The Internet has put powerful new teaching tools into the hands of teachers, but it has also put a new vehicle of expression that can be turned against teachers and schools into the hands of students. The immediacy of access, the ease of creating and posting to Web sites, and the illusion of anonymity have made the Internet the forum of choice for angry, frustrated, discontented, or just plain nasty students.
Teachers and administrators who are criticized, ridiculed, or even threatened in postings to student-created Web sites are understandably upset and angry. Many feel powerless to defend themselves because the offensive expression, often embellished with suggestive graphics, originates from unnamed sources outside the school, sometimes with obvious parental assistance. Does the disciplinary arm of the school extend to this out-of-school expression? How should schools and school districts react to these student Web sites? What, if anything, can individual teachers and administrators do?
First Amendment Rights
Students, even minors, have a constitutionally protected right to express their opinions, just as adults do. In the school setting, however, that right is often circumscribed by the greater right and duty of the schools to maintain discipline and to educate all students. As the U.S. Supreme Court enunciated in Tinker v. Des Moines Independent Community School District (1969), neither students nor teachers "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate" (at 506).
But the First Amendment protection available in public schools is a subset of First Amendment rights "applied in light of the special characteristics of the school environment" (Tinker v. Des Moines Independent Community School District, 1969, at 506). When student expression materially and substantially disrupts school operations, the school may suppress that expression, even if it originates outside the school.
What does it mean to disrupt school operations? Is it enough that students gain access to the Web site in school? How many students have to see it? Does the Web site have to contain obscene or threatening language? Or are lewd and insulting comments enough? What does suppress mean? Can the school merely order the student creator to remove the offensive Web site, or can the school suspend or expel the student? The courts have not yet definitively resolved these issues, but early decisions came down heavily against school districts.
Cautionary Tales
One of the first widely publicized lawsuits arose after a Missouri high school suspended a student who created an Internet home page that criticized his school administration and invited readers to call the high school to express their opinions (Beussink v. Woodland R-IV School District, 1998). The student, Brandon Beussink, created the home page outside of school time on his home computer. The Web site caused no documented disturbance at his school. The principal suspended Beussink for 10 days, however, and ordered him to "clean up" or "clean out" the home page.
The student removed the home page from the Internet and served the suspension, but his suspension caused his grades to drop significantly. The American Civil Liberties Union (ACLU) brought suit on behalf of the student and his parents, seeking an injunction to prevent the school from using the student's suspension as a mechanism to lower his grades. Citing Tinker's "materially and substantially interfere[s]" standard, which states that unless "engaging in the forbidden conduct would materially and substantially interfere with the requirements of appropriate discipline in the operation of the school, the prohibition cannot be sustained" (Tinker v. Des Moines Independent Community School District, 1969, at 509), the court ruled that the principal's simply disliking or being upset by the content of a student's expression was not an acceptable justification for limiting it.
After the Beussink decision, the mere threat of American Civil Liberties Union intervention prompted several school boards to reexamine their disciplinary actions. In May 1999, in the wake of the Columbine shootings, an Ohio school board suspended 11 students from Field High School in Brimfield after the students designed and contributed to a gothic Web site. The school board decided not to expel the students after the American Civil Liberties Union became involved.
Similarly, a school board in Washington state suspended a group of Eastlake High School students who created a Web site, the Eaztlake Phantom, a popular out-of-school forum for discussion of student issues, after a student from Arizona published a death threat on the site. The school board reversed its decision after the American Civil Liberties Union intervened.
Other cases resulted in lucrative outcomes for the student Web entrepreneurs, at the expense of their school districts. An Ohio school board suspended a high school band member, Sean O'Brien, who ran a photo of his band teacher with insulting personal comments about the teacher on his home-based Web page. Sean and his parents sued the district for $550,000 in damages, alleging First Amendment violations. The parents and the district ultimately reached an out-of-court settlement—in which the district acknowledged that it had "overlooked" the First Amendment—and paid Sean and his parents $30,000.
A suburban Seattle school board also had to pay after it disciplined a student, Nick Emmett, who posted humorous fake obituaries on a Web site—the Unofficial Kentlake High Home Page—which he had created at home with his father's assistance. Students, as well as some teachers at school, reacted favorably to Emmett's Web site, but Emmett and a fellow student closed the site voluntarily after a reporter interviewed Emmett and suggested that his site was a hit list. The high school principal ordered Emmett's emergency expulsion pending an investigation and ultimately suspended him for five days.
District Court Justice John C. Coughenour ruled that students' distribution of nonschool-sponsored material cannot be prohibited on the basis of "undifferentiated fears of possible disturbances or embarrassment to school officials" (Emmett v. Kent School District, 2000, at 1090). The court stated that Emmett would likely win the case on the merits that his suspension violated his First Amendment rights because the Web site was outside the district's supervision and control. In addition, the district failed to show that the student intended to threaten anyone, did threaten anyone, or manifested any violent tendencies at all. The judge issued a temporary restraining order, and the American Civil Liberties Union ultimately negotiated a settlement in which the district agreed to forego disciplinary action and to pay Emmett's attorneys' fees.
