The Lawletter Vol 36 No 1, September 9, 2011
Steve Friedman, Senior Attorney, National Legal Research Group
Although the First Amendment rights of public school students are not coextensive with those of adults, it is clear that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969). Rather, student speech can be regulated only if it "materially and substantially interfere[s] with the requirements of appropriate discipline in the operation of the school [or] collid[es] with the rights of others." Id. at 513.
Yet "Tinker's 'schoolhouse gate' is not constructed solely of . . . bricks and mortar." Layshock ex rel. Layshock v. Hermitage Sch. Dist., No. 07-4465, 2011 WL 2305970, at *9 (3d Cir. June 13, 2011) (en banc). What about students' off-campus speech over the Internet regarding somebody or something associated with the school? Two federal circuit courts of appeals have recently grappled with this issue on substantially similar facts, and although both courts used the same analysis, the courts reached opposite conclusions. Compare Layshock, 2011 WL 2305970, and J.S. ex rel. Snyder v. Blue Mtn. Sch. Dist., No. 08-4138, 2011 WL 2305973 (3d Cir. June 13, 2011) (en banc), with Kowalski v. Berkeley County Schs., No. 10-1098, 2011 WL 3132523 (4th Cir. July 27, 2011).
In each of the three cases, while off campus, a public high school student created a MySpace account from a private computer—an activity wholly unrelated to any official school-related activity—for the purpose of mocking a fellow student or school administrator and then invited his or her friends to view and post material in an interactive fashion. All three students admitted to having created the respective online material, and all three students were disciplined for their actions, thus precipitating the lawsuits.
Clearly, the critical distinction between the Third Circuit cases and the Fourth Circuit case was whether the students' actions were deemed to have substantially disrupted the school environment. In the Third Circuit cases, either the defendant conceded that the plaintiff's actions had not caused substantial disruption in the school, or the defendant failed to establish that the plaintiff's actions had caused substantial disruption in the school. By contrast, in the Fourth Circuit case, the court focused on the fact that the plaintiff's speech constituted "bullying" of a fellow student, thus warranting the school's reaction to the speech.
Nevertheless, there may be enough of a circuit split on this issue that it will ultimately be decided by the U.S. Supreme Court. Compare Layshock, 2011 WL 2305970, at *9 ("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 that it can control that child when he/she participates in school sponsored activities."), with Kowalski, 2011 WL 3132523, at *7 ("Kowalski indeed pushed her computer's keys in her home, but she knew that the electronic response would be, as it in fact was, published beyond her home and could reasonably be expected to reach the school or impact the school environment.").
In any event, as acknowledged by both courts, these opinions did not fully define the outer limits of a student's online freedom of speech. Given the explosive growth of online social networking in recent years, this is likely to be a fertile ground for litigation in the coming years.
