The advancement of technology has created new challenges for school administrations. Any form of student expression conducted at home likely no longer stays outside a school's four walls; rather, it is brought in through cell phones, laptops, tablets, and the Internet in general. The easiest and most effective way to regulate such online student expression is through anti-bullying laws; thus, a majority of state legislatures require public school administrations to enact policies and regulations to combat off-campus student expression that is seen as harassment, intimidation, or bullying of a student. Now, school officials face the daunting task of trying to develop effective policies for addressing student speech that occurs off-campus, all the while allowing the same student the ability to exercise his First Amendment right. The issue that will be addressed by this paper is whether public schools have the ability to discipline students for online expression that occurred off-campus.
The first section of this paper will present hypotheticals of online student expression and their school's responses to it. It will also examine what the states are actually doing to control students' online expression. Next, the second section will discuss the scope of the students' First Amendment right to expression in public schools. The section will discuss the Supreme Court's handling of the issue as well as some lower courts' findings and expansions. Then, the third section will present some scholarly analysis of why legislatures and schools have turned to regulating off-campus student expression and the ultimate outcomes of such regulations. Finally, the fourth section will evaluate the Supreme Court's tests for traditionally unprotected speech and suggest a new approach for school officials to apply.
ONLINE STUDENT EXPRESSION AND PUBLIC SCHOOL RESPONSES
Imagine that a public school student enters the principal's office. The student wishes to report a possibly potential school shooting. The student explains that the night before he was talking with a friend, and fellow student, on an Internet instant messaging website. He tells the principal about the conversation the friend and he had. The friend was upset that, once again, he was reprimanded for passing notes in class. The friend stated that this time was the last straw and that the teacher who reprimanded him and the students that laughed at him about it were all going to be sorry. The friend told the student that his father is an avid hunter and has enough guns and bullets to take out the entire school. The friend tells the student that he is being serious and plans to bring the guns to school on Monday so the history books will call it "The Monday Massacre." The friend finishes the conversation with the statement that he will gun down anyone that tries to stand in his way. The student believes his friend is capable of such an act and is fearful. He wanted the school to reprimand his friend and keep him away from the school. The principal knows the history the country has with mass school shootings and does not want his school to join that list.
As another example, suppose a student enters the counselor's office in tears. Over the weekend someone from the school made a Facebook profile with the student's name and picture. This profile contained completely false information stating the student had inappropriate relations with other students, teachers, and family members. Next, the profile stated that from these relations the student has several sexually transmitted diseases and should be isolated from everyone. The student also informs the counselor that other students have begun to leave comments on the profile stating the student did have inappropriate relations with the commenter. Other comments were added to the profile information stating that the commenter knows for a fact that the student also does drugs and steals. The student is devastated and claims innocence, and cannot go back to class until the creator of the profile is found and reprimanded.
In this day of advanced technology, such incidents are not uncommon. Currently, forty-eight states require their schools to develop policies that prohibit the harassment, intimidation, or bullying of any student, including that which occurs in electronic form. (1) This is because "[l]egislators, public school administrators, teachers, and parents increasingly are concerned with student speech on the Internet and the effect it may have on a school's ability to maintain a controlled and constructive learning environment." (2) The effects of online student activity that occur at home are "frequently are brought to school through cell phones, printouts, and school computers." (3) Thus, schools try to embrace the state requirements and create codes and regulations that strictly promote the schools' basic interests, maintaining a safe and effective educational environment.
The school district in Berkeley County, West Virginia is as an example of a school district applying the adopted state anti-bullying law. The school district's Harassment, Bullying, and Intimidation Policy forbids "any form of ... sexual ... harassment ... or any bullying or intimidation by any student ... during any school-related activity or during any education-sponsored event, whether in a building or other property owned, use[d] or operated by the Berkeley Board of Education." (4) In addition, the school district has a Student Code of Conduct that provides, "All students enrolled in Berkeley County public schools shall behave in a safe manner that promotes a school environment that is nurturing, orderly, safe, and conducive to learning and personal-social development." (5) The consequences for bullying under the Code includes "an out-of-school suspension up to 10 days; signing a behavioral contract; being denied participation in class and/or school activities; and a social suspension of up to one semester." (6) Here, the Berkeley County school district has taken the broadest, simplest form of the common anti-bullying law.
Another example is the state of Arkansas, which also requires its school districts to adopt the state anti-bullying law. (7) However, the state also requires that its districts expand their regulations to off-campus behavior. (8) The language states that policies must prohibit "an electronic act whether or not the electronic act originated on school property or with school equipment, if the electronic act is directed specifically at students or school personnel and maliciously intended for the purpose of disrupting school, and has a high likelihood of succeeding in that purpose." (9) The state makes a sweeping policy by adding its interpreted version of Supreme Court language.
To summarize, legislators, public school administrators, teachers, and parents are becoming increasingly concerned with the harassment, intimidation, and bullying that has begun to occur on the Internet. In an attempt to combat this occurrence, schools try to create codes and regulations that strictly promote the school's basic interest, maintaining a safe and effective educational environment. Some schools take on basic anti-bullying laws that tackle what students do on-campus and some schools go further and make a sweeping policy that ends up controlling students on and off campus.
FIRST AMENDMENT EXPRESSION RIGHTS IN PUBLIC SCHOOLS
Supreme Court Cases
The United States Constitution forbids laws "abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." (10) The Supreme Court has held that the free speech guarantee has some application to students in public schools. With regard to student expression that occurs online and off-campus, the Supreme Court has never ruled directly on the issue, but four Supreme Court cases give some guidance on the subject.
In Tinker v. Des Moines Independent Community School District, students in a Des Moines public school chose to express their disapproval of Vietnam hostilities by wearing black armbands on their sleeves during school. (11) The school suspended the students until they made the decision to return without the armbands. (12) The Court held that if there are no facts which might reasonably lead school officials to foresee a "substantial disruption of, or material interference with, school activities or any showing that disturbances or disorders on school premises in fact occurred," then it is unconstitutional to deny students the right to wear the armbands as an expression of opinion. (13) The Court reasoned, "[n]either students [n]or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." (14) Fear or apprehension of disturbance is not be enough to overcome the right of a student to freely express his opinion. (15)
Tinker was the first time the Supreme Court took up the issue of student expression in public schools, and the Court took the opportunity to grant students a broad level of freedom regarding expression. "Substantial disruption of, or material interference with" has carried on as the standard for weighing a school's restriction on student speech. This standard, while seemingly a fairly high standard, has surprisingly been met easily as lower courts have struggled to allow school officials greater discretion in disciplining students.
Next, in Bethel School District No. 403 v. Fraser, a student was suspended from school after he gave a speech during a school assembly that included lewd and vulgar terms. (16) The Court held that the school district acted entirely within its permissible authority to suspend the student in response to his offensively lewd and indecent speech, which had no claim to First Amendment protection. (17) The Court reasoned that it is entirely permissible for the school to impose sanctions to maintain...