GEORGE MASON UNIVERSITY SCHOOL OF LAW
2014 LAW JOURNAL
TRANSFER WRITE-ON COMPETITION
Dear Student:
Congratulations on your admission to George Mason University School of Law and on your
decision to participate in our Transfer Write-On Competition! Mason has a very dynamic and robust
journal community. With five journals covering a wide-range of topics, there is truly a publication for
everyone at Mason. We encourage you to explore the different journals and what each has to offer at the
following website: www.law.gmu.edu/students/journals.
As you proceed with this year’s Competition, please pay close attention to the Submission
Content and Instructions for each journal to which you are applying. There is currently one
competition for all of Mason’s journals, but while submission instructions and requirements often look
similar amongst the journals at an initial glance, they do differ.
If you have any questions about the specific journals, please do not hesitate to contact the
respective Editors-in-Chief at the following:
GEORGE MASON LAW REVIEW:
Amy Josselyn, Editor-in-Chief
ajossely@gmu.edu
CIVIL RIGHTS LAW JOURNAL:
Elizabeth Hohenstein, Editor-in-Chief
ehohenst@gmu.edu
JOURNAL OF LAW, ECONOMICS & POLICY:
Daniel Russell, Editor-in-Chief
drusse11@gmu.edu
JOURNAL OF INT’L COM. LAW:
Jacqueline Nguyen, Editor-in-Chief
jacqueline.mk.nguyen@gmail.com
NATIONAL SECURITY LAW JOURNAL:
Alexander Yesnik, Editor-in-Chief
alexander.yesnik@nslj.org
Please direct all questions regarding the Transfer Write-On Competition to GEORGE MASON LAW
REVIEW’S Senior Notes Editor, Cameron Green, at cgreen14@gmu.edu.
Journal membership is a great way to get involved in the George Mason community. Past transfer
students have not only been members of the various journals at Mason, but have also gone on to hold
board positions during their third year, including a recent Editor-in-Chief and two former Senior Articles
editors of the GEORGE MASON LAW REVIEW, as well asa recent Editor-in-Chief of the NATIONAL
SECURITY LAW JOURNAL.
Good luck in the competition and congratulations again on your accomplishments thus far. We
look forward to seeing you on campus this year!
Sincerely,
GEORGE MASON LAW REVIEW
CIVIL RIGHTS LAW JOURNAL
JOURNAL OF LAW, ECONOMICS & POLICY
JOURNAL OF INT’L COMM. LAW
NATIONAL SECURITY LAW JOURNAL
GEORGE MASON LAW REVIEW
CIVIL RIGHTS LAW JOURNAL
JOURNAL OF LAW, ECONOMICS & POLICY
JOURNAL OF INTERNATIONAL COMMERCIAL LAW
NATIONAL SECURITY LAW JOURNAL
2014 TRANSFER WRITE-ON COMPETITION
The following are the instructions for the 2014 Transfer Write-On Competition for
GEORGE MASON LAW REVIEW (GMLR), CIVILRIGHTS LAW JOURNAL (CRLJ), JOURNAL OF LAW,
ECONOMICS & POLICY (JLEP), JOURNAL OF INTERNATIONAL COMMERCIAL LAW (JICL), and
NATIONAL SECURITY LAW JOURNAL (NSLJ). Unless otherwise noted, the following instructions
apply to all five journals. This packet represents the final word on all matters pertaining to the
Transfer Write-On Competition. In particular, please note that all submissions must be
submitted electronically by August 6, 2014, at 5:00 pm EDT.
The Transfer Write-On packet is prepared and managed by GEORGE MASON LAW
REVIEW. Please direct all questions regarding the 2014 Write-On Competition to GEORGE
MASON LAW REVIEW’S Senior Notes Editor, Cameron Green, at cgreen14@gmu.edu.DO
NOTsend any submissions to Cameron, as this would compromise blind grading. For
electronic submissions, please see the journal-specific instructions that follow.
If you have questions unrelated to the Transfer Write-On Competition, please direct them
to the appropriate journal:
GEORGE MASON LAW REVIEW:
Amy Josselyn, Editor-in-Chief
ajossely@gmu.edu
CIVIL RIGHTS LAW JOURNAL:
Elizabeth Hohenstein, Editor-in-Chief
ehohenst@gmu.edu
JOURNAL OF LAW, ECONOMICS & POLICY:
Daniel Russell, Editor-in-Chief
drusse11@gmu.edu
JOURNAL OF INT’L COM. LAW:
Jacqueline Nguyen, Editor-in-Chief
jacqueline.mk.nguyen@gmail.com
NATIONAL SECURITY LAW JOURNAL:
Alexander Yesnik, Editor-in-Chief
alexander.yesnik@nslj.org
I.
TOPIC
To participate in the 2014 Transfer Write-On Competition, you must write a Comment
(as defined below in Section III) on the sources included in this packet.
II.
CLOSED RESEARCH PROJECT
The Write-On is a closed research project. Not all the materials included in the packet
may be applicable to your analysis—you must decide what is relevant. You do not have to use
all of the sources and you do not have to use any specific number of the sources. YOU MAY
NOT CONDUCT ANY OUTSIDE RESEARCH, AND YOU ARE LIMITED TO THE
MATERIALS CONTAINED IN THIS PACKET AS THEY ARE PRESENTED IN THIS
PACKET. The materials in this packet have been noticeably altered; you may only use the
sources as they appear in this packet (i.e., do not look up the listed sources on LexisNexis,
Westlaw, or any other research tool, including Google). If you are found to violate this
requirement, your entry will be automatically disqualified and you will no longer be eligible for
candidate membership with any journal. This restriction is for your benefit. It allows you to
spend your time reading and writing rather than researching the issues.
You may not discuss this project with other law students, law school faculty, attorneys, or
anyone who has legal training. However, friends or family members, who have no legal training
and are not law students, law school faculty, or attorneys may proofread your Comment. Please
be aware that the GMUSL Honor Code governs the Write-On Competition.
III. COMMENT: DEFINITION AND TOPIC DISCUSSION
Unlike a Note that examines one case in particular, a Comment surveys a specific, narrow
area of the law. For this Write-On Competition, your Comment should generally focus on
concerns surrounding the First Amendment’s application to student speech in schools. This topic
may encompass a variety of issues, so you have leeway to focus on one or more specific issues.
We are not looking for an exhaustive analysis of this topic, as that would not be possible to
achieve within the page limit. We do, however, expect a thorough legal(not policy) analysis of
whichever issue you choose within the broader topic.
IV. FORMAT
1. You must use proper Bluebook (19th edition) law review form1 for citations.
2. Your Comment must not exceed twelve (12) pages of typed, double-spaced text,
including footnotes.
3. Pages must be numbered (centered at the bottom of each page).
1
Please note that citations in law review articles differ from citations in court memoranda. For example, you should
cite to authority in this Transfer Write-On by using footnotes instead of citation sentences or intratextual citations.
Additionally, law review citations use slightly different italicization rules than court memoranda citations. We
recommend that you review student comments on the GEORGE MASON LAW REVIEW website to ensure you conform
to these rules.
4. The font must be twelve (12) point Times New Roman.
5. Top, bottom, left, and right margins must be one inch.
6. Footnotes must be single-spaced, in ten (10) point Times New Roman font.
V.
ORGANIZATION
Your Comment should conform as nearly as possible to Commentspublished in the
GEORGE MASON LAW REVIEW. You may look at Comments in these publications without
violating the closed-research requirements but only for the purpose of determining proper format
and style (headings, etc.). In addition, please utilize the following framework:
A. Title
At the top of the first page, you must have an appropriate title.
B. Introduction
Your introduction should introduce the issue(s) you will discuss, briefly summarize how
courts have treated the issue(s), and summarize any conclusions you have reached in your
Comment. Your introduction should also provide a “roadmap” for the reader of the different
sections of your Comment.
C. Background & Discussion
This section should trace the development of the area of law under discussion. Your
discussion should briefly describe the courts’ approach to key issues in these cases and should
juxtapose the arguments of the parties. The purpose is not to write a detailed analysis of the
relevant cases but to give the reader enough knowledge to appreciate your discussion of these
cases in your analysis section.
D. Legal Analysis
This part of the Comment constitutes the sole justification for writing the Comment and
is the most important section. You should set forth your reasoning in detail. What we are
looking for is well-reasoned legal analysis. You should focus on factors such as case holdings,
consistencies or discrepancies among holdings, future consistent application of the law, etc. As
you organize your analysis, you may wish to consider one or more of the following questions:
1. Does student speech in schools present an exception to the First Amendment?
2. How should courts balance concerns for freedom of speech and school needs with
students’ First Amendment rights?
3. Can schools regulate student speech even without a "substantial disruption?"
4. Have the subsequent student speech cases all but overruled Tinker?
5. Can schools regulate both on-campus and off-campus speech?
6. Does a “reasonably foreseeable” test provide protection to online speech?
7. Are different types of speech regulated differently under the First Amendment?
A successful piece will assess the sources listed in this packet and determine how they
relate to one another. There is no formula for a successful write-on submission; however, you
should aim to approach the topic succinctly and creatively. You should focus on the
persuasiveness of your argument, conformance with formatting used in typical Comments,
writing style, grammar, punctuation, and the proper use of citations. You need not use every
source listed in this packet. Likewise, you need not avoid any particular source.
E. Conclusion
In one to two sentences, briefly conclude your legal argument. You need not repeat or
summarize your legal analysis, but this section should serve to conclude your legal argument and
offer any final thoughts to a reader.
VI. BLUEBOOKING EXERCISE
In addition to writing a short Comment, write-on candidates must complete a brief
Bluebooking Exercise to demonstrate their competence with Bluebook rules. Please cut and
paste the text as provided in the Bluebooking Exercise into a separate Word document and
correct the footnotes using proper Bluebook format. Additionally, below each footnote, please
describe the changes you made.
For Example:
FN 1
United States v. Moussaoui, 382 F.3d 453 at 454 (4th Cir. 2004).
Your Corrected FN1
United States v. Moussaoui, 382 F.3d 453, 454 (4th Cir. 2004).
List of Changes You
Made


Removed improper italicization per BB Rule 10.
Corrected pin citation form per BB Rule 3.2(a).
You should not use the Track Changes function in Word. DO NOT check the authority
of footnotes for accuracy or support, or check prior or subsequent history. This is a formatting
exercise and should be based solely on your knowledge and the Bluebook rules. Remember that
the Honor Code governs the Write-On Competition and using LexisNexis or Westlaw to look up
any of the cases or articles in the Bluebooking Exercise or using any software to correct citations
is against the rules of the competition. If you need additional information in order to properly
correct a footnote, simply make a note explaining the information that you need. Please include
this exercise in your electronic submission and in the packet with your Comment, grade release
form, and contact sheet.
2014 WRITE-ON COMPETITION
QUALIFICATIONS AND SUBMISSION INSTRUCTIONS
I.
QUALIFICATIONS
A.
GEORGE MASON LAW REVIEW
All transfer students applying for membership on GEORGE MASON LAW REVIEW must
have just completed their first year of law school (1D, 1E).
The GEORGE MASON LAW REVIEW editorial board will review each submission. There is
neither a minimum nor a maximum number of positions available to students competing in the
Transfer Write-On Competition. GEORGE MASON LAW REVIEW encourages all transfer students
to participate in the Transfer Write-On Competition. Students selected for candidate membership
will be contacted prior to the start of Fall Semester classes.
B.
CIVIL RIGHTS LAW JOURNAL
All students applying for membership on CIVIL RIGHTS LAW JOURNAL must haveeither
just completed their first year of law school or their second year as a part time evening student
(1D, 1E, 2E). To be eligible, students must have a minimum cumulative grade point average of
2.75, as determined by the GMUSL Records Office at the end of the 2014 Spring Semester.
The CIVIL RIGHTS LAW JOURNAL editorial board will review each submission. There is
neither a minimum nor a maximum number of positions available to transfer students competing
in the Transfer Write-On Competition. The CIVIL RIGHTS LAW JOURNAL encourages all transfer
students to participate in the Transfer Write-On Competition. Students selected for candidate
membership will be contacted prior to the start of Fall Semester classes.
C.
JOURNAL OF LAW, ECONOMICS & POLICY
All students applying for membership on the JOURNAL OF LAW, ECONOMICS & POLICY
must be have just completed their first or second year of law school as either a full time or part
time student (1D, 1E, 2D, 2E), or their third year as a part-time students (3E). JLEP requires all
applicants to be in good academic standing, but the JLEP review committee considers GPA as a
non-determinative factor in the admissions process.
The JOURNAL OF LAW, ECONOMICS & POLICY editorial board will review each
submission. There is neither a minimum nor a maximum number of positions available to
transfer students competing in the Transfer Write-On Competition. The JOURNAL OF LAW,
ECONOMICS & POLICY encourages all transfer students to participate in the Transfer Write-On
Competition. Students selected for candidate membership will be contacted prior to the start of
Fall Semester classes.
D.
JOURNAL OF INTERNATIONAL COMMERCIAL LAW
All students applying for membership on the JOURNAL OF INTERNATIONAL COMMERCIAL
LAW must have just completed their first or second year of law school (1D, 1E, 2D, 2E) and have
taken Contracts. JICL requires all applicants to be in good academic standing, but the JICL
review committee considers GPA as one factor in the selection process.
The JOURNAL OF INTERNATIONAL COMMERCIAL LAW editorial board will review each
submission. There is neither a minimum nor a maximum number of positions available to
transfer students competing in the Transfer Write-On Competition. The JOURNAL OF
INTERNATIONAL COMMERCIAL LAW encourages all transfer students to participate in the Transfer
Write-On Competition. Students selected for candidate membership will be contacted prior to
the start of Fall Semester classes.
E.
NATIONAL SECURITY LAW JOURNAL
The NATIONAL SECURITY LAW JOURNAL accepts applications for membership from all
students whohave at least one full academic year remaining in law school, includingall students
entering their second year (rising 2Ds & 2Es), all students entering their third year (rising 3Ds &
3Es), and evening students entering their fourth year (rising 4Es) who will be graduating in May
or beyond. Typically, the NATIONAL SECURITY LAW JOURNALrequires a minimum cumulative
grade point average of 2.50; however,this requirement is waived for new transfer students
admitted to Mason Law for the upcoming semester. The NATIONAL SECURITY LAW
JOURNALrecognizes that new transfer students may not have a record of courses completed at
Mason Law, and therefore accepts the admissions offer to transfer to Mason Law as evidence of
strong academic standing.
The Editorial Board of theNATIONAL SECURITY LAW JOURNAL will review each
submission. There is neither a minimum nor a maximum number of positions available to
transfer students competing in the Transfer Write-On Competition, so all eligible students are
encouraged to apply. For more information on the scoring methodology used by the NATIONAL
SECURITY LAW JOURNAL, please visitwww.nslj.org/writeon/. Students selected asCandidate
Members will be contacted prior to the start of Fall Semester classes.
II.
SUBMISSION CONTENTS& INSTRUCTIONS
Please prepare a separate submission for each journal.
A.
GEORGE MASON LAW REVIEW
Students mustemail an electronic copy (MS Word or PDF Attachment) of the following
documents to lrwriteon@gmail.com by August 6, 2014, at 5:00 pm EDT, as indicated in the
submission instructions below.
1. Comment;
2. Bluebooking Exercise;
3. Signed GEORGE MASON LAW REVIEW grade release form;
4. Contact Information Sheet.
For transfer students who receive an acceptance to George Mason after the start of the
Transfer Write-On Competition (after 5:00 pm EDT on Wednesday, July 23, 2014), in lieu of
completing the Comment for Mason’s Transfer Write-On Packet, you may choose to submit the
following:
1. Your previous Write-On Submission entry from your prior law school;
2. The full set of instructions and sources for the Write-On entry that you are
submitting;
3. Any acceptance/offer letters for journal memberships at your old school;
4. Proof of acceptance to George Mason School of Law after 5:00 pm EDT on
July 23, 2014 (acceptance letter or email).
If you choose to submit a write-on submission from your old school, you must still also
include a completed Bluebooking exercise, grade release form, and contact information sheet.
If an electronic copy of the above materials is not received prior to the deadline, the
student’s submission will not be reviewed. Please enter “Transfer Write-On Competition
Submission” in the subject line. Please identify yourself in the body of the email, as it will be
directed to a member of GEORGE MASON LAW REVIEW who is not judging the write-on
submissions. Compliance with this deadline will be determined by the time the email is sent.
Successful applicants will receive an offer for candidate membership prior to the start of Fall
Semester classes.
B.
CIVIL RIGHTS LAW JOURNAL
Students mustemail an electronic copy of the following documents to writeon@civilrightslawjournal.comby August 6, 2014, at 5:00 pm EDT, as indicated in the
submission instructions below.
1. Comment;
2. Bluebooking Exercise;
3. Signed CIVIL RIGHTS LAW JOURNAL grade release form;
4. Contact Information Sheet.
For transfer students who receive an acceptance to George Mason after the start of the
Transfer Write-On Competition (i.e.—after 5pm on Wednesday, July 23, 2014), in lieu of
completing the Comment and blue-booking exercise for Mason’s Transfer Write-On Packet, you
may choose to submit the following:
1. Your previous Write-On Submission entry from your prior law school;
2. The full set of instructions and sources for the Write-On entry that you are
submitting;
3. Any acceptance/offer letters for journal memberships at your old school;
4. Proof of acceptance to George Mason School of Law after 5pm on July 23,
2014 (acceptance letter or email)
5. Signed CIVIL RIGHTS LAW JOURNALgrade release form (in this packet);
6. Contact Information Sheet (in this packet).
If an electronic copy is not received prior to the deadline, the student’s submission will
not be reviewed. Please enter “Transfer Write-On Competition Submission” in the subject line.
Please identify yourself in the body of the email, as it will be directed to a member of CIVIL
RIGHTS LAW JOURNAL who is not judging the write-on submissions. Compliance with this
deadline will be determined by the time the email is sent.
C.
JOURNAL OF LAW, ECONOMICS & POLICY
Students mustemail an electronic copy of the following documents to
jlepwriteon@gmail.comby August 6, 2014, at 5:00 pm EDT, as indicated on the submission
instructions below.
1. Comment OR previous Write-On Submission entry from your prior law
school;
2. Bluebooking Exercise;
3. Contact Information Sheet;
4. Résumé (optional);
5. Statement of Interest (optional)
If a student chooses to submit a previous Write-On Submission entry from his/her prior
law school, we ask that student to providethe complete set of instructions and sources for the
Write-On Submission entry that you are submitting.
Please note,if an electronic copy is not received prior to the deadline, the student’s submission
will not be reviewed. Please enter “Transfer Write-On Competition Submission” in the subject
line. Please identify yourself in the body of the email, as it will be directed to a member of the
JOURNAL OF LAW, ECONOMICS & POLICY who is not judging the write-on submissions.
Compliance with this deadline will be determined by the time the email is sent.Applications are
reviewed on a rolling basis and students will know whether they are accepted by the first day of
classes (August 21, 2014).
D.
JOURNAL OF INTERNATIONAL COMMERCIAL LAW
Students mustemail an electronic copy of the following documents to
gmusljicl@gmail.com by August 6, 2014, at 5:00 pm EDT, as indicated on the submission
instructions below.
1. Comment;
2. Bluebooking Exercise;
3. Signed JOURNAL OF INTERNATIONAL COMMERCIAL LAW grade release
form;
4. Contact Information Sheet;
5. Optional Short Answer
ANY student may choose to submit the following instead of the George Mason Write-On
Comment and Bluebooking exercise (#1 and 2 above):
1. Your previous Write-On Submission entry from your prior law school;
2. The complete set of instructions and sources for the Write-On competition
entry that you are submitting;
3. Any acceptance/offer letters for journal memberships at your old school;
Please note, if choosing this option, do not forget to also include items #3-4 (and item #5
if applicable) indicated above as attachments.
If an electronic copy is not received prior to the deadline, the student’s submission will
not be reviewed. Please enter “Write-On Competition Submission” in the subject line. Please
identify yourself in the body of the email, as it will be directed to a member of the JOURNAL OF
INTERNATIONAL COMMERCIAL LAW who is not judging the write-on submissions. Compliance
with this deadline will be determined by the time the email is sent.
E.
NATIONAL SECURITY LAW JOURNAL
Students muste-mail an electronic copy of the following documents to writeon@nslj.org
by 5:00 p.m. EDT on August 6, 2014, pursuant to the submission instructions below:
1. Comment;
2. Bluebooking Exercise;
3. Contact Information Sheet;
4. Résumé (optional); and
5. Statement of Interest (optional).
As an alternative, anystudent may choose to submit the following instead of the George
Mason Write-On Comment and Bluebooking Exercise (#1 and 2 above):
1. Your previous write-on submission entry from your prior law school;
2. The complete set of instructions and sources for the write-on competition
entry you are submitting; and
3. Any acceptance/offer letters for journal membership at your old school, if
applicable.
Please note, if choosing this option, do not forget to include items #3-6 indicated above
as attachments.
If an electronic copy is not received prior to the deadline, the student’s submission will
not be reviewed. Please enter “Write-On Competition Submission” in the subject line. Please
identify yourself in the body of the e-mail, as it will be directed to a member of the NATIONAL
SECURITY LAW JOURNAL who is not judging the write-on submissions. Compliance with this
deadline will be determined by the time the e-mail is sent.
III.
ANONYMITY
To ensure anonymity, you MUST NOT IDENTIFY YOURSELF ANYWHERE ON
YOUR COMMENT OR BLUEBOOKING EXERCISE. If you do so, you will be
disqualified. Your contact information and grade release form will be used to identify your
submission.Any submission that does not include a grade release form and summer contact
information form will not be reviewed.
IV. SUBMISSION DUE DATE
All submissions are due on WEDNESDAY, AUGUST 6, 2014 BY 5:00 PM
EDT.Please email a submission package to each individual journal according to the instructions
above.
GEORGE MASON LAW REVIEW
GRADE RELEASE FORM
Student Name:
______________________________________
GMU Identification #:
_________________________________
I authorize the George Mason University School of Law to release my
cumulative grade point average to GEORGE MASON LAW REVIEW.
Signature:
___________________________________________
Date:
______________________
FOR RECORDS OFFICE USE ONLY
This student’s GPA is ________.
CIVIL RIGHTS LAW JOURNAL
GRADE RELEASE FORM
Student Name:
______________________________________
GMU Identification #:
_________________________________
I authorize the George Mason University School of Law to release my
cumulative grade point average and class rank to the CIVIL RIGHTS LAW JOURNAL.
Signature:
___________________________________________
Date:
______________________
FOR RECORDS OFFICE USE ONLY
This student’s GPA is ________.
This student’s class rank is ________.
JOURNAL OF LAW, ECONOMICS & POLICY
GRADE RELEASE FORM
Student Name:
______________________________________
GMU Identification #:
_________________________________
I authorize the George Mason University School of Law to release my
cumulative grade point average and class rank to the JOURNAL OF LAW, ECONOMICS
& POLICY.
Signature:
___________________________________________
Date:
______________________
FOR RECORDS OFFICE USE ONLY
This student’s GPA is ________.
This student’s class rank is ________.
JOURNAL OF INTERNATIONAL COMMERCIAL LAW
GRADE RELEASE FORM
Student Name:
______________________________________
GMU Identification #:
_________________________________
I authorize the George Mason University School of Law to release my
cumulative grade point average and class rank to the JOURNAL OF INTERNATIONAL
COMMERCIAL LAW.
Signature:
___________________________________________
Date:
______________________
FOR RECORDS OFFICE USE ONLY
This student’s GPA is ________.
This student’s class rank is ________.
NATIONAL SECURITY LAW JOURNAL
GRADE RELEASE FORM
(Not required for new transfer students admitted to
Mason Lawfor the upcoming semester)
Student Name:
______________________________________
GMU Identification #:
_________________________________
I authorize the George Mason University School of Law to release my
cumulative grade point average and class rank to the NATIONAL SECURITY LAW
JOURNAL.
Signature:
___________________________________________
Date:
______________________
FOR RECORDS OFFICE USE ONLY
This student’s GPA is ________.
This student’s class rank is ________.
SUMMER 2014CONTACT INFORMATION SHEET
Student Name:
______________________________________
Summer Address: ______________________________________
______________________________________
Summer Phone Number: (Day) ____________________________
(Evening) _________________________
Email Address:
__________________________________
Journals will extend offers in mid-August. Please provide any additional contact
information necessary to ensure that we can contact you during that period.
LIST OF SOURCES FOR THE 2014WRITE-ON COMPETITION
Please note that many of the sources below are edited. Please do not look up these sources
to read the portions not included in the Write-On packet.
Please also note that the sources below may not be cited correctly. Please consult the
Bluebook for proper citations and formatting.
PRIMARY SOURCES:
The First Amendment to the U.S. Constitution
Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733
(1969)
Bethel School District No. 403 et al. v. Fraser, a minor, 478 U.S. 675, 106 S. Ct. 3159 (1986)
Hazelwood School v. Kuhlmeier, 484 U.S. 260, 108 S. Ct. 562 (1988)
Morse v. Frederick, 551 U.S. 393, 127 S. Ct. 2618 (2007)
Lauren Doninger v. Niehoff, 527 F.3d 41 (2nd Circ. 2008)
J.S., a minor, v. Blue Mountain School District, 650 F.2d 915 (3rd Cir. 2011)
Kowalski v. Berkeley Count Schools, 652 F.3d 565 (2011)
SECONDARY SOURCES:
Reply Brief of Plaintiff Appellant, Doninger v. Nieoff, No. 07-3885-cv, 2007 WL 6158455
(C.A.2 2007)
Mary-Rose Papandrea, Student Speech Rights in the Digital Age, 60 Florida Law Review 1027
(2008)
Allison E. Hayes, From Armbands to Douchebags: How Doninger v. Niehoff Shows the
Supreme Court Needs to Address Student Speech in the Cyber Age, 43 Akron Law Rev. 247
(2011)
Todd D. Erb, A Case for Strengthening School District Jurisdiction to Punish Off-Campus
Incidents of Cyberbullying, 40 AZS LJ 257 (2008)
Memorial Boulevard Middle School, Policy 5131.913(a) (lasted visited April 15, 2012, 5:00 pm)
< http://www.bristol.k12.ct.us/page.cfm?p=5730>
NOTE: This is a closed research project and all of the sources are attached hereto. You may
only read and consider the materials contained on this source list. No outside research is
allowed.
You may only cite to the above listed sources. However, if you wish to cite a source that is
explained or quoted within the packet, please format the citation similar to one of the following
examples:
Doninger v. Niehoff, 527 F.3d 41, 48 (2d Cir. 2008) (quoting Wisniewski v. Bd. of Educ.,
494 F.3d 34, 40 (2d Cir.2007)).
Doninger v. Niehoff, 527 F.3d 41, 48 (2d Cir. 2008) (citing Wisniewski v. Bd. of Educ.,
494 F.3d 34, 40 (2d Cir.2007)).
JOURNAL OF LAW, ECONOMICS & POLICY
Optional Short Answer
This portion of the JLEP application is entirely optional; it will not detract from your
application if you choose not to complete this portion. However, this is an opportunity for you to
show your creativity, writing ability, and knowledge of economics. Your responses are a way
for us to know a bit more about you, as JLEP recognizes that individuals have valuable qualities
that cannot be quantified.
Directions: Please read each prompt carefully, and be sure to address all elements within
each prompt you choose to answer. You may answer as many or as few prompts as you like.
Please limit the entirety of your responses to no more than two pages, double-spaced, one-inch
margins, and 12-point Times New Roman font. Only include these answers in your
submission to JLEP.
1.
JLEP is interested in learning more about you. Please use this essay to relay information
about you that cannot be found elsewhere on your application. You may choose to write about
your future ambitions and goals, a special talent or unusual interest that sets you apart from your
peers, or a significant event or relationship that has influenced you during your life.
2.
Why do you consider JLEP a good match for you? Is there something in particular you
anticipate contributing to the JLEP community?
JOURNAL OF INTERNATIONAL COMMERCIAL LAW
Optional Short Answer
Directions:
The following short essay prompts are optional. No points will be deducted for failure to
submit an answer, nor will points be added for submitting an answer. The purpose of these
prompts is to give students an opportunity to provide additional information for the board to
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U.S.C.A. Const. Amend. I – Freedom of Religion, Speech, and Press;
Page 1
United States Code Annotated Currentness
Constitution of the United States
Annotated
Amendment I. Freedom of Religion, Speech and Press; Peaceful Assemblage; Petition of Grievances (Refs &
Annos)
Amendment I.
Freedom of Religion, Speech and Press; Peaceful Assemblage; Petition of Grievances
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the
Government for a redress of grievances.
Current through P.L. 112-90 (excluding P.L. 112-74, 112-78, and 112-81) approved 1-3-12
END OF DOCUMENT
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Supreme Court of the United States
John F. TINKER and Mary Beth Tinker, Minors, etc.,
et al., Petitioners,
v.
DES MOINES INDEPENDENT COMMUNITY
SCHOOL DISTRICT et al.
No. 21.
Argued Nov. 12, 1968.
Decided Feb. 24, 1969.
***
*504 Mr. Justice FORTAS delivered the opinion of
the Court.
**735 Petitioner John F. Tinker, 15 years old,
and petitioner Christopher Eckhardt, 16 years old,
attended high schools in Des Moines, Iowa.
Petitioner Mary Beth Tinker, John's sister, was a 13year-old student in junior high school.
In December 1965, a group of adults and
students in Des Moines held a meeting at the
Eckhardt home. The group was determined to
publicize their objections to the hostilities in Vietnam
and their support for a truce by wearing black
armbands during the holiday season and by fasting on
December 16 and New Year's Eve.
The principals of the Des Moines schools
became aware of the plan to wear armbands. On
December 14, 1965, they met and adopted a policy
that any student wearing an armband to school would
be asked to remove it, and if he refused he would be
suspended until he returned without the armband.
Petitioners were aware of the regulation that the
school authorities adopted.
On December 16, Mary Beth and Christopher
wore black armbands to their schools. John Tinker
wore his armband the next day. They were all sent
home and suspended from school until they would
come back without their armbands. They did not
return to school until after the planned period for
wearing armbands had expired—that is, until after
New Year's Day.
Page 1
This complaint was filed in the United States
District Court by petitioners. It prayed for an
injunction restraining the respondent school officials
from disciplining the petitioners, and it sought
nominal damages. After an evidentiary hearing the
District Court dismissed the complaint. It upheld*505
the constitutionality of the school authorities' action
on the ground that it was reasonable in order to
prevent disturbance of school discipline. 258 F.Supp.
971 (1966). The court referred to but expressly
declined to follow the Fifth Circuit's holding in a
similar case that the wearing of symbols like the
armbands cannot be prohibited unless it ‘materially
and substantially interfere(s) with the requirements of
appropriate discipline in the operation of the
school.’ Burnside v. Byars, 363 F.2d 744, 749
(1966).
