law. See Calvert, supra, at 225–26. Thus, a principal defamed online may sue the
speaker to protect the principal‘s rights. Id. But the principal‘s position as a school official does
not also provide a means for punishing a student speaker. Instead, the principal may ask the
parents to discipline the child.
Second, parents have the right to determine proper sanctions for offensive speech pursuant
to their right to control the child‘s activities. When parents find student speech offensive,
parents‘ right of control authorizes them to determine proper sanctions for that speech. If parents
18
determine speech is particularly offensive, they may take steps such as grounding the student or
removing her from school and non-school activities. Schools do not gain authority when parents
are unwilling to sanction students‘ online speech. Parents determine their children‘s education,
even if they allow the posting of offensive messages online from home computers. See Pierce,
268 U.S. at 533–34. Thus, this Court should limit a school‘s authority in accordance with the
fundamental rights of parents.
3. Limiting the authority to censor off-campus expression will not
render school officials powerless to address on-campus problems.
Removing the ability for schools to regulate internet speech does not limit the school‘s
ability to deal with school problems. Students on campus who speak offensively or promote
illegal activity are still subject to school punishment. See Morse, 551 U.S. at 410; Fraser, 478
U.S. at 685. Though a school cannot punish students for online speech, the school can prevent
that speech from coming onto campus. See J.S. ex rel. H.S. v. Bethlehem Area Sch. Dist., 807
A.2d 847, 865 (Pa. 2002) (finding school had jurisdiction to punish student for website, created
off-campus, where he targeted a teacher because the student encouraged others to view the
website during school and showed website to a classmate on a school computer). Though
schools cannot punish online speakers, schools can punish any student who brings the speech
into the school setting. Therefore, schools may still educate about and prevent offensive and
illegal speech.
Further, schools may still control student activity on campus. Therefore, schools can
control student behavior threatening the school‘s functionality. A school may restrict student
access to the internet at school. It may install filters on school computers blocking certain
content. It may sanction students for viewing or disseminating disruptive content at school.
19
These remedies allow schools to prevent disruptive speech from entering schools in the first
place.
Additionally, schools are required to deal with effects of off-campus expression regularly.
Film, television, or music expression affects the lives of the people in the school. Some of this
expression may be potentially disruptive. Yet, the school must limit the effect of this expression
without limiting the expression itself. It is not an additional burden on schools to require them to
employ these measures against off-campus student expression.
Persons harmed by tortious conduct or harassment may assert their own rights against
speakers. Calvert, supra, at 225–26. Therefore, the school need not be the protector of student
rights off campus. Speech invading students‘ rights need not be tolerated, and students whose
rights have been invaded may seek redress for those violations in the state or federal courts.
Because schools protect their students from offensive, illegal, or disruptive speech and because
students may protect their rights judicially, removing the schools ability to regulate Internet
speech does not overly burden the school or substantially disrupt its mission. Thus, this Court
should not extend the school‘s jurisdiction to regulate student‘s off-campus activity on the
Internet.
II.
EVEN IF JEREMY’S POEM WAS SCHOOL SPEECH, THE SCHOOL OFFICIALS’ DECISION TO
PUNISH HIM WAS UNCONSTITUTIONAL.
Although Jeremy‘s speech took place entirely off campus, the school officials argue that
this case should be analyzed as a school-speech case. Even under this Court‘s student-speech
cases, Jeremy‘s censorship was unconstitutional.
If this Court determines the school officials had sufficient jurisdiction to regulate Jeremy‘s
online speech, the school officials bear the burden of demonstrating they could reasonably
forecast his poem would materially and substantially disrupt school activities. Tinker, 393 U.S.
20
at 513. The school officials have cited only a few minor distractions, and the apprehension that
disciplining students in the future may be more difficult. Dist. Atl. at 3; 14th Cir. at 4. These
justifications fail under the Tinker standard.
A. Jeremy’s Poem Did Not Cause Actual Substantial Disruption.
Before restricting student speech, schools must assess the speech‘s effect on core school
functions. See Tinker, 393 U.S. at 513. Only when the student‘s speech causes a substantial
disruption on the school‘s educational functionality may a school punish a student. Id.; Fraser,
478 U.S. at 682–83. A ―substantial disruption,‖ as articulated in Tinker, requires much more
than the school officials have demonstrated in this case. 393 U.S. at 513. The use of the word
substantial indicates the question is one of degree. See T.V. ex rel. B.V. v. Smith-Green Cmty.
