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The increase of communication via the internet presents us with several issues regarding student behavior. In particular, we have to consider the implications of student speech transmitted through student-produced web sites. In part, this issue has come to the forefront of the nation's consciousness as another unfortunate result of the Columbine school shootings. Much has been made of the fact that at least one of the youths responsible for the tragedy published reportedly antisocial and threatening comments.
Several situations have developed in which schools have disciplined students for expressing opinions regarding the Columbine situation via the internet. For example, the Associated Press (1999) reported that the American Civil Liberties Union recently came to the defense of a group of students that were suspended for participating in a "gothic-themed" website, using it to comment on the disputed connection between Eric Harris and Dylan Klebold and the "goth" subculture. These comments were perceived as threatening or inflammatory by school officials, resulting in the disciplinary action. Even more recently, the Eastern District Court of Missouri ruled on a case in which a student was suspended for statements he made in an internet chat room. According to the case brief of Dustin Mitchell v. Rolla School District No. 31, another participant in the chat room asked Mitchell whether he thought anyone in his school would carry out a similar shooting. Mitchell replied, "Yes". He received a ten-day suspension for participating in a discussion about the events in Littleton (ACLU 1999). In cases unrelated to Columbine, the courts have also made rulings regarding student web sites containing speech that was critical or insulting of the school or its employees. Certainly, this is a new area to be considered, but these cases and other precedents provide a basis for a policy regarding student First Amendment rights and the internet.
When defining student First Amendment rights, one must first consider the case of Tinker v. Des Moines. In this case, the Supreme Court ruled that students have the same freedom of political expression as adults, unless that expression "materially and substantially" disrupts the school or would likely lead to such a disruption (Alexander 1998). Using this guideline, only under specific circumstances have the courts supported control of student speech. In Guzick v. Drebus, a school prohibited an article of clothing worn by students as a protest of the Vietnam War, effectively limiting their freedom of expression. However, because history of disruptions connected to prior war protests at this school, this article of clothing would likely have caused a disturbance. Thus, the Court did not find that this prohibition substantially violated students' First Amendment rights (Alexander 1998). Thus, the "material and substantial disruption" standard largely controls freedom of speech in public education, and several cases provide examples of how the this has been applied more recently.
For example, Beussink v. Woodland School District finds a Missouri court ruling on whether a student's website presented such a disruption. Although the site contained vulgar language and slanderous speech toward school officials, the Court prevented the school district from suspending the student or attempting to further prohibit the website. Using the language of Tinker v. Des Moines the court writes, "Certainly where there is no finding and no showing that engaging in the forbidden conduct would 'materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,' the prohibition can not be sustained" (Electronic Commerce and Law Report 1998). In a similar situation, a Cleveland school district recently reached a settlement with a student whose lawsuit charged the school violated his First Amendment rights. This lawsuit had been filed after the student had been suspended for making disparaging statements about a teacher on his private website. Despite a district policy prohibiting students from showing disrespect to school employees, a Federal Court ordered the district to reinstate the student. Furthermore, the Court allowed him to re-post the website (Downey 1998). In addition, the judges ruling on Mitchell v. Rolla School District No. 31 ordered that Dustin Mitchell's suspension for making comments in a chat room regarding Columbine be lifted as a violation of his First Amendment rights (ACLU 1999).
However, students do not enjoy limitless free speech rights via the internet. In particular, a Pennsylvania judge allowed the expulsion of a student who made threatening comments toward a teacher on his website in the case of Swidler v. Bethlehem School District. The student was expelled after school officials became aware of a website titled "Why She Should Die", in reference to his math teacher. As part of the site, the student asked for donations to hire a hit man to kill the teacher. Despite the student's claim that this was meant as satirical humor, Judge Robert E. Simpson wrote, "The (freedom of) expression was not constitutionally protected because it was materially disruptive and it advocated violence against school staff" (quoted in eSchool News 1999). Here, the courts have made a significant distinction between threatening comments and those that are simply vulgar or critical of the school and its employees. From these cases, it seems clear that vulgar and critical statements made by students online must be tolerated, although threats need not be.
