Imagine that you discover that a student in your district maintains a blog, and on that site says things about staff members or other students which are hurtful or offensive.  If those things were said during school hours, they could be punished under your Code of Conduct.  Does the fact that the statement is made online change anything?

In reality, chances are that somebody has said something on the internet about your school district.  The target of the communication may be a school administrator, teacher or a student.  Given the popularity of personal computers and the possibility that a student has a computer in his or her own room, the use of which is unsupervised by parents, it is entirely likely that a student’s own writings on the internet were conducted wholly off-school grounds and without the assistance of any other individuals.

In recent years, school districts have begun to grapple with addressing new forms of student speech in relation to their written Codes of Student Conduct.  In turn, courts have also struggled to apply traditional First Amendment analysis to internet-based speech. 

As a starting point, the U.S. Supreme Court has long recognized that students retain First Amendment protection while in school.  In the landmark 1969 Tinker decision, the Court held students were permitted to wear black armbands to protest of the Vietnam war without disciplinary reprisal from school officials, and stated that unless the student speech activities could be shown to “materially and substantially disrupt the work and discipline of the school,” it would be protected by the First Amendment.  Pennsylvania has codified this principle at 22 Pa.Code 12.9.

Following the Supreme Court’s reasoning in Tinker, courts have clarified the “material and substantial disruption” standard and prohibited certain types of student expression while protecting other kinds.  One distinction often made in cases involving student speech and conduct is whether the speech or conduct occurs on school grounds.  Of course, speech in the form of websites or postings frustrates this distinction because the speech can be created off campus on a student’s home computer, and yet can be brought onto school grounds by students or staff members accessing the internet via school computers, either with or without the invitation or knowledge of the student who created the speech.  Courts have decided the reported student internet speech cases under the Tinker standard of whether school operations are materially and substantially disrupted by the speech.  Unless a district can establish that the speech disrupted school order and operations, a student cannot otherwise be punished. 

In Killion v. Franklin Regional School District (2001), a student compiled a derogatory “top ten” list about the district’s athletic director on his home computer but never distributed it in school, either electronically or by hard copy.  Another student who obtained a copy by e-mail at home distributed it on school grounds.  The District suspended the student who wrote the list for ten days.  The Court held the district’s action in suspending the student violated the student’s First Amendment free speech rights because the District produced no evidence that the list disrupted or could potentially disrupt the school’s educational mission or hampered discipline.  The Court concluded that absent exceptional circumstances, the District could not discipline a student for lewd, vulgar or offensive speech occurring off District grounds.

A Pennsylvania case from August, 2005 also applied this line of reasoning to speech which is aimed at fellow students.  In Latour v. Riverside-Beaver School District, the Court held that a school district could not expel a student for posting violent rap lyrics on a personal website which specifically named and threatened classmates.  Because the student had not otherwise been involved in violent incidents, and because the lyrics were found to be “metaphor” and not true threats, the district could not otherwise establish that the lyrics materially disrupted school operations.  The Court denied the parents’ request for a Preliminary Injunction to the discipline imposed by the District.

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Alfred Maiello

Alfred C. Maiello is the founding member of MBM and has represented area school districts as solicitor for 50 years. He counsels school districts and educational institutions on leading developments in school law and guiding them through their day-to-day and long-term challenges.