The Peril of Postings: Free-Speech Fiascoes

What students write online and how they are held accountable is still uncharted legal territory. Warning to administrators: Tread carefully.

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Where do students' free-speech rights end? That's the $64,000 question as parents, teachers, administrators, lawyers, and judges have weighed in on numerous cases across the country.

In Gwinnett County, Georgia, it is actually a $95,000 question, the amount the school district had to pay in damages and attorneys' fees after settling a lawsuit in August 2004 brought by two high school students who had been disciplined for bad-mouthing a teacher. In addition, the students' disciplinary records were expunged.

The Internet has brought a spike in free-speech cases because of the pervasiveness of the medium and the permanence of the message. Site administrators can archive chat-room conversations and discussion-board strings, for example, and can access them weeks, months, or years later. With a few keystrokes, students can print conversations or posts that took place off school grounds and bring them to school, which creates a dilemma for school officials.

No student free-speech cases have reached the Supreme Court since the rise of the Internet, so courts rely on a trio of prior student free-speech cases that date back 16 to 35 years. Even in 1988, when the latest case was decided, the Internet was as foreign to most educators and students as it was to those who drafted the Bill of Rights, which gave all Americans freedom of speech.

Off-campus Speech, On-campus Issues

In the suburban Atlanta case, two high school students, who have since graduated, were among more than two dozen students who used an off-campus Internet site to criticize a language arts teacher at Brookwood High School. Brookwood is one of 16 high schools in the Gwinnett system, the largest school system in the state, with more than 135,000 students.

Students employed pseudonyms and often used profane language to describe the teacher. One of the students wrote, "Filthy [expletive] gotta die!" Officials suspended both students, one for 28 days and the other for 10. One of the teens was assigned to an alternative school, which was full, forcing his parents to pay for a private school for a month. In another instance, one of the students had to obtain a waiver to take the SAT at another school because he had been banned from campus, says Beth Littrell, staff attorney at the American Civil Liberties Union (ACLU) of Georgia, which filed a lawsuit on behalf of the teens. "He had never been a discipline problem but was being treated like a criminal," she says.

Before filing the suit, Littrell says, the ACLU tried to resolve the case without going to court, asking that the students' records be expunged so they could apply to colleges and asking that the discipline policy be amended to differentiate between Internet use at school and at other places. "Their policies were overreaching and beyond their authority," says Littrell, adding that the state ACLU receives about half a dozen student free-speech complaints each year.

During preliminary hearings, the judge indicated that Gwinnett County hadn't proved that the speech was a threat—a criterion for restricting student speech—and urged the sides to settle. "Once the judge said that he was looking at the speech as hyperbole and not a true threat, we were pretty much dead in the water," says Bobby Crowson, chief of staff in the office of Gwinnett County Superintendent J. Alvin Wilbanks. "While we understand and respect the judge's point of view, we still believe [the speech] was disruptive," Crowson says. "We believe the teacher perceived it as a threat ... and we know it was disruptive at the school and system level."

Little Precedent for Off-Campus Speech

Substantial disruption of the school environment is a key test in determining whether a student's speech, either on campus or off, is protected under the Constitution. The precedent was established in 1969 in Tinker v. Des Moines Independent Community School District when the high court ruled that students wearing black armbands at school to protest the Vietnam War were not being disruptive. "Generally, students face the restraint of free-speech rights only if they are disruptive or materially and substantially interfere with appropriate discipline or the rights of others," says Kelly Timmons, an assistant professor at Georgia State University College of Law in Atlanta. "But what about an Internet site made at home, or e-mail to friends from home that's printed out and brought to campus? Is that on-campus or off-campus speech? The courts still don't know."

The second case often cited is Bethel School District No. 403 v. Fraser, decided in 1986. A student delivered a speech full of sexual innuendo at a school assembly, and he was suspended for two days for violations of the school disciplinary code. The suspension was upheld because teachers with whom he discussed the speech in advance cautioned him against delivering it and because a hearing office for the school determined that the speech fell within the meaning of "obscene" in the student handbook.

Finally, Hazelwood School District v. Kuhlmeier, decided in 1988, involved a principal removing questionable content from a high school newspaper. The court held that the school newspaper did not qualify as a "public forum" with implicit free-speech rights and that the principal was within his rights to remove content he thought unfairly impinged on the privacy rights of others.

"[The Gwinnett case] clearly doesn't fall squarely under any of these cases," Timmons says. "But at the same time, schools can't ignore threats of violence because if such threats were carried out, schools could face potential tort liability for negligence. In addition, under federal Title IX, sex discrimination and sexual harassment are prohibited, and institutions that don't stop sexually discriminatory or harassing conduct could face liability."

Lower courts have interpreted these three cases in widely differing ways since 1988 when dealing with free-speech issues that might or might not involve the Internet, says Kathleen Conn, K-12 curriculum supervisor of science and technology education in the West Chester (PA) Area School District. Conn has written two books that address these issues, The Internet and the Law: What Educators Need to Know (2002) and Bullying and Harassment: A Legal Guide for Educators (2004), available through the Association for Supervision and Curriculum Development.

Documented disruption to the learning environment is crucial to uphold student discipline, Conn says. "'I don't really like what you said' is not enough," she maintains. "There have to be concrete, education-defensible reasons to take action against a student."

Due process for the student is critical, and documentation must be provided, including a statement of what occurred and its impact on the school and the learning environment. She cites the 2002 J.S. v. Bethlehem Area School District case, in which a student created a web page that contained obscene and violent images against a teacher. The Pennsylvania Supreme Court upheld the 1998 expulsion, not because of the web site, but because of the documented disruption to the learning environment. The teacher took a leave of absence, resulting in the hiring of a long-term substitute, and later left the profession after returning to the classroom and facing more ridicule.

Determining the difference between a true threat and protected speech requires an administrator with the skills of a tightrope walker, safeguarding teachers and the learning environment on one hand and the rights of students on the other. "If an administrator discovers or is notified of a student-created web site that appears to be a threat, he or she should call in law enforcement officials," Conn says. "But the law has strict provisions as to what constitutes a real threat."

The increase in zero-tolerance policies and the heightened awareness of safety following highly publicized school shootings in the past few years have brought free-speech issues into the spotlight, Conn notes. "Schools are a scarier place than they used to be," she says. "The school shootings of the late '90s have altered perceptions with teachers perceiving themselves as at-risk, and, unfortunately, some teachers' fears have been justified."

No Clear-Cut Answers

Littrell, the ACLU attorney, urges restraint among school officials when dealing with free-speech issues. "Zero tolerance makes zero sense," Littrell says. The individual circumstances of each case need to be weighed against common sense and restraint when it comes to punishing students for expression. "When students leave school property, the school can't reach into their bedrooms," Littrell says.

The Brookwood High School free-speech case required Gwinnett to change its student conduct code. Crowson said that while the code has not been substantially amended, how the code is administered has been changed after settling the lawsuit.

When asked about what suggestions he might have for other administrators in similar situations, Crowson says, "I have no advice because there are no guidelines ... [but] we're not going to be intimidated about pursuing what we perceive as threats."

Matt Bolch is an Atlanta-based freelance writer and editor who covers business and technology issues for more than a dozen industry trade publications.

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