On appeal, the Court of Appeals for the Eighth
Circuit considered the case en banc. The court was
equally divided, and the District Court's decision was
accordingly affirmed, without opinion, 383 F.2d 988
(1967). We granted certiorari. 390 U.S. 942, 88 S.Ct.
1050, 19 L.Ed.2d 1130 (1968).
**736 I.
As we shall discuss, the wearing of armbands in
the circumstances of this case was entirely divorced
from actually or potentially disruptive conduct by
those participating in it. It was closely akin to ‘pure
speech’ *506 which, we have repeatedly held, is
entitled to comprehensive protection under the First
Amendment. Cf. Cox v. Louisiana, 379 U.S. 536,
555, 85 S.Ct. 453, 464, 13 L.Ed.2d 471 (1965).
First Amendment rights, applied in light of the
special characteristics of the school environment, are
available to teachers and students. It can hardly be
argued that either students or teachers shed their
constitutional rights to freedom of speech or
expression at the schoolhouse gate. This has been the
unmistakable holding of this Court for almost 50
years. In Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct.
625, 67 L.Ed.1042 (1923), and Bartels v. Iowa, 262
U.S. 404, 43 S.Ct. 628, 67 L.Ed. 1047 (1923), this
Court, in opinions by Mr. Justice McReynolds, held
that the Due Process Clause of the Fourteenth
Amendment prevents States from forbidding the
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teaching of a foreign language to young students.
Statutes to this effect, the Court held,
unconstitutionally interfere with the liberty of
teacher, student, and parent. See also *507Pierce v.
Society of Sisters, etc., 268 U.S. 510, 45 S.Ct. 571,
69 L.Ed. 1070 (1925).
**737 In West Virginia State Board of
Education v. Barnette, 319 U.S. 624, 637, 63 S.Ct.
1178, 87 L.Ed. 1628 (1943), this Court held that
under the First Amendment, the student in public
school may not be compelled to salute the flag.
Speaking through Mr. Justice Jackson, the Court said:
‘The Fourteenth Amendment, as now applied to
the States, protects the citizen against the State itself
and all of its creatures—Boards of Education not
excepted. These have, of course, important, delicate,
and highly discretionary functions, but none that they
may not perform within the limits of the Bill of
Rights. That they are educating the young for
citizenship is reason for scrupulous protection of
Constitutional freedoms of the individual, if we are
not to strangle the free mind at its source and teach
youth to discount important principles of our
government as mere platitudes.’ 319 U.S. 624, 637
(1943).
On the other hand, the Court has repeatedly
emphasized the need for affirming the comprehensive
authority of the States and of school officials,
consistent
with
fundamental
constitutional
safeguards, to prescribe and control conduct in the
schools. See Epperson v. Arkansas, 393 U.S. 97, 104
(1968), 89 S.Ct. at 270; Meyer v. Nebraska, supra,
262 U.S. at 402, 43 S.Ct. at 627. Our problem lies in
the area where students in the exercise of First
Amendment rights collide with the rules of the school
authorities.
II.
The problem posed by the present case does not
relate to regulation of the length of skirts or the type
of clothing,*508 to hair style, or deportment. It does
not concern aggressive, disruptive action or even
group demonstrations. Our problem involves direct,
primary First Amendment rights akin to ‘pure
speech.’
The school officials banned and sought to punish
petitioners for a silent, passive expression of opinion,
Page 2
unaccompanied by any disorder or disturbance on the
part of petitioners. There is here no evidence
whatever of petitioners' interference, actual or
nascent, with the schools' work or of collision with
the rights of other students to be secure and to be let
alone. Accordingly, this case does not concern speech
or action that intrudes upon the work of the schools
or the rights of other students.
Only a few of the 18,000 students in the school
system wore the black armbands. Only five students
were suspended for wearing them. There is no
indication that the work of the schools or any class
was disrupted. Outside the classrooms, a few students
made hostile remarks to the children wearing
armbands, but there were no threats or acts of
violence on school premises.
The District Court concluded that the action of
the school authorities was reasonable because it was
based upon their fear of a disturbance from the
wearing of the armbands. But, in our system,
undifferentiated fear or apprehension of disturbance
is not enough to overcome the right to freedom of
expression.
Any
departure
from
absolute
regimentation may cause trouble. Any variation from
the majority's opinion may inspire fear. Any word
spoken, in class, in the lunchroom, or on the campus,
that deviates from the views of another person may
start an argument or cause a disturbance. But our
Constitution says we must take this risk, Terminiello
v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131
(1949); and our history says that it is this sort of
hazardous freedom—this kind of openness—that is
*509 the basis of our national strength and of the
independence and vigor of Americans **738 who
grow up and live in this relatively permissive, often
disputatious, society.
In order for the State in the person of school
officials to justify prohibition of a particular
expression of opinion, it must be able to show that its
action was caused by something more than a mere
desire to avoid the discomfort and unpleasantness
that always accompany an unpopular viewpoint.
Certainly where there is no finding and no showing
that engaging in the forbidden conduct would
‘materially and substantially interfere with the
requirements of appropriate discipline in the
operation of the school,’ the prohibition cannot be
sustained. Burnside v. Byars, supra, 363 F.2d at
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749.
Page 3
published in the school paper. (The student was
dissuaded).
In the present case, the District Court made no
such finding, and our independent examination of the
record fails to yield evidence that the school
authorities had reason to anticipate that the wearing
of the armbands would substantially interfere with
the work of the school or impinge upon the rights of
other students. Even an official memorandum
prepared after the suspension that listed the reasons
for the ban on wearing the armbands made no
reference to the anticipation of such disruption.FN3
FN3. The only suggestions of fear of
disorder in the report are these:
‘A former student of one of our high schools
was killed in Viet Nam. Some of his friends
are still in school and it was felt that if any
kind of a demonstration existed, it might
evolve into something which would be
difficult to control.’
‘Students at one of the high schools were
heard to say they would wear arm bands of
other colors if the black bands prevailed.’
Moreover, the testimony of school
authorities at trial indicates that it was not
fear of disruption that motivated the
regulation prohibiting the armbands; and
regulation was directed against ‘the
principle of the demonstration’ itself. School
authorities simply felt that ‘the schools are
no place for demonstrations,’ and if the
students ‘didn't like the way our elected
officials were handling things, it should be
handled with the ballot box and not in the
halls of our public schools.’
*510 On the contrary, the action of the school
authorities appears to have been based upon an
urgent wish to avoid the controversy which might
result from the expression, even by the silent symbol
of armbands, of opposition to this Nation's part in the
conflagration in Vietnam.FN4 It is revealing, in this
respect, that the meeting at which the school
principals decided to issue the contested regulation
was called in response to a student's statement to the
journalism teacher in one of the schools that he
wanted to write an article on Vietnam and have it
FN4. The District Court found that the
school authorities, in prohibiting black
armbands, were influenced by the fact that
‘(t)he Viet Nam war and the involvement of
the United States therein has been the
subject of a major controversy for some
time. When the arm band regulation
involved herein was promulgated, debate
over the Viet Nam war had become
vehement in many localities. A protest
march against the war had been recently
held in Washington, D.C. A wave of draft
card burning incidents protesting the war
had swept the country. At that time two
highly publicized draft card burning cases
were pending in this Court. Both individuals
supporting the war and those opposing it
were quite vocal in expressing their views.’
258 F.Supp., at 972-973.
***
It is also relevant that the school authorities did
not purport to prohibit the wearing of all symbols of
political or controversial significance. The record
shows that students in some of the schools wore
buttons relating to national political campaigns, and
some even wore the Iron Cross, traditionally a
symbol of Nazism. The order prohibiting the
wearing**739 of armbands did not extend to these.
Instead, a particular symbol—black armbands worn
to exhibit opposition to this Nation's involvement
*511 in Vietnam—was singled out for prohibition.
Clearly, the prohibition of expression of one
particular opinion, at least without evidence that it is
necessary to avoid material and substantial
interference with schoolwork or discipline, is not
constitutionally permissible.
In our system, state-operated schools may not be
enclaves of totalitarianism. School officials do not
possess absolute authority over their students.
Students in school as well as out of school are
‘persons' under our Constitution. They are possessed
of fundamental rights which the State must respect,
just as they themselves must respect their obligations
to the State. In our system, students may not be
regarded as closed-circuit recipients of only that
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393 U.S. 503, 89 S.Ct. 733
which the State chooses to communicate. They may
not be confined to the expression of those sentiments
that are officially approved. In the absence of a
specific showing of constitutionally valid reasons to
regulate their speech, students are entitled to freedom
of expression of their views. As Judge Gewin,
speaking for the Fifth Circuit, said, school officials
cannot suppress ‘expressions of feelings with which
they do not wish to contend.’ Burnside v. Byars,
supra, 363 F.2d at 749.
In Meyer v. Nebraska, supra, 262 U.S. at 402, 43
S.Ct. at 627, Mr. Justice McReynolds expressed this
Nation's repudiation of the principle that a State
might so conduct in its schools as to ‘foster a
homogeneous people.’ He said:
‘In order to submerge the individual and develop
ideal citizens, Sparta assembled the males at seven
into barracks and intrusted their subsequent education
and training to official guardians. Although such
measures have been deliberately approved by men of
great genius, their ideas touching the relation
between individual and State were wholly different
from those upon which our institutions rest; and it
hardly will be affirmed that any Legislature could
impose such restrictions upon the people of a *512
state without doing violence to both letter and spirit
of the Constitution.’
This principle has been repeated by this Court of
numerous occasions during the intervening years. In
Keyishian v. Board of Regents, 385 U.S. 589, 603, 87
S.Ct. 675, 683, 17 L.Ed.2d 629, Mr. Justice Brennan,
speaking for the Court, said:
“The vigilant protection of constitutional
freedoms is nowhere more vital than in the
community of American schools.' Shelton v.
Tucker, (364 U.S. 479), at 487 (81 S.Ct. 247, 5
L.Ed.2d 231). The classroom is peculiarly the
‘marketplace of ideas.’ The Nation's future depends
upon leaders trained through wide exposure to that
robust exchange of ideas which discovers truth ‘out
of a multitude of tongues, (rather) than through any
kind of authoritative selection.”
The principle of these cases is not confined to the
supervised and ordained discussion which takes place
in the classroom. The principal use to which the
schools are dedicated is to accommodate students
during prescribed hours for the purpose of certain
Page 4
types of activities. Among those activities is personal
intercommunication among the students.FN6 This is
not only an inevitable **740 part of the process of
attending school; it is also an important part of the
educational process. A student's rights, therefore, do
not embrace merely the classroom hours. When he is
in the cafeteria, or on the playing field, or on *513
the campus during the authorized hours, he may
express his opinions, even on controversial subjects
like the conflict in Vietnam, if he does so without
‘materially and substantially interfer(ing) with the
requirements of appropriate discipline in the
operation of the school’ and without colliding with
the rights of others. Burnside v. Byars, supra, 363
F.2d at 749. But conduct by the student, in class or
out of it, which for any reason—whether it stems
from time, place, or type of behavior—materially
disrupts classwork or involves substantial disorder or
invasion of the rights of others is, of course, not
immunized by the constitutional guarantee of
freedom of speech.
FN6.In Hammond v. South Carolina State
College, 272 F.Supp. 947 (D.C.S.C.1967),
District Judge Hemphill had before him a
case involving a meeting on campus of 300
students to express their views on school
practices. He pointed out that a school is not
like a hospital or a jail enclosure. It is a
public place, and its dedication to specific
uses does not imply that the constitutional
rights of persons entitled to be there are to
be gauged as if the premises were purely
private property.
Under our Constitution, free speech is not a right
that is given only to be so circumscribed that it exists
in principle but not in fact. Freedom of expression
would not truly exist if the right could be exercised
only in an area that a benevolent government has
provided as a safe haven for crackpots. The
Constitution says that Congress (and the States) may
not abridge the right to free speech. This provision
means what it says. We properly read it to permit
reasonable regulation of speech-connected activities
in carefully restricted circumstances. But we do not
confine the permissible exercise of First Amendment
rights to a telephone booth or the four corners of a
pamphlet, or to supervised and ordained discussion in
a school classroom.
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If a regulation were adopted by school officials
forbidding discussion of the Vietnam conflict, or the
expression by any student of opposition to it
anywhere on school property except as part of a
prescribed classroom exercise, it would be obvious
that the regulation would violate the constitutional
rights of students, at least if it could not be justified
by a showing that the students' activities would
materially and substantially disrupt the work and
discipline of the school. Cf. *514Hammond v. South
Carolina State College, 272 F.Supp. 947
(D.C.S.C.1967) (orderly protest meeting on state
college campus); Dickey v. Alabama State Board of
Education, 273 F.Supp.613 (D.C.M.D.Ala.1967)
(expulsion of student editor of college newspaper). In
the circumstances of the present case, the prohibition
of the silent, passive ‘witness of the armbands,’ as
one of the children called it, is no less offensive to
the constitution's guarantees.
As we have discussed, the record does not
demonstrate any facts which might reasonably have
led school authorities to forecast substantial
disruption of or material interference with school
activities, and no disturbances or disorders on the
school premises in fact occurred. These petitioners
merely went about their ordained rounds in school.
Their deviation consisted only in wearing on their
sleeve a band of black cloth, not more than two
inches wide. They wore it to exhibit their disapproval
of the Vietnam hostilities and their advocacy of a
truce, to make their views known, and, by their
example, to influence others to adopt them. They
neither interrupted school activities nor sought to
intrude in the school affairs or the lives of others.
They caused discussion outside of the classrooms,
but no interference with work and no disorder. In the
circumstances, our Constitution does not permit
officials of the State to deny their form of expression.
**741 We reverse and remand for further
proceedings consistent with this opinion.
Reversed and remanded.
***
Mr. Justice STEWART, concurring.
Although I agree with much of what is said in
the Court's opinion, and with its judgment in this
case, I *515 cannot share the Court's uncritical
Page 5
assumption that, school discipline aside, the First
Amendment rights of children are co-extensive with
those of adults. Indeed, I had thought the Court
decided otherwise just last Term in Ginsberg v. New
York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195. I
continue to hold the view I expressed in that case:
‘(A) State may permissibly determine that, at least in
some precisely delineated areas, a child—like
someone in a captive audience—is not possessed of
that full capacity for individual choice which is the
presupposition of First Amendment guarantees.’ Id.,
at 649-650, 88 S.Ct. at 1285-1286 (concurring in
result.)
***
Mr. Justice WHITE, concurring.
While I join the Court's opinion, I deem it
appropriate to note, first, that the Court continues to
recognize a distinction between communicating by
words and communicating by acts or conduct which
sufficiently impinges on some valid state interest;
and, second, that I do not subscribe to everything the
Court of Appeals said about free speech in its opinion
in Burnside v. Byars, 363 F.2d 744, 748 (C.A.5th Cir.
1966), a case relied upon by the Court in the matter
now before us.
***
Mr. Justice BLACK, dissenting.
The Court's holding in this case ushers in what I
deem to be an entirely new era in which the power to
control pupils by the elected ‘officials of state
supported public schools’ in the United States is in
ultimate effect transferred to the Supreme Court.FN1
The Court brought *516 this particular case here on a
petition for certiorari urging that the First
Amendment protects the right of school pupils to
express their political views all the way ‘from
kindergarten through high school.’ Here the
constitutional right to ‘political expression’ asserted
was a right to wear black armbands during school
hours and at classes in order to demonstrate to the
other students that the petitioners were mourning
because of the death of United States soldiers in
Vietnam and to protest that war which they were
against. Ordered to refrain from wearing the
armbands in school by the elected school officials
and the teachers vested with state authority to do so,
apparently only seven out of the school system's
18,000 pupils deliberately refused to obey the order.
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FN1. The petition for certiorari here
presented this single question:
‘Whether the First Amendment permits
officials of state supported public schools to
prohibit students from wearing symbols of
political views within school premises
where the symbols are not disruptive of
school discipline or decorum.’
As I read the Court's opinion it relies upon the
following grounds for holding **742 unconstitutional
the judgment of the Des Moines school officials and
the two courts below. First, the Court concludes that
the wearing of armbands is ‘symbolic speech’ which
is ‘akin to ‘pure speech“ and therefore protected by
the First Amendment. Secondly, the Court decides
that the public schools are an appropriate place to
exercise ‘symbolic speech’ as long as normal school
functions*517 are not ‘unreasonably’ disrupted.
Finally, the Court arrogates to itself, rather than to the
State's elected officials charged with running the
schools, the decision as to which school disciplinary
regulations are ‘reasonable.’
Assuming that the Court is correct in holding
that the conduct of wearing armbands for the purpose
of conveying political ideas is protected by the First
Amendment, the crucial remaining questions are
whether students and teachers may use the schools at
their whim as a platform for the exercise of free
speech—‘symbolic’ or ‘pure’—and whether the
courts will allocate to themselves the function of
deciding how the pupils' school day will be spent.
While I have always believed that under the First
Amendment neither the State nor the Federal
Government has any authority to regulate or censor
the content of speech, I have never believed that any
person has a right to give speeches or engage in
demonstrations where he pleased and when he
pleases. This Court has already rejected such a
notion. In Cox v. Louisiana, 379 U.S. 536, 554, 85
S.Ct. 453, 464, 13 L.Ed.2d 471 (1965), for example,
the Court clearly stated that the rights of free speech
and assembly ‘do not mean that everyone with
opinions or beliefs to express may address a group at
any public place and at any time.’
While the record does not show that any of these
armband students shouted, used profane language, or
Page 6
were violent in any manner, detailed testimony by
some of them shows their armbands caused
comments, warnings by other students, the poking of
fun at them, and a warning by an older football player
that other, nonprotesting students had better let them
alone. There is also evidence that a teacher of
mathematics had his lesson period practically
‘wrecked’ chiefly by disputes with Mary Beth
Tinker, who wore her armband for her
‘demonstration.’*518 Even a casual reading of the
record shows that this armband did divert students'
minds from their regular lessons, and that talk,
comments, etc., made John Tinker ‘self-conscious' in
attending school with his armband. While the
absence of obscene remarks or boisterous and loud
disorder perhaps justifies the Court's statement that
the few armband students did not actually ‘disrupt’
the classwork, I think the record overwhelmingly
shows that the armbands did exactly what the elected
school officials and principals foresaw they would,
that is, took the students' minds off their classwork
and diverted them to thoughts about the highly
emotional subject of the Vietnam war. And I repeat
that if the time has come when pupils of statesupported schools, kindergartens, grammar schools,
or high schools, can defy and flout orders of school
officials to keep their minds on their own
schoolwork, it is the beginning of a new
revolutionary era of permissiveness in this country
fostered by the judiciary. The next logical step, it
appears to me, would be to hold unconstitutional laws
that bar pupils under 21 or 18 from voting, or from
being elected members of the boards of education.
***
*521 I deny, therefore, that it has been the
‘unmistakable holding of this Court for almost 50
years' that ‘students' and ‘teachers' take with them
into the ‘schoolhouse gate’ constitutional rights to
‘freedom of speech or expression.’
***
**744 The truth is that a teacher of kindergarten,
grammar school, or high school pupils no more
carries into a school with him a complete right to
freedom of speech and expression than an antiCatholic or anti-Semite carries with him a complete
freedom of *522 speech and religion into a Catholic
church or Jewish synagogue. Nor does a person carry
with him into the United States Senate or House, or
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into the Supreme Court, or any other court, a
complete constitutional right to go into those places
contrary to their rules and speak his mind on any
subject he pleases. It is a myth to say that any person
has a constitutional right to say what he pleases,
where he pleases, and when he pleases. Our Court
has decided precisely the opposite. See, e.g., Cox v.
Louisiana, 379 U.S. 536, 555, 85 S.Ct. 453, 464, 13
L.Ed.2d 471.
In my view, teachers in state-controlled public
schools are hired to teach there. Certainly, a teacher
is not paid to go into school and teach **745 subjects
the State does not hire him to teach as a part of its
selected curriculum. Nor are public school students
sent to the schools at public expense to broadcast
political or any other views to educate and inform the
public. The original idea of schools, which I do not
believe is yet abandoned as worthless or not of date,
was that children had not yet reached the point of
experience and wisdom which enabled them to teach
all of their elders.
The true principles on this whole subject were in
my judgment spoken by Mr. Justice McKenna for the
Court in Waugh v. Mississippi University in 237 U.S.
589, 596-597, 35 S.Ct. 720, 723, 59 L.Ed. 1131. The
State had there passed a law barring students from
peaceably assembling in Greek letter fraternities and
providing that students who joined them could be
expelled from school. This law would appear on the
surface to run afoul of the First Amendment's *523
freedom of assembly clause. It was argued that the
fraternity made its members more moral, taught
discipline, and inspired its members to study harder
and to obey better the rules of discipline and order.
This Court rejected all the ‘fervid’ pleas of the
fraternities' advocates and decided unanimously
against their arguments. The Court in its next to the
last paragraph made this statement which has
complete relevance for us today:
‘It is said that the fraternity to which
complainant belongs is a moral and of itself a
disciplinary force. This need not be denied. But
whether such membership makes against discipline
was for the State of Mississippi to determine. It is to
be remembered that the University was established
by the state and is under the control of the state, and
the enactment of the statute may have been induced
by the opinion that membership in the prohibited
Page 7
societies divided the attention of the students and
distracted from that singleness of purpose which the
State desired to exist in its public educational
institutions. It is not for us to entertain conjectures in
opposition to the views of the state and annul its
regulations upon disputable considerations of their
wisdom or necessity.’ (Emphasis supplied.)
It was on the foregoing argument that this Court
sustained the power of Mississippi to curtail the First
Amendment's right of peaceable assembly. And the
same reasons are equally applicable to curtailing in
the States' public schools the right to complete
freedom of expression. Iowa's public schools, like
Mississippi's university, are operated to give students
an opportunity to learn, not to talk politics by actual
speech, or by ‘symbolic’*524 speech. And, as I have
pointed out before, the record amply shows that
public protest in the school classes against the
Vietnam war ‘distracted from that singleness of
purpose which the state (here Iowa) desired to exist
in its public educational institutions.’ Here the Court
should accord Iowa educational institutions the same
right to determine for themselves to what extent free
expression should be allowed in its schools as it
accorded Mississippi with reference to freedom of
assembly. But even if the record were silent as to
protests against the Vietnam war distracting students
from their assigned class work, members of this
Court, like all other citizens, know, without being
told, that the disputes over the wisdom of the
Vietnam war have disrupted and divided this country
as few **746 other issues ever have. Of course
students, like other people, cannot concentrate on
lesser issues when black armbands are being
ostentatiously displayed in their presence to call
attention to the wounded and dead of the war, some
of the wounded and the dead being their friends and
neighbors. It was, of course, to distract the attention
of other students that some students insisted up to the
very point of their own suspension from school that
they were determined to sit in school with their
symbolic armbands.
Change has been said to be truly the law of life
but sometimes the old and the tried and true are
worth holding. The schools of this Nation have
undoubtedly contributed to giving us tranquility and
to making us a more law-abiding people.
Uncontrolled and uncontrollable liberty is an enemy
to domestic peace. Here a very small number of
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students have crisply and summarily*525 refused to
obey a school order designed to give pupils who want
to learn the opportunity to do so. One does not need
to be a prophet or the son of a prophet to know that
after the Court's holding today some students in Iowa
schools and indeed in all schools will be ready, able,
and willing to defy their teachers on practically all
orders. Turned loose with lawsuits for damages and
injunctions against their teachers as they are here, it
is nothing but wishful thinking to imagine that young,
immature students will not soon believe it is their
right to control the schools rather than the right of the
States that collect the taxes to hire the teachers for the
benefit of the pupils. This case, therefore, wholly
without constitutional reasons in my judgment,
subjects all the public schools in the country to the
whims and caprices of their loudest-mouthed, but
maybe not their brightest, students. I, for one, am not
fully persuaded that school pupils are wise enough,
even with this Court's expert help from Washington,
to run the 23,390 public school *526 systems in our
50 States. I wish, therefore, wholly to disclaim any
purpose on my part to hold that the Federal
Constitution compels the teachers, parents, and
elected school officials to surrender control of the
American public school system to public school
students. I dissent.
Page 8
below.
U.S.Iowa 1969.
Tinker v. Des Moines Independent Community
School Dist.
393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731, 49
O.O.2d 222
END OF DOCUMENT
***
Mr. Justice HARLAN, dissenting.
*527 I certainly agree that state public school
authorities in the discharge of their responsibilities
are not wholly exempt from the requirements of the
First Amendment respecting the freedoms of
expression and association. At the same time I am
reluctant to believe that there is any disagreement
between the majority and myself on the proposition
**747 that school officials should be accorded the
widest authority in maintaining discipline and good
order in their institutions. To translate that
proposition into a workable constitutional rule, I
would, in cases like this, cast upon those complaining
the burden of showing that a particular school
measure was motivated by other than legitimate
school concerns—for example, a desire to prohibit
the expression of an unpopular point of view, while
permitting expression of the dominant opinion.
Finding nothing in this record which impugns
the good faith of respondents in promulgating the
armband regulation, I would affirm the judgment
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Supreme Court of the United States
BETHEL SCHOOL DISTRICT NO. 403, et al.,
Petitioners
v.
Matthew N. FRASER, a Minor and E.L. Fraser,
Guardian Ad Litem.
No. 84–1667.
Argued March 3, 1986.
Decided July 7, 1986.
*677Chief Justice BURGER delivered the opinion of
the Court.
**3161 We granted certiorari to decide whether
the First Amendment prevents a school district from
disciplining a high school student for giving a lewd
speech at a school assembly.
I
A
On April 26, 1983, respondent Matthew N.
Fraser, a student at Bethel High School in Pierce
County, Washington, delivered a speech nominating
a fellow student for student elective office.
Approximately 600 high school students, many of
whom were 14-year-olds, attended the assembly.
Students were required to attend the assembly or to
report to the study hall. The assembly was part of a
school-sponsored educational program in selfgovernment. During the entire speech, Fraser
referred*678 to his candidate in terms of an
elaborate, graphic, and explicit sexual metaphor.
Two of Fraser's teachers, with whom he
discussed the contents of his speech in advance,
informed him that the speech was “inappropriate and
that he probably should not deliver it,” and that his
delivery of the speech might have “severe
consequences.”
During Fraser's delivery of the speech, a school
counselor observed the reaction of students to the
speech. Some students **3162 hooted and yelled;
some by gestures graphically simulated the sexual
activities pointedly alluded to in respondent's speech.
Other students appeared to be bewildered and
Page 1
embarrassed by the speech. One teacher reported that
on the day following the speech, she found it
necessary to forgo a portion of the scheduled class
lesson in order to discuss the speech with the class.
A Bethel High School disciplinary rule
prohibiting the use of obscene language in the school
provides:
“Conduct which materially and substantially
interferes with the educational process is
prohibited, including the use of obscene, profane
language or gestures.”
The morning after the assembly, the Assistant
Principal called Fraser into her office and notified
him that the school considered his speech to have
been a violation of this rule. Fraser was presented
with copies of five letters submitted by teachers,
describing his conduct at the assembly; he was given
a chance to explain his conduct, and he admitted to
having given the speech described and that he
deliberately used sexual innuendo in the speech.
Fraser was then informed that he would be suspended
for three days, and that his name would be removed
from the list of candidates for graduation speaker at
the school's commencement exercises.
Fraser sought review of this disciplinary action
through the School District's grievance procedures.
The hearing officer determined that the speech given
by respondent was “indecent, lewd, and offensive to
the modesty and decency of *679 many of the
students and faculty in attendance at the assembly.”
The examiner determined that the speech fell within
the ordinary meaning of “obscene,” as used in the
disruptive-conduct rule, and affirmed the discipline in
its entirety. Fraser served two days of his suspension,
and was allowed to return to school on the third day.
B
Respondent, by his father as guardian ad litem,
then brought this action in the United States District
Court for the Western District of Washington.
Respondent alleged a violation of his First
Amendment right to freedom of speech and sought
injunctive relief. The District Court held that the
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school's sanctions violated respondent's right to
freedom of speech under the First Amendment to the
United States Constitution, that the school's
disruptive-conduct rule is unconstitutionally vague
and overbroad, and that the removal of respondent's
name from the graduation speaker's list violated the
Due Process Clause of the Fourteenth Amendment
because the disciplinary rule makes no mention of
such removal as a possible sanction.
The Court of Appeals for the Ninth Circuit
affirmed the judgment of the District Court, 755 F.2d
1356 (1985), holding that respondent's speech was
indistinguishable from the protest armband in Tinker
v. Des Moines Independent Community School Dist.,
393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969).
The court explicitly rejected the School District's
argument that the speech, unlike the passive conduct
of wearing a black armband, had a disruptive effect
on the educational process. The Court of *680
Appeals also rejected the School District's argument
that it had an interest in protecting an essentially
captive audience of minors from lewd and indecent
language in a setting sponsored by the school,
reasoning that the School District's “unbridled
discretion” to determine what discourse is “decent”
would “increase the risk of cementing white, middleclass standards for determining what is acceptable
and proper speech and behavior in our public
schools.” 755 F.2d, at 1363. Finally, the Court of
**3163 Appeals rejected the School District's
argument that, incident to its responsibility for the
school curriculum, it had the power to control the
language used to express ideas during a schoolsponsored activity.
We granted certiorari, 474 U.S. 814, 106 S.Ct.
56, 88 L.Ed.2d 45 (1985). We reverse.
II
This Court acknowledged in Tinker v. Des
Moines Independent Community School Dist., supra,
that students do not “shed their constitutional rights
to freedom of speech or expression at the
schoolhouse gate.” Id., 393 U.S., at 506, 89 S.Ct., at
736. The Court of Appeals read that case as
precluding any discipline of Fraser for indecent
speech and lewd conduct in the school assembly.
That court appears to have proceeded on the theory
that the use of lewd and obscene speech in order to
make what the speaker considered to be a point in a
Page 2
nominating speech for a fellow student was
essentially the same as the wearing of an armband in
Tinker as a form of protest or the expression of a
political position.
The marked distinction between the political
“message” of the armbands in Tinker and the sexual
content of respondent's speech in this case seems to
have been given little weight by the Court of
Appeals. In upholding the students' right to engage in
a 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 the rights of
other students.” Id., at 508, 89 S.Ct., at 737.
*681 It is against this background that we turn to
consider the level of First Amendment protection
accorded to Fraser's utterances and actions before an
official high school assembly attended by 600
students.
III
The role and purpose of the American public
school system were well described by two historians,
who stated: “[P]ublic education must prepare pupils
for citizenship in the Republic.... It must inculcate the
habits and manners of civility as values in themselves
conducive to happiness and as indispensable to the
practice of self-government in the community and the
nation.” C. Beard & M. Beard, New Basic History of
the United States 228 (1968). In Ambach v. Norwick,
441 U.S. 68, 76–77, 99 S.Ct. 1589, 1594, 60 L.Ed.2d
49 (1979), we echoed the essence of this statement of
the objectives of public education as the “inculcat[ion
of] fundamental values necessary to the maintenance
of a democratic political system.”
