The overwhelming popularity of the Internet has brought to light many novel legal issues. The Internet gives people the ability to communicate with people all over the world, and offers practically limitless access to information. In today's public school systems, the Internet has increasingly become a means for students and teachers alike to enhance their knowledge and develop their communication skills. Some instructors require Internet use, fostering discussion among students through the creation of newsgroups set up specifically for class use, and holding students accountable for all materials distributed via e-mail or posted onto the newsgroup.1 Even where Internet use is not required, students consider the Internet an invaluable tool for finding answers to their questions, through newsgroups, websites, and communication with students worldwide.2 Not surprisingly, this growing medium of expression unearths questions about traditional notions of free speech and expression. Specifically, the increasing incidence of public school students disciplined because of Internet use poses a crucial issue of the breadth of First Amendment protections, as well as the limits of appropriate school district control over student behavior. As recent court decisions indicate, a school district's ability to regulate the content of a student created website is directly correlated with how and where the site is created. Accordingly, while certain computer related conduct by students can clearly result in discipline, public schools have limited ability to discipline students for web pages created on a student's home computer, during non-school hours.

Student Free Speech

The First Amendment states that "Congress shall make no law . . . abridging the freedom of speech".3 Although one of the basic free speech tenets is one's right to express beliefs that others may not share, the First Amendment protections are not absolute.

The protection of free expression exists, in large part, to encourage the free exchange and dissemination of ideas. The constitutional protection is awarded based on the belief that the benefits society reaps from the unrestricted flow of ideas outweighs the costs society endures by receiving deplorable ideas. Equally important to allowing the free flow of ideas in society as a whole is specifically permitting such exchange between public school students. Despite the advantages of this uninhibited interchange of ideas, a student's freedom of speech is not absolute. Speech that is obscene, libelous, or that which by its very utterance tends to incite an immediate breach of the peace is not protected by the First Amendment.4 Additionally, constitutional protection is not afforded to expressions that substantially interfere with a public school's function.5 Further, "[l]imitations that would be unconstitutional outside the schoolhouse are not necessarily unconstitutional within it."6 Similarly, the power of public schools to discipline students for certain types of speech or to ban various forms of expression is not without limitation either. The United States Supreme Court has laid the framework for evaluating free expression claims of public school students in several decisions, including Tinker v. Des Moines Independent Community School District7, Bethel School District No. 403 v. Fraser,8 and Hazelwood School District v. Kuhlmeier.9

In Tinker, the court found the principal's suspension of students unconstitutional because there was no evidence that wearing black armbands in protest of the Vietnam War created any disturbance in the school. The Court made it clear that students do not relinquish all First Amendments rights of free speech upon entering the schoolhouse. Although students's freedom of expression is not unrestrained, schools may only abridge student speech in narrowly defined circumstances. The court held that for a school to justify its disciplinary action, it must prove that engaging in the forbidden conduct would materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.10 It is not enough that the school fears a disturbance; there must be evidence that such disruption has occurred or is highly likely to occur. Finally, a school may not justify limiting a student's speech merely because it dislikes it or is upset by its content.

In Fraser, the Supreme Court upheld the district's punishment of a high school student for offensive, lewd, and vulgar behavior. The student was disciplined for giving a speech at an official school assembly, containing deliberate sexual innuendos. The audience reacted with yelling, graphic gestures, embarrassment, and hollering. The court upheld the punishment of the public school student because the disciplinary action was pursuant to an existing school rule and followed the disruptive behavior roused by the speech. In so holding, the court noted the need to balance students' right to free expression with a society's countervailing interest in teaching students the boundaries of socially appropriate behavior.11

Finally, Hazelwood involved the school principal's desire to censor student articles in a school sponsored newspaper because they were allegedly inappropriate. The court focused on the distinction between speech that is sponsored by the school and speech which is not in determining the validity of restricting student expression. The court stated that so long as censorship of student speech in school sponsored activities is reasonably related to legitimate pedagogical concerns, such censorship does not offend the First Amendment.12 Consequently, because the court found that the newspaper and the journalism course affiliated with its production are school sponsored activities, the court upheld the censorship of the student authored articles.

