When the Classroom Is Not in the Schoolhouse: Applying Tinker to Student Speech at Online Schools

• Publication year: 2013

Washington Law ReviewVolume 36, No. 3, SPRING 2013

When the Classroom Is Not in the Schoolhouse: Applying Tinker to Student Speech at Online Schools

Brett T. MacIntyre(fn*)

I. INTRODUCTION

The Internet has changed how public school students communicate and learn. Ninety-five percent of American teenagers between ages twelve and seventeen use the Internet-almost twenty percent higher than adults.(fn1) Of those teens online, eighty percent use social media sites to communicate and interact.(fn2) Millions of teenagers use the Internet to do their homework and to perform other school related functions.(fn3) More and more students have Internet access while on campus, either through school computers in the classroom or through smart phones in their pockets. And seventy percent of teen Internet users go online daily, many of them several times per day.(fn4) More importantly for this Comment, an increasing number(fn5) of teenagers are enrolled in full- or part-time online schools.(fn6) Attendance figures at traditional brick and mortar schools are changing as online learning opportunities grow in popularity and accessibility across the country.(fn7) One state even requires all of its high school students to take an online class before graduation.(fn8)

Despite the overwhelming increase in students' Internet use and the growing popularity of online public schools,(fn9) the United States Supreme Court has never addressed how, or if, schools can discipline students for disruptive online speech without violating the students' First Amend-ment(fn10) rights. What the Supreme Court has addressed is how school administrators can constitutionally discipline students within traditional schools. In a landmark decision, Tinker v. Des Moines Independent Community School District, the Supreme Court announced the now famous principle that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”(fn11) Still, the Court continued, school administrators can discipline students when their speech “materially disrupts classwork or involves substantial disorder.”(fn12) In a later case, the Court stated that free speech rights for students on campus are “not automatically coextensive with the rights of adults in other settings.”(fn13)

Historically, in order to determine if students have complete free speech rights equal to adults or limited rights, the important distinction was whether the speech occurred on campus or off campus. But “[t]he line between ‘on-campus' and ‘off-campus' is not as clear as it once was.”(fn14) More and more high school students are electing to enroll in online high schools.(fn15) In this new school structure, when students misbehave, the boundaries between constitutional protections for free speech and permissible school discipline are unclear. The Court has not ruled on how schools should evaluate conduct relating to online learning.(fn16) In fact, the Court has not said much about how schools should deal with online comments and speech by students at traditional brick and mortar schools.

As students' access to the Internet both in and out of the classroom grows, the differences between on campus and off campus often seem nonexistent. Students can text or chat online while they are sitting in the same classroom.(fn17) Or they can communicate while one student is in the classroom and the other is off campus. Two students might be communicating while off campus on Facebook(fn18) or Twitter,(fn19) but an on-campus student happens to read the messages and shares them among her classmates in the hallways. Are these examples of student speech on campus or off campus?(fn20)

Adding more confusion, online school students rarely attend class in a traditional school facility.(fn21) Online classes typically consist of an online forum, such as Blackboard or other school-sponsored websites, for teachers and students to interact. Also, many online schools have some limited in-person components, such as extracurricular clubs, field trips, athletics, and dances. Still, for many students, in-person interactions are very limited, and their classroom instruction takes place purely online. Online students potentially could sit anywhere with Internet access while they attend their classes.(fn22) For these online students, off campus and on campus bleed into one another; the dividing line can be nonexistent. In the abstract, there is a compelling argument that students are only on campus for free speech purposes when they are on official school websites, but as this Comment discusses below, drawing the line there is ineffective and fails to account for ways students and schools use the Internet. Thus, the on-campus and off-campus categories that define much of the current student speech jurisprudence are in danger of becoming unworkable in the world of online learning. In this Comment, I suggest that in order to provide a workable standard that balances online students' free speech rights with online schools' obligations to maintain an appropriate learning environment for all students,(fn23) the Supreme Court should apply Tinker, without its exceptions, to speech made by students at online schools. This solution, however, is not simple: the difficulty is how the standard should apply to achieve that appropriate balance.

Part II discusses the four seminal cases in the area of free speech in public schools and the types of speech on which the Supreme Court has already ruled. In an effort to explain the challenges regarding online speech in general, Part III discusses the current confusion by lower courts in dealing with traditional students' online speech and examines cases where lower courts have successfully evaluated speech under a Tinker analysis to determine whether it was substantially disruptive. Part IV suggests that the on-campus versus off-campus distinction is irrelevant for the world of online schools, and that the Supreme Court should apply Tinker to online learners because it strikes a balance between speech protections and the need for schools to maintain order and to protect the rights of the other students. Part V offers a brief conclusion.

II. THE SEMINAL CASES ESTABLISHING LIMITS TO STUDENT SPEECH RIGHTS AT TRADITIONAL SCHOOLS: TINKER AND ITS THREE EXCEPTIONS

A. Tinker v. Des Moines Independent Community School District(fn24)

Students' rights at school are not equivalent to their rights in public settings. Still, students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”(fn25) In Tinker, three students were suspended for wearing black armbands to school in protest of the Vietnam War.(fn26) The students' parents filed a complaint and sought an injunction against the school officials and school board members, arguing that the policy against armbands was unconstitutional.(fn27) The Supreme Court held that the punishment was a violation of the students' First Amendment right to free speech.(fn28) Still, the Court did place some limits on student speech, as it said students could not “substantially interfere with the work of the school or impinge on the rights of other stu-dents.”(fn29) In deciding that John Tinker's constitutional rights were violated, the Court noted that his speech was passive and peaceful.(fn30) There needed to be more than just the “discomfort and unpleasantness” of an ordinary controversial viewpoint in order for the school to step in and regulate the student's speech.(fn31)

Also, the Court made an important distinction by noting that the speech was permissible, in part, because it did not interfere with classroom instruction time.(fn32) Student speech that “materially disrupts class-work or involves substantial disorder or invasion of the rights of oth-ers”(fn33) was subject to punishment by the school administration. Schools must show that a student's speech “materially and substantially inter-fere[s] with the requirements of appropriate discipline in the operation of the school.”(fn34) The Court also mentioned that in this case the school could not prevent a display of speech before it happened because there were not “any facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities.”(fn35) A second prong of the justification, highlighted in later cases, was that schools can discipline students for speech that “colli[des] with the rights of other students to be secure and to be let alone.”(fn36) Protecting the rights of the other students to receive an education without substantial disruption provides strong justification for applying Tinker to students' speech at online schools.(fn37)

B. Bethel School District No. 403 v. Fraser(fn38)

Even though Tinker required schools to prove a material or substantial disruption, some student speech, by its very nature, can be regulated in traditional schools in order to maintain discipline and protect the rights of other students to receive an education. Out of this need, the Court created the first of three exceptions to Tinker.(fn39) In Fraser, the Court ruled in favor of a school district that had disciplined a student, Matthew Fraser, for giving a vulgar campaign speech that was laden with sexual innuendoes during a school assembly.(fn40) The speech was given in support of his friend who was running for a student government...