These fundamental values of “habits and
manners of civility” essential to a democratic society
must, of course, include tolerance of divergent
political and religious views, even when the views
expressed may be unpopular. But these “fundamental
values” must also take into account consideration of
the sensibilities of others, and, in the case of a school,
the sensibilities of fellow students. The undoubted
freedom to advocate unpopular and controversial
views in schools and classrooms must be balanced
against the society's countervailing interest in
teaching students the boundaries of socially
appropriate behavior. Even the most heated political
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discourse in a democratic society requires
consideration for the personal sensibilities of the
other participants and audiences.
***
*682 The First Amendment guarantees wide
freedom in matters of adult public discourse. **3164
A sharply divided Court upheld the right to express
an antidraft viewpoint in a public place, albeit in
terms highly offensive to most citizens. See Cohen v.
California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d
284 (1971). It does not follow, however, that simply
because the use of an offensive form of expression
may not be prohibited to adults making what the
speaker considers a political point, the same latitude
must be permitted to children in a public school. In
New Jersey v. T.L.O., 469 U.S. 325, 340–342, 105
S.Ct. 733, 742–743, 83 L.Ed.2d 720 (1985), we
reaffirmed that the constitutional rights of students in
public school are not automatically coextensive with
the rights of adults in other settings. As cogently
expressed by Judge Newman, “the First Amendment
gives a high school student the classroom right to
wear Tinker's armband, but not Cohen's jacket.”
*683Thomas v. Board of Education, Granville
Central SchoolDist., 607 F.2d 1043, 1057 (CA2
1979) (opinion concurring in result).
Surely it is a highly appropriate function of
public school education to prohibit the use of vulgar
and offensive terms in public discourse. Indeed, the
“fundamental values necessary to the maintenance of
a democratic political system” disfavor the use of
terms of debate highly offensive or highly threatening
to others. Nothing in the Constitution prohibits the
states from insisting that certain modes of expression
are inappropriate and subject to sanctions. The
inculcation of these values is truly the “work of the
schools.” Tinker, 393 U.S., at 508, 89 S.Ct., at
737.The determination of what manner of speech in
the classroom or in school assembly is inappropriate
properly rests with the school board.
The process of educating our youth for
citizenship in public schools is not confined to books,
the curriculum, and the civics class; schools must
teach by example the shared values of a civilized
social order. Consciously or otherwise, teachers—and
indeed the older students—demonstrate the
appropriate form of civil discourse and political
Page 3
expression by their conduct and deportment in and
out of class. Inescapably, like parents, they are role
models. The schools, as instruments of the state, 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 this confused boy.
The pervasive sexual innuendo in Fraser's speech
was plainly offensive to both teachers and students—
indeed to any mature person. By glorifying male
sexuality, and in its verbal content, the speech was
acutely insulting to teenage girl students. The speech
could well be seriously damaging to its less mature
audience, many of whom were only 14 years old and
on the threshold of awareness of human sexuality.
Some students were reported as *684 bewildered by
the speech and the reaction of mimicry it provoked.
This Court's First Amendment jurisprudence has
acknowledged limitations on the otherwise absolute
interest of the speaker in reaching an unlimited
audience where the speech is sexually explicit and
**3165 the audience may include children. In
Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274,
20 L.Ed.2d 195 (1968), this Court upheld a New
York statute banning the sale of sexually oriented
material to minors, even though the material in
question was entitled to First Amendment protection
with respect to adults. And in addressing the question
whether the First Amendment places any limit on the
authority of public schools to remove books from a
public school library, all Members of the Court,
otherwise sharply divided, acknowledged that the
school board has the authority to remove books that
are vulgar. Board of Education v. Pico, 457 U.S. 853,
871–872, 102 S.Ct. 2799, 2814–2815, 73 L.Ed.2d
435 (1982) (plurality opinion); id., at 879–881, 102
S.Ct., at 2814–2815 (BLACKMUN, J., concurring in
part and in judgment); id., at 918–920, 102 S.Ct., at
2834–2835 (REHNQUIST, J., dissenting). These
cases recognize the obvious concern on the part of
parents, and school authorities acting in loco
parentis, to protect children—especially in a captive
audience—from exposure to sexually explicit,
indecent, or lewd speech.
We have also recognized an interest in protecting
minors from exposure to vulgar and offensive spoken
language. In FCC v. Pacifica Foundation, 438 U.S.
726, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978), we dealt
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with the power of the Federal Communications
Commission to regulate a radio broadcast described
as “indecent but not obscene.” The Commission
concluded that “certain words depicted sexual and
excretory activities in a patently offensive manner,
[and] noted *685 that they ‘were broadcast at a time
when children were undoubtedly in the audience.’ ”
The Commission issued an order declaring that the
radio station was guilty of broadcasting indecent
language in violation of 18 U.S.C. § 1464. 438 U.S.,
at 732, 98 S.Ct., at 3031. The Court of Appeals set
aside the Commission's determination, and we
reversed, reinstating the Commission's citation of the
station. We concluded that the broadcast was
properly considered “obscene, indecent, or profane”
within the meaning of the statute. The plurality
opinion went on to reject the radio station's assertion
of a First Amendment right to broadcast vulgarity:
Page 4
case:
“I wish therefore, ... to disclaim any purpose ...
to hold that the Federal Constitution compels the
teachers, parents, and elected school officials to
surrender control of the American public school
system to public school students.” 393 U.S., at 526,
89 S.Ct., at 746.
***
*687 The judgment of the Court of Appeals for
the Ninth Circuit is
Reversed.
Justice BLACKMUN concurs in the result.
Justice BRENNAN, concurring in the judgment.
“These words offend for the same reasons that
obscenity offends. Their place in the hierarchy of
First Amendment values was aptly sketched by Mr.
Justice Murphy when he said: ‘[S]uch utterances
are no essential part of any exposition of ideas, and
are of such slight social value as a step to truth that
any benefit that may be derived from them is
clearly outweighed by the social interest in order
and morality.’ Chaplinsky v. New Hampshire, 315
U.S. [568], at 572 [62 S.Ct. 766, at 769, 86 L.Ed.
1031 (1942)].” Id., at 746, 98 S.Ct., at 3039.
We hold that petitioner School District acted
entirely within its permissible authority in imposing
sanctions upon Fraser in response to his offensively
lewd and indecent speech. Unlike the sanctions
imposed on the students wearing armbands in Tinker,
the penalties imposed in this case were unrelated to
any political viewpoint. The First Amendment does
not prevent the school officials from determining that
to permit a vulgar and lewd speech such as
respondent's would undermine the school's basic
educational mission. A high school assembly or
classroom is no place for a sexually explicit
monologue directed towards an unsuspecting
audience of teenage students. Accordingly, it was
perfectly appropriate for the school to disassociate
itself to make the point to the pupils that vulgar
speech and lewd conduct is wholly inconsistent with
the “fundamental values” of public *686 school
education. Justice **3166 Black, dissenting in
Tinker, made a point that is especially relevant in this
Respondent gave the following speech at a high
school assembly in support of a candidate for student
government office:
“ ‘I know a man who is firm—he's firm in his
pants, he's firm in his shirt, his character is firm—
but most ... of all, his belief in you, the students of
Bethel, is firm.
“ ‘Jeff Kuhlman is a man who takes his point and
pounds it in. If necessary, he'll take an issue and
nail it to the wall. He doesn't attack things in
spurts—he drives hard, pushing and pushing until
finally—he succeeds.
“ ‘Jeff is a man who will go to the very end—
even the climax, for each and every one of you.
“ ‘So vote for Jeff for A.S.B. vice-president—
he'll never come between you and the best our high
school can be.’ ”
The Court, referring to these remarks as
“obscene,” “vulgar,” “lewd,” and “offensively lewd,”
concludes that school officials properly punished
respondent for uttering the speech. Having read the
full text of respondent's remarks, I find it difficult to
believe that it is the same speech the Court describes.
To my mind, the most that can be said about
respondent's speech—and all that need be said—is
that in light of the discretion school officials have to
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Page 5
teach high school students how to conduct civil and
effective public discourse, and to prevent disruption
of school educational activities, it was *688 not
unconstitutional for **3167 school officials to
conclude, under the circumstances of this case, that
respondent's remarks exceeded permissible limits.
Thus, while I concur in the Court's judgment, I write
separately to express my understanding of the breadth
of the Court's holding.
an attempt by school officials to ban written materials
they consider “inappropriate” for high school
students, cf. Board of Education v. Pico, 457 U.S.
853, 102 S.Ct. 2799, 73 L.Ed.2d 4935 (1982), or to
limit what students should hear, read, or learn about.
Thus, the Court's holding concerns only the authority
that school officials have to restrict a high school
student's use of disruptive language in a speech given
to a high school assembly.
The Court today reaffirms the unimpeachable
proposition that students do not “ ‘shed their
constitutional rights to freedom of speech or
expression at the schoolhouse gate.’ ” Ante, at 3163
(quoting Tinker v. Des Moines Independent
Community School Dist., 393 U.S. 503, 506, 89 S.Ct.
733, 736, 21 L.Ed.2d 731 (1969)). If respondent had
given the same speech outside of the school
environment, he could not have been penalized
simply because government officials considered his
language to be inappropriate, see Cohen v.
California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d
284 (1971); the Court's opinion does not suggest
otherwise.Moreover,
despite
the
Court's
characterizations, the language respondent used is far
removed from the very narrow class of “obscene”
speech which the Court has held is not protected by
the First Amendment. Ginsberg v. New York, 390
U.S. 629, 635, 88 S.Ct. 1274, 1278, 20 L.Ed.2d 195
(1968).It is true, however, that the State has interests
in teaching high school students how to conduct civil
and effective public discourse and in avoiding
disruption of educational school activities. Thus, the
Court holds that under certain circumstances, high
school students may properly be reprimanded for
giving a speech at a high school assembly which
school officials conclude disrupted the school's
educational *689 mission. Respondent's speech may
well have been protected had he given it in school but
under different circumstances, where the school's
legitimate interests in teaching and maintaining civil
public discourse were less weighty.
The authority school officials have to regulate
such speech by high school students**3168 is not
limitless. See Thomas v. Board of Education,
Granville Central School Dist., 607 F.2d 1043, 1057
(CA2 1979) (Newman, J., concurring in result)
(“[S]chool officials ... do [not] have limitless
discretion to apply their own notions of indecency.
Courts have a First *690 Amendment responsibility
to insure that robust rhetoric... is not suppressed by
prudish failures to distinguish the vigorous from the
vulgar”). Under the circumstances of this case,
however, I believe that school officials did not violate
the First Amendment in determining that respondent
should be disciplined for the disruptive language he
used while addressing a high school assembly.Thus, I
concur in the judgment reversing the decision of the
Court of Appeals.
***
In the present case, school officials sought only
to ensure that a high school assembly proceed in an
orderly manner. There is no suggestion that school
officials attempted to regulate respondent's speech
because they disagreed with the views he sought to
express. Cf. Tinker, supra. Nor does this case involve
***
Justice MARSHALL, dissenting.
I agree with the principles that Justice
BRENNAN sets out in his opinion concurring in the
judgment. I dissent from the Court's decision,
however, because in my view the School District
failed to demonstrate that respondent's remarks were
indeed disruptive. The District Court and Court of
Appeals conscientiously applied Tinker v. Des
Moines Independent Community School Dist., 393
U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), and
concluded that the School District had not
demonstrated any disruption of the educational
process. I recognize that the school administration
must be given wide latitude to determine what forms
of conduct are inconsistent with the school's
educational mission; nevertheless, where speech is
involved, we may not unquestioningly accept a
teacher's or administrator's assertion that certain pure
speech interfered with education. Here the School
District, despite a clear opportunity to do so, failed to
bring in evidence sufficient to convince either of the
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two lower courts that education at Bethel School was
disrupted by respondent's speech. I therefore see no
reason to disturb the Court of Appeals' judgment.
***
U.S.Wash.,1986.
Bethel School Dist. No. 403 v. Fraser
478 U.S. 675, 106 S.Ct. 3159, 92 L.Ed.2d 549, 54
BNA USLW 5054, 32 Ed. Law Rep. 1243
END OF DOCUMENT
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Supreme Court of the United States
HAZELWOOD SCHOOL DISTRICT, et al.,
Petitioners
v.
Cathy KUHLMEIER et al.
No. 86-836.
Argued Oct. 13, 1987.
Decided Jan. 13, 1988.
*262 Justice WHITE delivered the opinion of the
Court.
**565 This case concerns the extent to which
educators may exercise editorial control over the
contents of a high school newspaper produced as part
of the school's journalism curriculum.
I
Petitioners are the Hazelwood School District in
St. Louis County, Missouri; various school officials;
Robert Eugene Reynolds, the principal of Hazelwood
East High School; and Howard Emerson, a teacher in
the school district. Respondents are three former
Hazelwood East students who were staff members of
Spectrum, the school newspaper. They contend that
school officials violated their First Amendment rights
by deleting two pages of articles from the May 13,
1983, issue of Spectrum.
Spectrum was written and edited by the
Journalism II class at Hazelwood East. The
newspaper was published every three weeks or so
during the 1982-1983 school year. More than 4,500
copies of the newspaper were distributed during that
year to students, school personnel, and members of
the community.
The Board of Education allocated funds from its
annual budget for the printing of Spectrum. These
funds were supplemented by proceeds from sales of
the newspaper. The printing expenses during the
1982-1983 school year totaled $4,668.50; revenue
from sales was $1,166.84. The other costs associated
with
the
newspaper—such
as
supplies,
textbooks,*263 and a portion of the journalism
teacher's salary—were borne entirely by the Board.
The Journalism II course was taught by Robert
Stergos for most of the 1982-1983 academic year.
Stergos left Hazelwood East to take a job in private
industry on April 29, 1983, when the May 13 edition
of Spectrum was nearing completion, and petitioner
Emerson took his place as newspaper adviser for the
remaining weeks of the term.
The practice at Hazelwood East during the spring
1983 semester was for the journalism teacher to
submit page proofs of each Spectrum issue to
Principal Reynolds for his review prior to
publication. On May 10, Emerson delivered the
proofs of the May 13 edition to Reynolds, who
objected to two of the articles scheduled to appear in
that edition. One of the stories described three
Hazelwood East students' experiences with
pregnancy; the other discussed**566 the impact of
divorce on students at the school.
Reynolds was concerned that, although the
pregnancy story used false names “to keep the
identity of these girls a secret,” the pregnant students
still might be identifiable from the text. He also
believed that the article's references to sexual activity
and birth control were inappropriate for some of the
younger students at the school. In addition, Reynolds
was concerned that a student identified by name in
the divorce story had complained that her father
“wasn't spending enough time with my mom . . .”
Reynolds believed that the student's parents should
have been given an opportunity to respond to these
remarks or to consent to their publication. He was
unaware that Emerson had deleted the student's name
from the final version of the article.
Reynolds believed that there was no time to
make the necessary changes in the stories before the
scheduled press run *264 and that the newspaper
would not appear before the end of the school year if
printing were delayed to any significant extent. He
concluded that his only options under the
circumstances were to publish a four-page newspaper
instead of the planned six-page newspaper,
eliminating the two pages on which the offending
stories appeared, or to publish no newspaper at all.
Accordingly, he directed Emerson to withhold from
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publication the two pages containing the stories on
pregnancy and divorce. He informed his superiors of
the decision, and they concurred.
***
Respondents subsequently commenced this
action in the United States District Court for the
Eastern District of Missouri seeking a declaration that
their First Amendment rights had been violated,
injunctive relief, and monetary damages. After a
bench trial, the District Court denied an injunction,
holding that no First Amendment violation had
occurred. 607 F.Supp. 1450 (1985).
The District Court concluded that school
officials may impose restraints on students' speech in
activities that are “ ‘an integral part of the school's
educational function’ ”—including the publication of
a school-sponsored newspaper by a journalism
class—so long as their decision has “ ‘a substantial
and reasonable basis.’ ” Id., at 1466 (quoting Frasca
v. Andrews, 463 F.Supp. 1043, 1052 (EDNY 1979)).
The court found that Principal Reynolds' concern that
the pregnant students' anonymity would be lost and
their privacy invaded was “legitimate and
reasonable,” given “the small number of pregnant
students at Hazelwood East and several identifying
characteristics that were disclosed in the article.” 607
F.Supp., at 1466. The court held that Reynolds' action
was also justified “to avoid the impression that [the
school] endorses*265 the sexual norms of the
subjects” and to shield younger students from
exposure to unsuitable material. Ibid. Furthermore,
the court concluded that Reynolds was justified in
deleting two full pages of the newspaper, instead of
deleting only the pregnancy and divorce stories or
requiring**567 that those stories be modified to
address his concerns, based on his “reasonable belief
that he had to make an immediate decision and that
there was no time to make modifications to the
articles in question.” Id., at 1466.
The Court of Appeals for the Eighth Circuit
reversed. 795 F.2d 1368 (1986). The court held at the
outset that Spectrum was not only “a part of the
school adopted curriculum,” id., at 1373, but also a
public forum, because the newspaper was “intended
to be and operated as a conduit for student
viewpoint.” Id., at 1372. The court then concluded
that Spectrum's status as a public forum precluded
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school officials from censoring its contents except
when “ ‘necessary to avoid material and substantial
interference with school work or discipline ... or the
rights of others.’ ” Id., at 1374 (quoting Tinker v. Des
Moines Independent Community School Dist., 393
U.S. 503, 511, 89 S.Ct. 733, 739, 21 L.Ed.2d 731
(1969)).
The Court of Appeals found “no evidence in the
record that the principal could have reasonably
forecast that the censored articles or any materials in
the censored articles would have materially disrupted
classwork or given rise to substantial disorder in the
school.” 795 F.2d, at 1375. School officials were
entitled to censor the articles on the ground that *266
they invaded the rights of others, according to the
court, only if publication of the articles could have
resulted in tort liability to the school. The court
concluded that no tort action for libel or invasion of
privacy could have been maintained against the
school by the subjects of the two articles or by their
families. Accordingly, the court held that school
officials had violated respondents' First Amendment
rights by deleting the two pages of the newspaper.
We granted certiorari, 479 U.S. 1053, 107 S.Ct.
926, 93 L.Ed.2d 978 (1987), and we now reverse.
II
Students in the public schools do not “shed their
constitutional rights to freedom of speech or
expression at the schoolhouse gate.” Tinker, supra,
393 U.S., at 506, 89 S.Ct., at 736. They cannot be
punished merely for expressing their personal views
on the school premises—whether “in the cafeteria, or
on the playing field, or on the campus during the
authorized hours,” 393 U.S., at 512-513, 89 S.Ct., at
739-740—unless school authorities have reason to
believe that such expression will “substantially
interfere with the work of the school or impinge upon
the rights of other students.” Id., at 509, 89 S.Ct., at
738.
We have nonetheless recognized that the First
Amendment rights of students in the public schools
“are not automatically coextensive with the rights of
adults in other settings,” Bethel School District No.
403 v. Fraser, 478 U.S. 675, 682, 106 S.Ct. 3159,
3164, 92 L.Ed.2d 549 (1986), and must be “applied
in light of the special characteristics of the school
environment.” Tinker, supra,. 393 U.S., at 506, 89
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S.Ct., at 736. A school need not tolerate student
speech that is inconsistent with its “basic educational
mission,” Fraser, supra, 478 U.S., at 685, 106 S.Ct.,
at 3165, even though the government could not
censor similar speech outside the school.
Accordingly, we held in Fraser that a student could
be disciplined for having delivered a speech that was
“sexually explicit” but not legally obscene at an
official school assembly, because the school was
entitled to “disassociate itself” from the speech in a
manner*267 that would demonstrate to others that
such vulgarity is “wholly inconsistent with the
‘fundamental values' of public school education.” 478
U.S., at 685-686, 106 S.Ct., at 3165. We thus
recognized that “[t]he determination of what manner
of speech in the classroom or in school assembly is
inappropriate properly rests with the school board,”
id., at 683, 106 S.Ct., at 3164, rather than with the
**568 federal courts. It is in this context that
respondents' First Amendment claims must be
considered.
***
**569 *270 The question whether the First
Amendment requires a school to tolerate particular
student speech—the question that we addressed in
Tinker—is different from the **570 question whether
the First Amendment requires a school
affirmatively*271 to promote particular student
speech. The former question addresses educators'
ability to silence a student's personal expression that
happens to occur on the school premises. The latter
question concerns educators' authority over schoolsponsored publications, theatrical productions, and
other expressive activities that students, parents, and
members of the public might reasonably perceive to
bear the imprimatur of the school. These activities
may fairly be characterized as part of the school
curriculum, whether or not they occur in a traditional
classroom setting, so long as they are supervised by
faculty members and designed to impart particular
knowledge or skills to student participants and
audiences.FN3
FN3. The distinction that we draw between
speech that is sponsored by the school and
speech that is not is fully consistent with
Papish v. University of Missouri Board of
Curators, 410 U.S. 667, 93 S.Ct. 1197, 35
L.Ed.2d 618 (1973) (per curiam), which
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involved an off-campus “underground”
newspaper that school officials merely had
allowed to be sold on a state university
campus.
Educators are entitled to exercise greater control
over this second form of student expression to assure
that participants learn whatever lessons the activity is
designed to teach, that readers or listeners are not
exposed to material that may be inappropriate for
their level of maturity, and that the views of the
individual speaker are not erroneously attributed to
the school. Hence, a school may in its capacity as
publisher of a school newspaper or producer of a
school play “disassociate itself,” Fraser, 478 U.S., at
685, 106 S.Ct., at 3165, not only from speech that
would “substantially interfere with [its] work ... or
impinge upon the rights of other students,” Tinker,
393 U.S., at 509, 89 S.Ct., at 738, but also from
speech that is, for example, ungrammatical, poorly
written, inadequately researched, biased or
prejudiced, vulgar or profane, or unsuitable for
immature audiences.FN4 A school must be able to set
high standards for *272 the student speech that is
disseminated under its auspices—standards that may
be higher than those demanded by some newspaper
publishers or theatrical producers in the “real”
world—and may refuse to disseminate student speech
that does not meet those standards. In addition, a
school must be able to take into account the
emotional maturity of the intended audience in
determining whether to disseminate student speech
on potentially sensitive topics, which might range
from the existence of Santa Claus in an elementary
school setting to the particulars of teenage sexual
activity in a high school setting. A school must also
retain the authority to refuse to sponsor student
speech that might reasonably be perceived to
advocate drug or alcohol use, irresponsible sex, or
conduct otherwise inconsistent with “the shared
values of a civilized social order,” Fraser, supra, 478
U.S., at 683, 106 S.Ct., at 3164, or to associate the
school with any position other than neutrality on
matters of political controversy. Otherwise, the
schools would be unduly constrained from fulfilling
their role as “a principal instrument in awakening the
child to cultural values, in preparing him for later
professional training, and in helping him to adjust
normally to his environment.” Brown v. Board of
Education, 347 U.S. 483, 493, 74 S.Ct. 686, 691, 98
L.Ed. 873 (1954).
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FN4. The dissent perceives no difference
between the First Amendment analysis
applied in Tinker and that applied in Fraser.
We disagree. The decision in Fraser rested
on the “vulgar,” “lewd,” and “plainly
offensive” character of a speech delivered at
an official school assembly rather than on
any propensity of the speech to “materially
disrup[t] classwork or involv[e] substantial
disorder or invasion of the rights of others.”
393 U.S., at 513, 89 S.Ct., at 740. Indeed,
the Fraser Court cited as “especially
relevant” a portion of Justice Black's
dissenting opinion in Tinker “ ‘disclaim[ing]
any purpose ... to hold that the Federal
Constitution compels the teachers, parents,
and elected school officials to surrender
control of the American public school
system to public school students.’ ” 478
U.S., at 686, 106 S.Ct., at 3166 (quoting 393
U.S., at 526, 89 S.Ct., at 746). Of course,
Justice Black's observations are equally
relevant to the instant case.
**571 Accordingly, we conclude that the
standard articulated in Tinker for determining when a
school may punish student expression need not also
be the standard for determining when a school may
refuse to lend its name and resources to the
dissemination*273 of student expression. Instead, we
hold that educators do not offend the First
Amendment by exercising editorial control over the
style and content of student speech in schoolsponsored expressive activities so long as their
actions are reasonably related to legitimate
pedagogical concerns.
***
*274 This standard is consistent with our oftexpressed view that the education of the Nation's
youth is primarily the responsibility of parents,
teachers, and state and local school officials, and not
of federal judges. See, e.g., Board of Education of
Hendrick Hudson Central School Dist. v. Rowley,
458 U.S. 176, 208, 102 S.Ct. 3034, 3051, 73 L.Ed.2d
690 (1982). **572 It is only when the decision to
censor a school-sponsored publication, theatrical
production, or other vehicle of student expression has
no valid educational purpose that the First
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Amendment is so “directly and sharply implicate[d],”
ibid., as to require judicial intervention to protect
students' constitutional rights.FN7
FN7. A number of lower federal courts have
similarly
recognized
that
educators'
decisions with regard to the content of
school-sponsored newspapers, dramatic
productions, and other expressive activities
are entitled to substantial deference. See,
e.g., Nicholson v. Board of Education,
Torrance Unified School Dist.,682 F.2d 858
(CA9 1982). We need not now decide
whether the same degree of deference is
appropriate with respect to school-sponsored
expressive activities at the college and
university level.
***
III
*276 In sum, we cannot reject as unreasonable
Principal Reynolds' conclusion that neither the
pregnancy article nor the divorce article was suitable
for publication in Spectrum. Reynolds could
reasonably have concluded that the students who had
written and edited these articles had not sufficiently
mastered those portions of the Journalism II
curriculum that pertained to the treatment of
controversial issues and personal attacks, the need to
protect the privacy of individuals whose most
intimate concerns are to be revealed in the
newspaper, and “the legal, moral, and ethical
restrictions imposed upon journalists within [a]
school community” that includes adolescent subjects
and readers. Finally, we conclude that the principal's
decision to delete two pages of Spectrum, rather than
to delete only the offending articles or to require that
they be modified, was reasonable under the
circumstances as he understood them. Accordingly,
no violation of First Amendment rights occurred.FN9
FN9. It is likely that the approach urged by
the dissent would as a practical matter have
far more deleterious consequences for the
student press than does the approach that we
adopt today. The dissent correctly
acknowledges “[t]he State's prerogative to
dissolve the student newspaper entirely.”
Post, at 578. It is likely that many public
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schools would do just that rather than open
their newspapers to all student expression
that does not threaten “materia[l] disrup[tion
of] classwork” or violation of “rights that
are protected by law,” post, at 579,
regardless of how sexually explicit, racially
intemperate, or personally insulting that
expression otherwise might be.
**573 The judgment of the Court of Appeals for
the Eighth Circuit is therefore
Reversed.
*277 Justice BRENNAN, with whom Justice
MARSHALL and Justice BLACKMUN join,
dissenting.
When the young men and women of Hazelwood
East High School registered for Journalism II, they
expected a civics lesson. Spectrum, the newspaper
they were to publish, “was not just a class exercise in
which students learned to prepare papers and hone
writing skills, it was a ... forum established to give
students an opportunity to express their views while
gaining an appreciation of their rights and
responsibilities under the First Amendment to the
United States Constitution....” 795 F.2d 1368, 1373
(CA8 1986). “[A]t the beginning of each school
year,” id., at 1372, the student journalists published a
Statement of Policy—tacitly approved each year by
school authorities—announcing their expectation that
“Spectrum, as a student-press publication, accepts all
rights implied by the First Amendment.... Only
speech that ‘materially and substantially interferes
with the requirements of appropriate discipline’ can
be found unacceptable and therefore prohibited.”
App. 26 (quoting Tinker v. Des Moines Independent
Community School Dist., 393 U.S. 503, 513, 89 S.Ct.
733, 740, 21 L.Ed.2d 731 (1969)). The school board
itself affirmatively guaranteed the students of
Journalism II an atmosphere conducive to fostering
such an appreciation and exercising the full panoply
of rights associated with a free student press. “School
sponsored student publications,” it vowed, “will not
restrict free expression or diverse viewpoints within
the rules of responsible journalism.” App. 22 (Board
Policy 348.51).
***
*278 In my view the principal broke more than
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just a promise. He violated the First Amendment's
prohibitions against censorship of any student
expression that neither disrupts classwork nor
invades the rights of others, and against any
censorship that is not narrowly tailored to serve its
purpose.
I
Public education serves vital national interests in
preparing the Nation's youth for life in our
increasingly complex society and for the duties of
citizenship in our democratic Republic. See Brown v.
Board of Education, 347 U.S. 483, 493, 74 S.Ct. 686,
691, 98 L.Ed. 873 (1954). The public school conveys
to our young the information and tools required not
merely to survive in, but to contribute to, civilized
society. It also inculcates in tomorrow's leaders the
“fundamental values necessary to the maintenance of
a democratic political system....” **574Ambach v.
Norwick, 441 U.S. 68, 77, 99 S.Ct. 1589, 1595, 60
L.Ed.2d 49 (1979). All the while, the public educator
nurtures students' social and moral development by
transmitting to them an official dogma of “
‘community values.’ ” Board of Education v. Pico,
457 U.S. 853, 864, 102 S.Ct. 2799, 2806, 73 L.Ed.2d
435 (1982) (plurality opinion) (citation omitted).
The public educator's task is weighty and
delicate indeed. It demands particularized and
supremely subjective choices among diverse
curricula, moral values, and political stances to teach
or inculcate in students, and among various
methodologies for doing so. Accordingly, we have
traditionally reserved*279 the “daily operation of
school systems” to the States and their local school
boards. Epperson v. Arkansas, 393 U.S. 97, 104, 89
S.Ct. 266, 270, 21 L.Ed.2d 228 (1968). We have not,
however, hesitated to intervene where their decisions
run afoul of the Constitution. See e.g., Edwards v.
Aguillard, 482 U.S. 578, 107 S.Ct. 2573, 96 L.Ed.2d
510 (1987) (striking state statute that forbade
teaching of evolution in public school unless
accompanied by instruction on theory of “creation
science”); Board of Education v. Pico, supra (school
board may not remove books from library shelves
merely because it disapproves of ideas they express);
Epperson v. Arkansas, supra (striking state-law
prohibition against teaching Darwinian theory of
evolution in public school).
***
Free student expression undoubtedly sometimes
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interferes with the effectiveness of the school's
pedagogical functions. Some brands of student
expression do so by directly preventing the school
from pursuing its pedagogical mission. Other student
speech, however, frustrates the school's legitimate
pedagogical purposes merely by expressing a
message that conflicts with the school's, without
directly interfering with the school's expression of its
message.*280 Even the maverick who sits in class
passively sporting a symbol of protest against a
government policy, cf. Tinker v. Des Moines
Independent School Dist., 393 U.S. 503, 89 S.Ct.