The issue of student speech and the internet may also be approached as a variation on the issue of traditional student-produced publications, such as newspapers and literary magazines. Here, the court system has made clear under what conditions schools have grounds to restrict content, which are different than those articulated in Tinker v. Des Moines. Instead, these guidelines come from language set forth in the Supreme Court's ruling of Hazelwood v. Kuhlmeier. This case distinguished between school-sponsored newspapers and newspapers not connected with the school. School-sponsored papers are generally not considered an "open forum", or a platform of expression for use by the general public. As a result, the Court has found that schools can place reasonable restrictions on the speech of students and faculty (Alexander 1998). This essentially gives school administrations license to censor school-sponsored publications, provided they have sound educational reason to do so. If school-sponsored publications include web pages created using school equipment in connection with an educational activity, the school has grounds to limit speech. That is, Tinker v. Des Moines standards do not apply, and the school has greater discretion in what speech it allows or prohibits.
However, if we are to include web sites in a definition of student publications, privately produced sites should then be classified as underground newspapers. Unlike school-sponsored newspapers, the school can only control the time, place and manner of distribution of underground papers. If a school allows such material to be distributed, and the nature of the internet makes it impossible to do otherwise, it has opened its property for public use. As a result, the school has created a limited public forum, and any restrictions on this material must be content neutral. Any attempt to restrict content would be held to the Tinker standard, and would likely meet with results similar to those in the cases previously noted. In controlling time, manner and distribution, schools may only be able to restrict access to such websites from school equipment.
Policy implications:
In light of the precedents that have been set, one conclusion seems clear: a school district has little constitutional standing when disciplining students for content of private websites. The rights of students to produce and post websites for private use seem firmly protected by the First Amendment. Again, unless created using school equipment in connection with a school-related purpose, the site must be "materially disruptive" for the school to have grounds to take action. Although webpages and chat room discussions potentially reach many people, they are not directly confrontational, lacking the immediacy of a speech inciting a crowd to violence. It is difficult to imagine a webpage or chat session so strongly worded that it substantially disrupts the school's educational mission. As a result, this standard is difficult to meet.
Of course, the exception of threatening language must be noted. As noted, Swidler v. Bethlehem School District sets a precedent classifying threats against school personnel as materially disruptive, subjecting the authors to school disciplinary action. However, Paul Houston, executive director of the American Association of School Administrators recently recommended that school officials trust local law enforcement agencies to handle such situations (eSchool News 1999). It may be best to clearly articulate to students that such threats will not be tolerated and will be referred to the police.
Perhaps the best policy advice regarding freedom of speech as it relates to late-century technology comes from the early part of the century. In writing of unpopular speech that may result in "evils" harming the state, Supreme Court Justice Brandeis wrote, "If there be time to expose through discussion the falsehood and fallacies, to avert the evil by processes of education, then the remedy to be applied is more speech, not enforced silence" (quoted in Alexander 1998). In the absence of much other recourse, this advice seems appropriate for a school district seeking to reconcile the First Amendment, technology, and the maintenance of order, discipline, and respect.
References:
Alexander, K. and Alexander, M. (1998). American Public School Law. Belmont, CA: Wadsworth Publishing.
American Civil Liberties Union (1999). ACLU in the Courts: Dustin Mitchell v. Rolla School District No. 31. American Civil Liberties Union. [On-line], October 4, 1999. Available: http://www.aclu.org/court/Mitchell_brief.html
Associated Press. (1999). Does Different Mean Deadly? More Fallout from School Shooting. American Civil Liberties Union. [On-line], May 10, 1999. Available: http://www.aclu.org/news/1999/w051099a.html
Electronic Commerce and Law Report (1998) ECLR: Beussink v. Wooland. Electronic Commerce and Law Report. [On-line], Nov 17, 1998. Available: http://zeus.bna.com/e-law/cases/bruess.html
Downey, Gregg. (1998). District must pay teacher-bashing student $30K: Court overturns suspension and upholds protection of student speech on the internet. ESchoolNews. [On-line], May 1998. Available: http://www.eschoolnews.org/archive.html?XP_PUB=eschoolprint&XP_TABLE=1999070601.db&XP_RECORD=931294516
eSchoolNews. (1999). Pennsylvania judge: Expelling student for web site threats is OK. ESchoolNews. [On-line], Aug 16, 1999. Available: http://www.eschoolnews.org/archive.html?XP_PUB=eschoolonline&XP_TABLE=1999081201.db&XP_RECORD=934500441