Sch. Corp., 807 F. Supp. 2d 767, 784 (―[F]or Tinker ‗to have any reasonable limits, the word
―substantial‖ must equate to something more than the ordinary personality conflicts.‘‖) (quoting
J.C. ex rel. R.C. v. Beverly Hills Unified Sch. Dist., 711 F. Supp. 2d 1094, 1119 (C.D. Cal.
2010)). Necessarily, then, schools must tolerate some disruption and may only impose sanctions
where that disruption is, or will become substantial. See id. Here, the school officials rely on a
handful of minor distractions as evidencing a substantial disruption. Dist. Atl. at 3, 6. These
incidents fail to rise even to the level of disruption that transpired in Tinker.
In Tinker, the armbands elicited many comments and hostile remarks due to the
emotionally charged nature of the protest. 393 U.S. at 517 (Black, J., dissenting). Warnings
flew between fellow students—both in favor of the protest and against it. Id. One teacher had
his lesson ―wrecked‖ due to the disputes. Id. Nevertheless, based on that record, this Court
declared the school authorities failed to demonstrate that any disruption had occurred at all. Id.
at 514; Burge v. Colton Sch. Dist. 53, No. 3:14—00605—ST, 2015 WL 1757161, at * 4 (D. Or.
21
Apr. 17, 2015) (refusing to find that a teacher being angry, upset, or humiliated by student‘s
statements on Facebook that she was a ―bitch‖ and ―should be shot‖ was ―insufficient to
constitute a material and substantial interference with appropriate discipline at the school).
Tinker cannot be used to justify suppressing student speech in this case because the facts
there were more disruptive than those present here. The minor distractions cited by the school
officials are not the disruptions present in Tinker. Id. at 517. Here, students asked teachers
about the poem, and one teacher complained that it ―disrupted his lesson planning.‖ 14th Cir. at
8. The intermediate court below relied on this one disrupted lesson plan to find a sufficient
disruption. 14th Cir. at 8 (citing Settle v. Dickson County, 53 F.3d 152, 156 (6th Cir. 1995)).
Because a ―wrecked‖ lesson plan was not a disruption at all in Tinker, 393 U.S. at 517, the
―disrupted‖ lesson plan here does not constitute a substantial disruption. Additionally, the record
reflects only that there was in-class discussion; it does not indicate that students forced the issue
or if the teacher chose to use this as a teaching moment for the students by deciding to forego the
planned discussion for a discussion on the dangers of posting something to the Internet. If the
teacher wanted to end the discussion of the poem, she could have taken control of her classroom
and taught what was planned. Klein v. Smith, 635 F. Supp. 1440, 1441 n.4 (D. Me. 1986) (―The
Court cannot do these sixty-two mature and responsible [teachers] the disservice of believing
that collectively their professional integrity, personal mental resolve, and individual character are
going to dissolve, willy-nilly, in the face of the digital posturing of this splenetic, bad-mannered
little boy.‖).
The substantial disruption must affect the school‘s daily functionality. Tinker, 393 U.S. at
513. For example, an actual substantial disruption occurs when school authorities are forced to
abandon their ordinary tasks to devote a significant amount of time to the harm created by the
22
student‘s speech.
Doninger, 527 F.3d at 51.
In Doninger, a student posted misleading
information that a school event had been cancelled, and encouraged her fellow students to call
and email the school officials to ―piss [them] off more.‖ Id. (alteration in original). The student
body threatened a sit-in to protest the supposed cancellation of the event. Id. Her post caused
the administrators to be inundated with ―a deluge of calls and emails,‖ forcing the administrators
to miss school functions. Id. These facts, the Second Circuit Court concluded, rise to the level
of a substantial disruption. Id. at 53.
