Attention boys and girls: the Tinker schoolhouse gates may extend to your cell phones, Macs, and PCS - how the Internet is redefining public school discipline.

Author:Snyder, Jesse D.H.
 
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  1. INTRODUCTION

    "We do not realize how large a part of our law is open to reconsideration upon a slight change in the habit of the public mind." (1)--Oliver Wendell Holmes, Jr.

    During the summer of 2011, I visited the United States Air Force Academy for the first time since graduating some nine years earlier. While touring the base, I was overwhelmed with memories of my four years as a cadet. Although the school produced many memorable moments, I will never forget Basic Military Training during my first summer in Colorado Springs. While visiting, I watched the newly-minted Class of 2016 during their Basic Training. Much the same as the summer of 1998, the new cadets all looked very young and a little scared, but filled with pride. When I arrived at the scene, the upper class cadets had just called for a rare break in training to coordinate the next activity. During my Basic Training, we would spend these few moments waiting in silence. Much to my surprise, that was not the case in 2011. These cadets were very active and fully engaged on cell phones during their break! Even at our nation's most traditional institutions, technology is changing the way we experience life.

    Just as technology has altered the experiences for cadets at the Air Force Academy, the Internet is changing the dynamics in public schools. Now more than ever, the true extent of a public school's disciplinary reach is in a state of ambiguity. In the venerable 1969 case of Tinker v. Des Moines, Justice Fortas famously declared that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." (2) Even so, Tinker recognized that students do not enjoy coextensive rights with adults. (3) In fact, school administrators may prohibit student expression that "materially and substantially disrupt[s] the work and discipline of the school." (4) Over forty years later, there is a renewed debate about how wide the Tinker schoolhouse gates swing with the advent of the Internet. To varying degrees of success, recent cases have forced courts to grapple with where to draw the line between traditional free speech jurisprudence and a school's ability to discipline students under Tinker for online expression. (5)

    Amid diverging opinions and growing uncertainty among circuit courts, this Paper argues that courts should apply the Tinker material and substantial disruption standard beyond the physical schoolhouse gates when a student uses the Internet to purposefully aim expression into the classroom environment. First, this Paper explores the history of the Internet and the advent of the Information Society to provide context. Second, this Paper highlights major milestones in public school free speech jurisprudence. Third, this Paper reviews the three prevailing approaches to address student speech cast over the Internet. Finally, this Paper argues that courts should apply the Tinker standard beyond the physical schoolhouse gates. This proposition is a logical and common sense extension from case law and developing technology. Moreover, to avoid confusion and achieve more predictable outcomes, courts should determine if the online expression is purposefully aimed into the classroom environment by inquiring about whether the student knew or should have known that the speech targeted the classroom environment.

  2. THE DAWN OF THE INFORMATION SOCIETY

    Social theorists recognize that technology increasingly enables unprecedented volumes of information to be exchanged between people, thereby creating "profound social consequences." (6) To these theorists, the societal changes underway "represent not just quantitative but qualitative social change--transforming almost every realm of social life." (7) Comparable to the shift from an agrarian civilization to an industrial society, commentators refer to this new societal norm as the "Information Society." (8) This social shift is fomented by greater content, readily available platforms to create content, and an ever-increasing number of portable devices to access this content. (9) This Section briefly explores how society reached this point and provides contextual support for the legal road ahead.

    The National Science Foundation identified the 1990s as the decade when online activity reached worldwide prominence. (10) During the early part of the decade, courts began to use the word "Internet," (11) commercial browsers became prevalent, (12) and users started making online purchases. (13) By 1995, online gambling had percolated across the Internet. (14) Three years later, Google opened its first office doors. (15) As the decade closed, more than one-quarter of businesses with ten or more employees had an Internet presence, (16) and peer-to-peer sharing of information became socially--although not always legally--acceptable. (17)

