The Constitutionality of Schools' Sanctioning
Students for Derogatory E-Mails and Web Pages Phil McGargill Cyber-Law Seminar
April 2, 2002 [20020409]
I. Introduction
Imagine being a student e-mailing her friend her
personal opinions of her school. Then imagine that the school somehow
obtains that e-mail and suspends the student. Does the school have
the constitutional ability to do that? The cases that have addressed
this issue have not been unanimous. This note analyzes and attempts
to synthesize the current case law.
II. The First Amendment
"Congress shall make no law [sic] abridging the
freedom of speech."1 The Supreme Court has interpreted this in such
a way as to leave some "speech" outside the protection of the First Amendment.2
This interpretation can, and often does, lead to a difficult analysis of
the First Amendment. The whole analysis becomes even more difficult
when speech that is normally protected becomes unprotected because of who
"spoke" it.3
A. Students' Rights under The First Amendment
There are two Supreme Court cases that set out
some guidelines regarding student speech. The leading case
on Students' First Amendment rights is Tinker v. Des Moines Independent
Community School District.4 Tinker dealt with several students who wore
black armbands to their high school in protest of the Vietnam War.
The students were sent home (in effect a suspension) until they would return
without the armbands. The court stated:
"First Amendment rights, applied in light of the special
characteristics of the school environment are available to... students.
It can hardly be argued that students... shed their constitutional rights
to freedom of speech or expression at the schoolhouse gate."5
The court held that the school violated the students'
First Amendment rights and ordered that they be allowed to return to school.
The test the court used for determining when a school
can prohibit certain expressions it is as follows: there must be a finding
and showing that engaging in the forbidden conduct would materially and
substantially interfere with the requirements of appropriate discipline
in the operation of the school.6 The court never discussed on-campus
punishment for off-campus behavior and thus this question is still left
open.
The second Supreme Court case dealing with students'
First Amendment rights is Bethel School District No. 403 v. Fraser7.
Fraser, a student at Bethel, gave a speech at school, on school time and
to the students. In his speech Fraser used lewd and sexually suggestive
words and was consequently suspended for two days. Relying on Tinker,
Fraser brought suit against the school alleging, among other things, that
they violated his First Amendment right to freedom of speech. The
Fraser court distinguished Tinker on the basis that Tinker involved political
speech and the speech that Fraser gave contained lewd and vulgar language
and was not political speech. The appellate court, in Fraser, applied
the Tinker test and said that Fraser's speech did not have a disruptive
effect on the educational process and therefore the school could not sanction
Fraser. However, in Fraser, the Supreme Court does not apply the
Tinker test nor do they give any reasons as to why the disruptive effect
test does not apply at all in this case. The court finds that "[t]he
determination of what manner of speech in the classroom or in school assembly
is inappropriate properly rests with the school board."8 A simple
glance at Tinker tells us that this is not completely true. Exactly
where the school board's power ends and the court takes over when a student's
First Amendment rights are involved is unclear.
Justice Brennan, concurring, states that if Fraser
had given this speech off-campus he could not have been sanctioned simply
because the government considered his language to be inappropriate.
Taking this in conjunction with the majority opinion, which seems to take
extraordinary pains to insert "on school grounds" or "at a school function"
when discussing the appropriateness of the school's ability to punish students
for their speech, one may conclude that punishing students for their off-campus
speech is not within the powers of the school. Regardless of this, many
schools have sanctioned their students for off-campus speech.
Justice Marshall, dissenting, would have applied
the Tinker test.9 Applying this test Justice Marshall felt that the
school did not carry its burden and thus could not sanction Fraser.
This appears to be the predominant approach taken by lower courts when
a student who is sanctioned by his school for off-campus speech issue arises
before them.
B. Off-Campus Speech Cases
1. Ruling in Favor of School
Despite the now wide spread use of e-mail and the
relative ease of creating a website there is little case law regarding
students being sanctioned for their off-campus speech involving an e-mail
or website. In the few cases that have arisen the courts have consistently
purported to apply the "disruptive effect" test from Tinker; however, in
the actual application of the test at least one court has gone wildly astray.
In J.S. v. Bethlehem Area School District the court
was faced with a student who had created a website entitled "Teacher Sux".10
Within this website were several pages which made fun of two faculty members
of J.S's (the student) school. One page was dedicated to Mrs. Fulmer,
the algebra teacher, and contained crude language that was used to describe
her. There was also a page which showed Mrs. Fulmer with her head
cut off and blood dripping from her neck with a statement asking for 20
dollars to help pay for a hit-man to kill her. With regards to Mr.