Similarly, the Pennsylvania Supreme Court found an actual substantial disruption where
because of a student created website, a teacher became so emotionally disturbed she was unable
to finish the school year. Bethlehem, 807 A.2d at 865. In Bethlehem, the student created a
complex website that made profane, derogatory, and threatening remarks about his algebra
teacher and the school principal. Id. at 851. Specifically, one webpage depicted the algebra
teacher‘s severed head dripping with blood and solicited funds to hire a hit man. Id. The teacher
was so physically and emotionally disturbed that she had to take a medical leave of absence for
the remainder of the school year. Id. at 865. Further, students expressed anxiety for their own
safety due to the website. Id. at 869. Based on those facts, the Pennsylvania Supreme Court
concluded that the website caused a substantial disruption. Id.; see also D.J.M. ex rel. D.M. v.
Hannibal Pub. Sch. Dist. No. 60, 647 F.3d 754, 766 (8th Cir. 2011) (holding that an actual
substantial disruption is demonstrated by school officials missing considerable time due to the
student speech).
Ms. Vanderweghe did not take a medical leave of absence due to the poem, and she did not
feel threatened by it. Dist. Atl. at 3. Indeed, no facts present in this case indicate that Jeremy‘s
poem pulled school officials away from their regular duties or required them to spend significant
23
time mitigating its effects, as was the case in Doninger. 527 F.3d at 51. The school officials
have not asserted being overwhelmed with calls or emails regarding the poem. A principal‘s
regular duties include responding to potential disciplinary situations, such as Chadwick did here.
14th Cir. at 3. Nothing in the record indicates that he devoted substantial time to dealing with
this incident or that it caused him to forego other school activities.
Moreover, the lower court cited the subsequent conduct of other students as evidence of an
actual substantial disruption. 14th Cir. at 8. When discussing Jeremy‘s objection to the school
officials‘ use of the conduct of others as justification for suppressing his speech, the court
reasoned that the ―‘crucial distinction is the nature of the speech, not the source of it.‘‖ 14th Cir.
at 8 (quoting Dariano v. Morgan Hills Unified Sch. Dist., 767 F.3d 764, 778 (9th Cir. 2014),
cert. denied, 135 S. Ct. 1700 (2015)). But this approach ignores fundamental tenets of First
Amendment jurisprudence.
This Court has repeatedly admonished the suppression of speech based on a heckler‘s veto.
See, e.g., Reno v. ACLU, 521 U.S. 844, 847 (1997). Using the misconduct of one student as
justification to suppress the free-speech rights of another is constitutionally offensive. Here, the
school officials appear to be using the several minor incidents as a pretext for silencing criticism
of a teacher—a motive patently forbidden by Tinker. 393 U.S. at 509.
Instead of punishing the student who is exercising his First Amendment right for the
misconduct of other students, the school should punish those who actually break the rules on
campus. Skyview did that in one instance in this case:
when the student cursed at Ms.
Vanderweghe, the student was suspended. Dist. Atl. at 3. The student who scribbled the
offensive word about Ms. Vanderweghe in the girls‘ restroom should likewise be held to
24
account. Put simply, if the school will enforce its policies against on-campus misconduct, there
is no need to suppress online speech.
Moreover, the district court below mentioned several other cases where courts found actual
substantial disruptions. Dist. Atl. at 6. For instance, an actual substantial disruption will occur
when there is a student walkout. See Corales v. Bennett, 567 F.3d 554, 560 (9th Cir. 2009).
Here, there was no walk out. Where a student‘s online speech causes the school‘s computers to
be overwhelmed with students trying to access it, a substantial disruption may occur. S.J.W. ex
rel. Wilson v. Lee’s Summit R-7 Sch. Dist., 696 F.3d 771, 774 (8th Cir. 2012). Here, no one
could access Jeremy‘s poem because he deleted it within three hours after posting it—well
before school began the next day. Dist. Atl. at 3. As a result, the school officials have failed to
show any facts demonstrating an actual disruption of school functionality.
B. School Officials Could Not Reasonably Forecast That Jeremy’s Poem Would
Cause Substantial Disruption.
Tinker established that school officials can suppress student speech where it can reasonably
forecast that the speech would substantially disrupt school operations.
