From keyboard to schoolhouse: student speech in an age of pervasive technology.

• Author: Leach, Erin M.

S.J. W. ex. rel. Wilson v. Lee's Summit R-7 School District, 696 F.3d 771 (8th Cir. 2012)

1. INTRODUCTION

   To most Americans, the First Amendment's Free Speech Clause is among the most sacred provisions of the Constitution. At first reading, it seems a broad guarantee of the right of citizens to speak their mind without limitation. But the jurisprudence on the clause shows that the law governing free speech is far from uncomplicated. The analysis is made more complex in the context of student speech due to a different set of standards governing the rights of students while they are under the care of their schools.

   S.J. W. ex rel. Wilson v. Lee's Summit R-7 School District, a recent Eighth Circuit decision, outlines the intricacies of the legal rights of students when speaking out about their school environment. (1) It also highlights the intricacies that the advent of the Internet has added to the issue. With the ability of students to speak through so many different mediums and in almost any location, the decision of whether to treat their speech as occurring inside or outside the schoolhouse gates becomes increasingly more involved with each technological advance.

   Beyond the First Amendment concerns at issue in Wilson are broader implications regarding the effects that student speech can have on the school environment. When groups of individuals are gathered in one place, the freedoms of each must necessarily yield somewhat to the rights of the others. Students, therefore, cannot exercise unrestrained freedom of speech if safety or disciplinary concerns are implicated. (2) Additionally, school officials have a duty to not only provide a facility for students to exercise unrestrained rights, but also to instruct and protect the students in their care. (3) These concerns create unique justifications for regulating that most sacred of rights in ways that would never be allowed outside of the school context.

2. FACTS AND HOLDING

   Defendant Lee's Summit R-7 School District (the District) serves a 117-square-mile portion of the southeastern Kansas City metropolitan area. (4) The District operates eighteen elementary schools, three middle schools, three high schools, and several alternative educational institutions. (5) Among its students in 2011 were twin brothers Steven and Sean Wilson (the Wilsons), who were juniors at Lee's Summit North High School (LSNHS). (6) The case was brought on behalf of the twins by their parents, Brian and Linda Wilson. (7) At the time of the incident, the Wilsons were honors students at LSNHS and had never before experienced any significant disciplinary issues. (8)

   In December of 2011, the Wilsons created a blog called "NorthPress." (9) The Wilsons alleged that the blog was meant as a forum for half a dozen of their friends who shared a similar sense of humor. (10) Their purpose in creating the website was to "discuss, satirize, and 'vent' about events at [LSNHS]." (11) The site was set up so that it would not appear in a normal Google search, but instead could be accessed only by an Internet user who knew the exact web address. (12) Once found, however, NorthPress was not password protected; readers could access all posts, blogs, and information posted on the website. (13) The Wilsons alleged that the lack of password protection was due only to their limited technical expertise, not to a desire to make the content public. (14)

   The website launched on December 12, 2011, and the first posts were added within the next few days. (15) The content of the Wilsons' posts were not in dispute; many were racist, sexually explicit, and degrading to female classmates, and most posts also used offensive language. (16)

   Steven Wilson authored a post entitled "Tips for the Next Big Fight" which discussed the threat of fights at LSNHS and purported to give students advice on how to avoid being injured. (17) He proposed that "angry black children" were the cause of the fights that had been happening at the school and warned his readers that it was difficult to tell "when one of these [black students] will chimp out and let jungle coon out." (18) Steven Wilson also admitted responsibility for "The Biggest Bitch in the Whole School!" which used obscenity to criticize a female student's driving, dating preferences, weight, and affinity for tanning. (19) This post, like the others on NorthPress that talked about LSNHS students, was very specific and included the first and last names of individual students. (20)

   Sean Wilson admitted to writing a blog post that specifically named a female student and described, in explicit detail, her recent sexual encounter with "some guy." (21) The post used derogatory terms about the student's appearance and personality, including phrases like "pug-looking ass forehead" and "complete annoying bitch." (22)

