EdLawConnect Blog

While school administrators are undoubtedly aware that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," student speech posted on the internet berating administrators and teachers can have the potential of being extremely offensive and demeaning and create embarrassment to those who are targeted. The question then becomes, when can a student's off campus speech in which insults about school administrators and teachers are posted on a social media or other public website be restricted?

According to a recent California Watch article, a free speech controversy erupted in a San Francisco high school after three seniors were disciplined for posting comments on Tumblr, a social media website and a blogging platform, called "Scumbag Teachers." Some of the comments allegedly linked to the students included: "Teaches Pink Floyd for 3 Weeks; Makes Final Project Due In 3 Days" and "Nags Student Govt About Being On Task; Lags On Everything." The students were reportedly accused of cyberbullying as a result of the online posts and were suspended and banned from graduation and prom. In addition, one student was no longer permitted to participate in student council. After the Asian Law Caucus and the ACLU of Northern California subsequently became involved and claimed that the students were not given due process, the District reinstated the students and removed the disciplinary actions from the students' records. The civil rights groups also claimed that the students' acts did not meet the legal definition of cyberbulling and that they were not disruptive of the school environment.

Under Tinker v. Des Moines Indep. Cmty. Sch. District (1969) 393 U.S. 503, and a long line of subsequent court precedent upholding its analysis, it is clear that a school may regulate a student's speech or expression if the speech causes or is reasonably likely to cause a material and substantial disruption to school activities or to the work of the school. Tinker involved on-campus speech (students wearing black arm bands to protest the Vietnam War), but numerous courts have extended the analysis to off-campus speech that subsequently makes it way onto campus. While schools do not have to wait for actual disruption to occur under the Tinker analysis, there must be facts to support a substantial risk of disruption. Moreover, some courts have required a nexus between the off-campus speech and school, such as it is reasonably foreseeable that the speech would reach campus.

Earlier this year, the U.S. Supreme Court denied review of two student internet speech cases decided by the U.S. Court of Appeals for the Third Circuit in which students insulted a teacher or administrator off-campus in an online forum, J.S. v. Blue Mountain School District (2011) 650 F.3d 915, and Layshock v. Hermitage School District (2011) 650 F.3d 205. In both cases, the students were disciplined and then subsequently sued their respective school districts, claiming that the districts had infringed upon their First Amendment free speech protection.

In Layshock, a fake MySpace profile was created off campus, during non-school hours. The student copied and pasted a photograph of the principal from the school's website, and the site included several references to the principal drinking, using marijuana, and using steroids. The site also included the principal answering questions with comments like "big whore" and "big fag." The site did not include any violence or threats.

The website did have an impact on the school, but District counsel conceded that there was not a substantial disruption and that the District was punishing the student because he created the insulting profile about the principal. Students accessed the website on school computers, and students were seen by a teacher gathered around a computer "giggling." The student who created the site allowed access by listing other students as "friends." Word of the fake site reached "most, if not all" of the students in the school. Three other students then created other vulgar and more offensive fake profiles of the principal on MySpace. The school limited student access to computers to where there was supervision. Computer access was limited for several days and computer classes were canceled. Despite these facts, the trial court found that the District could not establish a sufficient nexus between the student’s speech and substantial disruption of the school environment, and the district did not challenge that finding on appeal.

Similarly, in J.S., two eighth grade students created a fake MySpace profile about the principal which did not identify him by name or school but did contain his official photo from the school district website. The profile contained crude content, vulgar language, and personal attacks on the principal and his family. The content was so outrageous that no one took it seriously. The profile was publicly available for one day and then was changed to be private so only those invited to be a "friend" could see it. The Court of Appeals held that the school district violated the student's First Amendment free speech rights when it suspended her for speech that caused no substantial disruption in school and that could not reasonably have led school officials to forecast substantial disruption in school. In coming to this conclusion, the court noted that district counsel conceded there was not a substantial disruption in the school and that the parody was so outrageous that no one would take it seriously. The court also noted that the student took specific steps to make the profile "private" so that only her friends could access it.

These cases, along with other cases considered by the nation's courts, provide administrators with some important guidelines when it comes to determining whether a student’s speech is protected speech. Namely, an intent to prevent embarrassment or discomfort that comes with an unpopular viewpoint is not enough to justify a school's restriction of student speech. Violent or threatening internet postings and/or speech that is abusive and harassing toward students are more likely to be seen as a disruption of the school and are, therefore, easier to regulate.

Notwithstanding the above, California Penal Code section 528.5 allows victims of unlawful internet impersonation to sue for money damages and other relief in a civil court against perpetrators. Accordingly, schools should educate students and their parents about the risks involved with impersonating someone else on the internet. These risks include monetary damages, computer forfeiture, attorneys fees and punitive damages.