November 4, 2015
School administrators have the unenviable responsibilities of both educating our youth and keeping them safe. As school violence continues to make national headlines administrators are increasingly wary of “off-campus student speech” – think social media postings – made by their students. How do we balance a school’s need to maintain discipline in the school-setting, with the student’s first amendment rights to free speech? Do we as a society allow schools to take a more authoritarian approach to disciplining our youth given the spate of violence, or do student’s free speech rights trump the school’s ability to discipline students for conduct that occurs away from the school yard?
The United States Supreme Court established the standard for “on-campus” speech regulation in 1969 in Tinker v. Des Moines. In that decision, the Supreme Court decided that students who wore black armbands to school in protest of the United States’ involvement in the Vietnam War did not materially or substantially interfere with the operation of the schools or collide with the rights of others. The Court issued the now oft-quoted refrain that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Yet, at the same time, the Court established that school administrators may restrict student speech that poses a risk of substantial disruption with the work or discipline of the school.
Following Tinker, the Supreme Court continued to refine First Amendment jurisprudence in the public school context, finding that: (1) schools can restrict vulgar and lewd speech (Bethel School District No. 403 v. Fraser); (2) schools can restrict student speech that appears to be sponsored by the school (Hazelwood School District v. Kuhlmeier); (3) schools can restrict student speech promoting illegal drug use (Morse v. Frederick).
The Supreme Court could not have imagined the development of social media and its impact on the student speech when it decided in Tinker in 1969. As social media continues to expand avenues of communication and expression for our youth, the federal district courts continue to tackle speech issues without further guidance from the Supreme Court. I first became interested in this issue six years ago in law school while researching student speech issues for a law review article. Ultimately I published an article that examined off-campus speech in the context of the second circuit’s decision in Doninger v. Niehoff. In that article, I argued that the Supreme Court’s standard for on-campus speech regulation enunciated in Tinker is workable in the context of off-campus speech. S ix years later the Supreme Court has yet to weigh in on the issue.
The Fifth Circuit Court of Appeals recently addressed the issue in the Bell v. Itawamba County School Board. In Bell, a high school student and aspiring rapper wrote and recorded a song at a studio unaffiliated with the school and posted the song on his Facebook page and on YouTube using his personal computer. The song included criticism of and “threatening language against two high school teachers/coaches” who allegedly sexually harassed female students. In response, the School board suspended Bell and transferred him to an alternative school. Bell subsequently filed suit against the school arguing that this disciplinary action violated his First Amendment right to free speech.
The District Court granted summary judgment in favor of the school, finding that the school officials acted reasonably. On appeal, a panel for the appellate court reversed, finding in favor of Bell. The school then petitioned for the case to be heard by the appellate court en banc, meaning that the entire bench (all of the judges of the court) would hear the case. Its petition was granted and the appellate court reinstated summary judgment in favor of the school. In doing so, the Fifth Circuit held that the school did not violate Bell’s First Amendment rights.
The Court examined Bell’s case in the context of Tinker and its progeny. After reviewing these cases, the Court rejected Bell’s arguments that Tinker does not apply to off-campus speech and that, even if it does, Bell’s conduct did not satisfy Tinker’s substantial disruption test. Instead, the Court held that the school acted appropriately in disciplining Bell because “a school official reasonably could find Bell’s rap recording threatened, harassed, and intimated the two teachers…and a substantial disruption reasonably could have been forecast.”
The Court reasoned that “violence forecast by a student against a teacher does reach the level of the …exceptions necessitating divergence from Tinker’s general rule” and that, due to the advent of new technology such as the internet, smartphones, and digital social media, “off-campus threats, harassment, and intimidation directed at teachers create a tension between a student’s free-speech rights and a school official’s duty to maintain discipline and protect the school community.” The appellate court found that the school’s interest in being able to act quickly and intervene before speech leads to violence outweighed Bell’s interest in free speech. As a result, the Fifth Circuit determined that Tinker’s substantial disruption test applies when a student intentionally directs at the school community speech reasonably understood by school officials to threaten, harass, and intimate a teacher, even when the speech originated off campus.
The Fifth Circuit’s decision illuminates the struggle our federal courts have had in developing a consistent approach to these issues, evidenced by the four dissenting opinions it elicited. One dissent criticized the majority’s recognition of the school’s right to discipline a student whistle-blower. Another dissent explained that off-campus, online student speech is a poor fit for any of the First Amendment doctrines and expressed hope that the Supreme Court will soon give the lower courts guidance on how to resolve these cases. The third dissent essentially agreed with the panel majority’s opinion and felt that the en banc majority unnecessarily expanded Tinker to apply in this case. Finally, the last dissent generally posited that Tinker did not apply to off-campus speech and that, instead, he would apply a modified Tinker standard to allow for the problems current technology poses. Under even a modified standard, though, the dissenter opined that the school’s discipline of Bell would fail.
As we see in Bell, the courts continue to wrestle with whether and how to apply Tinker and its progeny to off-campus student speech. Ever-increasing technology poses additional questions that the courts will continue to struggle with until the Supreme Court weights in on the issue.
My guess is that Supreme Court will address the question sooner the later. Whether the Tinker substantial disruption test will be adopted for off-campus speech, or some hybrid test is created, remains to be seen. In my mind, although the Tinker Court never imagined the ease of communication in the smart phone era, its test remains a viable and important tool for school administrators to curtail speech when it poses a foreseeable risk of substantial disruption to the school environment.