733, 21 L.Ed.2d 731 (1969), or the gossip who sits in
the student commons swapping stories of sexual
escapade could readily muddle a clear official
message condoning the government policy or
condemning teenage sex. Likewise, the student
newspaper that, like Spectrum, conveys a moral
position at odds with the school's official stance
might subvert the administration's legitimate
inculcation of its own perception of community
values.
If mere incompatibility with the school's
pedagogical message were a constitutionally
sufficient justification for the suppression of student
speech, school officials could censor each of the
students or student organizations in the foregoing
hypotheticals, converting our public schools into
“enclaves of totalitarianism,” id., at 511, 89 S.Ct., at
739, that “strangle the free mind at its source,” West
Virginia Board of Education v. Barnette, 319 U.S.
624, 637, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943).The
First Amendment permits no such blanket censorship
authority. While the “constitutional rights of students
in public school are not automatically**575
coextensive with the rights of adults in other
settings,” Fraser, supra, 478 U.S., at 682, 106 S.Ct.,
at 3164, students in the public schools do not “shed
their constitutional rights to freedom of speech or
expression at the schoolhouse gate,” Tinker, supra,
393 U.S., at 506, 89 S.Ct., at 736. Just as the public
on the street corner must, in the interest of fostering
“enlightened opinion,” Cantwell v. Connecticut, 310
U.S. 296, 310, 60 S.Ct. 900, 906, 84 L.Ed. 1213
(1940), tolerate speech that “tempt[s] [the listener] to
throw [the speaker] off the street,” id., at 309, 60
S.Ct., at 906, public educators must accommodate
some student expression even if it offends them or
offers views or values that contradict those the school
wishes to inculcate.
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In Tinker, this Court struck the balance. We held
that official censorship of student expression—there
the suspension of several students until they removed
their armbands protesting the Vietnam war—is
unconstitutional unless the *281 speech “materially
disrupts classwork or involves substantial disorder or
invasion of the rights of others....” 393 U.S., at 513,
89 S.Ct., at 740. School officials may not suppress
“silent,
passive
expression
of
opinion,
unaccompanied by any disorder or disturbance on the
part of” the speaker. Id., at 508, 89 S.Ct., at 737. The
“mere desire to avoid the discomfort and
unpleasantness that always accompany an unpopular
viewpoint,” id., at 509, 89 S.Ct., at 738, or an
unsavory subject, Fraser, supra, 478 U.S., at 688689, 106 S.Ct., at 3167-3168 (BRENNAN, J.,
concurring in judgment), does not justify official
suppression of student speech in the high school.
This Court applied the Tinker test just a Term
ago in Fraser, supra, upholding an official decision
to discipline a student for delivering a lewd speech in
support of a student-government candidate. The
Court today casts no doubt on Tinker 's vitality.
Instead it erects a taxonomy of school censorship,
concluding that Tinker applies to one category and
not another. On the one hand is censorship “to silence
a student's personal expression that happens to occur
on the school premises.” Ante, at 569. On the other
hand is censorship of expression that arises in the
context of “school-sponsored ... expressive activities
that students, parents, and members of the public
might reasonably perceive to bear the imprimatur of
the school.” Ibid.
The Court does not, for it cannot, purport to
discern from our precedents the distinction it creates.
One could, I suppose, readily characterize the
students' symbolic speech in Tinker as “personal
expression that happens to [have] occur[red] on
school premises,” although Tinker did not even hint
that the personal nature of the speech was of any
(much less dispositive) relevance. But that same
description could not by any stretch of the
imagination fit Fraser's speech. He did not just
“happen” to deliver his lewd speech to an ad hoc
gathering on the playground. As the second
paragraph of Fraser evinces, if ever a forum for
student expression was “school-sponsored,” Fraser's
was:
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*282 “Fraser ... delivered a speech nominating a
fellow student for student elective office.
Approximately 600 high school students ... attended
the assembly. Students were required to attend the
assembly or to report to the study hall. The assembly
was part of a school-sponsored educational program
in self-government.” Fraser, 478 U.S., at 677, 106
S.Ct., at 3161 (emphasis added).
Yet, from the first sentence of its analysis, see
id., at 680, 106 S.Ct., at 3162-3163, Fraser faithfully
applied Tinker.
Nor has this Court ever intimated a distinction
between personal and school-sponsored speech in
any other context. Particularly telling is this Court's
heavy reliance on Tinker in two cases of First
Amendment infringement on state college campuses.
See Papish v. University of Missouri Board of
Curators, 410 U.S. 667, 671, n. 6, 93 S.Ct. 1197,
1199, n. 6, 35 L.Ed.2d 618 (1973) **576(per
curiam); Healy v. James, 408 U.S. 169, 180, 189, and
n. 18, 191, 92 S.Ct. 2338, 2345, 2350, and n. 18,
2351, 33 L.Ed.2d 266 (1972). One involved the
expulsion of a student for lewd expression in a
newspaper that she sold on campus pursuant to
university authorization, see Papish, supra, 410 U.S.,
at 667-668, 93 S.Ct., at 1197-1198, and the other
involved the denial of university recognition and
concomitant benefits to a political student
organization, see Healy, supra, 408 U.S., at 174, 176,
181-182, 92 S.Ct., at 2342, 2343, 2346-2347.
Tracking Tinker 's analysis, the Court found each act
of suppression unconstitutional. In neither case did
this Court suggest the distinction, which the Court
today finds dispositive, between school-sponsored
and incidental student expression.
II
Even if we were writing on a clean slate, I would
reject the Court's rationale for abandoning Tinker in
this case. The Court offers no more than an obscure
tangle of three excuses to afford educators “greater
control” over school-sponsored speech than the
Tinker test would permit: the public educator's
prerogative to control curriculum; the pedagogical
interest in shielding the high school audience from
objectionable viewpoints and sensitive topics; and the
school's need *283 to dissociate itself from student
expression. Ante, at 569-570. None of the excuses,
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once disentangled, supports the distinction that the
Court draws. Tinker fully addresses the first concern;
the second is illegitimate; and the third is readily
achievable through less oppressive means.
A
The Court is certainly correct that the First
Amendment permits educators “to assure that
participants learn whatever lessons the activity is
designed to teach....” Ante, at 570. That is, however,
the essence of the Tinker test, not an excuse to
abandon it. Under Tinker, school officials may censor
only such student speech as would “materially
disrup[t]” a legitimate curricular function.
Manifestly, student speech is more likely to disrupt a
curricular function when it arises in the context of a
curricular activity—one that “is designed to teach”
something—than when it arises in the context of a
noncurricular activity. *284 Thus, under Tinker, the
school may constitutionally punish the budding
political orator if he disrupts calculus class but not if
he holds his tongue for the cafeteria. See
Consolidated Edison Co. v. Public Service Comm'n
of New York, 447 U.S. 530, 544-545, 100 S.Ct. 2326,
2337, 65 L.Ed.2d 319 (1980) (STEVENS, J.,
concurring in judgment). That is not because some
more stringent standard applies in the curricular
context. (After all, this Court applied the same
standard whether the students in Tinker wore their
armbands to the “classroom” or the “cafeteria.” 393
U.S., at 512, 89 S.Ct., at 740.) It is because student
speech in the noncurricular context is less likely to
disrupt materially any legitimate pedagogical
purpose.
***
B
*285 The Court's second excuse for deviating
from precedent is the school's interest in shielding an
impressionable high school audience from material
whose substance is “unsuitable for immature
audiences.” Ante, at 570 (footnote omitted). **577
Specifically, the majority decrees that we must afford
educators authority to shield high school students
from exposure to “potentially sensitive topics” (like
“the particulars of teenage sexual activity”) or
unacceptable social viewpoints (like the advocacy of
“irresponsible se[x] or conduct otherwise inconsistent
with ‘the shared values of a civilized social order’ ”)
through school-sponsored student activities. Ante, at
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570 (citation omitted).
Tinker teaches us that the state educator's
undeniable, and undeniably vital, mandate to
inculcate moral and political values is not a general
warrant to act as “thought police” stifling discussion
of all but state-approved topics and advocacy of all
*286 but the official position. See also Epperson v.
Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228
(1968); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct.
625, 67 L.Ed. 1042 (1923). Otherwise educators
could transform students into “closed-circuit
recipients of only that which the State chooses to
communicate,” Tinker, 393 U.S., at 511, 89 S.Ct., at
739, and cast a perverse and impermissible “pall of
orthodoxy over the classroom,” Keyishian v. Board of
Regents, 385 U.S. 589, 603, 87 S.Ct. 675, 683, 17
L.Ed.2d 629 (1967). Thus, the State cannot
constitutionally prohibit its high school students from
recounting in the locker room “the particulars of
[their] teenage**578 sexual activity,” nor even from
advocating “irresponsible se[x]” or other presumed
abominations of “the shared values of a civilized
social order.” Even in its capacity as educator the
State may not assume an Orwellian “guardianship of
the public mind,” Thomas v. Collins, 323 U.S. 516,
545, 65 S.Ct. 315, 329, 89 L.Ed. 430 (1945)
(Jackson, J., concurring).
The mere fact of school sponsorship does not, as
the Court suggests, license such thought control in
the high school, whether through school suppression
of disfavored viewpoints or through official
assessment of topic sensitivity. FN2 The former would
constitute
unabashed
and
unconstitutional
viewpoint*287 discrimination, see Board of
Education v. Pico, 457 U.S., at 878-879, 102 S.Ct., at
2813-2814 (BLACKMUN, J., concurring in part and
concurring in judgment), as well as an impermissible
infringement of the students' “ ‘right to receive
information and ideas,’ ” id., at 867, 102 S.Ct., at
2808 (plurality opinion) (citations omitted); see First
National Bank v. Bellotti, 435 U.S. 765, 783, 98 S.Ct.
1407, 1419, 55 L.Ed.2d 707 (1978). Just as a school
board may not purge its state-funded library of all
books that “ ‘offen[d] [its] social, political and moral
tastes,’ ” 457 U.S., at 858-859, 102 S.Ct., at 2804
(plurality opinion) (citation omitted), school officials
may not, out of like motivation, discriminatorily
excise objectionable ideas from a student publication.
The State's prerogative to dissolve the student
Page 8
newspaper entirely (or to limit its subject matter) no
more entitles it to dictate which viewpoints students
may express on its pages, than the State's prerogative
to close down the schoolhouse entitles it to prohibit
the nondisruptive expression of antiwar sentiment
within its gates.
FN2. The Court quotes language in Bethel
School Dist. No. 403 v. Fraser, 478 U.S.
675, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986),
for the proposition that “ ‘[t]he
determination of what manner of speech in
the classroom or in school assembly is
inappropriate properly rests with the school
board.’ ” Ante, at 567 (quoting 478 U.S., at
683, 106 S.Ct., at 3164). As the discussion
immediately preceding that quotation makes
clear, however, the Court was referring only
to the appropriateness of the manner in
which the message is conveyed, not of the
message's content. See, e.g., Fraser, 478
U.S., at 683, 106 S.Ct., at 3164 (“[T]he
‘fundamental values necessary to the
maintenance of a democratic political
system’ disfavor the use of terms of debate
highly offensive or highly threatening to
others”). In fact, the Fraser Court coupled
its first mention of “society's ... interest in
teaching students the boundaries of socially
appropriate
behavior,”
with
an
acknowledgment of “[t]he undoubted
freedom to advocate unpopular and
controversial views in schools and
classrooms,” id., at 681, 106 S.Ct., at 3163
(emphasis added). See also id., at 689, 106
S.Ct., at 3167 (BRENNAN, J., concurring in
judgment) (“Nor does this case involve an
attempt by school officials to ban written
materials they consider ‘inappropriate’ for
high school students” (citation omitted)).
***
Official censorship of student speech on the
ground that it addresses “potentially sensitive topics”
is, for related reasons, equally impermissible. I would
not begrudge an educator the authority to limit the
substantive scope of a school-sponsored publication
to a certain, objectively definable topic, such as
literary criticism, school sports, or an overview of the
school year. Unlike those determinate limitations,
“potential topic sensitivity” is a vaporous
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nonstandard—like “ ‘public welfare, peace, safety,
health, decency, good order, morals or convenience,’
” Shuttlesworth v. Birmingham, 394 U.S. 147, 150,
89 S.Ct. 935, 938, 22 L.Ed.2d 162 (1969), or “
‘general welfare of citizens,’ ” Staub v. Baxley, 355
U.S. 313, 322, 78 S.Ct. 277, 282, 2 L.Ed.2d 302
(1958)—that invites manipulation to achieve ends
that cannot permissibly be achieved through blatant
viewpoint discrimination and chills student speech to
which school officials might not *288 object. In part
because of those dangers, this Court has consistently
condemned any scheme allowing a state official
boundless **579 discretion in licensing speech from
a particular forum. See, e.g., Shuttlesworth v.
Birmingham, supra, 394 U.S., at 150-151, and n. 2,
89 S.Ct., at 938-939, and n. 2; Cox v. Louisiana, 379
U.S. 536, 557-558, 85 S.Ct. 453, 465-466, 13
L.Ed.2d 471 (1965); Staub v. Baxley, supra, 355
U.S., at 322-324, 78 S.Ct., at 282-283.
expression, including “personal expression” that, like
the armbands in Tinker, “happens to occur on the
school premises,” ante, at 569. Nevertheless, the
majority is certainly correct that indicia of school
sponsorship increase the likelihood *289 of such
attribution, and that state educators may therefore
have a legitimate interest in dissociating themselves
from student speech.
The case before us aptly illustrates how readily
school officials (and courts) can camouflage
viewpoint discrimination as the “mere” protection of
students from sensitive topics. Among the grounds
that the Court advances to uphold the principal's
censorship of one of the articles was the potential
sensitivity of “teenage sexual activity.” Ante, at 570.
Yet the District Court specifically found that the
principal “did not, as a matter of principle, oppose
discussion of said topi[c] in Spectrum.” 607 F.Supp.,
at 1467. That much is also clear from the same
principal's approval of the “squeal law” article on the
same page, dealing forthrightly with “teenage
sexuality,” “the use of contraceptives by teenagers,”
and “teenage pregnancy,” App. 4-5. If topic
sensitivity were the true basis of the principal's
decision, the two articles should have been equally
objectionable. It is much more likely that the
objectionable article was objectionable because of the
viewpoint it expressed: It might have been read (as
the majority apparently does) to advocate
“irresponsible sex.” See ante, at 570.
III
Since the censorship served no legitimate
pedagogical purpose, it cannot by any stretch of the
imagination have been designed to prevent
“materia[l] disrup [tion of] classwork,” Tinker, 393
U.S., at 513, 89 S.Ct., at 740. Nor did the censorship
fall within the category that Tinker described as
necessary to prevent student expression from
“inva[ding] the rights of others,” ibid. If that term is
to have any content, it must be limited to rights that
are protected by law. “Any yardstick less exacting
than [that] could result in school officials curtailing
speech at the slightest fear of disturbance,” 795 F.2d,
at 1376, a prospect that would be completely at odds
with this Court's pronouncement that the
“undifferentiated**580 fear or apprehension of
disturbance is not enough [even in the public school
context] to overcome the right to freedom of
expression.” *290 Tinker, supra, 393 U.S., at 508,
89 S.Ct., at 737. And, as the Court of Appeals
correctly reasoned, whatever journalistic impropriety
these articles may have contained, they could not
conceivably be tortious, much less criminal. See 795
F.2d, at 1375-1376.
C
The sole concomitant of school sponsorship that
might conceivably justify the distinction that the
Court draws between sponsored and nonsponsored
student expression is the risk “that the views of the
individual speaker [might be] erroneously attributed
to the school.” Ante, at 570. Of course, the risk of
erroneous attribution inheres in any student
But “ ‘[e]ven though the governmental purpose
be legitimate and substantial, that purpose cannot be
pursued by means that broadly stifle fundamental
personal liberties when the end can be more narrowly
achieved.’ ” Keyishian v. Board of Regents, 385 U.S.,
at 602, 87 S.Ct., at 683 (quoting Shelton v. Tucker,
364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231
(1960)).Yet, without so much as acknowledging the
less oppressive alternatives, the Court approves of
brutal censorship.
***
IV
The Court opens its analysis in this case by
purporting to reaffirm Tinker 's time-tested
proposition that public school students “do not ‘shed
their constitutional rights to freedom of speech or
expression at the schoolhouse gate.’ ” Ante, at 567
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(quoting Tinker, supra, 393 U.S., at 506, 89 S.Ct., at
736). That is an ironic introduction to an opinion that
denudes high school students of much of the First
Amendment protection that Tinker itself prescribed.
Instead of “teach[ing] children to respect the diversity
of ideas that is fundamental to the American system,”
Board of Education v. Pico, 457 U.S., at 880, 102
S.Ct., at 2814 (BLACKMUN, J., concurring in part
and concurring in judgment), and “that our
Constitution is a living reality, not parchment
preserved under glass,” *291Shanley v. Northeast
Independent School Dist., Bexar Cty., Tex., 462 F.2d
960, 972 (CA5 1972), the Court today “teach[es]
youth to discount important principles of our
government as mere platitudes.” West Virginia Board
of Education v. Barnette, 319 U.S., at 637, 63 S.Ct.,
at 1185. The young men and women of Hazelwood
East expected a civics lesson, but not the one the
Court teaches them today.
I dissent.
U.S.Mo.,1988.
Hazelwood School Dist. v. Kuhlmeier
484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d 592, 56
USLW 4079, 43 Ed. Law Rep. 515, 14 Media L.
Rep. 2081
END OF DOCUMENT
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Supreme Court of the United States
Deborah MORSE et al., Petitioners,
v.
Joseph FREDERICK.
No. 06–278.
Argued March 19, 2007.
Decided June 25, 2007.
***
**2623 Chief Justice ROBERTS delivered the
opinion of the Court.
***
I
*397 On January 24, 2002, the Olympic Torch
Relay passed through Juneau, Alaska, on its way to
the winter games in Salt Lake City, Utah. The
torchbearers were to proceed along a street in front of
Juneau–Douglas High School (JDHS) while school
was in session. Petitioner Deborah Morse, the school
principal, decided to permit staff and students to
participate in the Torch Relay as an approved social
event or class trip. App. 22–23. Students were
allowed to leave class to observe the relay from either
side of the street. Teachers and administrative
officials monitored the students' actions.
As the torchbearers and camera crews passed by,
Respondent Joseph Frederick, a JDHS senior, and his
friends unfurled a 14–foot banner bearing the phrase:
“BONG HiTS 4 JESUS.” App. to Pet. for Cert. 70a.
The large banner was easily readable by the students
on the other side of the street.
*398 Principal Morse immediately crossed the
street and demanded that the banner be taken down.
Everyone but Frederick complied. Morse confiscated
the banner and told Frederick to report to her office,
where she suspended him for 10 days. Morse later
explained that she told Frederick to take the banner
down because she thought it encouraged illegal drug
use, in violation of established school policy. Juneau
School Board Policy No. 5520 states: “The Board
specifically prohibits any assembly or public
expression that ... advocates the use of substances
Page 1
that are illegal to minors ....” Id., at 53a. In addition,
Juneau School Board Policy No. 5850 subjects
“[p]upils who participate in approved social events
and class trips” to the same student conduct rules that
apply during the regular school program. Id., at 58a.
Frederick
administratively
appealed
his
suspension, but the Juneau School District
Superintendent upheld it, limiting it to time served
(eight days). In a memorandum setting forth his
reasons, the superintendent determined that Frederick
had displayed his banner “in the midst of his fellow
students, during school hours, at a school-sanctioned
activity.” Id., at 63a. He further explained that
Frederick “was not disciplined because the principal
of the school ‘disagreed’ with his message, but
because his speech appeared to advocate the use of
illegal drugs.” Id., at 61a.
***
*399 Relying on our decision in Fraser, supra,
the superintendent concluded that the principal's
actions were permissible because Frederick's banner
was “speech or action that intrudes upon the work of
the schools.” App. to Pet. for Cert. 62a (internal
quotation marks omitted). The Juneau School District
Board of Education upheld the suspension.
Frederick then filed suit alleging that the school
board and Morse had violated his First Amendment
rights. The District Court granted summary judgment
for the school board and Morse, ruling that they were
entitled to qualified immunity and that they had not
infringed Frederick's First Amendment rights. The
court found that Morse reasonably interpreted the
banner as promoting illegal drug use—a message that
“directly contravened the Board's policies relating to
drug abuse prevention.” App. to Pet. for Cert. 36a–
38a. Under the circumstances, the court held that
“Morse had the authority, if not the obligation, to
stop such messages at a school-sanctioned activity.”
Id., at 37a.
The Ninth Circuit reversed. Deciding that
Frederick acted during a “school-authorized
activit[y],” and “proceed[ing] on the basis that the
banner expressed a positive sentiment about
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marijuana use,” the court nonetheless found a
violation of Frederick's First Amendment rights
because the school punished Frederick without
demonstrating that his speech gave rise to a “risk of
substantial disruption.” 439 F.3d 1114, 1118, 1121–
1123 (2006). The court further concluded that
Frederick's**2624 right to display his banner was
*400 so “clearly established” that a reasonable
principal in Morse's position would have understood
that her actions were unconstitutional, and that Morse
was therefore not entitled to qualified immunity. Id.,
at 1123–1125.
We granted certiorari on the
Frederick had a First Amendment
banner. 549 U.S. 1075, 127 S.Ct.
559 (2006). We resolve the
Frederick.
question whether
right to wield his
722, 166 L.Ed.2d
question against
***
II
At the outset, we reject Frederick's argument that
this is not a school speech case—as has every other
authority to address the question. See App. 22–23
(Principal Morse); App. to Pet. for Cert. 63a
(superintendent); id., at 69a (school board); id., at
34a–35a (District Court); 439 F.3d, at 1117 (Ninth
Circuit). The event occurred during normal school
hours. It was sanctioned by Principal Morse “as an
approved social event or class trip,” App. 22–23, and
the school district's rules expressly provide that
pupils in “approved social events and class trips are
subject to district rules for *401 student conduct,”
App. to Pet. for Cert. 58a. Teachers and
administrators were interspersed among the students
and charged with supervising them. The high school
band and cheerleaders performed. Frederick, standing
among other JDHS students across the street from the
school, directed his banner toward the school, making
it plainly visible to most students. Under these
circumstances, we agree with the superintendent that
Frederick cannot “stand in the midst of his fellow
students, during school hours, at a school-sanctioned
activity and claim he is not at school.” Id., at 63a.
III
The message on Frederick's banner is cryptic. It
is no doubt offensive to some, perhaps amusing to
others. To still others, it probably means nothing at
all. Frederick himself claimed “that the words were
Page 2
just nonsense meant to attract television cameras.”
439 F.3d, at 1117–1118. But Principal Morse thought
the banner would be interpreted by those viewing it
as promoting illegal drug use, and that interpretation
is plainly a reasonable one.
As Morse later explained in a declaration, when
she saw the sign, she thought that “the reference to a
‘bong hit’ would be **2625 widely understood by
high school students and others as referring to
smoking marijuana.” App. 24. She further believed
that “display of the banner would be construed by
students, District personnel, parents and others
witnessing the display of the banner, as advocating or
promoting illegal drug use”—in violation of school
policy. Id., at 25; see ibid. (“I told Frederick and the
other members of his group to put the banner down
because I felt that it violated the [school] policy
against displaying ... material that advertises or
promotes use of illegal drugs”).
***
*402 The dissent mentions Frederick's “credible
and uncontradicted explanation for the message—he
just wanted to get on television.” Post, at 2649. But
that is a description of Frederick's motive for
displaying the banner; it is not an interpretation of
what the banner says. The way Frederick was going
to fulfill his ambition of appearing on television was
by unfurling a pro-drug banner at a school event, in
the presence of teachers and fellow students.
Elsewhere in its opinion, the dissent emphasizes
the importance of political speech and the need to
foster “national debate about a serious issue,” post, at
2651, as if to suggest *403 that the banner is political
speech. But not even Frederick argues that the banner
conveys any sort of political or religious message.
Contrary to the dissent's suggestion, see post, at 2650
– 2651, this is plainly not a case about political
debate over the criminalization of drug use or
possession.
IV
**2626 The question thus becomes whether a
principal may, consistent with the First Amendment,
restrict student speech at a school event, when that
speech is reasonably viewed as promoting illegal
drug use. We hold that she may.
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In Tinker, this Court made clear that “First
Amendment rights, applied in light of the special
characteristics of the school environment, are
available to teachers and students.” 393 U.S. 503,
506, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969).Tinker held
that student expression may not be suppressed unless
school officials reasonably conclude that it will
“materially and substantially disrupt the work and
discipline of the school.” Id., at 513, 89 S.Ct. 733.
The essential facts of Tinker are quite stark,
implicating concerns at the heart of the First
Amendment. The students sought to engage in
political speech, using the armbands to express their
“disapproval of the Vietnam hostilities and their
advocacy of a truce, to make their views known, and,
by their example, to influence others to adopt them.”
Id., at 514, 89 S.Ct. 733. Political speech, of course,
is “at the core of what the First Amendment is
designed to protect.” Virginia v. Black, 538 U.S. 343,
365, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003)
(plurality opinion). The only interest the Court
discerned underlying the school's actions was the
“mere desire to avoid *404 the discomfort and
unpleasantness that always accompany an unpopular
viewpoint,” or “an urgent wish to avoid the
controversy which might result from the expression.”
Tinker, 393 U.S., at 509, 510, 89 S.Ct. 733. That
interest was not enough to justify banning “a silent,
passive expression of opinion, unaccompanied by any
disorder or disturbance.” Id., at 508, 89 S.Ct. 733.
This Court's next student speech case was
Fraser, 478 U.S. 675, 106 S.Ct. 3159, 92 L.Ed.2d
549. Analyzing the case under Tinker, the District
Court and Court of Appeals found no disruption, and
therefore no basis for disciplining Fraser. 478 U.S., at
679–680, 106 S.Ct. 3159. This Court reversed,
holding that the “School District acted entirely within
its permissible authority in imposing sanctions upon
Fraser in response to his offensively lewd and
indecent speech.” Id., at 685, 106 S.Ct. 3159.
The mode of analysis employed in Fraser is not
entirely clear. The Court was plainly attuned to the
content of Fraser's speech, citing the “marked
distinction between the political ‘message’ of the
armbands in Tinker and the sexual content of
[Fraser's] speech.” Id., at 680, 106 S.Ct. 3159. But
the Court also reasoned that school boards have the
authority to determine “what manner of speech in the
classroom or in school assembly is inappropriate.”
Page 3
Id., at 683, 106 S.Ct. 3159. Cf. id., at 689, 106 S.Ct.
3159 (Brennan, J., concurring in judgment) (“In the
present case, school officials sought only to ensure
that a high school assembly proceed in an orderly
manner. There is no suggestion that school officials
attempted to regulate [Fraser's] speech because they
disagreed with the views he sought to express”).
We need not resolve this debate to decide this
case. For present purposes, it is enough to distill from
Fraser two basic principles. First, Fraser's holding
demonstrates that “the constitutional rights of
students in public school are not automatically
coextensive with the rights of adults in other *405
settings.” Id., at 682, 106 S.Ct. 3159. Had Fraser
delivered the same speech in a public forum outside
the school context, it would have been protected. See
Fraser, supra, at 682–683, 106 S.Ct. 3159. In school,
however, Fraser's First Amendment rights were
circumscribed “in light of the special characteristics
of the school **2627 environment.” Tinker, supra, at
506, 89 S.Ct. 733. Second, Fraser established that the
mode of analysis set forth in Tinker is not absolute.
Whatever approach Fraser employed, it certainly did
not conduct the “substantial disruption” analysis
prescribed by Tinker, supra, at 514, 89 S.Ct. 733. See
Kuhlmeier, 484 U.S. 260, 271, n. 4, 108 S.Ct. 562
(1988) (disagreeing with the proposition that there is
“no difference between the First Amendment analysis
applied in Tinker and that applied in Fraser,” and
noting that the holding in Fraser was not based on
any showing of substantial disruption).
Our most recent student speech case, Kuhlmeier,
concerned “expressive activities that students,
parents, and members of the public might reasonably
perceive to bear the imprimatur of the school.” 484
U.S., at 271, 108 S.Ct. 562. The Court of Appeals
analyzed the case under Tinker, ruling in favor of the
students because it found no evidence of material
disruption to classwork or school discipline.
Kuhlmeier v. Hazelwood School Dist., 795 F.2d
1368, 1375 (C.A.8 1986). This Court reversed,
holding that “educators do not offend the First
Amendment by exercising editorial control over the
style and content of student speech in schoolsponsored expressive activities so long as their
actions are reasonably related to legitimate
pedagogical concerns.” Kuhlmeier, 484 U.S., at 273,
108 S.Ct. 562.
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Kuhlmeier does not control this case because no
one would reasonably believe that Frederick's banner
bore the school's imprimatur. The case is nevertheless
instructive because it confirms both principles cited
above. Kuhlmeier acknowledged*406 that schools
may regulate some speech “even though the
government could not censor similar speech outside
the school.” Id., at 266, 108 S.Ct. 562. And, like
Fraser, it confirms that the rule of Tinker is not the
only basis for restricting student speech.FN2
FN2. The dissent's effort to find
inconsistency between our approach here
and the opinion in Federal Election Comm'n
v. Wisconsin Right to Life, Inc., 551 U.S.
449, 127 S.Ct. 2652, 2007 WL 1804336
(2007), see post, at 2649, overlooks what
was made clear in Tinker,Fraser, and
Kuhlmeier: Student First Amendment rights
are “applied in light of the special
characteristics of the school environment.”
Tinker, 393 U.S., at 506, 89 S.Ct. 733. See
Fraser, 478 U.S., at 682, 106 S.Ct. 3159;
Kuhlmeier, 484 U.S., at 266, 108 S.Ct. 562.
Page 4
schools to restrict student expression that they
reasonably regard as promoting illegal drug use.
Tinker warned that schools may not prohibit student
speech because of “undifferentiated fear or
apprehension of disturbance” or “a mere desire to
avoid the discomfort and unpleasantness that always
accompany an unpopular viewpoint.” Id., at 508, 509,
89 S.Ct. 733. The danger here is far more serious and
palpable. The particular concern to prevent student
drug abuse at issue here, embodied in established
school policy, App. 92–95; App. to Pet. *409 for
Cert. 53a, extends well beyond an abstract desire to
avoid controversy.
Petitioners urge us to adopt the broader rule that
Frederick's speech is proscribable because it is
plainly “offensive” as that term is used in Fraser. See
Reply Brief for Petitioners 14–15. We think this
stretches Fraser too far; that case should not be read
to encompass any speech that could fit under some
definition of “offensive.” After all, much political
and religious speech might be perceived as offensive
to some. The concern here is not that Frederick's
speech was offensive, but that it was reasonably
viewed as promoting illegal drug use.