Kartsotis, the principal, the site posed the question: "Why does Kartsotis
Suck?" There was a brief answer dealing with him being sexually involved
with a female principal of another school.11 There was no password
protection for the site but before someone could access the site they did
have to agree to a disclaimer which stated "that [they] were not a member
of the school district or administration and that the visitor did not intend
to disclose the identity of the website creator or intend to cause trouble
for that individual."12
The school was alerted to the website through an
anonymous e-mail. After viewing the site Mr. Kartsotis contacted
local police and the Federal Bureau of Investigation (FBI). Both
agencies conducted investigations into the matter, discovered the identity
of the creator, and both declined to pursue any charges.13 The school
expelled J.S. and the court upheld his expulsion.
The rational that the court uses to reach its conclusion
is a bit disturbing. The court cites to Tinker but does little to
actually follow it. After citing three other cases where students
were disciplined for off-campus activity the court basically concludes
that since those courts did it we can too.14 However, a closer analysis
of those three cases shows that only one truly supports the court's claim.
In Donovan, several students compiled a list of other
students that crudely described them. This list was found on school
grounds. Donovan, the student, maintained that while he did photocopy
the list it was done off-campus and therefore he could not be punished.
The big distinction is that Donovan actually brought the photocopies onto
campus and this is what the First Circuit seizes upon. In the Bethlehem
case J.S. did not do anything to bring his website onto the school grounds.
In Beussink, which is discussed in greater detail later,
the student had created a website which used vulgar language to criticize
his school. The court grants the student's preliminary injunction
request stating "...it is likely that Beussink will be able to prove that
his First Amendment rights were violated when he was disciplined by [the
school]."15 This quote is an accurate depiction of the court's tone
throughout its opinion. Nowhere in the opinion does the court suggest
that a student could be disciplined for off-campus behavior. The
question is simply never asked nor answered. Therefore, the reliance
the Bethlehem court places on Beussink is very misplaced.
The last case relied upon by the Bethlehem court is the
Fenton case. In Fenton a student who was standing in a mall parking
lot on a Sunday, shouted at a teacher "He's a prick" while the teacher
was across the parking lot. The student was given an in-school suspension
and missed a field trip because of the incident. There is no mention
of Tinker anywhere in the opinion; the court simply concludes that Fenton's
speech was fighting words thus not protected by the First Amendment, and
the school must be able to punish this behavior or there could be "devastating
consequences in the school".16 The court goes so far as to say that even
if the school made a mistake in sanctioning Fenton it is not a big deal
because the punishment was de minimus. The Supreme Court has held
that "The loss of First Amendment freedoms, for even minimal periods of
time, unquestionably constitutes irreparable injury."17 For a contrary
outcome of a very similar case see Klein v. Smith18
Unlike Fenton the court in Bethlehem never says
that J.S.'s website was not constitutionally protected speech. The
school board finds that the site constituted a threat according to the
school code but the court never addressed the issue. Even if the
court, by its ruling, was accepting the school board's finding that the
site was a threat there was not a "true threat" analysis as required by
the Supreme Court before First Amendment protection can be denied.19
Notwithstanding its reliance on the above three cases,
the court goes on to apply the "materially and substantially interferes
with the educational process" test set out in Tinker.
The majority, in the two to one opinion, states that
there was clear evidence of a material and substantial disturbance in the
educational process and most of it was in the form of psychological damage
done to Mrs. Fulmer after she viewed the site. Because the court
relies on the damage done to Mrs. Fulmer and not how an ordinary person
would have reacted, the Tinker test is being applied subjectively.
In Tinker, the Court required a showing that the armbands would disturb
the students, not that the teachers would be disturbed.20 This would
appear to require an objective "reasonable student" application of the
test.
The court goes to say that the statements made by J.S.
on his website had a "negative effect [on] other students' perception of
[Mrs. Fulmer and Mr. Kartsotis]."21 Would not any statement, which
criticized Mrs. Fulmer and Mr. Kartsotis, have the same effect on students?
In Tinker, the court stated clearly that an unpopular viewpoint could not
be prohibited for being just that, an unpopular viewpoint.22 Without a
showing that J.S.'s speech was of the variety of speech that is unprotected
by the First Amendment it is hard to see why a "negative effect" even matters.
The last piece of evidence which the court relies on
is the number of hits the website had. The facts showed that the
site had been hit 234 times. The court concluded from this that because
the faculty only knew about the site for one week prior to it being taken
down the vast majority of hits must have come from other students.23 Apparently
the court's understanding of how a website counter works was severely lacking.
A counter only counts the total number of times the site is visited; it
does not (at least the basic ones which was probably used here) discriminate
if a person has been there before. For all we know the vast majority
of hits could have come from J.S. himself as he visited his own site.
