Prohibiting Off Campus Conduct:
Dos and Don’ts
Presented by
Neal E. Stenberg
STENBERG LAW OFFICE
Lincoln, NE
(402) 486-0415
Free Speech Issues
 To what extent may school districts lawfully regulate off-
campus student speech
 Three cases
 Kowalski v. Berkeley County Schools—Fourth Circuit Case
regarding the cyber bullying of a fellow student
 Layshock v. Hermitage School District—Third Circuit case
regarding a student’s creation of a fake internet profile of a high
school principal
 J.S. v. Blue Mountain School District—Creation of a MySpace profile
mocking the middle school principal
 Supreme Court recently denied certiorari in all three cases
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Presented by Neal E. Stenberg
6/8/2012
Regulation of On-Campus Student
Speech
 Tinker v. Des Moines Independent Community School District—the
black arm band case
 To justify prohibition of a particular expression of opinion
school officials must demonstrate that the forbidden conduct
would materially and substantially interfere with the requirements
of appropriate discipline in the operation of the school
 Burden cannot be met if school officials are driven by a mere
desire to avoid the discomfort and unpleasantness that always
accompany an unpopular viewpoint
 Tinker requires a specific and significant fear of disruption, not
just some remote apprehension of disturbance
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Presented by Neal E. Stenberg
6/8/2012
Regulation of On-Campus Student
Speech
 Tinker v. Des Moines Independent Community School District—the
black arm band case
 Tinker does not require actual disruption to justify a restraint on
student speech
 Tinker does not require certainty, only that the forecast of
substantial disruption be reasonable
 Where on-campus conduct is concerned, Tinker permits the
regulation of even political speech
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Presented by Neal E. Stenberg
6/8/2012
Regulation of On-Campus Student
Speech
 Bethel School District No. 403 v. Fraser—nominating speech used elaborate
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graphic and explicit sexual metaphor
Schools may determine that the essential lessons of civil, mature conduct
cannot be conveyed in a school that tolerates lewd, indecent, or
offensive speech and conduct such as that indulged in by Fraser
The First Amendment does not prevent schools from encouraging the
fundamental values of habits and manners of civility by insisting
that certain modes of expression are inappropriate and subject to
sanctions
The determination of what manner of speech in the classroom or in
school assembly is inappropriate properly rests with the school board
Does not require proof of actual disruption or a reasonable
forecast of disruption
Presented by Neal E. Stenberg
6/8/2012
Regulation of On-Campus Student
Speech
Morse v. Frederick--In Morse, the Court held that the First
Amendment does not prevent a principal from restricting
student speech at a school event off school grounds, when
that speech is reasonably viewed as promoting illegal drug
use
The Court, referring to its earlier decision in Fraser, was
careful to note that “had Fraser delivered the same speech
in a public forum outside the school context, it would have
been protected”
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Presented by Neal E. Stenberg
6/8/2012
Regulation of On-Campus Student
Speech
 Today’s questions:
 May a school district
regulate/prohibit off-campus
speech that materially and
substantially interferes with the
requirements of appropriate
discipline in the operation of the
school?
 How about off-campus speech that is
lewd, indecent, or offensive?
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Presented by Neal E. Stenberg
6/8/2012
Regulation of Off-Campus Student
Speech
 If the ability to regulate
student speech turns on
whether the speech occurs
on or off campus, what
speech in this electronic age
is considered to be “on
campus”?
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Presented by Neal E. Stenberg
6/8/2012
The Kowalski Case
 Kara Kowalski 12th grade student at Musselman High School in
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West Virginia
Using her home computer, created a discussion group webpage on
MySpace.com with the heading " S.A.S.H.”
Evidence indicated that the acronym stood for “Students Against
Shay's Herpes,” referring to another Musselman High School
Student, Shay N., who was the main subject of discussion on the
webpage
After creating the group, Kowalski invited approximately 100
people on her MySpace " friends" list to join the group
MySpace discussion groups allow registered users to post and
respond to text, comments, and photographs in an interactive
fashion.