***
***
*408 Congress has declared that part of a
school's job is educating students about the dangers
of illegal drug use. **2628 Thousands of school
boards throughout the country—including JDHS—
have adopted policies aimed at effectuating this
message. See Pet. for Cert. 17–21. Those school
boards know that peer pressure is perhaps “the single
most important factor leading schoolchildren to take
drugs,” and that students are more likely to use drugs
when the norms in school appear to tolerate such
behavior. Bd. of Educ. of Independent School District
No. 92 v. Earls, 536 U.S. 822, 840, 122 S.Ct. 2559
(2002) (BREYER, J., concurring). Student speech
celebrating illegal drug use at a school event, in the
presence of school administrators and teachers, thus
poses a particular challenge for school officials
working to protect those entrusted to their care from
the dangers of drug abuse.
**2629 The “special characteristics of the school
environment,” Tinker, 393 U.S., at 506, 89 S.Ct. 733,
and the governmental interest in stopping student
drug abuse—reflected in the policies of Congress and
myriad school boards, including JDHS—allow
Stripped of rhetorical flourishes, the debate
between the dissent and this opinion is less about
constitutional first principles than about whether
Frederick's banner constitutes promotion of illegal
drug use. We have explained our view that it does.
The dissent's contrary view on that relatively narrow
question hardly justifies sounding the First
Amendment bugle.
***
School principals have a difficult job, and a
vitally important one. When Frederick suddenly and
unexpectedly unfurled*410 his banner, Morse had to
decide to act—or not act—on the spot. It was
reasonable for her to conclude that the banner
promoted illegal drug use—in violation of
established school policy—and that failing to act
would send a powerful message to the students in her
charge, including Frederick, about how serious the
school was about the dangers of illegal drug use. The
First Amendment does not require schools to tolerate
at school events student expression that contributes to
those dangers.
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The judgment of the United States Court of
Appeals for the Ninth Circuit is reversed, and the
case is remanded for further proceedings consistent
with this opinion.
It is so ordered.
Justice THOMAS, concurring.
The Court today decides that a public school
may prohibit speech advocating illegal**2630 drug
use. I agree and therefore join its opinion in full. I
write separately to state my view that the standard set
forth in Tinker v. Des Moines Independent
Community School Dist., 393 U.S. 503, 89 S.Ct. 733,
21 L.Ed.2d 731 (1969), is without basis in the
Constitution.
I
The First Amendment states that “Congress shall
make no law ... abridging the freedom of speech.” As
this Court has previously observed, the First
Amendment was not originally understood to permit
all sorts of speech; instead, “[t]here are certain welldefined and narrowly limited classes of speech, the
prevention and punishment of which have never been
thought to raise any Constitutional problem.”
Chaplinsky v. New Hampshire, 315 U.S. 568, 571–
572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942) In my view,
the history of public education suggests that the First
Amendment, as originally understood, does not
protect student*411 speech in public schools.
Although colonial schools were exclusively private,
public education proliferated in the early 1800's. By
the time the States ratified the Fourteenth
Amendment, public schools had become relatively
common. W. Reese, America's Public Schools: From
the Common School to “No Child Left Behind” 11–
12 (2005) (hereinafter Reese). If students in public
schools were originally understood as having freespeech rights, one would have expected 19th-century
public schools to have respected those rights and
courts to have enforced them. They did not.
***
A
*412 During the colonial era, private schools and
tutors offered the only educational opportunities for
children. **2631 Because public schools were
initially created as substitutes for private schools,
Page 5
when States developed public education systems in
the early 1800's, no one doubted the government's
ability to educate and discipline children as private
schools did. Like their private counterparts, early
public schools were not places for freewheeling
debates or exploration of competing ideas. Rather,
teachers instilled “a core of common values” in
students and taught them self-control.
***
II
**2635
*417Tinkereffected a sea change in students'
speech rights, extending them well beyond traditional
bounds. The case arose when a school punished
several students for wearing black armbands to
school to protest the Vietnam War. 393 U.S., at 504,
89 S.Ct. 733. Determining that the punishment
infringed the students' First Amendment rights, this
Court created a new standard for students' freedom of
speech in public schools:
“[W]here there is no finding and no showing that
engaging in the forbidden conduct would
materially and substantially interfere with the
requirements of appropriate discipline in the
operation of the school, the prohibition cannot be
sustained.” Id., at 509[, 89 S.Ct. 733] (internal
quotation marks omitted).
Accordingly, unless a student's speech would
disrupt the educational process, students had a
fundamental right to speak their minds (or wear their
armbands)—even on matters the school disagreed
with or found objectionable. Ibid. (“[The school]
must be able to show that its action was caused by
something more than a mere desire to avoid the
discomfort and unpleasantness that always
accompany an unpopular viewpoint”).
***
Of course, Tinker's reasoning conflicted with the
traditional understanding of the judiciary's role in
relation to public schooling. Perhaps for that reason,
the Court has since scaled back Tinker's standard, or
rather set the standard aside on an ad hoc basis. In
*418Bethel School Dist. No. 403 v. Fraser, 478 U.S.
675, 677, 678, 106 S.Ct. 3159, 92 L.Ed.2d 549 1986),
a public school suspended a student for delivering a
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speech that contained “an elaborate, graphic, and
explicit sexual metaphor.” The Court of Appeals
found that the speech caused no disruption under the
Tinker standard, and this Court did not question that
holding. 478 U.S., at 679–680, 106 S.Ct. 3159. The
Court nonetheless permitted the school to punish the
student because of the objectionable content of his
speech. Id.,at 685, 106 S.Ct. 3159 Signaling at least a
partial break with Tinker,Fraser left the regulation of
indecent student speech to local schools. 478 U.S., at
683, 106 S.Ct. 3159.
Similarly, in Hazelwood School Dist. v.
Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d
592 (1988), the Court made an exception to Tinker
for school-sponsored activities. The Court
characterized newspapers and similar schoolsponsored activities “as part of the school
curriculum” and held that “[e]ducators are entitled to
exercise greater control over” these forms of student
expression. 484 U.S., at 271, 108 S.Ct. 562.
Accordingly, the Court expressly refused to apply
Tinker's standard. 484 U.S., at 272–273, 108 S.Ct.
562. Instead, for school-sponsored activities, the
Court created a new standard that permitted school
regulations of student speech that are “reasonably
related to legitimate pedagogical concerns.” Id., at
273, 108 S.Ct. 562.
Today, the Court creates another exception. In
doing so, we continue to distance ourselves from
Tinker, but we neither overrule it nor offer an
explanation of when it operates and when it does not.
Ante, at 2626 – 2629. I am afraid that our
jurisprudence now says that students have a right to
speak in schools except when they do not—a
standard continuously developed through litigation
against local schools and their administrators. In my
view, petitioners could prevail for a much simpler
reason: As originally understood, the *419
Constitution does not afford students a right to free
speech in public schools.
***
*420 In place of that democratic regime, Tinker
substituted judicial oversight of the day-to-day affairs
of public schools. The Tinker Court made little
attempt to ground its holding in the history of
education or in the original understanding of the First
Amendment. Instead, it imposed**2636 a new and
Page 6
malleable standard: Schools could not inhibit student
speech unless it “substantially interfere[d] with the
requirements of appropriate discipline in the
operation of the school.” 393 U.S., at 509, 89 S.Ct.
733 (internal quotation marks omitted). Inherent *421
in the application of that standard are judgment calls
about what constitutes interference and what
constitutes appropriate discipline. See id., at 517–
518, 89 S.Ct. 733 (Black, J., dissenting) (arguing that
the armbands in fact caused a disruption).
Historically, courts reasoned that only local school
districts were entitled to make those calls. The Tinker
Court usurped that traditional authority for the
judiciary.
***
*422 I join the Court's opinion because it erodes
Tinker's hold in the realm of student speech, even
though it does so by adding to the patchwork of
exceptions to the Tinker standard. I think the better
approach is to dispense with Tinker altogether, and
given the opportunity, I would do so.
***
Justice ALITO, with whom Justice KENNEDY joins,
concurring.
I join the opinion of the Court on the
understanding that (1) it goes no further than to hold
that a public school may restrict speech that a
reasonable observer would interpret as advocating
illegal drug use and (2) it provides no support for any
restriction of speech that can plausibly be interpreted
as commenting on any political or social issue,
including speech on issues such as “the wisdom of
the war on drugs or of legalizing marijuana for
medicinal use.” See post, at 2649 (STEVENS, J.,
dissenting).
But I do not read the opinion to mean that there
are necessarily any grounds for such regulation that
are not already recognized in the holdings of this
Court.*423I join the opinion of the Court on the
understanding that the opinion does not hold that the
special characteristics of the public schools
necessarily justify any other speech restrictions.
The opinion of the Court does not endorse the
broad argument advanced by petitioners and the
United States that the First Amendment permits
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public school officials to censor any student speech
that interferes with a school's “educational mission.”
This argument can easily be manipulated in
dangerous ways, and I would reject it before such
abuse occurs. The “educational mission” of the
public schools is defined by the elected and
appointed public officials with authority over the
schools and by the school administrators and faculty.
As a result, some public schools have defined their
educational missions as including the inculcation of
whatever political and social views are held by the
members of these groups.
***
*425 Speech advocating illegal drug use poses a
threat to student safety that is just as serious, if not
always as immediately obvious. **2637As we have
recognized in the past and as the opinion of the Court
today details, illegal drug use presents a grave and in
many ways unique threat to the physical safety of
students. I therefore conclude that the public schools
may ban speech advocating illegal drug use. But I
regard such regulation as standing at the far reaches
of what the First Amendment permits. I join the
opinion of the Court with the understanding that the
opinion does not endorse any further extension.
JUSTICE BREYER, concurring in the judgment in
part and dissenting in part.
***
*435 In my judgment, the First Amendment
protects student speech if the message itself neither
violates a permissible rule nor expressly advocates
conduct that is illegal and harmful to students. This
nonsense banner does neither, and the Court does
serious violence to the First Amendment in
upholding—indeed, lauding—a school's decision to
punish Frederick for expressing a view with which it
disagreed.
I
**2638 In December 1965, we were engaged in
a controversial war, a war that “divided this country
as few other issues ever have.” Tinker v. Des Moines
Independent Community School Dist., 393 U.S. 503,
524, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) (Black, J.,
dissenting). In Tinker, because the school officials
had insufficient reason to believe that the students’
Page 7
disturbances would “materially and substantially
interfere with the requirements of appropriate
discipline in the operation of the school,” we found
the justification for the rule to lack any foundation
and therefore held that the censorship violated the
First Amendment. Id., at 509, 89 S.Ct. 733 (internal
quotation marks omitted).
Justice Harlan dissented, but not because he
thought the school district could censor a message
with which it disagreed.*436 Rather, he would have
upheld the district's rule only because the students
never cast doubt on the district's antidisruption
justification by proving that the rule was motivated
“by other than legitimate school concerns—for
example, a desire to prohibit the expression of an
unpopular point of view, while permitting expression
of the dominant opinion.” Id., at 526, 89 S.Ct. 733.
Two cardinal First Amendment principles
animate both the Court's opinion in Tinker and
Justice Harlan's dissent. First, censorship based on
the content of speech, particularly censorship that
depends on the viewpoint of the speaker, is subject to
the most rigorous burden of justification.
***
**2645*437 Second, punishing someone for
advocating illegal conduct is constitutional only
when the advocacy is likely to provoke the harm that
the government seeks to avoid. See Brandenburg v.
Ohio, 395 U.S. 444, 449, 89 S.Ct. 1827, 23 L.Ed.2d
430 (1969) (per curiam) (distinguishing “mere
advocacy” of illegal conduct from “incitement to
imminent lawless action”).
However necessary it may be to modify those
principles in the school setting, Tinker affirmed their
continuing vitality. 393 U.S., at 509, 89 S.Ct. 733
(“In order for the State in the person of school
officials to justify prohibition of a particular
expression of opinion, it must be able to show that its
action was caused by something more than a mere
desire to avoid the discomfort and unpleasantness
that always accompany an unpopular viewpoint.
Certainly where there is no finding and no showing
that engaging in the forbidden conduct would
materially and substantially interfere with the
requirements of appropriate discipline in the
operation of the school, the prohibition cannot be
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sustained” (internal quotation marks omitted)).
***
Yet today the Court fashions a test that trivializes
the two cardinal principles upon which Tinker rests.
See ante, at 2629 (“[S]chools [may] restrict student
expression that they reasonably regard as promoting
illegal drug use”). The Court's test invites stark
viewpoint discrimination. In this case, for example,
the principal has unabashedly acknowledged that she
disciplined Frederick because she disagreed with the
pro-drug viewpoint she ascribed to the message on
the banner, see App. 25—a viewpoint, incidentally,
that Frederick has disavowed, see id., at 28. Unlike
our recent decision in Tennessee Secondary School
Athletic Assn. v. Brentwood Academy, 531 U.S. 288,
296, 127 S.Ct. 2489, 2493, 168 L.Ed.2d 166(2001)
(plurality opinion), the Court's holding in this case
strikes at “the heart of the First Amendment” because
it upholds a punishment meted out on the basis of a
listener's disagreement with her understanding (or,
more likely, misunderstanding) of the speaker's
viewpoint. “If there is a bedrock principle underlying
the First Amendment,*438 it is that the government
may not prohibit the expression of an idea simply
because society finds the idea itself offensive or
disagreeable.” Texas v. Johnson, 491 U.S. 397, 414,
109 S.Ct. 2533, 105 L.Ed.2d 342 (1989).
It is also perfectly clear that “promoting illegal
drug use,” ante, at 2629, comes nowhere close to
proscribable “incitement to imminent lawless action.”
Brandenburg v. Ohio, 395 U.S. 444, 449, 89 S.Ct.
1827, 23 L.Ed.2d 430 (1969) (per curiam).
Encouraging drug use might well increase the
likelihood that a listener will try an illegal drug, but
that hardly justifies censorship.
***
**2646 No one seriously maintains that drug
advocacy (much less Frederick's ridiculous sign)
comes within the vanishingly small category of
speech that can be prohibited because of its feared
consequences. Such advocacy, to borrow from
Justice Holmes, “ha[s] no chance of starting a present
conflagration.” Gitlow v. New York, 268 U.S. 652,
673, 45 S.Ct. 625, 69 L.Ed.1138 (1925) (dissenting
opinion).
Page 8
II
The Court rejects outright these twin foundations
of Tinker because, in its view, the unusual
importance of protecting children from the scourge of
drugs supports a ban on all speech in the school
environment that promotes drug use. Whether or not
such a rule is sensible as a matter of policy, carving
out pro-drug speech for uniquely harsh treatment
*439 finds no support in our case law and is inimical
to the values protected by the First Amendment. See
infra, at 2650 – 2651.
***
**2647 But it is one thing to restrict speech that
advocates drug use. It is another thing entirely to
prohibit an obscure message with a drug theme that a
third party subjectively—and not very reasonably—
thinks is tantamount to express advocacy. Cf. Masses
Pub. Co. v. Patten, 244 F. 535, 540, 541
(S.D.N.Y.1917) (Hand, J.) (distinguishing sharply
between “agitation, legitimate as such,” and “the
direct advocacy” of unlawful conduct). Even the
school recognizes the paramount need to hold the line
between, on the one hand, nondisruptive speech that
merely expresses a viewpoint that is unpopular or
contrary to the school's preferred message, and on the
other hand, advocacy of an illegal or unsafe course of
*440 conduct. The district's prohibition of drug
advocacy is a gloss on a more general rule that is
otherwise quite tolerant of nondisruptive student
speech:
“Students will not be disturbed in the exercise of
their constitutionally guaranteed rights to assemble
peaceably and to express ideas and opinions,
privately or publicly, provided that their activities
do not infringe on the rights of others and do not
interfere with the operation of the educational
program.App. to Pet. for Cert. 53a; see also ante, at
2623 (opinion of the Court) (quoting rule in part).
There is absolutely no evidence that Frederick's
banner's reference to drug paraphernalia “willful[ly]”
infringed on anyone's rights or interfered with any of
the school's educational programs.FN2 On its face,
then, the rule gave Frederick wide berth “to express
[his] ideas and opinions” so long as they did not
amount to “advoca[cy]” of drug use. App. to Pet. for
Cert. 53a. If the school's rule is, by hypothesis, a
valid one, it is valid only insofar as it scrupulously
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preserves adequate space for constitutionally
protected speech. When First Amendment rights are
at stake, a rule that “sweep[s] in a great variety of
conduct
under
a
general
and
indefinite
characterization” may not leave “too wide a
discretion in its *441 application.” Cantwell v.
Connecticut, 310 U.S. 296, 308, 60 S.Ct. 900, 84
L.Ed.1213 (1940). Therefore, just as we insisted in
Tinker that the school establish some likely
connection between the armbands and their feared
consequences, so too JDHS must show that
Frederick's supposed advocacy stands a meaningful
chance of making otherwise-abstemious students try
marijuana.
FN2. It is also relevant that the display did
not take place “on school premises,” as the
rule contemplates. App. to Pet. for Cert. 53a.
While a separate district rule does make the
policy applicable to “social events and class
trips,” id., at 58a, Frederick might well have
thought that the Olympic Torch Relay was
neither a “social event” (for example, prom)
nor a “class trip.”
***
To the extent the Court defers to the principal's
ostensibly reasonable judgment, it abdicates its
constitutional responsibility. The beliefs of third
parties, reasonable or otherwise, have never dictated
which messages amount to proscribable advocacy.
Indeed, it would be a strange constitutional doctrine
that would allow the prohibition of only the
narrowest category of speech advocating unlawful
conduct, see *442Brandenburg, 395 U.S., at 447–
448, 89 S.Ct. 1827, yet would permit a listener's
**2648 perceptions to determine which speech
deserved constitutional protection.
***
**2649*444 To the extent the Court
independently finds that “BONG HiTS 4 JESUS”
objectively amounts to the advocacy of illegal drug
use—in other words, that it can most reasonably be
interpreted as such—that conclusion practically
refutes itself. This is a nonsense message, not
advocacy. The Court's feeble effort to divine its
hidden meaning is strong evidence of that. Ante, at
2625 (positing that the banner might mean,
Page 9
alternatively, “ ‘[Take] bong hits,’ ” “ ‘bong hits [are
a good thing],’ ” or “ ‘[we take] bong hits' ”).
Frederick's credible and uncontradicted explanation
for the message—he just wanted to get on
television—is also relevant because a speaker who
does not intend to persuade his audience can hardly
be said to be advocating anything. FN7 But most
importantly, it takes real imagination to read a
“cryptic” message (the Court's characterization, not
mine, see ante, at 2624 – 2625) with a slanting drug
reference as an incitement to drug use. Admittedly,
some high school students (including those who use
drugs) are dumb. Most students, however, do not
shed their brains at the schoolhouse gate, and most
students know dumb advocacy when they see it. The
notion that the message on this banner would actually
persuade either the average student or even the
dumbest one to change his or her behavior is most
implausible. That the Court believes such a silly
message can be proscribed as advocacy underscores
the novelty of its position, and suggests that the
principle it articulates has no stopping point.
FN7. In affirming Frederick's suspension,
the district superintendent acknowledged
that Frederick displayed his message “for
the benefit of television cameras covering
the Torch Relay.” App. to Pet. for Cert. 62a.
Even if advocacy could somehow be wedged
into Frederick's obtuse reference to marijuana, that
advocacy was at best subtle and ambiguous. There is
abundant precedent, including another opinion THE
CHIEF JUSTICE announces *445 today, for the
proposition that when the “First Amendment is
implicated, the tie goes to the speaker,” Federal
Election Comm'n v. Wisconsin Right to Life, Inc., 551
U.S. 449, 474, 127 S.Ct. 2652, 168 L.Ed.2d 329,
2007 WL 1804336, *17 (principal opinion), and that
“when it comes to defining what speech qualifies as
the functional equivalent of express advocacy ... we
give the benefit of the doubt to speech, not
censorship,” post, at 2674. If this were a close case,
the tie would have to go to Frederick's speech, not to
the principal's strained reading of his quixotic
message.
***
III
*446 Although this case began with a silly,
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nonsensical banner, it ends with the Court inventing
out of whole cloth a special First Amendment rule
permitting the censorship of any student speech that
mentions drugs, at least so long as someone could
perceive that speech to contain a latent pro-drug
message. Our First Amendment jurisprudence has
identified some categories of expression that are less
deserving of protection than others—fighting words,
obscenity, and commercial speech, to name a few.
***
*448 However, even in high school, a rule that
permits only one point of view to be expressed is less
likely to produce correct answers than the open
discussion of countervailing views. Tinker, 393 U.S.,
at 512, 89 S.Ct. 733. In the national debate about a
serious issue, it is the expression of the minority's
viewpoint that most demands the protection of the
First Amendment. Whatever the better policy may be,
a full and frank discussion of the costs and benefits of
the attempt to prohibit the use of marijuana is far
wiser than suppression of speech because it is
unpopular.
I respectfully dissent.
U.S.,2007.
Morse v. Frederick
551 U.S. 393, 127 S.Ct. 2618, 168 L.Ed.2d 290, 75
BNA USLW 4487, 220 Ed. Law Rep. 50, 07 Cal.
Daily Op. Serv. 7248, 2007 Daily Journal D.A.R.
9448, 20 Fla. L. Weekly Fed. S 431
END OF DOCUMENT
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Page 1
527 F.3d 41
527 F.3d 41
United States Court of Appeals,
Second Circuit.
Lauren DONINGER, P.P.A as Guardian and Next
Friend of Avery Doninger, a minor, Plaintiff–
Appellant,
v.
Karissa NIEHOFF, Paula Schwartz, Defendants–
Appellees.
Docket No. 07–3885–cv.
Argued: March 4, 2008.
Decided: May 29, 2008.
Before: SOTOMAYOR, LIVINGSTON, Circuit
Judges, and PRESKA, District Judge.FN*
FN* The Honorable Loretta A. Preska,
United States District Judge for the Southern
District of New York, sitting by designation.
LIVINGSTON, Circuit Judge:
Background
*44 Lewis Mills High School (“LMHS”) is a
public high school located in Burlington,
Connecticut. At the time of the events recounted
here, Avery Doninger was a junior at LMHS. She
served on the Student Council and was also the
Junior Class Secretary.
This case arises out of a dispute between the
school administration and a group of Student Council
members at LMHS, including Avery, over the
scheduling of an event called “Jamfest,” an annual
battle-of-the-bands concert that these Student Council
members helped to plan. The 2007 Jamfest, which
had been twice postponed because of delays in the
opening of LMHS's new auditorium, was scheduled
for Saturday, April 28, in this newly constructed
venue. Shortly before the event, however, Avery and
her fellow students learned that David Miller, the
teacher responsible for operating the auditorium's
sound and lighting equipment, was unable to attend
on that date. The students proposed that LMHS hire a
professional to run the equipment or that a parent
supervise student technicians, so that Jamfest could
still take place on April 28 in the auditorium. At a
Student Council meeting on April 24, however, the
students were advised that it would not be possible to
hold the event in the auditorium without Miller, so
that either the date or the location of the event would
need to be changed.
This announcement distressed the Student
Council members responsible for coordinating
preparations, for they believed there were few dates
remaining to reschedule Jamfest before the end of the
school year. The students were also concerned that
changing the date of the event for a third time might
cause some of the bands to drop out. Holding the
event in the proposed alternative venue, the school
cafeteria, was not an acceptable solution because the
bands would have to play acoustic instead of electric
instruments. The students also feared there was not
enough time for the bands to make the necessary
modifications to their sets that this change of
instrumentation would require.
Four Student Council members, including
Avery, decided to take action by alerting the broader
community to the Jamfest situation and enlisting help
in persuading school officials to let Jamfest take
place in the auditorium as scheduled. The four
students met at the school's computer lab that
morning and accessed one of their fathers' email
account. They drafted a message to be sent to a large
number of email addresses in the account's address
book, as well as to additional names that Avery
provided. The message stated, in substance, that the
administration had decided that the Student Council
could not hold Jamfest in the auditorium because
Miller was unavailable. It requested recipients to
contact Paula Schwartz, the district superintendent, to
urge that Jamfest be held as scheduled, as well as to
forward the email “to as many people as you can.”
All four students signed their names and sent the
email. The message was sent out again later that
morning to correct an error in the telephone number
for Schwartz's office.
Both Schwartz, the superintendent, and the
school principal, Karissa Niehoff, received an influx
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of telephone calls and emails from people expressing
concern about Jamfest. Niehoff, who was away from
her office for a planned in-service training day, was
called back by Schwartz as a result. Later that day,
Niehoff encountered Avery in the hallway at LMHS.
Avery claimed that Niehoff told her that Schwartz
was very upset “and that [,] as a result, Jamfest had
been *45 cancelled.” Doninger v. Niehoff, 514
F.Supp.2d 199, 205 (D. Conn. 2007). The district
court found otherwise, however, crediting Niehoff's
testimony denying that she ever told Avery the event
would not be held.
Student Council members sent that morning. The
post continued:
According to Niehoff, she advised Avery that
she was disappointed the Student Council members
had resorted to a mass email rather than coming to
her or to Schwartz to resolve the issue. She testified
that class officers are expected to work cooperatively
with their faculty advisor and with the administration
in carrying out Student Council objectives. They are
charged, in addition, with “demonstrat[ing] qualities
of good citizenship at all times.” Id. at 214. The
district court found that Niehoff discussed these
responsibilities with Avery in their conversation on
April 24. She told Avery that the email contained
inaccurate information because Niehoff was, in fact,
amenable to rescheduling Jamfest so it could be held
in the new auditorium. Niehoff asked Avery to work
with her fellow students to send out a corrective
email. According to Niehoff, Avery agreed to do so.
Avery testified before the district court that “im
down” meant that she approved of the idea of others
contacting Schwartz to “piss her off more.” She
stated that the purpose of posting the blog entry was
“to encourage more people than the existing e-mail
already encouraged to contact the administration”
about Jamfest. The district court concluded that the
content of the message itself suggested that her
purpose was “to encourage her fellow students to
read and respond to the blog.” Id. at 206. The district
court also noted that “[s]everal LMHS students
posted comments to the blog, including one in which
the author referred to Ms. Schwartz as a ‘dirty
whore.’ ” Id. at 206–07.
That night, however, Avery posted a message on
her publicly accessible blog, which was hosted by
livejournal.com, a website unaffiliated with LMHS.
The blog post began as follows:
jamfest is cancelled due to douchebags in central
office. here is an email that we sent to a ton of
people and asked them to forward to everyone in
their address book to help get support for jamfest.
basically, because we sent it out, Paula Schwartz is
getting a TON of phone calls and emails and such.
we have so much support and we really appriciate
it. however, she got pissed off and decided to just
cancel the whole thing all together. anddd so
basically we aren't going to have it at all, but in the
slightest chance we do it is going to be after the
talent show on may 18th. andd..here is the letter we
sent out to parents.
The post then reproduced the email that the
And here is a letter my mom sent
[Schwartz] and cc'd Karissa [Niehoff]
idea of what to write if you want
something or call her to piss her off
down.—
to Paula
to get an
to write
more. im
Avery then reproduced an email that her mother
had sent to Schwartz earlier in the day concerning the
dispute.
The following morning, Schwartz and Niehoff
received more phone calls and email messages
regarding Jamfest. The pair, along with Miller,
Jennifer Hill, the students' faculty advisor, and David
Fortin, LMHS's building and grounds supervisor, met
with the Student Council members who sent the
email the day before. They agreed during this
meeting that Jamfest would be rescheduled for June
8, 2007. Niehoff announced this resolution in the
school newsletter and the students notified the
recipients of the April 24 email. In her testimony
before the district court, Avery denied that Schwartz
and Niehoff also spoke to the students during this *46
meeting about the impropriety of mass emails in this
context and the proper conduct of student officers in
resolving disputes with the administration. According
to the district court, however, Schwartz and Niehoff
“at the very least, made clear to the students that
appealing directly to the public was not an
appropriate means of resolving complaints the
students had regarding school administrators'
decisions.” Id. at 207. The district court also found
that, as a result of the Jamfest controversy, both
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Schwartz and Niehoff were forced to miss or arrived
late to several school-related activities scheduled for
April 24 and April 25. Id. at 206.
The April 25 meeting resolved the dispute over
Jamfest's scheduling. Indeed, Jamfest was
successfully held on June 8, with all but one of the
scheduled bands participating. Even after this
resolution, however, Schwartz and Niehoff, unaware
of Avery's blog post, continued to receive phone calls
and emails in the controversy's immediate aftermath.
According to Schwartz's testimony, she learned of
Avery's posting only some days after the meeting
when her adult son found it while using an Internet
search engine. Schwartz alerted Niehoff to the blog
post on May 7, 2007. Niehoff concluded that Avery's
conduct had failed to display the civility and good
citizenship expected of class officers. She noted that
the posting contained vulgar language and inaccurate
information. In addition, Avery had disregarded her
counsel regarding the proper means of addressing
issues of concern with school administrators. After
researching Connecticut education law and LMHS
policies, Niehoff decided that Avery should be
prohibited from running for Senior Class Secretary.
Because Avery had Advanced Placement exams at
that time, however, Niehoff chose not to confront her
immediately.
On May 17, Avery came to Niehoff's office to
accept her nomination for Senior Class Secretary.
Niehoff handed Avery a printed copy of the April 24
blog post and requested that Avery apologize to
Schwartz in writing, show a copy of the post to her
mother, and withdraw her candidacy. Avery
complied with the first two requests, but refused to
honor the third. In response, Niehoff declined to
provide an administrative endorsement of Avery's
nomination, which effectively prohibited her from
running for Senior Class Secretary, though Avery
was permitted to retain her positions as representative
on the Student Council and as Junior Class Secretary.
According to the district court, Niehoff explained that
her decision was based on: (1) Avery's failure to
accept her counsel “regarding the proper means of
expressing disagreement with administration policy
and seeking to resolve those disagreements”; (2) the
vulgar language and inaccurate information included
in the post; and (3) its encouragement of others to
contact the central office “to piss [Schwartz] off
more,” which Niehoff did not consider appropriate
behavior for a class officer. Id. at 208.
As a result of Niehoff's decision, Avery was not
allowed to have her name on the ballot or to give a
campaign speech at a May 25 school assembly
regarding the elections. Apart from this
disqualification from running for Senior Class
Secretary, she was not otherwise disciplined. Even
though she was not permitted to be on the ballot or to
campaign, Avery received a plurality of the votes for
Senior Class Secretary as a write-in candidate. The
school did not permit her to take office, however, and
the second-place candidate became class secretary for
the Class of 2008.
Lauren Doninger filed a complaint *47alleging
violations of her daughter's rights under the First
Amendment to the United States Constitution.
Doninger sought damages and an injunction
requiring, among other things, that school officials
hold new class secretary elections in which Avery
would be allowed to run, and that Avery be
permitted, as a duly elected class officer, to speak at
the 2008 commencement ceremony.
The district court concluded that a preliminary
injunction was not warranted because Doninger did
not show a sufficient likelihood of success on the
merits. This appeal followed.