Even if all 234 hits came from students at Bethlehem school that does not
prove that there was a material or substantive disruption of the school.
Except for the few hits, which came from faculty on school premises, the
majority of hits probably came from off-campus. This is never discussed.
2. Rulings in Favor of Students
Contrast Bethlehem with Emmett v. Kent School District
No. 415.24 In Emmett the student had created what he entitled "The
Unofficial Kentlake High Home Page"25 on his own computer, at home and
without using any school resources or time. On the page he had mock
obituaries of two of his friends26 and the student asked for opinions on
who should "die" next. Soon students, faculty and staff at the school
began discussing the site. On a Wednesday a local television station
aired a story that characterized the student's site as featuring a "hit
list" of people to be killed. That night the student removed his
site from the internet. On Thursday the student was notified that
he was being placed on a five-day suspension.
The court granted a temporary restraining order (TRO)
because the school district had presented no evidence that the site was
"intended to threaten anyone, did actually threaten anyone, or manifested
any violent tendencies whatsoever."27 This goes back to the "true
threat" test urged in the dissent of the Bethlehem case. However, the court
does not say if the test should be applied objectively or subjectively
only that the school failed to show any evidence on this issue.
In granting the TRO the court also factored in, relying
on Burch v. Barker28, the fact that the student's actions were off campus.
It is unclear how much the fact that the activity was off-campus affected
the outcome, but it is clear that this court viewed it as important.
In Beussink the court granted Beussink a TRO because
he was likely to win at trial.29 Beussink was a student at Woodland
High School when he created a website from his home, using all non-school
resources or time, which was critical of Woodland's teachers, principal
and the school itself. Beussink used vulgar language to get his opinion
across and encouraged others to communicate their opinions of the school.30
While at home Beussink allowed a friend to view his website.
Some time later that friend was upset at Beussink and accessed Beussink's
site at school and showed it to a teacher.31 The principal subsequently
suspended Beussink.
While the court does take careful pains to discuss Beussink's
free speech rights, it also discusses the public policy behind protecting
students' free speech rights. In its discussion the court says that
even though, at first, it appears that the better public policy would be
to allow schools to maintain order through truncation of its students'
free speech rights, it is speech like Beussink's that is in the most need
of First Amendment protection because it is unpopular.32 The court
reiterates that the school may limit only speech that substantially interferes
with school discipline.
The court, in discussing Beussink's First Amendment rights,
applies the "substantially or materially interferes with school discipline"
test from Tinker. As discussed briefly above, the court simply states
that the school did not show that there were any substantial disruptions
at school, other than the ordinary disruption caused by the receipt of
disciplinary notes. Unlike Bethlehem and Emmett there was no threat whatsoever
from Beussink to any of the faculty or students. When the above-mentioned
factors are combined with the fact that the student's speech is probably
fully protected under the First Amendment, it is easy to see why the court
granted the TRO.
In all of the website cases there is no real discussion
of the location of the website. While the actual location of a website
is amorphous most courts, in determining if a website was "on campus" have
looked to where it was physically created, where it was accessed and who
accessed it. Generally if the site was created off-campus but was
accessed on campus by another student the courts have had a tougher time
applying Tinker and Fraser. Presumably if a student created a website at
home but accessed that website at school, a court would have no problem
applying Tinker and Fraser.
Unlike the cases discussed above which only deal with
websites, Killion v. Franklin Regional School District involves a student's
email.33 In Killion Paul, the student, composed an e-mail in which
was contained a "Top Ten" list about the athletic director (AD).
Needless to say, nothing in the list was flattering towards the AD nor
was there anything in the list that could have constituted a threat.
Paul e-mailed the list to several of his friends. Everything Paul
did, from creation of the e-mail to the sending of the e-mail, was done
at his home, on his computer and on his own time. Several weeks after
Paul sent his e-mail it was found on school grounds, apparently an undisclosed
student had brought to campus. Paul was subsequently suspended for
ten days.
The court's First Amendment analysis begins
with Tinker. In discussing Tinker, the court requires
that there be an actual or reasonable fear of disruption before the school
can suspend Paul.34 The court found that there was neither actual
nor a reasonable fear of disruption because of the list. In its analysis,
the court looks at the fact that the list had been compiled several weeks
before any school official was aware of it. The court uses this fact,
combined with the fact that there was no showing of a disruption from previous
lists disseminated by Paul on campus, to prove that the school could not
reasonably expect a disruption to occur. After its discussion of
Tinker, the court looks at the Fraser test for lewd, vulgar or profane
speech.