Presented by Neal E. Stenberg
6/8/2012
The Kowalski Case
 Ray Parsons uploaded a photograph of himself and a friend
holding their noses while displaying a sign that read, “Shay
Has Herpes,” referring to Shay N.
 Kowalski promptly responded, stating, “Ray you are soo
funny!=)”
 Parsons also uploaded two additional photographs of Shay N.,
which he edited:
 In the first, he had drawn red dots on Shay N.'s face to simulate
herpes and added a sign near her pelvic region, that read, "
Warning: Enter at your own risk."
 In the second photograph, he captioned Shay N.'s face with a
sign that read, “portrait of a whore”
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Presented by Neal E. Stenberg
6/8/2012
The Kowalski Case
 Comments included:
 “Wait til she sees the page lol.”
 “Haha.. screw her”
 " This is great.”
 “Shay has herpes sign”
 “Kara=My Hero”
 “Your [sic] so awesome kara ... i never thought u would
mastermind a group that hates [someone] tho, lol"
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Presented by Neal E. Stenberg
6/8/2012
The Kowalski Case
 Shay’s parents complained to
school administrators
 Shay left school because she
was uncomfortable about
sitting in class with students
who had posted comments
about her on the MySpace
webpage
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Presented by Neal E. Stenberg
6/8/2012
The Kowalski Case
 Kowalski suspended from school for 10 days and issued a
90-day social suspension which prevented her from
attending school events in which she was not a direct
participant
 Kowalski was also prevented from crowning the next
"Queen of Charm" in that year's Charm Review, having
been elected “Queen" herself the previous year
 In addition, she was not allowed to participate on the
cheerleading squad for the remainder of the year
 Kowalski's out-of-school suspension was reduced to 5
days, but the 90-day social suspension was retained
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Presented by Neal E. Stenberg
6/8/2012
Kowalski—Tinker Applies
 Opinion indicates that Tinker will apply to some but not all
speech which originates off campus but creates a disruption
on campus
 Political speech for or against a war, a ballot measure, a political
candidate, etc. which originates off campus probably can’t be
regulated even if that speech is communicated via the internet
and causes a disruption at school
 Court declined to specify a precise test for when Tinker can be
applied to speech which originates off campus
 Said only that off campus speech was subject to disciplinary
measures under the circumstances of this particular case
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Presented by Neal E. Stenberg
6/8/2012
Reasons for Applying Tinker
 Foreseeable that speech would reach the school
 Forseeable that speech would cause disruption
 Communication was targeted at a specific student
 Duty--schools have a duty to protect their students from
harassment and bullying in the school environment
 There was disruption:
 Forced Shay N. to miss school in order to avoid further abuse—
student’s ability to participate in school programs was adversely
affected
 School did not suppress speech on political and social issues
based on disagreement with the viewpoint expressed
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Presented by Neal E. Stenberg
6/8/2012
Does Fraser Apply?
 If speech originates outside of the schoolhouse gate but is
directed at persons in school and received by and acted
on by them it can constitute “in-school” speech
 In that case, speech could be regulated not only under Tinker
but also, as vulgar and lewd in-school speech, under Fraser
 “We need not resolve, however, whether this was in-school
speech and therefore whether Fraser could apply because the
School District was authorized by Tinker to discipline
Kowalski”
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Presented by Neal E. Stenberg
6/8/2012
Keys to applying Tinker to off-campus
speech—a complex task
 Foreseeable that speech would reach the school
 Foreseeable that speech would cause disruption
 Communication was targeted at a specific student
 Duty--schools have a duty to protect their students from
harassment and bullying in the school environment
 Speech caused disruption—student’s ability to participate in
school programs was adversely affected
 Speech was both subjectively and objectively offensive
(not specifically discussed in Kowalski)
 School did not suppress speech on political and social issues
based on disagreement with the viewpoint expressed
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Presented by Neal E. Stenberg
6/8/2012
How about these hypotheticals?