Discussion
***
I. The First Amendment Claim
*48 We begin with some basic principles. It is
axiomatic that students do not “shed their
constitutional rights to freedom of speech or
expression at the schoolhouse gate.” Tinker v. Des
Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506,
89 S.Ct. 733, 21 L.Ed.2d 731 (1969). It is equally the
case that the constitutional rights of students in public
school “are not automatically coextensive with the
rights of adults in other settings,” Bethel Sch. Dist.
No. 403 v. Fraser, 478 U.S. 675, 682, 106 S.Ct.
3159, 92 L.Ed.2d 549 (1986), but must instead be
applied in a manner consistent with the “special
characteristics of the school environment,” Tinker,
393 U.S. at 506, 89 S.Ct. 733. Thus, school
administrators may prohibit student expression that
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will “materially and substantially disrupt the work
and discipline of the school.” Id. at 513, 89 S.Ct. 733.
Vulgar or offensive speech—speech that an adult
making a political point might have a constitutional
right to employ—may legitimately give rise to
disciplinary action by a school, given the school's
responsibility for “teaching students the boundaries
of socially appropriate behavior.” Fraser, 478 U.S. at
681, 106 S.Ct. 3159. Similarly, so long as their
actions are “reasonably related to legitimate
pedagogical concerns,” educators are entitled to
exercise editorial control over school-sponsored
expressive activities such as school publications or
theatrical productions. Hazelwood Sch. Dist. v.
Kuhlmeier, 484 U.S. 260, 273, 108 S.Ct. 562, 98
L.Ed.2d 592 (1988). Such controls “assure that
participants learn whatever lessons the activity is
designed to teach, that readers or listeners are not
exposed to material that may be inappropriate for
their level of maturity, and that the views of the
individual speaker are not erroneously attributed to
the school.” Id. at 271, 108 S.Ct. 562. Finally, given
the special nature of the school environment and the
“serious and palpable” dangers posed by student drug
abuse, public schools may also “take steps to
safeguard those entrusted to their care from speech
that can reasonably be regarded as encouraging
illegal drug use.” Morse v. Frederick, 551 U.S. 393,
127 S.Ct. 2618, 2622, 2629, 168 L.Ed.2d 290 (2007).
The Supreme Court has yet to speak on the scope
of a school's authority to regulate expression that, like
Avery's, does not occur on school grounds or at a
school-sponsored event. We have determined,
however, that a student may be disciplined for
expressive conduct, even conduct occurring off
school grounds, when this conduct “would
foreseeably create a risk of substantial disruption
within the school environment,” at least when it was
similarly foreseeable that the off-campus expression
might also reach campus. Wisniewski v. Bd. of Educ.,
494 F.3d 34, 40 (2d Cir.2007), cert. denied, 552 U.S.
1296, 128 S.Ct. 1741, 170 L.Ed.2d 540 (2008). FN1
We are acutely attentive in this context to the need to
draw a clear line between student activity that
“affects matter of legitimate concern to the school
community,” and activity that does not. Thomas v.
Bd. of Educ., 607 F.2d 1043, 1058 n. 13 (2d
Cir.1979) (Newman, J., concurring in the result). But
as Judge Newman accurately observed some years
ago, “territoriality is not necessarily a useful concept
in determining the limit of [school administrators']
*49 authority.” Id. True enough in 1979, this
observation is even more apt today, when students
both on and off campus routinely participate in
school affairs, as well as in other expressive activity
unrelated to the school community, via blog postings,
instant messaging, and other forms of electronic
communication. It is against this background that we
consider whether the district court abused its
discretion in concluding that Doninger failed to
demonstrate a clear likelihood of success on the
merits of her First Amendment claim.
FN1. The Wisniewski panel divided on the
question whether it was necessary in that
case to show that it was reasonably
foreseeable that the expression at issue
would reach school property. Two panel
members concluded that the undisputed fact
that it did so “pretermit[ted] any inquiry as
to this aspect of reasonable foreseeability.”
494 F.3d at 39.
A.
If Avery had distributed her electronic posting as
a handbill on school grounds, this case would fall
squarely within the Supreme Court's precedents
recognizing that the nature of a student's First
Amendment rights must be understood in light of the
special characteristics of the school environment and
that, in particular, offensive forms of expression may
by prohibited. See Fraser, 478 U.S. at 682–83, 106
S.Ct. 3159. As the Supreme Court explained in
Fraser, a school may regulate “plainly offensive”
speech—that is, speech that is “offensively lewd and
indecent”—in furtherance of its important mission to
“inculcate the habits and manners of civility,” both as
values in themselves and because they are
indispensable to democratic self-government. Id. at
681, 683, 685, 106 S.Ct. 3159. As the Court noted,
“[t]he undoubted freedom to advocate unpopular and
controversial views in schools must be balanced
against the society's countervailing interest in
teaching students the boundaries of socially
appropriate behavior.” Id. at 681, 106 S.Ct. 3159. It is
thus “a highly appropriate function of public school
education to prohibit the use of vulgar and offensive
terms in public discourse.” Id. at 683, 106 S.Ct. 3159.
To be clear, Fraser does not justify restricting a
student's speech merely because it is inconsistent
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with an educator's sensibilities; its reference to
“plainly offensive speech” must be understood in
light of the vulgar, lewd, and sexually explicit
language that was at issue in that case. We need not
conclusively determine Fraser's scope, however, to
be satisfied that Avery's posting—in which she called
school administrators “douchebags” and encouraged
others to contact Schwartz “to piss her off more”—
contained the sort of language that properly may be
prohibited in schools. See id.Fraser itself
approvingly quoted Judge Newman's memorable
observation in Thomas that “the First Amendment
gives a high school student the classroom right to
wear Tinker's armband, but not Cohen's jacket.”
Fraser, 478 U.S. at 682–83, 106 S.Ct. 3159 (quoting
Thomas, 607 F.2d at 1057 (Newman, J., concurring
in the result)); cf. Cohen v. California, 403 U.S. 15,
91 S.Ct. 1780, 29 L.Ed.2d 284 (1971) (holding that
adult could not be prosecuted for wearing jacket
displaying expletive). Avery's language, had it
occurred in the classroom, would have fallen within
Fraser and its recognition that nothing in the First
Amendment prohibits school authorities from
discouraging inappropriate language in the school
environment.
B.
It is not clear, however, that Fraser applies to
off-campus speech. Doninger's principal argument on
appeal is that because Avery's posting took place
within the confines of her home, it was beyond the
school's regulatory authority unless it was reasonably
foreseeable that the posting would create a risk of
substantial
disruption
within
the
school
environment—the standard enunciated in Tinker and
Wisniewski, and a standard, Doninger argues, that the
present record does not *50 satisfy. Appellees argue,
in contrast, that the Tinker test is not the only
standard for determining whether school discipline
may properly be imposed for off-campus expressive
activity. They contend that in Wisniewski, we
implicitly affirmed that schools may regulate offcampus offensive speech of the sort in which Avery
engaged, so long as it is likely to come to the
attention of school authorities. We reject appellees'
broad reading of Wisniewski on the ground that we
had no occasion to decide in that case whether Fraser
governs such off-campus student expression. We
agree, however, with appellees' alternative argument
that, as in Wisniewski, the Tinker standard has been
adequately established here.FN2 We therefore need not
decide whether other standards may apply when
considering the extent to which a school may
discipline off-campus speech.
FN2. In reaching this conclusion, we
acknowledge that the district court did not
expressly rely on Tinker to determine that
Doninger was unlikely to succeed on her
First Amendment claim. We nevertheless
may “affirm the district court's judgment on
any ground appearing in the record, even if
the ground is different from the one relied
on by the district court.” ACEquip, Ltd. v.
Am. Eng'g Corp., 315 F.3d 151, 155 (2d
Cir.2003).
Tinker provides that school administrators may
prohibit student expression that will “materially and
substantially disrupt the work and discipline of the
school.” Tinker, 393 U.S. at 513, 89 S.Ct. 733. In
Wisniewski, we applied this standard to an eighth
grader's
off-campus
creation
and
Internet
transmission to some fifteen friends of a crudely
drawn icon that “depict[ed] and call[ed] for the
killing of his teacher.” 494 F.3d at 38. We recognized
that off-campus conduct of this sort “can create a
foreseeable risk of substantial disruption within a
school” and that, in such circumstances, its offcampus character does not necessarily insulate the
student from school discipline. Id. at 39. We
determined that school discipline was permissible
because it was reasonably foreseeable that the icon
would come to the attention of school authorities and
that it would create a risk of substantial disruption.
See id.at 39–40.
Applying the framework set forth in Wisniewski,
the record amply supports the district court's
conclusion that it was reasonably foreseeable that
Avery's posting would reach school property. Indeed,
the district court found that her posting, although
created off-campus, “was purposely designed by
Avery to come onto the campus.” Doninger, 514
F.Supp.2d at 216. The blog posting directly pertained
to events at LMHS, and Avery's intent in writing it
was specifically “to encourage her fellow students to
read and respond.” Id. at 206. As the district court
found, “Avery knew other LMHS community
members were likely to read [her posting].” Id. at
217. Several students did in fact post comments in
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response to Avery and, as in Wisniewski, the posting
managed to reach school administrators. See
Wisniewski, 494 F.3d at 39. The district court thus
correctly determined that in these circumstances, “it
was reasonably foreseeable that other LMHS students
would view the blog and that school administrators
would become aware of it.” Doninger, 514 F.Supp.2d
at 217.
Contrary to Doninger's protestations, moreover,
the record also supports the conclusion that Avery's
posting “foreseeably create[d] a risk of substantial
disruption within the school environment.”
Wisniewski, 494 F.3d at 40. There are three factors in
particular on which we rely to reach this conclusion.
First, the language with which Avery chose to
encourage others to contact the administration was
not only plainly offensive, but also potentially *51
disruptive of efforts to resolve the ongoing
controversy. Her chosen words—in essence, that
others should call the “douchebags” in the central
office to “piss [them] off more”—were hardly
conducive to cooperative conflict resolution. Indeed,
at least one LMHS student (the one who referred to
Schwartz as a “dirty whore”) responded to the post's
vulgar and, in this circumstance, potentially
incendiary language with similar such language, thus
evidencing that the nature of Avery's efforts to recruit
could create a risk of disruption.
Second, and perhaps more significantly, Avery's
post used the “at best misleading and at wors[t] false”
information that Jamfest had been cancelled in her
effort to solicit more calls and emails to Schwartz.
Doninger, 514 F.Supp.2d at 202. The district court
found that Avery “strongly suggested in her [post]
that Jamfest had been cancelled, full stop, despite the
fact that Ms. Niehoff, even according to Avery's own
testimony, offered the possibility of rescheduling
Jamfest later in the school year.” Id. at 214. This
misleading information was disseminated amidst
circulating rumors of Jamfest's cancellation that had
already begun to disrupt school activities. Avery
herself testified that by the morning of April 25,
students were “all riled up” and that a sit-in was
threatened because students believed the event would
not be held. Schwartz and Niehoff had received a
deluge of calls and emails, causing both to miss or be
late to school-related activities. Id. at 206. Moreover,
Avery and the other students who participated in
writing the mass email were called away either from
class or other activities on the morning of April 25
because of the need to manage the growing dispute. It
was foreseeable in this context that school operations
might well be disrupted further by the need to correct
misinformation as a consequence of Avery's post.
Although Doninger argues that Tinker is not
satisfied here because the burgeoning controversy at
LMHS may have stemmed not from Avery's posting,
but rather from the mass email of April 24, this
argument is misguided insofar as it implies that
Tinker requires a showing of actual disruption to
justify a restraint on student speech. As the Sixth
Circuit recently elaborated, “[s]chool officials have
an affirmative duty to not only ameliorate the
harmful effects of disruptions, but to prevent them
from happening in the first place.” Lowery v.
Euverard, 497 F.3d 584, 596 (6th Cir.2007); see also
LaVine v. Blaine Sch. Dist., 257 F.3d 981, 989 (9th
Cir.2001) (“Tinker does not require school officials
to wait until disruption actually occurs before they
may act.”). The question is not whether there has
been actual disruption, but whether school officials
“might reasonably portend disruption” from the
student expression at issue. LaVine, 257 F.3d at 989;
see also Nuxoll v. Indian Prairie Sch. Dist. # 204,
523 F.3d 668, 673 (7th Cir.2008). FN3 Here, given the
circumstances surrounding the Jamfest dispute,
Avery's conduct posed a substantial risk that LMHS
administrators and teachers would be further diverted
from their core educational responsibilities by the
need to dissipate misguided anger or *52 confusion
over Jamfest's purported cancellation.
FN3. This “reasonable forecast” test applies
both to instances of prior restraint, where
school authorities prohibit or limit
expression before publication, and to cases
like this one, where Avery's disqualification
from student office followed as a
consequence of the post she had already
made available to other students. See
Boucher v. Sch. Bd. Of Greenfield, 134 F.3d
821, 828 (7th Cir.1998); see also
Wisniewski, 494 F.3d at 40 (applying
“foreseeable risk of substantial disruption”
test where student was disciplined for
expression that
had
already been
disseminated to other students and reached
the school).
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Finally, the district court correctly determined
that it is of no small significance that the discipline
here related to Avery's extracurricular role as a
student government leader. The district court found
this significant in part because participation in
voluntary, extracurricular activities is a “privilege”
that can be rescinded when students fail to comply
with the obligations inherent in the activities
themselves. Doninger, 514 F.Supp.2d at 214. We
consider the relevance of this factor instead in the
context of Tinker and its recognition that student
expression may legitimately be regulated when
school officials reasonably conclude that it will
“materially and substantially disrupt the work and
discipline of the school.” Tinker, 393 U.S. at 513, 89
S.Ct. 733. More specifically, Avery's conduct risked
not only disruption of efforts to settle the Jamfest
dispute, but also frustration of the proper operation of
LMHS's student government and undermining of the
values that student government, as an extracurricular
activity, is designed to promote. Doninger, 514
F.Supp.2d at 215; cf. Hazelwood School District v.
Kuhlmeier, 484 U.S. 260, 273, 108 S.Ct. 562 (1988)
(holding that educators may exercise control over
school-sponsored expressive activities “so long as
their actions are reasonably related to legitimate
pedagogical concerns”).
In this way, the instant case bears similarity to
Lowery v. Euverard, which involved a group of high
school football players who were removed from the
team after signing a petition expressing their hatred
of the coach and their desire not to play for him. The
players lodged a First Amendment claim and the
Sixth Circuit determined that the relevant question
under Tinker was whether it was reasonable for
school officials “to forecast that the petition would
disrupt the team”—meaning that the petition might
foreseeably frustrate efforts to teach the values of
sportsmanship and team cohesiveness through
participation in sport as an extracurricular activity.
Lowery, 497 F.3d at 593, 596. The court noted that
the players had not been suspended from school or
even prevented from further criticizing the coach:
“[T]hey are free to continue their campaign to have
Euverard fired. What they are not free to do is
continue to play football for him while actively
working to undermine his authority.” Id. at 600
(emphases omitted). The court held that there had
been no First Amendment violation.
Similarly, Avery was disqualified from running
for Senior Class Secretary after school administrators
determined that her behavior was not “consistent with
her desired role as a class leader”—meaning in this
context that it was inconsistent with LMHS school
policy providing that student government should
teach good citizenship and that any student who does
not maintain a record of such citizenship may not
represent fellow students. Doninger, 514 F.Supp.2d
at 215. The district court determined not only that
Avery's posting was offensive and misleading, but
also that it “clearly violate[d] the school policy of
civility and cooperative conflict resolution.” Id. at
214. The court credited Niehoff's testimony that class
officers are expected to “work toward the objectives
of the Student Council, work cooperatively with their
advisor and with the administration, and promote
good citizenship both in school and out.” Id. The
court explicitly found, moreover, that Niehoff
advised Avery of these responsibilities during their
conversation on April 24, and that she told Avery that
the original Jamfest email and its approach to conflict
resolution with the administration were inappropriate.
Id.
As
the
district
court
observed,
“[u]nderstandably,*53 then, Ms. Niehoff testified that
a factor of particular relevance in her disciplinary
decision was the fact that Avery posted her blog
entry”—which reproduced the email Niehoff had
criticized—“the very evening of the day on which
that conversation occurred.” Id.
Given the cumulative effect of these findings,
clearly supported by the record, we conclude that the
district court did not abuse its discretion in
determining that Doninger failed to demonstrate a
sufficient likelihood of success on her First
Amendment claim. We are mindful that, given the
posture of this case, we have no occasion to consider
whether a different, more serious consequence than
disqualification from student office would raise
constitutional concerns. We decide only that based on
the existing record, Avery's post created a foreseeable
risk of substantial disruption to the work and
discipline of the school and that Doninger has thus
failed to show clearly that Avery's First Amendment
rights were violated when she was disqualified from
running for Senior Class Secretary.
***
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527 F.3d 41
The judgment of the district court is therefore
affirmed.
C.A.2 (Conn.),2008.
Doninger v. Niehoff
527 F.3d 41, 233 Ed. Law Rep. 30, 35 A.L.R.6th 703
END OF DOCUMENT
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650 F.3d 915, 271 Ed. Law Rep. 656
650 F.3d 915
United States Court of Appeals,
Third Circuit.
J.S., a minor, through her parents; Terry SNYDER;
Steven Snyder, Appellants
v.
BLUE MOUNTAIN SCHOOL DISTRICT; Joyce
Romberger; James McGonigle.
No. 08–4138.
Argued June 2, 2009.
Argued En Banc June 3, 2010.
Filed: June 13, 2011.
OPINION OF THE COURT
CHAGARES, Circuit Judge, with whom McKEE,
Chief Judge, SLOVITER, AMBRO, FUENTES,
SMITH, HARDIMAN, and GREENAWAY, JR.,
Circuit Judges, join.
***
I.
*920 J.S. was an Honor Roll eighth grade
student who had never been disciplined in school
until December 2006 and February 2007, when she
was twice disciplined for dress code violations by
School Principal, James McGonigle. On Sunday,
March 18, 2007, 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.
The profile did not identify McGonigle by name,
school, or location, though it did contain 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.”
The profile contained crude content and vulgar
language, ranging from nonsense and juvenile humor
to profanity and shameful personal attacks aimed at
the principal and his family. For instance, 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, fucking in my office, hitting on students and
their parents.” Appendix *921 (“App.”) 38. In
addition, the profile stated in the “About me” section:
HELLO CHILDREN[.] yes. it's your oh so
wonderful, hairy, expressionless, sex addict,
fagass, put on this world with a small dick
PRINCIPAL[.] I have come to myspace so i can
pervert the minds of other principal's [sic] to be
just like me. I know, I know, you're all thrilled[.]
Another reason I came to myspace is because—I
am keeping an eye on you students (who[m] I care
for so much)[.] 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....
Id. Though disturbing, the record indicates that
the profile was so outrageous that no one took its
content seriously. J.S. testified that she intended the
profile to be a joke between herself and her friends.
At her deposition, she testified that she created the
profile because she thought it was “comical” insofar
as it was so “outrageous.” App. 190.
Initially, the profile could be viewed in full by
anyone who knew the URL (or address) or who
otherwise found the profile by searching MySpace
for a term it contained. The following day, however,
J.S. made the profile “private” after several students
approached her at school, generally to say that they
thought the profile was funny. App. 194. By making
the profile “private,” J.S. limited access to the profile
to people whom she and K.L. invited to be a
MySpace “friend.” J.S. and K.L. granted “friend”
status to about twenty-two School District students.
The School District's computers block access to
MySpace, so no Blue Mountain student was ever able
to view the profile from school. McGonigle first
learned about the profile on Tuesday, March 20,
2007, from a student who was in his office to discuss
an unrelated incident. McGonigle asked this student
to attempt to find out who had created the profile. He
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also attempted—unsuccessfully—to find the profile
himself, even contacting MySpace directly.
At the end of the school day on Tuesday, the
student who initially told McGonigle about the
profile reported to him that it had been created by J.S.
McGonigle asked this student to bring him a printout
of the profile to school the next day, which she did. It
is undisputed that the only printout of the profile that
was ever brought to school was one brought at
McGonigle's specific request.
On Wednesday, March 21, 2007, McGonigle
showed the profile to Superintendent Joyce
Romberger and the Director of Technology, Susan
Schneider–Morgan. The three met for about fifteen
minutes to discuss the profile. McGonigle also
showed the profile to two guidance counselors,
Michelle Guers and Debra Frain (McGonigle's wife).
McGonigle contacted MySpace to attempt to
discover what computer had been used to create the
profile, but MySpace refused to release that
information without a court order. The School
District points to no evidence that anyone ever
suspected the information in the profile to be true.
McGonigle ultimately decided that the creation
of the profile was a Level Four Infraction under the
Disciplinary Code of Blue Mountain Middle School,
Student–Parent Handbook, App. 65–66, as a false
accusation about a staff member of the school and a
“copyright” violation of the computer use policy, for
using McGonigle's photograph. At his deposition,
however, McGonigle admitted that he believed the
students “weren't accusing me. They *922 were
pretending they were me.” App. 327.
***
J.S. was absent from school on Wednesday, the
day McGonigle obtained a copy of the profile. When
she returned, on Thursday, March 22, 2007,
McGonigle summoned J.S. and K.L. to his office to
meet with him and Guidance Counselor Guers. J.S.
initially denied creating the profile, but then admitted
her role. McGonigle told J.S. and K.L. that he was
upset and angry, and threatened the children and their
families with legal action. App. 333–34. Following
this meeting, J.S. and K.L. remained in McGonigle's
office while he contacted their parents and waited for
them to come to school.
McGonigle met with J.S. and her mother Terry
Snyder and showed Mrs. Snyder the profile. He told
the children's parents that J.S. and K.L. would receive
ten days out-of-school suspension, which also
prohibited attendance at school dances. McGonigle
also threatened legal action. J.S. and her mother both
apologized to McGonigle, and J.S. subsequently
wrote a letter of apology to McGonigle and his wife.
McGonigle next contacted MySpace, provided
the URL for the profile and requested its removal,
which was done. McGonigle also contacted
Superintendent Romberger to inform her of his
decision regarding J.S. and K.L.'s punishment.
Although Romberger could have overruled
McGonigle's decision, she agreed with the
punishment. On Friday, March 23, 2007, McGonigle
sent J.S.'s parents a disciplinary notice, which stated
that J.S. had been suspended for ten days. The
following week, Romberger declined Mrs. Snyder's
request to overrule the suspension.
***
The School District asserted that the profile
disrupted school in the following ways. There were
general “rumblings” in the school regarding the
profile. More specifically, on Tuesday, March 20,
McGonigle was approached by two teachers who
informed him that students were discussing the
profile in class. App. 322. Randy Nunemacher, a
Middle School math 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. App. 368–73.
The exchange lasted about five or six minutes. App.
371. Nunemacher also testified that *923 he 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. App. 373–74. Nunemacher
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.
Another teacher, Angela Werner, testified that she
was approached by a group of eighth grade girls at
the end of her Skills for Adolescents course to report
the profile. App. 415–16. Werner said this did not
disrupt her class because the girls spoke with her
during the portion of the class when students were
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permitted to work independently. App. 417–18.
The School District also alleged disruption to
Counselor Frain's job activities. Frain canceled a
small number of student counseling appointments to
supervise student testing on the morning that
McGonigle met with J.S., K.L., and their parents.
Counselor Guers was originally scheduled to
supervise the student testing, but was asked by
McGonigle to sit in on the meetings, so Frain filled in
for Guers. This substitution lasted about twenty-five
to thirty minutes. There is no evidence that Frain was
unable to reschedule the canceled student
appointments, and the students who were to meet
with her remained in their regular classes. App. 352–
53.
On March 28, 2007, J.S. and her parents filed
this action against the School District, Superintendent
Romberger, and Principal McGonigle. By way of
stipulation, on January 7, 2008, all claims against
Romberger and McGonigle were dismissed, and only
the School District remained as a defendant. After
discovery, both parties moved for summary
judgment.
After analyzing the above facts, the District
Court granted the School District's summary
judgment motion on all claims, though specifically
acknowledging that Tinker v. Des Moines
Independent Community School District, 393 U.S.
503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), does not
govern this case because no “substantial and material
disruption” occurred. App. 10–12 (refusing to rely on
Tinker ); App. 17 (concluding that “a substantial
disruption so as to fall under Tinker did not occur”).
Instead, the District Court drew a distinction between
political speech at issue in Tinker, and “vulgar and
offensive” speech at issue in a subsequent school
speech case, Bethel School District v. Fraser, 478
U.S. 675, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986).
App. 11–12. The District Court also noted the
Supreme Court's most recent school speech decision,
Morse v. Frederick, 551 U.S. 393, 127 S.Ct. 2618,
168 L.Ed.2d 290 (2007), where the Court allowed a
school district to prohibit a banner promoting illegal
drug use at a school-sponsored event.
Applying a variation of the Fraser and Morse
standard, the District Court held that “as vulgar,
lewd, and potentially illegal speech that had an effect
on campus, we find that the school did not violate the
plaintiff's rights in punishing her for it even though it
arguably did not cause a substantial disruption of the
school.” App. 15–16. The Court asserted that the
facts of this case established a connection between
off-campus action and on-campus effect, and thus
justified punishment, because: (1) the website was
about the school's principal; (2) the intended audience
was the student body; (3) a paper copy was brought
into the school and the website was discussed in
school; (4) the picture on the profile was appropriated
from the School District's website; (5) J.S. created the
profile out of anger at the principal for disciplining
her for dress code violations in the past; (6) J.S. lied
in school to the principal about creating the profile;
(7) “although a substantial disruption so *924 as to
fall under Tinker did not occur ... there was in fact
some disruption during school hours”; and (8) the
profile was viewed at least by the principal at school.
App. 17 (emphasis added).
The District Court then rejected several other
district court decisions where the courts did not allow
schools to punish speech that occurred off campus,
including the decision in Layshock v. Hermitage
School District, 496 F.Supp.2d 587 (W.D.Pa.2007), a
case substantially similar to the one before us, and
which is also being considered by this Court. See
App. 18–20. In distinguishing these cases, the
District Court made several qualitative judgments
about the speech involved in each. See, e.g., App. 18
(asserting that the statements in Flaherty v. Keystone
Oaks School District, 247 F.Supp.2d 698
(W.D.Pa.2003), were “rather innocuous compared to
the offensive and vulgar statements made by J.S. in
the present case”); App. 19 (contending that “[t]he
speech in the instant case ... is distinguishable” from
the speech in Killion v. Franklin Regional School
District, 136 F.Supp.2d 446 (W.D.Pa.2001), because
of, inter alia, “the level of vulgarity that was present”
in the instant case); App. 20 (claiming that, as
compared to Layshock, “the facts of our case include
a much more vulgar and offensive profile”).
Ultimately, the District Court held that although
J.S.'s profile did not cause a “substantial and
material” disruption under Tinker, the School
District's
punishment
was
constitutionally
permissible because the profile was “vulgar and
offensive” under Fraser and J.S.'s off-campus
conduct had an “effect” at the school. In a footnote,
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the District Court also noted that “the protections
provided under Tinker do not apply to speech that
invades the rights of others.” App. 16 n.4 (citing
Tinker, 393 U.S. at 513, 89 S.Ct. 733).
***
*925 III.
Although the precise issue before this Court is
one of first impression, the Supreme Court and this
Court have analyzed the extent to which school
officials can regulate student speech in several
thorough opinions that compel the conclusion that the
School District violated J.S.'s First Amendment free
speech rights when it suspended her for speech that
caused no substantial disruption in school and that
could not reasonably have led school officials to
forecast substantial disruption in school.
A.
We begin our analysis by recognizing the
“comprehensive authority” of teachers and other
public school officials. Tinker, 393 U.S. at 507, 89
S.Ct. 733.See generally Vernonia Sch. Dist. 47J v.
Acton, 515 U.S. 646, 655, 115 S.Ct. 2386, 132
L.Ed.2d 564 (1995) (describing the public schools'
power over public school children *926 as both
“custodial and tutelary”). Those officials involved in
the educational process perform “important, delicate,
and highly discretionary functions.” W. Va. State Bd.
of Educ. v. Barnette, 319 U.S. 624, 637, 63 S.Ct.
1178, 87 L.Ed.1628 (1943). As a result, federal
courts generally exercise restraint when considering
issues within the purview of public school officials.
See Bd. of Educ., Island Trees Union Free Sch. Dist.
v. Pico, 457 U.S. 853, 864, 102 S.Ct. 2799, 73
L.Ed.2d 435 (1982) (“[F]ederal courts should not
ordinarily ‘intervene in the resolution of conflicts
which arise in the daily operation of school systems.’
” (quoting Epperson v. Arkansas, 393 U.S. 97, 104,
89 S.Ct. 266, 21 L.Ed.2d 228 (1968))); see also
Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260,
266, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988) (“[T]he
education of the Nation's youth is primarily the
responsibility of parents, teachers, and state and local
school officials, and not of federal judges.”).
The authority of public school officials is not
boundless, however. The First Amendment
unquestionably protects the free speech rights of
students in public school. Morse, 551 U.S. at 396,
127 S.Ct. 2618 (“Our cases make clear that students
do not ‘shed their constitutional rights to freedom of
speech or expression at the schoolhouse gate.’ ”
(quotingTinker, 393 U.S. at 506, 89 S.Ct. 733)).
Indeed, “[t]he vigilant protection of constitutional
freedoms is nowhere more vital than in the
community of American schools.” Shelton v. Tucker,
364 U.S. 479, 487, 81 S.Ct. 247, 5 L.Ed.2d 231
(1960). The exercise of First Amendment rights in
school, however, has to be “applied in light of the
special characteristics of the school environment,”
Tinker, 393 U.S. at 506, 89 S.Ct. 733, and thus the
constitutional rights of students in public schools “are
not automatically coextensive with the rights of
adults in other settings,” Fraser, 478 U.S. at 682, 106
S.Ct. 3159. Since Tinker, courts have struggled to
strike a balance between safeguarding students' First
Amendment rights and protecting the authority of
school administrators to maintain an appropriate
learning environment.
The Supreme Court established a basic
framework for assessing student free speech claims in
Tinker, and we will assume, without deciding, that
Tinker applies to J.S.'s speech in this case. The Court
in Tinker held that “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.” Tinker, 393 U.S. at 509, 89
S.Ct. 733 (emphasis added) (quotation marks
omitted). This 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.” Id. Moreover, “
Tinker requires a specific and significant fear of
disruption, not just some remote apprehension of
disturbance.” Saxe v. State Coll. Area Sch. Dist., 240
F.3d 200, 211 (3d Cir.2001). Although Tinker dealt
with political speech, the opinion has never been
confined to such speech. See id. at 215–17 (holding
that the school's anti-harassment policy was
overbroad because it “appears to cover substantially
more speech than could be prohibited under Tinker's
substantial disruption test”); see alsoKillion, 136
F.Supp.2d at 455–58 *927 (holding that the school
overstepped its constitutional bounds under Tinker
when it suspended a student for making “lewd”
comments about the school's athletic director in an email the student wrote at home and circulated to the
non-school e-mail accounts of several classmates).
