SALON

Wednesday, Jun 15, 2011 5:16 PM UTC

Can students be disciplined for online speech?

Two students win in court against school administrators; the wider implications of their victories are unclear

By

Topics: First Amendment, Education, Internet Culture, Privacy,

Can students be disciplined for online speech?

“It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” These famous words come from the Supreme Court’s ruling in the 1969 case of Tinker v. Des Moines. In the decades since that sentence was written, however, new questions about students’ First Amendment rights have emerged. One of the most pressing: Does a school have any right to restrict student speech when it occurs beyond the schoolhouse gates — specifically, in cyberspace?

If a high-schooler uses an off-campus computer to create offensive material that relates to his or her school life — writing nasty messages about school administrators or fellow students, for instance — is his or her speech still protected?

On Monday, the U.S. 3rd Circuit Court of Appeals ruled that two students — each of whom had created an unflattering mock MySpace profile for a school official — had been unfairly disciplined by their respective school districts. In both cases, whatever disruption the students’ actions had caused was simply not profound enough to merit school involvement, the court decided. It was a victory for these students, and all others whose online speech is objectionable but not “substantially” disruptive. (For some, of course, the ruling is not so rosy: As Wired notes, the rights of those students who do seriously disrupt school life can still be restricted by administrators).

Expressing the unanimous opinion of the court in Layschock v. Hermitage School District, Chief Judge Theodore A. McKee wrote:

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.

Of a dissenting voice in the second case, J.S. v. Blue Mountain School District, Education Week’s Mark Walsh adds:

[Judge Michael D.] Fisher, … noted the ever-growing impact of social-networking sites and mobile communications devices. He questioned whether the “schoolhouse gate” noted in the U.S. Supreme Court’s seminal student speech case, Tinker v. Des Moines Independent Community School District, was defined as a physical barrier anymore.

“The majority embraces a notion that student hostile and offensive online speech directed at school officials will not reach the school,” Judge Fisher said. “But with near-constant student access to social networking sites on and off campus, when offensive and malicious speech is directed at school officials and disseminated online to the student body, it is reasonable to anticipate an impact on the classroom environment.”

Of course, neither of these rulings represents the final word on the issue of student speech; there is still plenty of room for debate, and there will doubtless be further cases. The ruling opinion in Layschock states outright that the “precise parameters” of school authority have yet to be defined:

We need not now define the precise parameters of when the arm of authority can reach beyond the schoolhouse gate because, as we noted earlier, the district court found that Justin’s conduct did not disrupt the school, and the District does not appeal that finding.

You can read the court’s two opinions here and here.

Emma Mustich is a Salon contributor. Follow her on Twitter: @emustich. More Emma Mustich.

Next Article

Related Stories

More Related Stories

Featured Slide Shows

The week in 10 pics

close X
  • Share on Twitter
  • Share on Facebook
  • Thumbnails
  • Fullscreen
  • 1 of 11
  • Lisa Montgomery embraces her nephew Thursday after a tornado tore apart her home in Cleburne, Texas. The twister killed six people and destroyed entire swaths of the North Texas town.
    Credit: AP/LM Otero

  • Jack McMahon, the defense attorney for abortion doctor Kermit Gosnell, speaks outside the Criminal Justice Center in Philadelphia Tuesday. His client was convicted of killing three babies in his clinic, and will serve multiple life sentences.
    Credit: AP/Matt Rourke

  • A photo taken Monday captures Vice President Joe Biden's response to a Milwaukee second-grader's innovative proposal to end America's epidemic of gun violence. This guy!
    Credit: AP/Jenny Aicher

  • Sen. Rand Paul, R-Ky., flanked by a grouper-eyed Michele Bachmann, addresses the IRS' admission that it targeted Tea Party groups in advance of the 2012 election. In an op-ed for CNN Thursday, the Kentucky senator slammed the president for his faux outrage.
    Credit: AP/Molly Riley

  • Ousted IRS chief Steven Miller is sworn in on Capitol Hill Friday. Miller testified before the House Ways and Means Committee on the extra scrutiny the agency gave conservative groups applying for tax-exempt status.
    Credit: AP/J. Scott Applewhite

  • Attorney General Eric Holder pauses as he testifies on Capitol Hill before the House Judiciary Committee Wednesday. Holder is under fire, among other things, for the Justice Department's gathering of phone records at the Associated Press.
    Credit: AP/Carolyn Kaster

  • O.J. Simpson sits during an evidentiary hearing at Clark County District Court in Las Vegas, Nev., Thursday. Simpson, who is currently serving a nine-to-33-year sentence in state prison for armed robbery and kidnapping, is using a writ of habeas corpus to seek a new trial.
    Credit: AP/Las Vegas Review-Journal/Jeff Scheid

  • Major Tom to ground control: On Sunday astronaut Chris Hadfield recorded the first music video from space, a cover of David Bowie's "Space Oddity."
    Credit: AP/NASA/Chris Hadfield

  • When it rains it pours. President Barack Obama speaks during a news conference Thursday with Turkish Prime Minister Recep Tayyip Erdogan, inexplicably inspiring an #umbrellagate Twitter meme.
    Credit: AP/Jacquelyn Martin

  • A smoke plume rises high above a road block at the intersection of County A and Ross Road east of Solon Springs, Wis., Tuesday. No injuries were reported, but the the wildfire caused evacuations across northwestern Wisconsin.
    Credit: AP/The Duluth News-Tribune/Clint Austin

  • Recent Slide Shows

  • Share on Twitter
  • Share on Facebook
  • Thumbnails
  • Fullscreen
  • 1 of 11

Related Videos

Comments

 19 Comments

Comment Preview

Your name will appear as username

You may use these HTML tags and attributes: <a href=""> <b> <em> <strong> <i> <blockquote>

follow salon

Most Read

Popular on Reddit

links from salon.com

vote
FBI reportedly joins Bachmann campaign finance probe
210 points211 points | 9 comments
vote
Jon Karl makes things worse: He regrets “inaccurate” Benghazi email but says his story based on it “still entirely stands.” Really. ABC News?
185 points186 points | 29 comments
vote
Paul Krugman’s right: Austerity kills. "In an economy where we’re all in the same boat, one person’s spending is another person’s income. So when the government cuts spending, it reduces people’s income, leading to less business, more unemployment, and a vicious spiral of slowing down the economy."
163 points164 points | 96 comments
vote
“Jodorowsky’s Dune”: The sci-fi classic that never was.
71 points72 points | 15 comments
vote
Doug Henwood: Capitalism Thrives on Class Exploitation
43 points44 points | 5 comments

From Around the Web

Presented by Scribol
listener_new_rect The Listener: So long, Sookie Stackhouse

Recommendations