Although Tinker, Fraser, and Hazelwood set standards for certain acts of free expression occurring on school grounds in the context of free speech, the Supreme Court has not pronounced the way to handle speech that occurs off school grounds, but nevertheless leads to disciplinary action. It is long settled among lower courts that public school students can be subject to discipline for conduct that takes place off of school grounds.13 In Matter of Rodriguez, the New York State Commissioner of Education stated that it was immaterial that the disciplinary action against the student originated from acts allegedly committed away from school property. Because it is the duty of the school district to protect the education system which they run, it is within their discretion to punish conduct occurring outside the school situation, so long as there exists a nexus between the behavior and the school. The simple fact that conduct occurs off school grounds does not preclude the possibility that such conduct . . . may adversely affect the educative process or endanger the health, safety or morals for pupils within the education system for which the school authorities are responsible.14

Unofficial Websites

In the context of regulating off campus activity, courts have recently been faced with the decision of whether to punish a public school student who creates an unofficial school website, while at home. In two reported decisions, courts have rejected the school's attempt to justify discipline of a student and, although before the court on a preliminary matter and not a decision on the merits, both courts upheld the student's right to freedom of expression.

In Beussink v. Woodland R-IV School District,15 a high school student created a homepage from his home computer. The homepage was accessible through the Internet and was highly critical of the administration at his high school. The homepage also contained a hyperlink to the school's own homepage. Plaintiff never gave anyone the address of his homepage nor did he intend it to be viewed at the high school. Nevertheless, one of plaintiff's friends found out about the page and informed the computer teacher about it. The computer teacher showed the homepage to the principal and plaintiff was subsequently suspended for ten days. As a result of the suspension and the school's attendance policy, plaintiff ended up failing all of his classes. The student brought suit against the school district.

The principal made the decision to discipline the plaintiff immediately upon viewing the homepage, merely because he was upset that the page was viewed in one of his classrooms, not because of any identifiable disruption. In fact, teachers reported that there was no material or substantial disruption in the classroom because of the homepage. The only disruption was the result of the delivery of the disciplinary notice.

The United States District Court for the Eastern District of Missouri issued a preliminary injunction to enjoin the school from disciplining the student, pending a decision on the merits of the case. The court, when determining whether to grant preliminary injunctive relief, concluded that the evidence presented supports a finding that plaintiff is likely to succeed on the merits of his claim. In doing so, it effectively held that when a student, while off school grounds, creates an unofficial website that causes no disruptions in the classroom, but contains speech that the administration dislikes, it is a violation of that student's First Amendment rights to restrict such speech. The court found that the hyperlink, giving a visitor to the site access from the student's homepage to the school's homepage, was insufficient to establish a legal nexus, as required by Hazelwood. Additionally, the speech did not meet the standard set forth in Tinker of being materially or substantially disruptive. Pursuant to the court's ruling, the school district is, among other things, prohibited from restricting plaintiff's use of his home computer to repost his homepage.

The Emmet v. Kent School District No. 41516 case arose after a high school student posted an unofficial school webpage, made on his home computer, on the Internet. This web page, created without use of school resources, and on the student's own time, included a disclaimer that it was not school sponsored and was for entertainment purposes only. The site posted mock obituaries of plaintiff's friends and allowed visitors to the site to vote on who should be the next subject of the mock obituary. Upon learning of the web site, the school district placed plaintiff on a five-day suspension.

The court, following the analysis under the Tinker, Fraser, and Hazelwood trilogy, granted plaintiff's motion for a temporary restraining order. The court held that plaintiff's speech, unlike that of the students in Fraser or Hazelwood, was entirely out of the school's supervision or control and was not produced in connection with any school sponsored activity. The court further stated that absent evidence that the mock obituaries were intended to threaten anyone, did actually threaten anyone, or manifested any violent tendencies, restriction of such speech violates the First Amendment. The school district was therefore enjoined from enforcing the five-day suspension.