393 U.S. at 509.
―Forecasting disruption is unmistakably difficult to do.‖ LaVine v. Blaine Sch. Dist., 257 F.3d
981, 989 (9th Cir. 2001). Although this is a relatively unclear standard, at minimum it ―requires
a specific and significant fear of disruption, not just some remote apprehension of disruption.‖
Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 211 (3d Cir. 2001); see also West v. Derby
Unified Sch. Dist. No. 206, 206 F.3d 1358, 1366 (10th Cir. 2000) (finding past incidents
sufficient to show specific fear of substantial disruption). The facts of this case do not support
the conclusion that a forecast of substantial disruption is reasonable.
Schools may not suppress speech out of a ―mere desire to avoid the discomfort and
unpleasantness‖ of unpopular viewpoints. Tinker, 393 U.S. at 509. In Blue Mountain, the Third
25
Circuit court held that the school failed to demonstrate any basis for forecasting substantial
disruption based on a mock profile insinuating that the principal engaged in sexual misconduct.
650 F.3d at 931. There, a pair of eighth grade students created a fake profile page about their
principal on MySpace, using a home computer. Id. at 920. The principal‘s picture from the
school website was used as the profile picture for the fake account. Id. Although the profile did
not mention the principal‘s name, school, or location, it was presented as that of a bi-sexual
school principal. Id. The profile description included vulgar sexual references and juvenile
humor. Id. Another student brought the profile to the principal‘s attention, who was upset. Id.
at 921. The school board suspended both students who created the profile. Id.
The Blue Mountain court compared the facts before it to the facts of Tinker, recited above.
Id. at 928–29. The court noted that the students took steps to make the profile private, so it could
only be viewed by them and close friends, and it was not viewable on school computers at all.
Id. at 929. Further, although the language was vulgar and the topic potentially demeaning, it was
so juvenile and nonsensical that no one took it seriously. Id. The court concluded Tinker could
not justify upholding the suspension because the facts there were more disruptive in nature than
the facts of Blue Mountain, and Tinker found a forecast of substantial disruption unreasonable.1
Id. The school board was simply trying to suppress speech that it found unpleasant. Id.
This case is similar to Blue Mountain. Jeremy created the poem on a home computer and,
although it concerned a teacher, it never mentioned her name or location. Dist. Atl. at 2–3. Like
the students in Blue Mountain, he also took steps to prevent anyone from accessing it by deleting
it from his account. Dist. Atl. at 3. Indeed, the poem was not accessible on school computers by
the time school started the next day. Dist. Atl. at 3. Unlike Blue Mountain, Jeremy‘s poem did
1
The court also concluded that Fraser did not apply because the profile was created at home, not
on campus. Blue Mountain, 650 F.3d at 932.
26
not portray Ms. Vanderweghe as a sexual deviant or anything of that nature. Dist. Atl. at 2–3.
Jeremy‘s poem is not pleasant, but it does not rise to the conduct in Blue Mountain, let alone
Tinker. At most, The school officials have demonstrated an apprehension of disruption, a mere
desire to avoid discomfort and unpleasantness.
But the suppression of the freedom of speech may not be based on an ―undifferentiated fear
or apprehension of disturbance.‖ Tinker, 393 U.S. at 508. Ms. Vanderweghe expressed concern
only that the poem might ―make it more difficult for her to maintain proper discipline in class.‖
Dist. Atl. at 3. Such a sentiment is utterly insufficient to justify the suppression of student
speech under Tinker. 393 U.S. at 508.
C. The Poem Did Not Impinge upon the Rights of Other Students.
The oft-forgotten prong of the Tinker standard is that schools may restrict student speech
that impinges upon the rights of other students. Id. The parameters of this prong are unclear,
though one court has interpreted this language to cover only independently tortious acts. Saxe,
240 F.3d at 217 (Alito, J.).
No independently tortious acts have been alleged by the
administration or by other Skyview students, so this cannot serve as justification to punish
Jeremy for his poem.
The school officials have failed to demonstrate any facts showing an actual substantial
disruption, or even reason to believe one would occur. Accordingly, their punishment of Jeremy
violated his free-speech rights.
27
CONCLUSION
This Court should REVERSE the United States Court of Appeals for the Fourteenth
Circuit‘s judgment and REINSTATE judgment of the United States District Court for the
District of Atlantis granting summary judgment that the school officials violated Jeremy‘s freespeech rights by disciplining him for off-campus speech.
Respectfully submitted,
______________________________
COUNSEL FOR PETITIONER
28