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***
As this Court has emphasized, with then-Judge
Alito writing for the majority, Tinker sets the general
rule for regulating school speech, and that rule is
subject to several narrow exceptions. Saxe, 240 F.3d
at 212 (“Since Tinker, the Supreme Court has carved
out a number of narrow categories of speech that a
school may restrict even without the threat of
substantial disruption.”). The first exception is set out
in Fraser, which we interpreted to permit school
officials to regulate “ ‘lewd,’ ‘vulgar,’ ‘indecent,’ and
‘plainly offensive’ speech in school.” Id. at 213
(quoting Fraser, 478 U.S. at 683, 685, 106 S.Ct.
3159) (emphasis added); see also Sypniewski v.
Warren Hills Reg'l Bd. of Educ., 307 F.3d 243, 253
(3d Cir.2002) (quoting Saxe's narrow interpretation of
the Fraser exception). The second exception to
Tinker is articulated in Hazelwood School District v.
Kuhlmeier, which allows school officials to “regulate
school-sponsored speech (that is, speech that a
reasonable observer would view as the school's own
speech) on the basis of any legitimate pedagogical
concern.” Saxe, 240 F.3d at 214.
The Supreme Court recently articulated a third
exception to Tinker's general rule in Morse.
Although, prior to this case, we have not had an
opportunity to analyze the scope of the Morse
exception, the Supreme Court itself emphasized the
narrow reach of its decision. In Morse, a school
punished a student for unfurling, at a schoolsponsored event, a large banner containing a message
that could reasonably be interpreted as promoting
illegal drug use. 551 U.S. at 396, 127 S.Ct. 2618. The
Court emphasized that Morse was a school speech
case, because “[t]he event occurred during normal
school hours,” was sanctioned by the school “as an
approved social event or class trip,” was supervised
by teachers and administrators from the school, and
involved performances by the school band and
cheerleaders. Id. at 400–01, 127 S.Ct. 2618
(quotation marks omitted). The Court then held that
“[t]he ‘special characteristics of the school
environment,’ Tinker, 393 U.S.[ ] at 506[ 89 S.Ct.
733], and the governmental interest in stopping
student drug abuse ... allow schools to restrict student
expression that they reasonably regard as promoting
illegal drug use.” Id. at 408, 127 S.Ct. 2618.
Notably, Justice Alito's concurrence in Morse
further emphasizes the narrowness of the Court's
holding, stressing that Morse “stand[s] at the far
reaches of what the First Amendment permits.” 551
U.S. at 425, 127 S.Ct. 2618 (Alito, J., concurring). In
fact, Justice Alito only joined the Court's opinion “on
the understanding that the opinion does not hold that
the special characteristics of the public schools
necessarily justify any other speech restrictions” than
those recognized by the Court in Tinker, Fraser,
Kuhlmeier, and Morse. Id. at 422–23, 127 S.Ct. 2618.
Justice Alito also noted that the Morse decision “does
not endorse the broad argument ... that the First
Amendment permits public school officials to censor
any student speech that interferes with a school's
‘educational mission.’ This argument can easily be
manipulated in dangerous ways, and I would reject it
before such abuse occurs.” Id. at 423, 127 S.Ct. 2618
(citations omitted). Moreover, Justice Alito engaged
in a detailed discussion distinguishing the role of
school authorities from the role of parents, and the
school context from the “[o]utside of school” context.
Id. at 424–25, 127 S.Ct. 2618.
*928 B.
There is no dispute that J.S.'s speech did not
cause a substantial disruption in the school. The
School District's counsel conceded this point at oral
argument and the District Court explicitly found that
“a substantial disruption so as to fall under Tinker did
not occur.” App. at 17. Nonetheless, the School
District now argues that it was justified in punishing
J.S. under Tinker because of “facts which might
reasonably have led school authorities to forecast
substantial disruption of or material interference with
school activities....” Tinker, 393 U.S. at 514, 89 S.Ct.
733. Although the burden is on school authorities to
meet Tinker's requirements to abridge student First
Amendment rights, the School District need not
prove with absolute certainty that substantial
disruption will occur. Doninger v. Niehoff, 527 F.3d
41, 51 (2d Cir.2008) (holding that Tinker does not
require “actual disruption to justify a restraint on
student speech”); Lowery v. Euverard, 497 F.3d 584,
591–92 (6th Cir.2007) (“Tinker does not require
school officials to wait until the horse has left the
barn before closing the door.... [It] does not require
certainty, only that the forecast of substantial
disruption be reasonable.”); LaVine v. Blaine Sch.
Dist., 257 F.3d 981, 989 (9th Cir.2001) (“Tinker does
not require school officials to wait until disruption
actually occurs before they may act.”).
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The facts in this case do not support the
conclusion that a forecast of substantial disruption
was reasonable. In Tinker, the Supreme Court held
that “our independent examination of the record fails
to yield evidence that the school authorities had
reason to anticipate that the wearing of the armbands
[to protest the Vietnam War] would substantially
interfere with the work of the school or impinge upon
the rights of other students.” 393 U.S. at 509, 89
S.Ct. 733.
***
Turning to our record, J.S. created the profile as
a joke, and she took steps to make it “private” so that
access was limited to her and her friends. Although
the profile contained McGonigle's picture from the
school's website, the profile did not identify him by
name, school, or location. Moreover, the profile,
though indisputably vulgar, was so juvenile and
nonsensical that no reasonable person could take its
content seriously, and the record clearly demonstrates
that no one did. Also, the School District's computers
block access to MySpace, so no Blue Mountain
student was ever able to view the profile from school.
And, the only printout of the profile that was ever
brought to school was one that was brought at
McGonigle's express request. Thus, beyond general
rumblings, a few minutes of talking in class, and
some officials rearranging their schedules to assist
McGonigle in dealing with the profile, no disruptions
occurred.
***
*929 In comparing our record to the record in
Tinker, this Court cannot apply Tinker's holding to
justify the School District's actions in this case. As
the Supreme Court has admonished, an
“undifferentiated fear or apprehension of disturbance
is not enough to overcome the right to freedom of
expression.” Tinker, 393 U.S. at 508, 89 S.Ct. 733. If
Tinker's black armbands—*930 an ostentatious
reminder of the highly emotional and controversial
subject of the Vietnam war—could not “reasonably
have led school authorities to forecast substantial
disruption of or material interference with school
activities,” id.at 514, 89 S.Ct. 733, neither can J.S.'s
profile, despite the unfortunate humiliation it caused
for McGonigle.FN7
FN7. We recognize that vulgar and
offensive speech such as that employed in
this case—even made in jest—could damage
the careers of teachers and administrators
and we conclude only that the punitive
action taken by the School District violated
the First Amendment free speech rights of
J.S.
***
Courts must determine when an “undifferentiated
fear or apprehension of disturbance” transforms into
a reasonable forecast that a substantial disruption or
material interference will occur. The School District
cites several cases where courts held that a forecast of
substantial and material disruption was reasonable.
See, e.g., Doninger, 527 F.3d at 50–51 (holding that
punishment was justified, under Tinker, where a
student's derogatory blog about the school was
“purposely designed by [the student] to come onto
the campus,” to “encourage others to contact the
administration,” and where the blog contained “at
best misleading and at worst false information” that
the school “need[ed] to correct” (quotation marks and
alteration omitted)).
***
The School District likens this case to the above
cases by contending that the profile was accusatory
and aroused suspicions among the school community
about McGonigle's character because of the profile's
references to his engaging in sexual misconduct. As
explained above, however, this contention is simply
not supported by the record. The profile was so
outrageous that no one could have taken it seriously,
and no one did. Thus, it was clearly not reasonably
foreseeable that J.S.'s speech would create a
substantial disruption or material interference in
school, and this case is therefore distinguishable from
the student speech at issue in Doninger, Lowery, and
LaVine.
Moreover, unlike the students in Doninger,
Lowery, and LaVine, J.S. did not even intend for the
speech to reach the school—in fact, she took specific
steps to make the profile “private” so that only her
friends could access it. The fact that her friends
happen to be Blue Mountain Middle School students
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is not surprising, and does not mean that J.S.'s speech
targeted *931 the school. Finally, any suggestion
that, absent McGonigle's actions, a substantial
disruption would have occurred, is directly
undermined by the record. If anything, McGonigle's
response to the profile exacerbated rather than
contained the disruption in the school.FN8
FN8. The dissent concludes that our
decision creates a circuit split with the Court
of Appeals for the Second Circuit, positing
that that court has determined “that offcampus hostile and offensive student
internet speech that is directed at school
officials results in a substantial disruption of
the classroom environment.” Dissenting Op.
950. We disagree, largely because the
dissent has overstated our sister circuit's law.
Each case applying Tinker is decided on its
own facts, see Doninger, 527 F.3d at 53
(“We decide only that based on the existing
record, [the student's] post created a
foreseeable risk of substantial disruption to
the work and discipline of the school....”),
Wisniewski v. Bd. of Educ. of Weedsport
Cent. Sch. Dist., 494 F.3d 34, 40 (2d
Cir.2007) (deciding case “on this record”),
so all “off-campus hostile and offensive
student internet speech” will not necessarily
create a material and substantial disruption
at school nor will it reasonably lead school
officials to forecast substantial disruption in
school. Further, the facts of the cases cited
by the dissent in support of its proposition
that we have created a circuit split differ
considerably from the facts presented in this
case. See, e.g., Doninger, 527 F.3d at 50–51;
Wisniewski, 494 F.3d at 35 (involving a
student “sharing with friends via the Internet
a small drawing crudely, but clearly,
suggesting that a named teacher should be
shot and killed”). Accordingly, we do not
perceive any circuit split and will continue
to decide each case on its individual facts.
The facts simply do not support the conclusion
that the School District could have reasonably
forecasted a substantial disruption of or material
interference with the school as a result of J.S.'s
profile. Under Tinker, therefore, the School District
violated J.S.'s First Amendment free speech rights
when it suspended her for creating the profile.
***
C.
Because Tinker does not justify the School
District's suspension of J.S., the *932 only way for
the punishment to pass constitutional muster is if we
accept the School District's argument—and the
District Court's holding—that J.S.'s speech can be
prohibited under the Fraser exception to Tinker. The
School District argues that although J.S.'s speech
occurred off campus, it was justified in disciplining
her because it was “lewd, vulgar, and offensive [and]
had an effect on the school and the educational
mission of the District.” School District Br. 7. The
School District's argument fails at the outset because
Fraser does not apply to off-campus speech.
Specifically 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.”
551 U.S. at 405, 127 S.Ct. 2618 (citing Cohen v.
Cal., 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284
(1971)). The Court's citation to the Cohen decision is
noteworthy. The Supreme Court in Cohen held, in a
non-school setting, that a state may not make a
“single four-letter expletive a criminal offense.” 403
U.S. at 26, 91 S.Ct. 1780. Accordingly, Chief Justice
Roberts's reliance on the Cohen decision reaffirms
that a student's free speech rights outside the school
context are coextensive with the rights of an adult.
***
Thus, under the Supreme Court's precedent, the
Fraser exception to Tinker does not apply here. In
other words, Fraser's “lewdness” standard cannot be
extended to justify a school's punishment of J.S. for
use of profane language outside the school, during
non-school hours. FN12
FN12. The School District notes that the
courts in Doninger and Bethlehem Area
School District suggested that Fraser
applies to vulgar off-campus speech. See
Doninger, 527 F.3d at 49 (“It is not clear ...
[whether] Fraser applies to off-campus
speech.”); Bethlehem Area Sch. Dist., 807
A.2d at 867 (“[W]e are not convinced that
reliance solely on Tinker is appropriate.”).
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Not only are these cases not binding on this
Court, but also both Doninger and
Bethlehem Area School District ultimately
relied on Tinker, not Fraser, in upholding
school censorship. Thus, the courts'
suggestion that the Fraser standard may
apply to off-campus speech is dicta. Most
importantly, that dicta is undermined
directly by Chief Justice Roberts's statement
in Morse: “Had Fraser delivered the same
speech in a public forum outside the school
context, it would have been protected.” 551
U.S. at 405, 127 S.Ct. 2618 (citing Cohen,
403 U.S. 15, 91 S.Ct. 1780). The most
logical reading of Chief Justice Roberts's
statement prevents the application of Fraser
to speech that takes place off-campus,
during non-school hours, and that is in no
way sponsored by the school.
The School District points out that “a hard copy
or printout of the profile actually came into the
school.” School District Br. 22. However, the fact
that McGonigle caused a copy of the profile to be
brought to school does not transform J.S.'s offcampus speech into school speech. The flaws of a
contrary rule can be illustrated by extrapolating from
the facts of Fraser itself. As discussed above, the
Supreme Court emphasized that Fraser's speech
would have been protected had he delivered it outside
the school. Presumably, this protection would not be
lifted if a school official or Fraser's fellow
*933classmate overheard the off-campus speech,
recorded it, and played it to the school principal.
Similarly here, the fact that another student printed
J.S.'s profile and brought it to school at the express
request of McGonigle does not turn J.S.'s off-campus
speech into on-campus speech.
***
*934 Under these circumstances, to apply the
Fraser standard to justify the School District's
punishment of J.S.'s speech would be to adopt a rule
that allows school officials to punish any speech by a
student that takes place anywhere, at any time, as
long as it is about the school or a school official, is
brought to the attention of a school official, and is
deemed “offensive” by the prevailing authority.
Under this standard, two students can be punished for
using a vulgar remark to speak about their teacher at
a private party, if another student overhears the
remark, reports it to the school authorities, and the
school authorities find the remark “offensive.” There
is no principled way to distinguish this hypothetical
from the facts of the instant case.
Accordingly, we conclude that the Fraser
decision did not give the School District the authority
to punish J.S. for her off-campus speech.
***
*935 Neither the Supreme Court nor this Court
has ever allowed schools to punish students for offcampus speech that is not school-sponsored or at a
school-sponsored event and that caused no
substantial disruption at school. We follow the logic
and letter of these cases and reverse the District
Court's grant of summary judgment in favor of the
School District and denial of J.S.'s motion for
summary judgment on her free speech claim. An
opposite holding would significantly broaden school
districts' authority over student speech and would
vest school officials with dangerously overbroad
censorship discretion. We will remand to the District
Court to determine appropriate relief on this claim.
***
*936 For the foregoing reasons, the District
Court's judgment will be affirmed in part, reversed in
part and remanded.
SMITH, Circuit Judge, concurring, with whom
McKEE, Chief Judge, SLOVITER, FUENTES, and
HARDIMAN, Circuit Judges, join.
Because the school district suspended J.S. for
speech that she engaged in at home on a Sunday
evening, I fully agree with the majority's conclusion
that it violated J.S.'s First Amendment rights. I write
separately to address a question that the majority
opinion expressly leaves open: whether Tinker
applies to off-campus speech in the first place. I
would hold that it does not, and that the First
Amendment protects students engaging in offcampus speech to the same extent it protects speech
by citizens in the community at large.
As a general matter, the First Amendment
strictly protects speech regardless of whether it is
disruptive, offensive, vulgar, or insulting. See Texas
v. Johnson, 491 U.S. 397, 408–10, 414, 109 S.Ct.
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2533, 105 L.Ed.2d 342 (1989). In *937Tinker v. Des
Moines Independent Community School District, 393
U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), the
Supreme Court considered whether different rules
should govern student speech inside public schools.
Although it observed that students do not “shed their
constitutional rights to freedom of speech or
expression at the schoolhouse gate,” the Court
determined that, “in light of the special
characteristics of the school environment” and the
need to defer to school officials' authority “to
prescribe and control conduct in the schools,” the
First Amendment's ordinarily strict protection of
speech rights should be relaxed in the public-school
context. Id. at 506–08, 89 S.Ct. 733. The Court thus
concluded that some otherwise-protected speech can
be suppressed in the school setting, but only if it
“would materially and substantially disrupt the work
and discipline of the school.” Id. at 513, 89 S.Ct. 733.
In later cases, the Court recognized exceptions to
Tinker, holding that even non-disruptive school
speech can be restricted if it is lewd or vulgar, Bethel
Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 685, 106
S.Ct. 3159, 92 L.Ed.2d 549 (1986), if it is schoolsponsored and the restriction is “reasonably related to
legitimate pedagogical concerns,” Hazelwood Sch.
Dist. v. Kuhlmeier, 484 U.S. 260, 273, 108 S.Ct. 562,
98 L.Ed.2d 592 (1988), or if it is reasonably viewed
as promoting the use of illegal drugs, Morse v.
Frederick, 551 U.S. 393, 403, 127 S.Ct. 2618, 168
L.Ed.2d 290 (2007).
Courts agree that Fraser, Kuhlmeier, and Morse
apply solely to on-campus speech (I use the phrase
“on-campus speech” as shorthand for speech
communicated at school or, though not on school
grounds, at a school-sanctioned event, see Morse,
551 U.S. at 400–01, 127 S.Ct. 2618). Indeed, the
Supreme Court has expressly recognized that Fraser
does not extend “outside the school context,” id. at
405, 127 S.Ct. 2618 (citing Cohen ), and three
justices have observed (without objection from the
other six) that speech promoting illegal drug use,
even if prescribable in a public school, would
“unquestionably” be protected if uttered elsewhere,
id.at 434, 127 S.Ct. 2618 (Stevens, J., joined by
Souter and Ginsburg, JJ., dissenting). Lower courts,
however, are divided on whether Tinker's substantialdisruption test governs students' off-campus
expression. Compare Porter v. Ascension Parish Sch.
Bd., 393 F.3d 608, 615, 620 (5th Cir.2004) (Tinker
does not apply to students' off-campus speech) with
Wisniewski v. Bd. of Educ. of the Weedsport Cent.
Sch. Dist., 494 F.3d 34, 39 & n. 4 (2d Cir.2007)
(Tinker applies to off-campus speech in certain
circumstances). In my view, the decisions holding
that Tinker does not apply to off-campus speech have
the better of the argument.
Tinker's holding is expressly grounded in “the
special characteristics of the school environment,”
393 U.S. at 506, 89 S.Ct. 733, and the need to defer
to school officials' authority “to prescribe and control
conduct in the schools,” id.at 507, 89 S.Ct. 733.FN1
The Court's later school-speech *938 cases
underscored Tinker's narrow reach. Tinker, according
to the Court's decision in Fraser, rests on the
understanding that “the constitutional rights of
students in public school are not automatically
coextensive with the rights of adults in other
settings,” see 478 U.S. at 682, 106 S.Ct. 3159, and
that students are a captive audience while at school,
see id.at 684, 106 S.Ct. 3159. See also id.at 688 n. 1,
106 S.Ct. 3159 (Brennan, J., concurring in judgment)
(stating that the Court's school-speech cases
“obviously do not [apply] outside of the school
environment”). Kuhlmeier, moreover, described
Tinker as “address[ing] educators' ability to silence a
student's personal expression that happens to occur
on the school premises.” 484 U.S. at 271, 108 S.Ct.
562. Finally, in Morse, the Court took care to refute
the contention that the plaintiff's speech, which took
place at a school field trip, did not occur “at school.”
551 U.S. at 401, 127 S.Ct. 2618. In concluding that
the plaintiff's suit was governed by the Tinker line of
cases, the Court stressed that the field trip “occurred
during normal school hours,” that it “was sanctioned
by [the principal] as an approved social event or class
trip,” that “[t]eachers and administrators were
interspersed among the students and charged with
supervising them,” and that the “high school band
and cheerleaders performed.” Id. at 400–01, 127
S.Ct. 2618. If Tinker and the Court's other schoolspeech precedents applied to off-campus speech, this
discussion would have been unnecessary. See also
id.at 406, 127 S.Ct. 2618 (“ ‘First ... Amendment
rights [ ] are different in public schools than
elsewhere.’ ”) (quoting Vernonia Sch. Dist. 47J v.
Acton, 515 U.S. 646, 656, 115 S.Ct. 2386, 132
L.Ed.2d 564 (1995)). Indeed, in his Morse
concurrence, Justice Alito essentially recognized that
Tinker's substantial-disruption test does not apply to
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students' off-campus expression. See id.at 422, 127
S.Ct. 2618 (Alito, J., concurring) (noting that Tinker
allows schools to regulate “in-school student speech
... in a way that would not be constitutional in other
settings”). Accord Sypniewski v. Warren Hills Reg'l
Bd. of Educ., 307 F.3d 243, 259 (3d Cir.2002)
(stating that under Tinker, a “broader ... area of
speech can be regulated at school than outside
school”).
FN1.Tinker did say that the substantialdisruption standard governs student speech
“in class or out of it.” 393 U.S. at 513, 89
S.Ct. 733. Read in context, though, it is clear
that the phrase “or out of it” does not mean
“out of school” but rather “in the cafeteria,
or on the playing field, or on the campus
during the authorized hours.” Id. at 512–13,
89 S.Ct. 733. See also id.at 508, 89 S.Ct.
733 (“Any word spoken, in class, in the
lunchroom, or on the campus, that deviates
from the views of another person may start
an argument or cause a disturbance. But our
Constitution says we must take this risk....”)
(emphasis added). Had the Court intended to
vest schools with the unprecedented
authority to regulate students' off-campus
speech, surely it would have done so
unambiguously.
***
*939 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,”
Morse, 551 U.S. at 403, 127 S.Ct. 2618—if it
substantially disrupts school activities. See 393 U.S.
at 513, 89 S.Ct. 733. Suppose a high school student,
while at home after school hours, were to write a blog
entry defending gay marriage. Suppose further that
several of the student's classmates got wind of the
entry, took issue with it, and caused a significant
disturbance at school. While the school could clearly
punish the students who acted disruptively, if Tinker
were held to apply to off-campus speech, the school
could also punish the student whose blog entry
brought about the disruption. That cannot be, nor is
it, the law.
To be sure, this case does not involve political
speech. J.S. simply published an insulting (and, I
would say, mean-spirited) parody of her principal on
Myspace. But the lack of political content is
irrelevant for First Amendment purposes. There is no
First Amendment exception for offensive speech or
for speech that lacks a certain quantum of social
value. Snyder v. Phelps, ––– U.S. ––––, 131 S.Ct.
1207, 1219–20, 179 L.Ed.2d 172 (2011); United
States v. Stevens, ––– U.S. ––––, 130 S.Ct. 1577,
1586, 1591, 176 L.Ed.2d 435 (2010); Hustler
Magazine, 485 U.S. at 55, 108 S.Ct. 876. *940 It is
worth pointing out, as well, that although speech like
J.S.'s may appear to be worthless, it does enable
citizens to vent their frustrations in nonviolent ways.
We ought not to discount the importance in our
society of such a “safety valve.” See Rodney A.
Smolla, Free Speech in an Open Society 13 (1992).
Furthermore, if Tinker were applied to offcampus speech, there would be little reason to
prevent school officials from regulating adult speech
uttered in the community. Cf. Planned Parenthood of
Cent. Mo. v. Danforth, 428 U.S. 52, 74, 96 S.Ct.
2831, 49 L.Ed.2d 788 (1976) (noting that adults and
children generally enjoy the same constitutional
rights). Adults often say things that give rise to
disruptions in public schools. Those who championed
desegregation in the 1950s and 60s caused more than
a minor disturbance in the southern schools. Of
course, the prospect of using Tinker to silence such
speakers is absurd. But the absurdity stems not from
applying Tinker to off-campus speech uttered by
adults and students alike, but from the antecedent
step of extending Tinker beyond the public-school
setting to which it is so firmly moored. I would hold
that Tinker does not govern a student's off-campus
expression.
***
But that is only half the battle. The other half:
how can one tell whether speech takes place on or off
campus? Answering this question will not always be
easy. See Morse, 551 U.S. at 401, 127 S.Ct. 2618.
The answer plainly cannot turn solely on where the
speaker was sitting when the speech was originally
uttered. Such a standard would fail to accommodate
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the somewhat “everywhere at once” nature of the
internet. So, for example, I would have no difficulty
applying Tinker 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. See Layshock v.
Hermitage Sch. Dist., 650 F.3d 205 (3d Cir.2011) (en
banc). A bare foreseeability standard could be
stretched too far, and would risk ensnaring any offcampus expression that happened to discuss schoolrelated matters.
In any event, this case does not require us to
precisely define the boundary between on- and offcampus speech, since it is perfectly clear that J.S.'s
speech took place off campus. J.S. created the
Myspace profile at home on a Sunday evening; she
did not send the profile to any school employees; and
she had no reason to know that it would make its way
onto campus. In fact, she took steps to limit
dissemination of the profile, and the Myspace
website is blocked on school computers. If ever
speech occurred outside of the school setting, J.S.'s
did so.
Having determined that J.S.'s speech took place
off campus, I would apply ordinary First Amendment
principles to determine whether it was protected. I
agree with the majority that this was protected
speech. The speech was not defamatory, obscene, or
otherwise unprotected. See *941Hustler Magazine,
485 U.S. at 57, 108 S.Ct. 876; Miller v. California,
413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973).
J.S.'s suspension, then, violated the First Amendment.
***
FISHER, Circuit Judge, dissenting, with whom
SCIRICA, RENDELL, BARRY, JORDAN, and
VANASKIE, Circuit Judges, join.
Today's holding severely undermines schools'
authority to regulate students who “materially and
substantially disrupt the work and discipline of the
school.” Tinker v. Des Moines Indep. Cmty. Sch.
Dist., 393 U.S. 503, 513, 89 S.Ct. 733, 21 L.Ed.2d
731 (1969). While I agree with the majority's
apparent adoption of the rule that off-campus student
speech can rise to the level of a substantial
disruption, I disagree with the Court's application of
that rule to the facts of this case. The majority
misconstrues the facts. In doing so, it allows a student
to target a school official and his family with
malicious and unfounded accusations about their
character in vulgar, obscene, and personal language. I
fear that our Court leaves schools defenseless to
protect teachers and school officials against such
attacks and powerless to discipline students for the
consequences of their actions.
***
I respectfully dissent from the majority's ruling that
the Blue Mountain School District's ten-day
suspension of J.S. for making false accusations
against McGonigle violated her First Amendment
right to free speech. I respectfully dissent from the
majority.
I.
***
*942 The Supreme Court has only briefly and
ambiguously considered whether schools have the
authority to regulate student off-campus speech. In
Tinker, the Court stated that “conduct by the student,
in class or out of it, which for any reason—whether it
stems from time, place, or type of behavior—
materially disrupts classwork or involves substantial
disorder or invasion of rights of others is, of course,
not immunized by constitutional guarantee of
freedom of speech.” 393 U.S. at 513, 89 S.Ct. 733.
But it is unclear if “in class or out of it” means to
distinguish the classroom from the world beyond the
schoolhouse gates, or if it simply means out of class
but in the cafeteria, schoolyard, or other areas on
school grounds.
***
II.
*943 I believe that the rule adopted by the
Supreme Court in Tinker should determine the
outcome of this case. Under Tinker, we must examine
whether J.S.'s speech created a significant threat of
substantial disruption at the Middle School. School
authorities need not wait until the disruption actually
occurs if they are able to “demonstrate any facts
which might reasonably have led [them] to forecast
substantial disruption of or material interference with
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school activities.” Tinker, 393 U.S. at 514, 89 S.Ct.
733. If the Middle School reasonably forecasted
substantial disruption, then it had the authority to
regulate J.S.'s speech. The majority seems to
acknowledge just as much, but finds that “[t]he facts
simply do not support the conclusion that the School
District could have reasonably forecasted a
substantial disruption of or material interference with
the school as a result of J.S.'s profile.” Maj. Op. at
931.
***
The majority is correct in finding it appropriate
to distinguish the facts of Tinker, but it fails to heed
several salient distinctions that compel the opposite
conclusion. The speech in Tinker was political
speech, was not directed at the school or at school
officials, and was not vulgar, obscene, malicious, or
harmful. Moreover, the majority misconstrues the
facts of this case, making light of J.S.'s accusations
and underestimating its impact.
A.
The speech at issue in Tinker did “not concern
aggressive, disruptive action or even group
demonstrations.... [It was] a silent, passive expression
of opinion, unaccompanied by any disorder or
disturbance.” 393 U.S. at 508, 89 S.Ct. 733. The
Court was concerned that peaceful and nonintrusive
political speech was censored by the school. The
Court was motivated by a fear of totalitarianism and
the need to protect freedom of expression to *944
preserve the foundations of a democratic system.
What made the school's prohibition so troubling was
that it appeared to be a content-based regulation of
political speech. The school prohibited students from
protesting the war, whereas other students were
permitted to wear political buttons. Some even wore
the Iron Cross, a symbol traditionally associated with
Nazism. “Clearly, the prohibition of expression of
one particular opinion, at least without evidence that
it is necessary to avoid material and substantial
interference with schoolwork or discipline, is not
constitutionally permissible.” Id. at 511, 89 S.Ct. 733.
***
B.
J.S., by contrast, targeted her principal and her
principal's family with lewd, vulgar, and offensive
speech. She created a MySpace page using a
photograph of McGonigle that she had taken from the
School District website, and she publicly
disseminated numerous hurtful accusations. She
accused McGonigle of sexual misconduct and
insulted him and his family.
***
*945 J.S.'s speech is not the type of speech that
the Tinker Court so vehemently protected. I agree
with the majority that the facts in the record fail to
demonstrate substantial disruption at the School. But
the profile's potential to cause disruption was
reasonably foreseeable, and that is sufficient.Tinker,
393 U.S. at 514, 89 S.Ct. 733. Two forms of
disruption were foreseeable. First, the MySpace page
posed a reasonably foreseeable threat of interference
with the educational environment. If J.S.'s speech
went unpunished, it would undermine McGonigle's
authority and disrupt the educational process.
Second, J.S.'s speech posed a reasonably foreseeable
threat of disrupting the operations of the classroom. It
was foreseeable that J.S.'s false accusations and
malicious comments would disrupt McGonigle and
Frain's ability to perform their jobs.
***
*948 First, the majority makes light of J.S.'s
post, characterizing it as a “joke” that, while
“indisputably
vulgar,”
was
“juvenile
and
nonsensical.” Maj. Op. at 929. The majority goes so
far as to state that we should take J.S.'s speech less
seriously because she intended it as a “joke.” See id.
This is not the test adopted by Tinker. The intent of
the speaker is of no consequence. What determines
the permissibility of the School's response under the
First Amendment is whether it was reasonable to
foresee substantial disruption.
Moreover, it is not our role to determine how
schools should treat accusations of sexual misconduct
and personal attacks on school officials. School
administrators, not judges, are best positioned to
assess the potential for harm in cases like this one,
and we should be loath to substitute our judgments
for theirs. See Morse, 551 U.S. at 427, 127 S.Ct. 2618
(Breyer, J., concurring in part and dissenting in part)
(warning against the dangers of interfering “with
reasonable school efforts to maintain discipline”); cf.
Fraser, 478 U.S. at 683, 106 S.Ct. 3159 (“The
determination of what manner of speech in the
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classroom or in school assembly is inappropriate
properly rests with the school board.”). Thus, even if
J.S.'s post can be treated as a juvenile joke, it does
not mean that the School District had to treat it as
such. For it is also eminently reasonable to treat
accusations of sexual misconduct seriously. I believe
our Court errs when it tells a school district how it
should handle violations of its policy that are of as
serious and grave a matter as false accusations of
sexual misconduct.