   In addition to these contributions to the site by the Wilsons, another post was written by a different individual, who remained unnamed throughout the suit. (23) This post was of a racist nature and, like the other racist posts on NorthPress, discussed fights that had been happening at LSNHS and mocked, by name, some of the African American students who had been involved. (24) Unlike the others, however, this post had the N-word in the title (25) and was posted without the Wilsons' knowledge or approval. (26) This post was added to the site early on the morning of December 16, 2011, and was removed by the author later that same day. (27)

   The parties disputed the extent to which, if at all, LSNHS computers were used to create or maintain the site, (28) but the parties did agree that the site was accessed from LSNHS' computers multiple times during the week of December 12, 2011. (29) The District's records indicated that at least three of the website visits on December 14 occurred in a computer lab where the Wilsons had class that day. (30) It was unclear from the records whether these visits included uploading of any content or were just views of the website. (31)

   Although the Wilsons claimed that they told only five or six friends about the website after its creation and that they did not intend for news of the website to reach any other ears, word spread throughout the student body. (32) By December 16, 2011, the website's existence was general knowledge among students at LSNHS. (33) Much of the interest in the site revolved around the racist post authored by the third student, which came to be known colloquially at LSNHS as "the rant." (34) Teachers testified that students began talking about NorthPress in the classrooms and halls on that morning; and the Wilsons later admitted that they had witnessed many students using personal cell phones to access the site after the school blocked computer access to it. (35) Awareness of the situation spread beyond students to parents and community members; the press even showed up, sparking further interest and creating more of a disturbance on campus. (36) On that same day, school administrators discovered that the Wilson brothers were responsible for NorthPress and immediately suspended them for ten days. (37)

   During this ten-day period, the District held a hearing to determine how the Wilsons should be punished. (38) After hearing testimony from the Wilsons and their father, the members of the disciplinary commission recommended a 180-day suspension, and the District Superintendent agreed. (39) The Wilsons appealed the results of that hearing and were granted a second hearing at which they could present evidence and cross-examine the District's witnesses. (40) At the culmination of the second hearing, the suspensions were upheld, and the Wilsons were provided the option of attending Summit Ridge Academy (SRA)--an alternative school for students experiencing disciplinary issues--since they could not attend LSNHS for the duration of the 180-day suspension. (41)

   The Wilsons' suspension became effective on January 11, 2012. (42) The District's stated reason for the suspension was the creation of the website and the disruption it caused at LSNHS. (43) On March 6, 2012, the Wilsons' parents sued the District, alleging a violation of their sons' free speech rights (44) The Wilsons sought a preliminary injunction to prevent the District from enforcing the suspensions. (45)

   A preliminary injunction hearing was held in the U.S. District Court for the Western District of Missouri in late March 2012. (46) The Wilsons contested both the District's allegation that their conduct was disruptive and the presumption that SRA was a viable alternative school for them to attend. (47) The Wilsons first denied that they were racists and claimed that the posts had not been intended to be offensive, but instead were meant as satire. (48) The brothers also testified that the other student's post was the cause of the disruption at LSNHS (49) Next, the Wilsons alleged that the alternative school, SRA, was not an acceptable option because it did not offer challenging courses, such as ACT or honors courses, and because it did not provide an opportunity to earn college band scholarships. (50) Because both brothers planned to attend college and hoped to pursue careers in music or theater, (51) they alleged that the District's action in suspending them constituted irreparable harm. (52)

   The District refuted the Wilsons' statements with the testimony of several teachers who claimed that the school environment had been greatly disrupted on December 16, 2011, and that many faculty members had trouble controlling their noticeably upset and excited classes. (53) Administrators further pointed out that the media arrived on LSNHS's campus on the 16th and that parents of students enrolled in the high school subsequently began calling the school to inquire about bullying, safety, discrimination, and similar concerns. (54) The District also expressed its concern that the brothers' "early return to [LSNHS] would cause further disruption and might endanger...