    As the 1990s gave way to a new century, the sheer amount of information available to Internet users exponentially expanded. (18) Beyond commercial content, the Internet began to change how people interacted socially and experienced life. (19) In 2005, YouTube provided a video-sharing service to allow users to upload, share, and watch videos. (20) In addition, social media platforms--MySpace, (21) Facebook, (22) Twitter, (23) Flickr, (24) Second Life (25)--enabled people to create their own content and share their interests around the world. By 2009, Facebook had built an online community with over 350 million members. (26) By 2012, that figure grew to over 955 million users! (27) Put in proper perspective, it took thirty-eight years for radio to achieve 50 million listeners, thirteen years for television to achieve 50 million viewers, and sixteen years for 50 million people to own personal computers. (28) By March 31, 2011, 30% of the world's population--a total of 2.1 billion people--were connected to and used the Internet. (29)

    Correspondingly, mobile devices have altered the information landscape by affording even greater opportunities to conveniently access information. According to a 2010 report by the Pew Internet & American Life Project, 82% of American adults own a mobile phone, compared to 65% of adults in 2004. (30) While nearly every mobile phone user makes the occasional phone call, (31) as indicated by a survey released in 2011, among adult users, 73% text message and take photos, 44% access the Internet, 38% send or receive email, and 29% use social media platforms from their mobile devices. (32) Additionally, two-thirds of adults even report that they sleep with their cell phones (33) and fully 91% of adults express the belief that their cell phones make them feel safer. (34)

    Of particular importance in the context of public schools--Internet usage, mobile technology, and social media interaction are becoming increasingly common among American teenagers. (35) According to the Pew Internet & American Life Project, 87% of teenagers between the ages of 12 and 17 accessed the Internet in 2005. (36) Fast-forward to 2011, 95% of teenagers used the Internet and 80% of those teenagers frequented social media sites. (37) In contrast, only 47% of adult users accessed those same social media platforms. (38) As the research bears out, "[s]ocial media use has become so pervasive in the lives of American teens that having a presence on a social network is almost synonymous with being online." (39) Interestingly, the vast majority of teenagers still turn to their parents for general advice on Internet usage. (40)

    Shifting from content and platforms, teenage use of mobile devices is also on the upswing. In 2010, the Pew Internet & American Life Project identified that 75% of American teenagers between the ages of 12-17 carry cell phones, compared to 45% in 2004. (41) According to another 2010 survey, teenagers send and receive 50 text messages every day--compared to adults who send and receive 10 text messages daily. (42) Indeed, mobile phones are now the preferred method of communication among teenagers. (43) Among teenagers with mobile devices, 32% exchange videos, 27% access the Internet, 23% frequent social network sites, 21% use email, and 11% make purchases via their phones. (44)

    Although the Internet's early impact on the law was debatable (45)--it is now unquestionable that rapid advances in information technology bear certain legal ramifications. Consequently, courts are now rethinking older paradigms. With this background in place, this Paper now turns to free speech jurisprudence in the context of public schools.

  3. AN ABRIDGED HISTORY OF FREE SPEECH IN PUBLIC SCHOOLS

    The First Amendment of the U.S. Constitution boldly guarantees that, "Congress shall make no law ... abridging the freedom of speech...." (46) The Free Speech Clause applies to the various states through the Fourteenth Amendment. (47) As a threshold inquiry, protection under the Fourteenth Amendment requires state action. (48) The Court has held that public schools qualify as state actors. (49) Although First Amendment protections evaporate in the absence of state action, some states, such as California, extend these rights to private school students through statute. (50)

    Notably, the First Amendment does not afford the same breadth of protection to all forms of speech. (51) Speech relating to a public concern receives greater protection than speech relating to private concerns. (52) In this sense, our First Amendment jurisprudence reflects "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open." (53) Moreover, "speech concerning public affairs is more than self-expression; it is the essence of self-government." (54) As such, "speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection." (55) Justice Holmes first articulated this modern sentiment in his dissenting opinion in Abrams v. United States:

    But when men have realized...

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