In analyzing Fraser the court relies heavily on
Justice Brennan's concurring opinion statement that had the student given
his speech off-campus the school could not have punished him.35 The
court goes even further to explicitly say that Paul's list does contain
lewd and derogatory language. By its holding, this court is saying
that Fraser does not apply to student speech which is completely off-campus.
Given the relative ease in creating a website or
sending an e-mail it should come as no surprise that many students are
using these avenues of expression to communicate with each other about
school. Often times these websites and e-mails find their way onto campus
and into the hands of school officials. Often the student is initially
sanctioned but if the student then brings suit the school will settle the
case.36
III. Possible Procedures for Schools to Follow in Sanctioning
Off-Campus Speech by Students
From comparing the different cases that have addressed
the issue of on-campus sanctions for off-campus speech I believe that there
is a good way for schools to approach the problem should it arise.
First, the school needs to determine if the speech
occurred on or off-campus. Generally, this step will be easy.
Next, the school needs to determine if there have been
any substantial disturbances of the educational process. Any evidence
of this disturbance should be carefully and fully documented because the
burden appears to be on the school to show the disturbance, not on the
student to show that there was no disturbance. Regardless, of the outcome
of the previous inquiry the school should make a determination regarding
if the language was lewd or obscene in conjunction with Fraser.
The reason for this is because Justice Brennan concurrence
is only dicta and he was the only member of The Court to sign it.
This means that other courts are not required to follow it, and some may
not. It would be better to at least raise it in hopes that the court
will decline to follow Justice Brennan's view.
After making both the above determinations the school
should see if the speech is otherwise unprotected by the First Amendment.
While this may not have a direct link to the issue of whether a school
can sanction a student for off-campus speech, if the speech was of the
unprotected variety a court may be more willing to uphold a school sanction.
Needless to say, if the speech constitutes a threat the local authorities
should be contacted immediately.
Regardless of the outcome of the school's investigation,
they need to be very careful if they are going to sanction a student for
off-campus speech because the pendulum is currently swinging heavily in
favor of students' rights.
IV. Conclusion
As stated previously with the use of e-mail and
websites by students increasing exponentially each year there needs to
be some clear guidelines established for schools to follow. The only
way for possible unanimity in the courts to occur would be for the Supreme
Court to step in and tell everyone what rights students have in their off-campus
speech.
Endnotes
1 U.S. CONST. amend. I.
2 Examples of speech not protected: bribery, perjury,
hate speech, libel and true threats.
3 New Jersey v. T.L.O., 469 U.S. 325, 340-342 (1985)
(Holding that the constitutional rights of students in public school are
not automatically coextensive with the rights of adults in other settings).
4 393 U.S. 503 (1969).
5 Id. at 505.
6 Id. at 509.
7 106 S.Ct. 3159 (1986).
8 Id. at 3164.
9 Id. at 3168.
10 757 A.2d 412 (Pa.Cmwlth. 2000).
11 Id. at 416.
12 Id. at 415.
13 Id.
14 Donovan v. Ritchie, 68 F.3d 14 (1st Cir. 1995); Fenton
v. Stear, 423 F.Supp. 767 (W.D.Pa. 1976); and Beussink By and Through Beussink
v. Woodland R-IV Sch. Dist., 30 F.Supp.2d 1175 (E.D.Mo. 1998).
15 Beussink at 1181.
16 Fenton at 773
17 Elrod v. Burns, 427 U.S. 347, 373 (1976).
18 635 F.Supp. 1440 (D.Me. 1986) (Student "flipped off"
a teacher off campus. Court held that speech was protected and there
was no significant disruption as required under Tinker).
19 See Watts v. United States, 394 U.S. 705 (1969).
20 Tinker at 738.
21 Bethlehem at 421.
22 Tinker at 509
23 Bethlehem at 421.
24 92 F.Supp.2d 1088 (W.D.Wash. 2000).
25 Id. at 1089.
26 This was apparently inspired by an art class in school
where the students had to write their own obituary.
27 Id. at 1090.
28 861 F.2d 1149 (9th Cir. 1988) (Holding that student
distribution of non-school-sponsored material cannot be prohibited on the
basis of undifferentiated fears of possible disturbances or embarrassment
to school officials)
29 30 F.Supp.2d 1175 (E.D.Mo. 1998).
30 Id. at 1177.
31 Id.
32 Id. at 1181-82.
33 136 F.Supp.2d 466.
34 Id. at 455.
35 Id. at 456
36 See, e.g. Joshua Robin, Judge upholds student who
posted Web parody, Seattle Times, July 19, 2000, at B5; http://www.splc.org/newsflash_archives.asp?id=66&year=1998.