 Assume that each of these statements made at a social
networking site reaches the campus at Alex’s school and
adversely affects his ability to participate in school programs:
 Hey Alex J. the Bible says: “Do not practice homosexuality; it is
a detestable sin.” Leviticus 18:22
 Hey Alex J. God hates fags like you
 Pray for Alex J. that he may repent of his homosexuality and be
redeemed in the eyes of God
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Presented by Neal E. Stenberg
6/8/2012
J.S. v. BLUE MOUNTAIN SCHOOL
DISTRICT
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Presented by Neal E. Stenberg
6/8/2012
J.S. v. BLUE MOUNTAIN SCHOOL
DISTRICT
 J.S. is a generally well behaved 8th grade student
 J.S. and her friend K.L., another eighth grade student at Blue
Mountain Middle School, created a fake profile of
McGonigle, which they posted on MySpace, a social
networking website
 The profile was created at J.S.'s home, on a computer
belonging to J.S.'s parents
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Presented by Neal E. Stenberg
6/8/2012
J.S. v. BLUE MOUNTAIN SCHOOL
DISTRICT
 The profile did not identify McGonigle by name, school, or
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location
Contained his official photograph from the School District's
website
The profile was presented as a self-portrayal of a bisexual
Alabama middle school principal named “M-Hoe”
Contained crude content and vulgar language
The profile lists M-Hoe's general interests as: “detention,
being a tight ass, riding the fraintrain, spending time with my
child (who looks like a gorilla), baseball, my golden pen,
f***ing in my office, hitting on students and their parents”
Presented by Neal E. Stenberg
6/8/2012
J.S. v. BLUE MOUNTAIN SCHOOL
DISTRICT
 The “about me” portion of the profile said among other
things:
 It's your oh so wonderful, hairy, expressionless, sex addict,
fagass, put on this world with a small dick PRINCIPAL
 For those who want to be my friend, and aren't in my school[,] I
love children, sex (any kind), dogs, long walks on the beach, tv,
being a dick head, and last but not least my darling wife who
looks like a man (who satisfies my needs) MY FRAINTRAIN....
(Debra Frain is McGonigle’s wife)
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Presented by Neal E. Stenberg
6/8/2012
J.S. v. BLUE MOUNTAIN SCHOOL
DISTRICT
 Originally the profile could be accessed by anyone
 After one day the profile was made private and accessible only by
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about 20 of J.S.’s friends at school
The School District's computers block access to MySpace, so no
Blue Mountain student was ever able to view the profile from
school
Student told McGonigle about profile
He tries to find it and can’t
McGonigle asks the student to print the profile and bring it to him
The only printout of the profile that was ever brought to school
was one brought at McGonigle's specific request.
Presented by Neal E. Stenberg
6/8/2012
J.S. v. BLUE MOUNTAIN SCHOOL
DISTRICT--Disruption
 A teacher experienced a disruption in his class when six
or seven students were talking and discussing the profile
 Nunemacher had to tell the students to stop talking
three times, and raised his voice on the third occasion
 Same teacher heard two students talking about the
profile in his class on another day, but they stopped when
he told them to get back to work.
 Teacher admitted that the talking in class was not a
unique incident and that he had to tell his students to
stop talking about various topics about once a week
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Presented by Neal E. Stenberg
6/8/2012
J.S. v. BLUE MOUNTAIN SCHOOL
DISTRICT
 J.S. was suspended from school
 Parents files suit
 District Court granted summary judgment for school district
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and dismissed complaint
Appealed to Third Circuit Court of Appeals which eventually
heard the case en banc
8 judges joined in the majority opinion
5 judges joined in a concurring opinion
6 judges joined in a dissenting opinion
Opinions do not appear to turn on party affiliation
Presented by Neal E. Stenberg
6/8/2012
J.S.—The Majority Decision
 Prohibition of speech could not be justified on the basis of
Tinker because there was no substantial disruption—school
conceded that
 Also, there were no facts which might reasonably have led
school authorities to forecast substantial disruption of or
material interference with school activities
 Because the standard was not met, majority did not decide
whether Tinker can be applied to speech which originates off
campus under any circumstances
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Presented by Neal E. Stenberg
6/8/2012
J.S.—The Majority Decision
 Did Fraser apply?
