The Tully Center for Free Speech

Free Speech Zone

Cyberspeech and the Schoolhouse Gate

By Kenneth Merrill, March 19, 2012

When shots rang out at Chardon High School outside Cleveland, Ohio, last month those scrambling for information turned to Twitter where students trapped in the locked-down school were breaking the story as it was unfolding.

“Shots in the school. What the heck. This is messed up” tweeted senior Seanna Sicher while another student with the handle @Goergen1 tweeted “#Prayforus Gunman in the school.”

Belying the view that social networking in schools inevitably leads to problems, the Chardon story demonstrates at least one redeeming aspect of today’s technology enveloped classrooms: cell phones and social networks are excellent modes of communication in emergencies.

Yet, many school administrators and parents remain concerned about the role technology is playing in schools and in the lives of students. Where once clear boundaries existed separating the playground and the home, technology has eradicated these distinct social spheres, contributing to tragic instances of cyberbullying and questions surrounding online communication between students and teachers outside of the classroom.

Increasingly, questions regarding cyber-speech in schools have fallen to the courts to decide, leading to a reexamination of nearly a half-century of First Amendment jurisprudence focusing on free speech in schools.

This evening the Tully Center will discuss the past, present and future of the First Amendment in schools with Mary Beth Tinker, plaintiff from the landmark school speech case Tinker v. Des Moines.

A lot has changed since 1965 when Ms. Tinker (13 at the time) and her older brother John walked into their school in Des Moines, Iowa, wearing black armbands in protest of the Vietnam War.

Despite the cultural and social revolution that was sweeping the country in the 1960s, most school districts, including the Des Moines Independent Community School District that suspended Tinker and her brother for violating the school’s policy banning the armbands, continued to operate under an inculcation theory of education. This paternalistic model of indoctrination was supported by the earliest school speech cases many of which were flag salute cases decided amid the dubious haze of the McCarthy era.

But then along came Tinker, a case that challenged the indoctrination theory and paved the way for a libertarian model that endowed students with the same rights to free speech and expression guaranteed to all citizens by the First Amendment. In the court’s majority opinion Justice Abe Fortas famously wrote, “it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate” while creating an exception for speech that “materially and substantially interferes with school activity.”

By extending the First Amendment to students the court set a strong precedent that would be tested frequently in the years to come.

One of the first tests came with Island Trees School District v. Pico (1982). Here, the court took on the practice of banned books, balancing the suppression of ideas with educational unsuitability. Citing Tinker Justice William Brennan’s opinion supported the right of students to receive information, reversing the school district’s book removal policy.

Four years later, in Bethel v. Fraser, the court narrowed the scope of Tinker, supporting the Bethel school district’s policy proscribing sexual or vulgar speech at a school assembly.

In 1988, the court further limited student speech in Hazelwood v. Kuhlmeier. In the Rehnquist court’s first foray into school speech, the majority supported the school district’s right to regulate speech referencing teen sex, birth control and divorce in a school sponsored student newspaper.

Most recently, the Roberts court has continued to carve away at Tinker with Morse v. Frederick, more popularly known as the “Bong Hits 4 Jesus” case. Here, the court found that the Juneau school district and principle Deborah Morse did not violate the First Amendment rights of Joseph Frederick, a student who displayed a banner reading “Bong Hits 4 Jesus” at an Olympic Torch relay that passed in front of the school. Though Frederick was not technically within the “schoolhouse gate” (he stood across the street from the school), the court ruled that his speech constituted “an important – indeed, perhaps compelling, school interest” and created an exception for speech that is “reasonably viewed as promoting illegal drug use.”

It seems that with school speech, as in several other areas of law, the court seems to be returning to its roots, in this case veering toward a view of speech in schools guided by the indoctrination principle. The question now is how the Roberts court and future courts will apply this line of jurisprudence to our wired, networked society.

Or, to put it in terms of Tinker: what happens when technology breaks down the schoolhouse gate?

Several cases in the pipeline seem poised to begin to answer this question.

In Doninger v. Niehoff, Avery Doninger, a junior (now graduated) at Burlington High School was banned from running for student council after administrators found a post from her blog in which she called the principle and faculty “douchebags” for cancelling an event she was planning. Supporting the school’s “good citizenship” policy for eligibility to run for student office, the U.S. Court of Appeals for the Second Circuit struck Doninger’s appeal, ostensibly extending the schoolhouse gate to students’ personal blogs.

The Second Circuit also recently upheld a New York school district’s decision to suspend student Aaron Wisniewski after administrators were made aware of Wisniewski’s AOL Instant Messenger buddy icon, which consisted of a hand drawn depiction of a gun firing at Wisniewski’s English teacher with the caption “Kill Mr. VanderMolen.” Citing Tinker through the reductive lens of the Bong Hits 4 Jesus case the appeals court found that the buddy icon was not protected because it posed a “material disruption” to school activity.

But other courts have varied in their interpretation of the cyber-speech rights of students. In a recent ruling in the Third Circuit the court ruled in favor of Justin Layshock, a high school student from Florida who created a fake Myspace profile with his principle’s name that listed as interests, “smoking big blunts,” “Transgender,” and “Appreciators of Alcoholic Beverages.”

When administrators found out about the profile they suspended Layshock, placed him in an alternative education program, and prohibited him from participating in extracurricular activities.

Echoing the libertarian principles upon which Tinker was decided, Judge Theodore McKee took a step toward establishing new boundaries for school related cyberspeech stating, “It would be an unseemly and dangerous precedent to allow the state in the guise of school authorities to reach into a child’s home and control his/her actions there to the same extent that they can control that child when he/she participates in school sponsored activities.”

As technology continues to transform schools – both literally and figuratively – students and educators are dealing with unprecedented threats to speech and privacy, a fact made clear by last week’s verdict in the Tyler Clement case. But the case raises another question, specifically for the courts: in today’s always-on networked environment does the inculcation-libertarian binary that has guided the past half-century of school speech jurisprudence still hold up? Or rather, how do you inculcate someone with the world at his or her fingertips?