There have been a few high profile cases recently reviewed by the courts, and summarized in the media, where students have sued their schools arguing that discipline they received as a result of improper online speech was a violation of their First Amendment right.  The most recent case involved a former Florida high school student, Katherine Evans, who created a Facebook page called “Ms. Sarah Phelps is the worst teacher I’ve ever met!” and encouraged other students to “express [their] feelings of hatred.”  Evans was suspended for three days and removed from her AP classes under a policy prohibiting the bullying and cyberbullying of staff.  With the help of the American Civil Liberties Union, the student sued the principal.  Judge Barry Garber ruled in favor of the student, saying the school overstepped its authority in disciplining Evans.

Two other recent cases involved similar facts.  In 2005, 17-year-old Justin Layshock created a “nonthreatening, non‐obscene parody profile making fun of the school principal.”  While the school’s disciplinary action (10 day suspension) was initially upheld in a 2006 hearing, the judge in the case later reversed himself, saying the school went too far.  In February of 2010, the 3rd U.S. Circuit Court of Appeals weighed in and agreed.  In 2007, a 14-year-old student from Pennsylvania was disciplined for creating a profile calling her principal “a sex addict and pedophile.”  In this case, the court upheld the actions of the school.  These differing opinions seemingly left everyone wondering what the standard really is.  But in all of these cases, it came down to whether or not the speech resulted in a substantial disruption at school.

Sameer and I discuss the issue of student speech quite often in our workshops for educators, because it is such a tricky matter.  And we hear many examples where students create inappropriate profiles online directed toward other students or staff.  In fact, earlier this week a mother called me to seek my assistance in helping to remove a Facebook page that her son had created disparaging a teacher at his school.

It is important to acknowledge that students certainly do have free speech protections under the First Amendment to the U.S. Constitution.  It must be noted, however, that when at school, student speech can be restricted much more than if the student was not physically on campus.  A large body of case law has established that schools can discipline students, and restrict their speech at school, as necessary to maintain an appropriate learning environment (see, for example, Bethel School District v. Fraser, 1986 and Hazelwood School District et al. v. Kuhlmeier et al., 1988).  To be sure, case law has also focused on limiting the ability of educators to restrict speech to only that which occurs on school grounds (see Thomas v. Board of Education, Granville Central School District, 1979).

That said, technology has once again created gray areas with respect to these principles.  What about student speech that occurs away from school but that clearly has some impact on the school?  For example, what if a student creates a web site, from home, using their own personal computer, where they harass a student or criticize a staff member?  This is off-campus speech that clearly affects the school.  While there has been some inconsistency, the courts have generally ruled that in order for educators to intervene in off-campus incidents, they must demonstrate that the speech or behavior caused, or has a great likelihood of causing, a substantial disruption at school.  Just because a teacher or administrator is upset by student speech that occurs off-campus, it doesn’t give them the authority to formally discipline the student(s) involved.  To be sure, school officials ought to contact the parents of the offending party and explain to them the problems with such speech (and hopefully, the parents will take care of it from there).  Moreover, even though the school’s proverbial hands might be tied, the target of the harassing off-campus content has the ability to pursue civil remedies for defamation, intentional infliction of emotional distress, or false light.  The point is that there are other ways to make sure the student responsible will be held accountable.

I have to say that I am concerned by the media attention given to these cases because I am afraid that schools will get the wrong impression and interpret these rulings as evidence that they cannot take actions in any incidents that occur away from school.  And this is simply just not true.  In all cases they have the right to take informal action (calling parents, talking to the students involved, expressing dissatisfaction with the behaviors, an extracurricular sanction such as a temporary ban from participating in a sport or club, or capitalizing on the teachable moment by educating the school body about appropriate discourse).  If they can demonstrate a clear link to a substantial disruption at school, they can definitely take more formal actions.  Schools generally get into trouble when they respond with knee-jerk formal reactions (long-term suspensions or expulsions) without carefully considering all of the facts of the case.

In short, students do have the ability to engage in free speech, but when that speech significantly interferes with the school’s ability to provide a safe and secure learning environment for its students, it falls within the reach of a school’s disciplinary arm.  These issues are discussed in more detail in our book and a paper we have forthcoming in the journal Preventing School Failure.  We also have a fact sheet that details more of the legal and policy implications of these and other rulings.