Re-Wired: Students Constitutional Rights in Digital Schoolhouse, 0715 SCBJ, SC Lawyer, July 2015, #16

• Author: Margaret-Ann F. Howie, J.

RE-WIRED: Students Constitutional Rights in the Digital Schoolhouse

Vol. 26 Issue 6 Pg. 16

South Carolina BAR Journal

July, 2015

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0 Margaret-Ann F. Howie, J.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Students do not "shed their constitutional rights ... at the school-house gate," the Supreme Court famously declared in Tinker v. Des Moines Independent Community School Dist.^[1] In the digital age, however, the application of Tinker has been complicated by the fact that the schoolhouse "gate" is no longer limited to a brick and mortar structure, but may now be a student's home computer, tablet or cellular phone.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0In recent years, the proliferation of social media and cellular technology has provided educators and advocates alike with challenges regarding the legal regulation of student conduct, speech and expression—and whether the famous Tinker declaration remains constant in the digital schoolhouse. This article will briefly outline some of the recent cases concerning the regulation of public school students' First and Fourth Amendment rights in the cyber age.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The First Amendment: Tinker and Fraser standards

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Tinker outlines the foundational principles for analyzing student constitutional rights. Five high school students sought an injunction under § 1983 to prevent school officials from disciplining them for violating the school district's dress code. The challenged dress code prohibited students from wearing black arm bands to protest the Vietnam War.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0In a school system of more than 18,000 students, only five were suspended for violating the dress code. The Supreme Court noted that the armbands did not disrupt "the work of the schools or any class,"² nor were there any " threats or acts of violence on school premises."³ Additionally, the school system did not prohibit wearing "all symbols of political or controversial significance."⁴ Therefore, the regulation's sole purpose was to suppress the students' Vietnam protest.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The Court characterized the students' arm bands as "a silent, passive expression of opinion, unaccompanied by any disorder or disturbance."⁵ The Court acknowledged that a balance between the First Amendment rights of students and the "comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools"⁶ existed. Thus, in order to achieve such a balance, student speech could be regulated and suppressed when school officials could prove that the student's exercise of her First Amendment rights would "materially and substantially disrupt the work and discipline of the school."⁷

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0In Bethel School Dist. No. 403 v. Fraser,⁸ the Court applied the Tinker "material and substantial disruption" standard to in-school student speech. Fraser, who delivered a speech full of sexually explicit metaphors, received a three-day suspension for violating a Tinker-fashioned school rule prohibiting the use of obscene language.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The Court determined that a "marked distinction" existed between the speech in Fraser and the arm bands in Tinker: "[I]n upholding the students' right to engage in nondisruptive, passive expression of a political viewpoint in Tinker, this Court was careful to note that the case did 'not concern speech or action that intrudes upon the work of the schools or rights of other students.'"⁹ According to the Court, because Fraser's speech did not merit First Amendment protection, school administrators had the absolute authority to suppress it.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Tinker and Fraser in the digital age

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0It is within this analytical framework that recent cases regarding online student expression have been decided. In Koiualski v. Berkeley County Schools,¹⁰ the Fourth Circuit affirmed discipline imposed upon student Kara Kowalski, who, in the privacy of her own home and with the use of her personal computer, created a discussion group webpage on MySpace.com that ridiculed a fellow student, Shay N. The webpage, which included pictures, claimed that Shay N. had herpes. Upon learning of the webpage, Shay decided not to attend classes because she was uncomfortable. Kowalski received an out-of-school suspension and was prevented from participating in certain school social events.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The court, while acknowledging that Kowalski's conduct had occurred off-campus, determined that the "speech caused the interference and disruption described in Tinker as being immune from First Amendment protection."¹¹ While the Fourth Circuit acknowledged that the school's interest in order and well-being possesses a limited scope, it declined to define that limit further.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Similarly, the Eighth Circuit, in S.J.W. v. Lee's Summit R-7 School District,¹² found that a material and substantial disruption had occurred as a result of the twin student plaintiffs' online speech. The students' website, which included a blog, contained racist and sexually explicit comments about fellow students, who were identified by name...