Permissible Discipline

Despite the decisions of Beussink and Emmett, in which schools were prevented from disciplining students for off-campus creation of unofficial websites, it may still be permissible to discipline a student for creating an unofficial website for the school. In either case, had the student created the website using school facilities, discipline by the school would have likely been permissible pursuant to the standard set forth in Hazelwood. Additionally, if websites which are created off-campus are continuously accessed on school computers, on school time, schools may be able to demonstrate a sufficient nexus between the off-school conduct and school activities, justifying student discipline.

It may well be, that in a conglomeration of the discipline rules regarding student expression and off-campus conduct, a student web site containing threats of violence, bigoted or prejudiced comments, or vulgarities or sexual innuendos, causing substantial disruption in the educational process, will enable a school district to discipline students based on the content of such off-campus created sites.17 More so, the nature of the Internet, whereby speech created off school grounds is so easily accessible on campus, may make schools more able to establish a legal nexus. If, under the circumstances of a particular case, a student's off-campus created website threatens the physical safety of another, with proof of a nexus to school activities, a court would likely uphold the discipline of the student-creator. Furthermore, with the establishment of the requisite nexus, a student can also be disciplined for the transmission of obscene, vulgar, or indecent expression.

As case law indicates, the likelihood and legitimacy of punishment is largely dependent upon the nature and degree of the exercise of First Amendment freedoms. To this end, the school's ability to discipline a student for the content of his off campus created website will hinge on the essence and extent of the expression.

Moreover, school districts may be able to discipline students for Internet use if they violate acceptable use policies. These policies inform students and parents about the Internet and its proper usage. Inappropriate use may result in the suspension or revocation of student computer privileges. Although courts have given school personnel wide latitude in monitoring the educational environment, school use policies must be consistent with students' legal rights.

Conclusion

In light of the complexities raised by Internet use, the fine line of permissible grounds to discipline students for off school conduct, and the principles of free expression, one can reach, at best, a convoluted solution to student, off-campus, website production. In the face of somewhat unsettled, and often misunderstood, areas of the law, it is no wonder that schools are wary of disciplining students, for fear of violating student rights. To date, it is fair to conclude that courts will not permit schools to reflexively discipline students for homepages created on their home computers, having little or no relation to the school itself. However, where student Internet communication and website creation bears directly on class or school activities and where disruption can be shown, discipline will be justifiable.

Lawrence J. Tenenbaum is a partner at Garden City’s Jaspan Schlesinger Hoffman LLP. Pamela Jablow, a summer associate, assisted with the preparation of this article.

Footnotes

1. See Garner K. Weng, Type No Evil: The Proper Latitude of Public Educational Institutions in Restricting Expressions of Their Students on the Internet, 20 Hastings Comm. & Ent. L.J. 751, 763-64 (1998).

2. See id.

3. U.S. Const. amend. I.

4. See Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942).

5. See Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 512-13 (1969).

6. Poling v. Murphy, 872 F.2d 757, 762 (6th Cir. 1989).

7. 393 U.S. 503 (1969).

8. 478 U.S. 675 (1986).

9. 484 U.S. 260 (1988).

10. Id. at 509 (quoting Burnside v. Byars, 363 F.2d 744, 749 (5th Cir. 1966)).

11. Frazer, 478 U.S. at 681.

12. Hazelwood, 484 U.S. at 273.

13. See Pollnow v. Glennon, 594 F. Supp. 220, 224 (S.D.N.Y. 1984), aff=d, 757 F.2d 496 (1985); Matter of Rodriguez, 8 Educ. Dep=t Rep. 214 (1969).

14. Id. at 216-17.

15. 30 F. Supp. 2d 1175 (E.D. Mo. 1998).

16. 92 F. Supp. 2d 1088 (W.D. Wash. 2000).

17. See, e.g., Appeal of B.B., 38 Educ. Dep=t Rep. 666 (1999) (permitting student discipline where the student disrupted the educational process by sending an e-mail containing a bomb threat to the school district=s website).

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