Educators' Rights
- The district can show a direct link between the student expression and school disruption, and
- The disciplinary action imposed by the district is taken for the right reason.
A recent decision in Pennsylvania underscores these points and gives hope that the courts will be willing to back districts that have done their homework by taking a proactive stance against offensive and abusive student expression.
The Pennsylvania case began when J. S., a middle school student in the Bethlehem Area School District, created a Web site on his home computer entitled Teacher Sux. The Web pages included unflattering and offensive comments about his principal and showed his algebra teacher with her head severed and bloody and her face morphing into Adolf Hitler's face. J. S. wrote on the Web pages that the teacher should die and solicited contributions that would enable him to hire a hit man.
When the principal discovered the Web site, he suspended J. S., and the school board ultimately voted to permanently expel him. J. S.'s parents brought suit in the Northampton County Court of Common Pleas, seeking to overturn the district's expulsion order. When the county court upheld the school district's action, the parents appealed to the Commonwealth Court, alleging that the district violated their son's constitutional rights, committed errors of law, and lacked substantial evidence that J. S. had threatened and harassed either the principal or the teacher.
In July 2000, Senior Judge Jess Jiuliante of the Pennsylvania Commonwealth Court again affirmed the district's decision to expel J. S., finding first that the district had not violated the student's constitutional rights. Citing Tinker and related cases, Jiuliante strongly supported the right of the school district to discipline students for expressive conduct occurring outside of school "where it is established that the conduct materially and substantially interferes with the educational process" (J. S. v. Bethlehem Area School District, 2000, at 421). The teacher's testimony that she was so physically and emotionally upset after viewing the Web site that she could not return to school, the fact that she ultimately sought a yearlong medical leave of absence, and the principal's testimony that allegations about him on the Web site damaged his reputation and diminished his respect in the school community established the requisite interference with the educational process. Moreover, the court noted, "lewd, obscene, profane, libelous and insulting" speech is not constitutionally protected (J. S. v. Bethlehem Area School District, 2000, at 421).
Perhaps the most instructive part of the Pennsylvania court's decision for school districts is the court's dismissal of the allegation that the district had committed errors of law in expelling J. S. When the principal first learned of J. S.'s comments on his Web site, he contacted the local police and the Federal Bureau of Investigation. The two agencies investigated and identified J. S. as the author of the site, but neither was able to bring charges because J. S.'s polemics did not fit the legal definition of harassment or threats under the Pennsylvania Crimes Code.
Moreover, the burden of proof under the Code was significantly higher than that for district proceedings. The parents maintained that the disclaimer their son had posted at the beginning of his Web pages—cautioning staff and administrators of his school not to look at the site—indicated that he had not meant to threaten anyone.
In upholding the district's disciplinary actions against J. S., the Commonwealth Court noted that the district had in place a well-articulated Code of Conduct that identified threats and harassment as Level III offenses; and, equally important, that the district had specifically defined both terms in clearly understandable language and had communicated the Code to the student body. As for the Web site disclaimer, the court said it was of no legal significance.
Both the principal and the teacher have brought suits against J. S. and his parents, charging J. S. with defamation and intentional infliction of emotional distress, and his parents with negligent supervision. Allentown's (Pennsylvania) Morning Call newspaper announced on November 2, 2000, that the court had decided the teacher's lawsuit in her favor, awarding her $500,000 damages. The damages were not awarded for defamation, but for invasion of privacy and negligent supervision by J. S.'s parents. The judicial decision is not yet published. J. S.'s family may, of course, appeal both the decision and the award.
Whatever the ultimate outcomes, the casualties have already occurred. J. S.'s educational prognosis is uncertain; his parents have likely become alienated from public education. The principal testified that the year following publication of J. S.'s Web site was the worst school year he had experienced in 40 years in public education. The teacher's whole life changed as a result of the Web site publication: She lost a full year in the classroom and suffered stress, anxiety, short-term memory loss, and depression. Both educators now face protracted legal battles.
What Schools Can Do
Unfortunately, the lure of the Web as a forum for students to vent seems destined to wax, not wane. Adolescent expressions of frustration and discontent that used to be furtively whispered in hallways and cafeterias are now being graphically displayed on Web pages, along with much darker feelings that educators must take seriously. Perhaps putting these feelings into words is therapy for the students, but at what cost to their teachers and administrators?
Because Americans prize freedom of expression, however, educators must respond in a legally defensible way. School officials must proceed deliberately and carefully in responding to offensive school-related materials that students post on home-based Web sites. First, school districts must be prepared to document a link between out-of-school, student-created Web sites and school activities. Second, districts must document material and substantial disruption of day-to-day school activities or interference with the educational process caused by the publication of the Web site. Finally, districts should take steps to put into place a student code of conduct that clearly and specifically puts students on notice both about acceptable behavioral expectations and about the consequences for failure to meet those expectations. Every term in the code should be explicitly defined, and illustrative, noninclusive examples should be cited.
As new and more affordable technologies make Internet access more easily available to students, court cases involving student Web sites and educators will likely grow. The courts will continue to explore ways to preserve the rights of both students and educators. In the meantime, schools should remain aware of pertinent legal cases and seek ways to protect themselves and their students.