 No.
 Fraser does not apply to off-campus speech
 In Morse, Chief Justice Roberts, writing for the majority,
emphasized that “[h]ad Fraser delivered the same speech in a
public forum outside the school context, it would have been
protected.”
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Presented by Neal E. Stenberg
6/8/2012
J.S.—Concurring opinion
 These five judges would not apply Tinker to off-campus
speech under any circumstances
 “Applying Tinker to off-campus speech would create a
precedent with ominous implications. Doing so would
empower schools to regulate students' expressive activity no
matter where it takes place, when it occurs, or what subject
matter it involves—; so long as it causes a substantial
disruption at school. Tinker, for example, authorizes
schools to suppress political speech—; speech “at
the core of what the First Amendment is designed to
protect—if it substantially disrupts school
activities”
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Presented by Neal E. Stenberg
6/8/2012
J.S.—Concurring opinion
 When is speech on campus?
 Concurring judges would have no difficulty applying Tinker [and
apparently Fraser as well] to a case where a student sent a
disruptive email to school faculty from his home computer.
Regardless of its place of origin, speech intentionally directed
towards a school is properly considered on-campus speech
 On the other hand, speech originating off campus does not mutate
into on-campus speech simply because it foreseeably makes its way
onto campus
 A bare foreseeability standard could be stretched too far, and
would risk ensnaring any off-campus expression that happened to
discuss school-related matters
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Presented by Neal E. Stenberg
6/8/2012
J.S.—Dissenting opinion
 Appears to agree with the majority and concurring opinions
that Fraser cannot be applied to off-campus speech
 Says that Tinker can be applied to off-campus speech which
creates a substantial disruption or if there is a reasonable
forecast of substantial disruption; and
 If it is reasonably forseeable that speech will create a
substantial disruption
 The forseeability standard would apparently be met by any
posting at a social networking site even if only one other
student has access to the posting
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Presented by Neal E. Stenberg
6/8/2012
Failing to take action in response to such conduct would not only encourage the offending student to repeat the conduct, but also would serve to foster an attitude of disrespect tow
J.S.—Dissenting opinion
 Agrees that there was no actual disruption
 “But the profile's potential to cause disruption was reasonably
foreseeable, and that is sufficient.”
 “Failing to take action in response to such conduct would not
only encourage the offending student to repeat the conduct,
but also would serve to foster an attitude of disrespect
towards teachers and staff ”
 “This kind of harassment has tangible effects on
educators. It may cause teachers to leave the school and
stop teaching altogether, and those who decide to stay
are oftentimes less effective.”
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Presented by Neal E. Stenberg
6/8/2012
Summary
 What is on-campus speech?
 Student sends a disruptive email to school faculty from his
home computer--regardless of its place of origin, speech
intentionally directed towards a school is properly considered
on-campus speech
 Speech that ends up on school grounds but is not specifically
targeted at the school is not “on school grounds”.
 Note that in order to constitute “bullying” within the meaning
of NEB. REV. STAT. § 79-2,137 the conduct must occur “on
school grounds, in a vehicle owned, leased, or contracted by
a school being used for a school purpose by a school employee
or his or her designee, or at school-sponsored activities or
school-sponsored athletic events”
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Presented by Neal E. Stenberg
6/8/2012
Summary
 Application of Tinker to off-campus speech
 Only under limited circumstances
 Can’t limit speech that involves an expression of opinion on
political, social, or philosophical issues
 Can prohibit speech that clear constitutes bullying but
parameters are still ill defined
 The extent to which attacks on teachers and administrators can
be punished is unclear
 Application of Fraser to off-campus speech
 Does not apply
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Presented by Neal E. Stenberg
6/8/2012
Prohibiting Off Campus Conduct:
Dos and Don’ts
Presented by
Neal E. Stenberg
STENBERG LAW OFFICE
Lincoln, NE
(402) 486-0415