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Law & Courts

Legal Issues Still Murky on Online Student Speech

By Mark Walsh — January 24, 2012 7 min read

The U.S. Supreme Court’s refusal last week to take up appeals involving school discipline of student speech on the Internet leaves the state of the law unclear for school leaders, parents, and students themselves.

“It’s disappointing, but at some point, the Supreme Court is going to have to take a case and tell us what we can and cannot do,” said James McGonigle, the principal of Blue Mountain Middle School in Orwigsburg, Pa., who was the target of a student’s harsh Web parody at the center of one of the cases the justices declined to review. “If it happens again, what do I do?”

Even champions of strong First Amendment protection for student speech, especially speech away from school, agree that this area of the law demands greater clarity. For this Supreme Court term, however, these cases represented the court’s last chance to take up the issue.

“There’s no question that schools and courts are struggling with the legal issues here,” said Witold J. Walczak, the legal director of the American Civil Liberties Union of Pennsylvania and the lawyer who represented students in two cases involving online derision of principals. “We don’t disagree with [advocates for school districts and administrators] that this is an issue ripe for Supreme Court review. But we didn’t think our cases were the best vehicles.”

‘Rock and a Hard Place’

The high court on Jan. 17 declined without comment to take up two major appeals involving student free-speech rights on the Internet. One appeal encompassed two cases decided in favor of students last June by the full U.S. Court of Appeals for the 3rd Circuit, in Philadelphia. The other appeal stemmed from a decision by the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., upholding a West Virginia school district’s discipline of a student over Internet bullying of a another student.

The appeal in Blue Mountain School District v. Snyder (No. 11-502) involved a 3rd Circuit decision that said students who ridiculed their principals online could not be punished by school authorities because the speech was created off campus and did not substantially disrupt schools.

The 3rd Circuit court held in the Blue Mountain case that a Pennsylvania middle school student’s 2007 MySpace parody depicting her principal, Mr. McGonigle, as a sex addict and a pedophile was so outlandish that no one could have taken it seriously.

In a companion case from the Hermitage, Pa., school district, the 3rd Circuit court overturned the discipline of a Pennsylvania high school student who in 2005 had created a fake MySpace profile of his principal on a computer at his grandmother’s house. The phony profile played on the principal’s purported interest in “big” things, such as smoking a “bigblunt,” being a “big steroid freak,” and having been drunk a “big number of times.”

The 3rd Circuit judges found that the profile did not cause a substantial disruption in school, and the court rejected the school district’s arguments that other facts created a nexus between the parody and the school.

In lengthy majority and concurring opinions, the 3rd Circuit judges debated whether or how to apply the Supreme Court’s precedents on student speech in school, including the landmark 1969 decision in Tinker v. Des Moines Independent Community School District. That decision upheld the rights of students who wore black armbands to school to protest the Vietnam War, a simple form of speech far removed from today’s Internet technologies.

The joint appeal on behalf of the Blue Mountain and Hermitage school districts told the Supreme Court justices that their cases presented “important and urgent First Amendment questions regarding the scope of school officials’ authority over student online speech.”

“At the moment, school officials are stuck between a rock and a hard place,” the appeal said. “They are responsible for protecting students and teachers from online harassment, but in doing so, they might trigger a lawsuit from a student claiming that his or her First Amendment rights have been violated. School officials cannot afford to wait any longer for a definitive answer.”

Social Networking

In a friend-of-the-court brief filed in support of the districts, the National School Boards Association and other education groups also had urged the justices to take up the two Pennsylvania cases.

“The explosion of social networking has changed the nature of communication so completely and so quickly for today’s youth that there is an urgent need for this court to resolve the [lower] courts’ confusion as to whether and when public schools can regulate student speech originating off campus,” the NSBA brief said. “It seems incongruous that school administrators can discipline students for minor infractions such as tardiness, but cannot stop a student—at least in the 3rd Circuit—from making a vicious, fake profile of a school employee.”

But in responding to the school districts’ appeal and the NSBA brief, Mr. Walczak of the ACLU of Pennsylvania may have successfully raised doubts in the justices’ minds about whether the 3rd Circuit cases were the appropriate ones to take up.

Mr. Walczak argued in his brief that the Hermitage appeal did not really raise the question of whether Tinker applies to students’ off-campus speech. And in the Blue Mountain case, he argued that there was an independent ground limiting the ability of a school district to discipline a student for off-campus behavior. A state law limits districts’ authority over students to “such time as they are under the supervision” of their schools, he pointed out.

Further, Mr. Walczak argued, there is no true split among the federal courts of appeals about whether Tinker applies to student off-campus speech. And the cases involving the parodies of school principals were not a good vehicle for addressing “cyberbullying,” or student Internet harassment of fellow students, he said.

“The cyberbullying issues are extremely important,” Mr. Walczak said in the interview. “But in the student [parodies of] principal cases, what you are really dealing with is hurt feelings, and historically the Supreme Court has said that is not a justification to censor speech.”

Head Scratching

But James E. Ryan, a law professor at the University of Virginia, in Charlottesville, whose Supreme Court litigation clinic filed the appeals on behalf of the two Pennsylvania districts, said, “I think I’m not the only one scratching my head” about why the high court did not grant review.

Mr. Ryan noted that the court’s refusal to take up the cases does not amount to a decision on the merits, Mr. Ryan said. “What you can take away is that the court has decided for some reason that now is not the time to step in. My sense is that the court will eventually take a case that presents these issues.”

One of the cases turned down by the Supreme Court last week did deal with cyberbullying. The appeal in Kowalski v. Berkeley County Schools (No. 11-461) involved a West Virginia student who was disciplined for creating a MySpace page targeting not an administrator but another student at her high school.

Kara Kowalski was a student at Musselman High School, in Berkeley County, W.Va., in 2005 when she created a MySpace page that suggested another female student had herpes.

School officials concluded that Ms. Kowalski had created a “hate” website in violation of school policies against harassment, bullying, and intimidation. She was suspended from school for five days and given a “social suspension” of 90 days, meaning she was barred from certain school activities, including the cheerleading squad.

Ms. Kowalski sued under the First Amendment, but both a federal district court and a panel of the 4th Circuit appellate court upheld school administrators. The 4th Circuit court said in a decision last July that “school administrators are becoming increasingly alarmed by the phenomenon” of harassment and bullying, and that “where such speech has a sufficient nexus with the school, the Constitution is not written to hinder school administrators’ good-faith efforts to address the problem.”

Guidance Needed

The appeal on behalf of Ms. Kowalski said, “This court’s guidance is badly needed.”

Perhaps because they were defending a victory in the lower courts, lawyers for the West Virginia school district took a bit of a contrary view on the idea that Supreme Court intervention on the issue of student Internet speech was urgently needed.

“Cases involving off-campus student speech are not flooding the lower courts,” the Berkeley County district’s brief said. In the few cases that do exist, it added, “there is no indication that the lower courts are having trouble grappling with” applying existing precedents.

Stephen Wermiel, a fellow in law and government at the law school of American University, in Washington, speculated that the justices may have viewed the Pennsylvania and West Virginia cases as too fact-specific.

“But that said, I think there is uncertainty around the country on how the disruption-of-school standard from Tinker applies when you are dealing with student speech that takes place on the Internet outside of schools,” he said. “These issues are not going to go away.”

Coverage of leadership, expanded learning time, and arts learning is supported in part by a grant from The Wallace Foundation, at www.wallacefoundation.org.
A version of this article appeared in the January 25, 2012 edition of Education Week as Speech Cases Turned Aside By High Court

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