***
C.
*950 Our decision today causes a split with the
Second Circuit. In applying Tinker, the Second
Circuit has held that off-campus hostile and offensive
student internet speech that is directed at school
officials results in a substantial disruption of the
classroom environment. In Wisniewski, a middle
school student sent messages to fifteen fellow
students via an instant messenger program from his
home computer during non-school hours. 494 F.3d
34, 35-36 (2d Cir.2007). The program used an icon
depicting one of his teachers being shot in the head
with text below reading “Kill Mr. VanderMolen.” Id.
The Second Circuit stated that “off-campus conduct
can create a foreseeable risk of substantial disruption
within a school,” id.at 39 (citing Thomas v. Board of
Education, 607 F.2d 1043, 1052 n. 17 (2d Cir.1979)),
and held that it was reasonably foreseeable that the
depiction would come to the attention of school
authorities and the teacher who was the subject of the
drawing. Id. at 39–40. The court reasoned that:
The potentially threatening content of the icon and
the extensive distribution of it, which encompassed
15 recipients, including some of Aaron's
classmates, during a three-week circulation period,
made this risk at least foreseeable to a reasonable
person, if not inevitable. And there can be no doubt
that the icon, once made known to the teacher and
other school officials, would foreseeably create a
risk of substantial disruption within the school
environment.
Id. The Second Circuit held that hostile and
offensive off-campus student speech posed a
reasonably foreseeable threat of substantial disruption
within the school. Id.
in Doninger v. Niehoff, 527 F.3d 41 (2d Cir.2008). A
member of the high school student council, upset by
scheduling conflicts regarding a student event, posted
a message on her blog from her home computer
during non-school hours. She stated that the student
event was “cancelled due to douchebags in the
central office.” Doninger, 527 F.3d at 45. She urged
people to call or write a school official “to piss her
off more.” Id. The school received numerous*951
calls and emails, some of which were from students
who were upset. As a result of the blog post, the
school refused to allow the student to run for Junior
Class Secretary. The student challenged the school's
sanction, but the Second Circuit stated that the
student's post, “although created off-campus, was
purposely designed by [the student] to come onto the
campus.” Doninger, 527 F.3d at 50. The Court
reasoned that her post “foreseeably create[d] a risk of
substantial
disruption
within
the
school
environment.” Id. at 50. It was reasonably
foreseeable that “administrators and teachers would
be further diverted from their core educational
responsibilities by the need to dissipate misguided
anger or confusion over [the student event's]
purported cancellation.” Id. at 51–52.
The majority claims that these cases are
distinguishable. It argues that no one could have
taken J.S.'s accusations seriously and that “J.S. did
not even intend for the speech to reach the school.”
Maj. Op. at 930. The majority misses the mark. As
discussed above, J.S.'s post was at least potentially
psychologically harmful to McGonigle and Frain, it
was vicious in its accusations of sexual misconduct,
and it posed the potential to undermine McGonigle's
authority at the Middle School and to divert School
resources in tempering the inevitable anger and
confusion amongst parents and the community
following a public accusation of sexual misconduct.
It is of no consequence if J.S. in fact did not intend to
reach the Middle School. She directed obscene and
harmful speech at McGonigle and his family,
disseminated it to members of the School, and made
unfounded accusations. For these reasons, it was
reasonably foreseeable that her speech would cause a
substantial disruption of the educational process and
the classroom environment. And it is on this point
that the majority parts ways with the Second Circuit.
***
The Second Circuit confronted a similar scenario
The majority's approach does not offer a
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650 F.3d 915
promising way forward. Internet use among teenagers
is nearly universal. See Amanda Lenhart, et al., Pew
Internet & American Life Project: Teens and Social
Media 2 (2007) (stating that 93 percent of teenagers
use the internet and 61 percent use it daily). And
social networking sites have become one of the main
vehicles of social interaction. See Amanda Lenhart, et
al., Pew Internet and American Life: Teens and
Mobile Phones 59 (2010) (stating that 73 percent of
teenagers use a social networking site).
C.A.3 (Pa.),2011.
J.S. ex rel. Snyder v. Blue Mountain School Dist.
650 F.3d 915, 271 Ed. Law Rep. 656
END OF DOCUMENT
The line between “on-campus” and “off-campus”
speech is not as clear as it once was. Today, students
commonly carry cell phones with internet capabilities
onto school grounds. Approximately 66 percent of
students receive a cell phone before the age of 14,
and slightly less than 75 percent of high school
students have cell phones. Amanda Lenhart, et al.,
Pew Internet and American Life: Teens and Mobile
Phones 9 (2010). Twenty-three percent of teenagers
between the ages of 12 and 17 who own cell phones
use them to access social networking sites like
MySpace and Facebook. Id. at 56. The majority
embraces a notion that student hostile and offensive
online speech directed at school officials will not
reach the school. But with near-constant student
access to social networking sites on and off campus,
when offensive and malicious speech is directed at
school officials and disseminated online to the
student body, it is reasonable to anticipate an *952
impact on the classroom environment. I fear that our
Court has adopted a rule that will prove untenable.
III.
***
I respectfully dissent from the decision that the
suspension of J.S. for making false and malicious
accusations against her principal in the form of lewd
and offensive speech violated her First Amendment
rights. In student free speech cases, courts must
grapple with the issue of promoting freedom of
expression while maintaining a conducive learning
environment. I believe the majority has unwisely
tipped the balance struck by Tinker, Fraser,
Kuhlmeier, and Morse, thereby jeopardizing schools'
ability to maintain an orderly learning environment
while protecting teachers and school officials against
harmful attacks.
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United States Court of Appeals,
Fourth Circuit.
Kara KOWALSKI, Plaintiff–Appellant,
v.
BERKELEY COUNTY SCHOOLS, a public school
district; Manny P. Arvon, II, Superintendent, in his
official capacity; Ronald Stephens, Principal, in his
official capacity and individually; Becky J. Harden,
Vice Principal, in her official capacity and
individually; Buffy Ashcraft, cheerleading coach, in
her official capacity and individually; Rick Deuell,
Assistant Superintendent, in his official capacity,
Defendants–Appellees.
No. 10–1098.
Argued: March 25, 2011.
Decided: July 27, 2011.
OPINION
*567 NIEMEYER, Circuit Judge:
When Kara Kowalski was a senior at Musselman
High School in Berkeley County, West Virginia,
school administrators suspended her from school for
five days for creating and posting to a MySpace.com
webpage called “S.A.S.H.,” which Kowalski claims
stood for “Students Against Sluts Herpes” and which
was largely dedicated to ridiculing a fellow student.
Kowalski commenced this actionagainst the Berkeley
County School District and five of its officers,
contending that in disciplining her, the defendants
violated her free speech rights under the First
Amendment. She alleges, among other things, that
the School District was not justified in regulating her
speech because it did not occur during a “schoolrelated activity,” but rather was “private out-ofschool speech.”
The district court entered summary judgment in favor
of the defendants, concluding that they were
authorized to punish Kowalski because her webpage
was “created for the purpose of inviting others to
indulge in disruptive and hateful conduct,” which
caused an “in-school disruption.”
Reviewing the summary judgment record de novo,
we conclude that in the circumstances of this case,
the School District's imposition of sanctions was
permissible. Kowalski used the Internet to orchestrate
a targeted attack on a classmate, and did so in a
manner that was sufficiently connected to the school
environment as to implicate the School District's
recognized authority to discipline speech which
“materially and substantially interfere[s] with the
requirements of appropriate discipline in the
operation of the school and collid[es] with the rights
of others.” Tinker v. Des Moines Indep. Community
Sch. Dist., 393 U.S. 503, 513, 89 S.Ct. 733, 21
L.Ed.2d 731 (1969) (internal quotation marks
omitted). Accordingly, we affirm.
I
On December 1, 2005, Kara Kowalski, who was then
a 12th grade student at Musselman High School in
the Berkeley County School District, returned home
from school and, using her home computer, created a
discussion group webpage on MySpace.com with the
heading “S.A.S.H.” Under the webpage's title, she
posted the statement, “No No Herpes, We don't want
no herpes.” Kowalski claimed in her deposition that
“S.A.S.H.” was an acronym for “Students Against
Sluts Herpes,” but a classmate, Ray Parsons, stated
that it was an acronym 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.
Approximately two dozen Musselman High School
students responded and ultimately joined the group.
Kowalski later explained that she had hoped that the
group would “make other students actively aware of
STDs,” which were a “hot topic” at her school.
*568 Ray Parsons responded to the MySpace
invitation at 3:40 p.m. and was the first to join the
group, doing so from a school computer during an
after hours class at Musselman High School. 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. The record
of the webpage shows that Kowalski promptly
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responded, stating, “Ray you are soo funny!=)” It
shows that shortly thereafter, she posted another
response to the photograph, stating that it was “the
best picture [I]'ve seen on myspace so far!!!!” Several
other students posted similar replies. Parsons also
uploaded to the “S.A.S.H.” webpage 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.”
The commentary posted on the “S.A.S.H.” webpage
mostly focused on Shay N. The first five comments
were posted by other Musselman High School
students and ridiculed the pictures of Shay N. One
student stated that “shay knows about the sign” and
then stated, “wait til she sees the page lol.” (The
abbreviation “lol” means “laugh out loud” or
“laughing out loud.”) The next comment replied,
“Haha..screw her” and repeatedly stated, “This is
great.” After expressing her approval of the postings,
this student noted the “Shay has herpes sign” and
stated, “Kara sent me a few interesting pics ... Would
you be interested in seeing them Ray?” One student
posted, “Kara= My Hero,” and another said, “your so
awesome kara ... i never thought u would mastermind
a group that hates [someone] tho, lol.” A few of the
posts assumed that Kowalski had posted the
photographs of Shay N., but Parsons later clarified
that it was he who had posted the photographs.
A few hours after the photographs and comments had
been posted to the MySpace.com page, Shay N.'s
father called Parsons on the telephone and expressed
his anger over the photographs. Parsons then called
Kowalski, who unsuccessfully attempted to delete the
“S.A.S.H.” group and to remove the photographs.
Unable to do so, she renamed the group “Students
Against Angry People.”
The next morning, Shay N.'s parents, together with
Shay, went to Musselman High School and filed a
harassment complaint with Vice Principal Becky
Harden regarding the discussion group, and they
provided Harden with a printout of the “S.A.S.H.”
webpage. Shay thereafter left the school with her
parents, as she did not want to attend classes that day,
feeling uncomfortable about sitting in class with
students who had posted comments about her on the
MySpace webpage.
After receiving Shay N.'s complaint, Principal
Ronald Stephens contacted the central school board
office to determine whether the issue was one that
should be addressed with school discipline. A school
board official indicated that discipline was
appropriate. Principal Stephens then conducted an
investigation into the matter, during which he and
Vice Principal Harden interviewed the students who
had joined the “S.A.S.H.” group to determine who
posted the photographs and comments. As part of the
investigation, Principal Stephens and Vice Principal
Harden questioned Parsons, who admitted that he had
posted the photographs. Vice Principal Harden met
with Kowalski, who admitted that she had created the
“S.A.S.H.” group but denied that she posted any of
the photographs or disparaging remarks.
School administrators concluded that Kowalski had
created a “hate website,” in *569 violation of the
school policy against “harassment, bullying, and
intimidation.” For punishment, they suspended
Kowalski from school for 10 days and issued her 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. After Kowalski's father asked
school administrators to reduce or revoke the
suspension, Assistant Superintendent Rick Deuell
reduced Kowalski's out-of-school suspension to 5
days, but retained the 90–day social suspension.
Kowalski claims that, as a result of her punishment,
she became socially isolated from her peers and
received cold treatment from teachers and
administrators. She stated that she became depressed
and began taking prescription medication for her
depression.
Kowalski acknowledged that at the beginning of each
school year, including her senior year, she had
received a Student Handbook which included the
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School District's Harassment, Bullying, and
Intimidation Policy, as well as the Student Code of
Conduct. The Harassment, Bullying, and Intimidation
Policy prohibited “any form of ... sexual ...
harassment ... or any bullying or intimidation by any
student ... during any school-related activity or during
any education-sponsored event, whether in a building
or other property owned, use[d] or operated by the
Berkeley Board of Education.” The Policy defined
“Bullying, Harassment and/or Intimidation” as “any
intentional gesture, or any intentional written, verbal
or physical act that”
1. A reasonable person under the circumstances
should know will have the effect of:
a. Harming a student or staff member;
***
2. Is sufficiently inappropriate, severe, persistent,
or pervasive that it creates an intimidating,
threatening or abusive educational environment for
a student.
The policy also provided that violators would be
suspended and that disciplinary actions could be
appealed.
The Student Code of Conduct provided, “All students
enrolled in Berkeley County public schools shall
behave in a safe manner that promotes a school
environment that is nurturing, orderly, safe, and
conducive to learning and personal-social
development.” It also committed students to “help
create an atmosphere free from bullying, intimidation
and harassment” and to “treat others with respect”
and “demonstrate compassion and caring.” The Code
classified “Bullying/Harassment/Intimidation” as a
“Level III Violation” with possible consequences
including an out-of-school suspension up to 10 days;
signing a behavioral contract; being denied
participation in class and/or school activities; and a
social suspension of up to one semester. Before
punishing a student under the Student Code of
Conduct, a principal was required to “immediately
undertake or authorize an investigation” of the
incident and complaint, including “personal
interviews with the complain[an]t, the individual(s)
against whom the complaint is filed, and others who
may have knowledge of the alleged incident(s) or
circumstances giving rise to the complaint.”
The school administrators' meetings with Kowalski
and the other students involved in the “S.A.S.H.”
webpage were*570 intended to fulfill the procedures
described in the Student Handbook.
Kowalski commenced this action in November 2007
against the Berkeley County School District,
Superintendent Manny Arvon (in his official
capacity), Principal Ronald Stephens (in his official
and individual capacities), Vice Principal Becky
Harden (in her official and individual capacities),
cheerleading coach Buffy Ashcraft (in her official
and
individual
capacities),
and
Assistant
Superintendent Rick Deuell (in his official capacity),
alleging free speech violations under the First
Amendment.
On the defendants' motion to dismiss the complaint,
the district court dismissed Kowalski's free speech
claim for lack of standing, concluding that she failed
to allege that she had been disciplined under the
School District's policy for engaging in speech
protected by the First Amendment. In a later ruling
denying Kowalski's motion for reconsideration,
however, the district court recognized that Kowalski
had engaged in speech. Nonetheless, it held that
Kowalski lacked standing because her injury would
“not be redressed by a favorable decision.” Despite
this ruling, the district court revisited the merits of
Kowalski's free speech claim when it denied her
subsequent motion for reconsideration and again
when it considered the defendants' motion for
summary judgment on Kowalski's remaining claims.
In ruling on the summary judgment motion, the court
concluded that “the defendants could legitimately
take action for [Kowalski's] vulgar and offensive
speech and her encouragement of other students to
follow suit.”
***
II
Kowalski contends first that the school administrators
violated her free speech rights under the First
Amendment by punishing her for speech that
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occurred outside the school. She argues that because
this case involved “off-campus, non-school related
speech,” school administrators*571 had no power to
discipline her. As she asserts, “The [Supreme] Court
has been consistently careful to limit intrusions on
students' rights to conduct taking place on school
property, at school functions, or while engaged in
school-sponsored or school-sanctioned activity.” She
maintains that “no Supreme Court case addressing
student speech has held that a school may punish
students for speech away from school—indeed every
Supreme Court case addressing student speech has
taken pains to emphasize that, were the speech in
question to occur away from school, it would be
protected.”
The Berkeley County School District and its
administrators contend that school officials “may
regulate off-campus behavior insofar as the offcampus behavior creates a foreseeable risk of
reaching school property and causing a substantial
disruption to the work and discipline of the school,”
citing Doninger v. Niehoff, 527 F.3d 41 (2d
Cir.2008). Relying on Doninger, the defendants note
that Kowalski created a web-page that singled out
Shay N. for harassment, bullying and intimidation;
that it was foreseeable that the off-campus conduct
would reach the school; and that it was foreseeable
that the off-campus conduct would “create a
substantial disruption in the school.”
The question thus presented is whether Kowalski's
activity fell within the outer boundaries of the high
school's legitimate interest in maintaining order in the
school and protecting the well-being and educational
rights of its students.
The First Amendment prohibits Congress and,
through the Fourteenth Amendment, the States from
“abridging the freedom of speech.” U.S. Const.
amend. I; Gitlow v.New York, 268 U.S. 652, 45 S.Ct.
625, 69 L.Ed.1138 (1925). It is a “bedrock principle”
of the First Amendment that “the government may
not prohibit the expression of an idea simply because
society finds the idea itself offensive or
disagreeable.” Texas v. Johnson, 491 U.S. 397, 414,
109 S.Ct. 2533, 105 L.Ed.2d 342 (1989).
While students retain significant First Amendment
rights in the school context, their rights are not
coextensive with those of adults. See Tinker v. Des
Moines Indep. Community Sch. Dist., 393 U.S. 503,
506, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969).Because of
the “special characteristics of the school
environment,” id.at 505, 89 S.Ct. 733, school
administrators have some latitude in regulating
student speech to further educational objectives. Thus
in Tinker, the Court held that student speech,
consisting of wearing armbands in political protest
against the Vietnam War, was protected because it
did not “ ‘materially and substantially interfer[e] with
the requirements of appropriate discipline in the
operation of the school’ [or] collid[e] with the rights
of others,” id.at 513, 89 S.Ct. 733 (quoting Burnside
v. Byars, 363 F.2d 744, 749 (5th Cir.1966)), and thus
did not “materially disrupt[ ] classwork or involve[ ]
substantial disorder or invasion of the rights of
others,” id. Student speech also may be regulated if it
is otherwise “vulgar and lewd.” See Bethel Sch. Dist.
No. 403 v. Fraser, 478 U.S. 675, 685, 106 S.Ct.
3159, 92 L.Ed.2d 549 (1986). Finally, the Supreme
Court has held that school administrators are free to
regulate and punish student speech that encourages
the use of illegal drugs. Morse v. Frederick, 551 U.S.
393, 127 S.Ct. 2618, 168 L.Ed.2d 290 (2007).
Although the Supreme Court has not dealt
specifically with a factual circumstance where
student speech targeted classmates for verbal abuse,
in Tinker it recognized the need for regulation of
speech that interfered with the school's work and
discipline, describing that interference as speech that
“disrupts classwork,”*572 creates “substantial
disorder,” or “collid[es] with” or “inva[des]” “the
rights of others.” Tinker, 393 U.S. at 513, 89 S.Ct.
733.
In Tinker, the Court pointed out at length how
wearing black armbands in protest against the
Vietnam War was passive and did not create
“disorder or disturbance” and therefore did not
interfere with the school's work or collide with other
students' rights “to be secure and to be let alone.” 393
U.S. at 508, 89 S.Ct. 733. Of course, a mere desire to
avoid “discomfort and unpleasantness” was an
insufficient basis to regulate the speech; there had to
be disruption in the sense that the speech “would
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materially and substantially interfere with the
requirements of appropriate discipline in the
operation of the school.” Id. at 509, 89 S.Ct. 733
(quoting Burnside, 363 F.2d at 749). The Court
amplified the nature of the disruption it had in mind
when it stated:
[C]onduct by [a] student, in class or out of it,
which for any reason—whether it stems from time,
place, or type of behavior—materially disrupts
classwork or involves substantial disorder or
invasion of the rights of others is, of course, not
immunized by the constitutional guarantee of
freedom of speech.
Id. at 513, 89 S.Ct. 733.
***
Thus, the language of Tinker supports the conclusion
that public schools have a “compelling interest” in
regulating speech that interferes with or disrupts the
work and discipline of the school, including
discipline for student harassment and bullying. See
DeJohn v. Temple Univ., 537 F.3d 301, 319–20 (3d
Cir.2008).
According to a federal government initiative, studenton-student bullying is a “major concern” in schools
across the country and can cause victims to become
depressed and anxious, to be afraid to go to school,
and to have thoughts of suicide. See
StopBullying.gov, available at www. stopbullying.
gov (follow “Recognize the Warning Signs”
hyperlink). Just as schools have a responsibility to
provide a safe environment for students free from
messages advocating illegal drug use, see Morse, 551
U.S. 393, 127 S.Ct. 2618, 168 L.Ed.2d 290, schools
have a duty to protect their students from harassment
and bullying in the school environment, cf. Lowery v.
Euverard, 497 F.3d 584, 596 (6th Cir.2007) (“School
officials have an affirmative duty to not only
ameliorate the harmful effects of disruptions, but to
prevent them from happening in the first place”). Far
from being a situation where school authorities
“suppress speech on political and social issues based
on disagreement with the viewpoint expressed,”
Morse, 551 U.S. at 423, 127 S.Ct. 2618 (Alito, J.,
concurring), school administrators must be able to
prevent and punish harassment and bullying in order
to provide a safe school environment conducive to
learning.
We are confident that Kowalski's speech caused the
interference and disruption described in Tinker as
being immune from First Amendment protection. The
“S.A.S.H.” webpage functioned as a platform*573
for Kowalski and her friends to direct verbal attacks
towards classmate Shay N. The webpage contained
comments accusing Shay N. of having herpes and
being a “slut,” as well as photographs reinforcing
those defamatory accusations by depicting a sign
across her pelvic area, which stated, “Warning: Enter
at your own risk” and labeling her portrait as that of a
“whore.” One student's posting dismissed any
concern for Shay N.'s reaction with a comment that
said, “screw her.” This is not the conduct and speech
that our educational system is required to tolerate, as
schools attempt to educate students about “habits and
manners of civility” or the “fundamental values
necessary to the maintenance of a democratic
political system.” Fraser, 478 U.S. at 681, 106 S.Ct.
3159 (internal quotation marks and citations omitted).
While Kowalski does not seriously dispute the
harassing character of the speech on the “S.A.S.H.”
webpage, she argues mainly that her conduct took
place at home after school and that the forum she
created was therefore subject to the full protection of
the First Amendment. This argument, however, raises
the metaphysical question of where her speech
occurred when she used the Internet as the medium.
Kowalski indeed pushed her computer's keys in her
home, but she knew that the electronic response
would be, as it in fact was, published beyond her
home and could reasonably be expected to reach the
school or impact the school environment. She also
knew that the dialogue would and did take place
among Musselman High School students whom she
invited to join the “S.A.S.H.” group and that the
fallout from her conduct and the speech within the
group would be felt in the school itself. Indeed, the
group's name was “Students Against Sluts Herpes”
and a vast majority of its members were Musselman
students. As one commentator on the web-page
observed, “wait til [Shay N.] sees the page lol.”
Moreover, as Kowalski could anticipate, Shay N. and
her parents took the attack as having been made in
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the school context, as they went to the high school to
lodge their complaint.
There is surely a limit to the scope of a high school's
interest in the order, safety, and well-being of its
students when the speech at issue originates outside
the schoolhouse gate. But we need not fully define
that limit here, as we are satisfied that the nexus of
Kowalski's speech to Musselman High School's
pedagogical interests was sufficiently strong to
justify the action taken by school officials in carrying
out their role as the trustees of the student body's
well-being.
Of course, had Kowalski created the “S.A.S.H.”
group during school hours, using a school-provided
computer and Internet connection, this case would be
more clear-cut, as the question of where speech that
was transmitted by the Internet “occurred” would not
come into play. To be sure, a court could determine
that speech originating outside of the schoolhouse
gate but directed at persons in school and received by
and acted on by them was in fact in-school speech. In
that case, because it was determined to be in-school
speech, its regulation would be permissible not only
under Tinker but also, as vulgar and lewd in-school
speech, under Fraser. See Fraser, 478 U.S. at 685,
106 S.Ct. 3159. But cf. Layshock v. Hermitage Sch.
Dist., 650 F.3d 205 (3d Cir.2011) (en banc) (holding
that a school could not punish a student for online
speech merely because the speech was vulgar and
reached the school). 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, regardless of where her speech originated,
because the speech was materially and substantially
disruptive in that it “interfer[ed] ... with the schools'
*574 work [and] colli[ded] with the rights of other
students to be secure and to be let alone.” See Tinker,
393 U.S. at 508, 513, 89 S.Ct. 733.
Given the targeted, defamatory nature of Kowalski's
speech, aimed at a fellow classmate, it created “actual
or nascent” substantial disorder and disruption in the
school. See Tinker, 393 U.S. at 508, 513, 89 S.Ct.
733; Sypniewski v. Warren Hills Reg'l Bd. of Educ.,
307 F.3d 243, 257 (3d Cir.2002) (indicating that
administrators may regulate student speech any time
they have a “particular and concrete basis” for
forecasting future substantial disruption). First, the
creation of the “S.A.S.H.” group forced Shay N. to
miss school in order to avoid further abuse.
Moreover, had the school not intervened, the
potential for continuing and more serious harassment
of Shay N. as well as other students was real.
Experience suggests that unpunished misbehavior can
have a snowballing effect, in some cases resulting in
“copycat” efforts by other students or in retaliation
for the initial harassment.
Other courts have similarly concluded that school
administrators' authority to regulate student speech
extends, in the appropriate circumstances, to speech
that does not originate at the school itself, so long as
the speech eventually makes its way to the school in
a meaningful way. For example, in Boucher v. School
Board of School District of Greenfield, 134 F.3d 821,
829 (7th Cir.1998), the Seventh Circuit held that a
student was not entitled to a preliminary injunction
prohibiting his punishment when the student wrote
articles for an independent newspaper that was
distributed at school. And again in Doninger, the
Second Circuit concluded, after a student applied for
a preliminary injunction in a factual circumstance not
unlike the one at hand, that a school could discipline
a student for an out-of-school blog post that included
vulgar language and misleading information about
school administrators, as long as it was reasonably
foreseeable that the post would reach the school and
create a substantial disruption there. See Doninger,
527 F.3d at 48–49. The court explained, “a student
may be disciplined for expressive conduct, even
conduct occurring off school grounds, when this
conduct ‘would foreseeably create a risk of
substantial
disruption
within
the
school
environment,’ at least when it was similarly
foreseeable that the off-campus expression might also
reach campus.” Id. at 48 (quoting Wisniewski v. Bd.
of Educ., 494 F.3d 34, 40 (2d Cir.2007)). Cf. J.S. ex
rel. Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915
(3d Cir.2011) (divided court assuming without
deciding that the Tinker substantial disruption test
applies to online speech harassing a school
administrator).
Thus, even though Kowalski was not physically at
the school when she operated her computer to create
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the webpage and form the “S.A.S.H.” MySpace
group and to post comments there, other circuits have
applied Tinker to such circumstances. To be sure, it
was foreseeable in this case that Kowalski's conduct
would reach the school via computers, smartphones,
and other electronic devices, given that most of the
“S.A.S.H.” group's members and the target of the
group's harassment were Musselman High School
students. Indeed, the “S.A.S.H.” webpage did make
its way into the school and was accessed first by
Musselman student Ray Parsons at 3:40 p.m., from a
school computer during an after hours class.
Furthermore, as we have noted, it created a
reasonably foreseeable substantial disruption there.
At bottom, we conclude that the school was
authorized to discipline Kowalski because her speech
interfered with the work and discipline of the school.
See *575Tinker, 393 U.S. at 513, 89 S.Ct. 733;
Doninger, 527 F.3d at 51–52.
Indeed, school administrators are becoming
increasingly alarmed by the phenomenon of
cyberbullying, and the events in this case are but one
example of such bullying and school administrators'
efforts to contain it. Suffice it to hold here that, where
such speech has a sufficient nexus with the school,
the Constitution is not written to hinder school
administrators' good faith efforts to address the
problem.
The judgment of the district court is
AFFIRMED.
C.A.4 (W.Va.),2011.
Kowalski v. Berkeley County Schools
652 F.3d 565, 271 Ed. Law Rep. 707
END OF DOCUMENT
***
V
***
*576 Kowalski asserts that the protections of free
speech somehow insulate her activities from school
discipline because her activity was not sufficiently
school-related to be subject to school discipline. Yet,
every aspect of the webpage's design and
implementation was school-related. Kowalski
designed the website for “students,” perhaps even
against Shay N.; she sent it to students inviting them
to join; and those who joined were mostly students,
with Kowalski encouraging the commentary. The
victim understood the attack as school-related, filing
her complaint with school authorities. Ray Parsons,
who provided the vulgar and lewd—indeed,
defamatory—photographs understood*577 that the
object of the attack was Shay N., and he participated
from a school computer during class, to the cheering
of Kowalski and her fellow classmates, whom she
invited to the affair.
***
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2007 WL 6158455 (C.A.2)
Page 1
For Opinion See 527 F.3d 41
United States Court of Appeals, Second Circuit.
Lauren DONINGER, P.P.A. as Guardian and Next Friend of Avery Doninger, a minor, Plaintiff-Appellant,
v.
Karissa NIEHOFF and Paula Schwartz, Defendants-Appellees,
American Civil Liberties Union of CT, Amicus Curiae.
No. 07-3885-cv.
December 6, 2007.
On Appeal from the United States District Court for the District of Connecticut, (Hon. Mark R. Kravitz, U.S.D.J.)
Reply Brief of Plaintiff-Appellant
Jon L. Schoenhorn, Esq., Jon L. Schoenhorn & Associates, LLC, 108 Oak Street, Hartford, CT 06106-1514, Tel.
(860) 278-3500, Fax (860) 278-6393, Counsel for Plaintiff-Appellant.
TABLE OF CONTENTS
III. PLAINTIFF DEMONSTRATED THAT HER FIRST AMENDMENT RIGHTS WERE VIOLATED BY
THE DEFENDANTS ... 9
A. The Defendants Fail to Distinguish Relevant Decisions of this Court and the Supreme Court ... 9
B. The Defendants' Assertion of Actual Disruption is Belied By the Record ... 11
C. Assuming Arguendo That Avery's Blog Was Offensive to the Defendants, it Still Constituted Constitutionally
Protected Speech ... 12
CONCLUSION ... 25
ARGUMENT
The plaintiff, Lauren Doninger, hereby responds to the defendants' arguments set forth in their brief.
III. PLAINTIFF DEMONSTRATED THAT HER FIRST AMENDMENT RIGHTS WERE VIOLATED BY
THE DEFENDANTS.
A. The Defendants Fail to Distinguish Relevant Decisions of this Court and the Supreme Court.
*1 The defendants' review of cases from this Court and the Supreme Court addressing the first amendment rights of
students, is seriously flawed and disingenuous. The defendants ignore the central holding in each of these important
cases, and conflate the issues presented. This suggests that the defendants lack a basis understanding of the first
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2007 WL 6158455 (C.A.2)
Page 2
amendment rights of students. Most importantly, they fail to grasp that their power over “offensive” student speech
is limited to “[t]he determination of what manner of speech in the classroom or in school assembly is inappropriate
....” Bethel School District No. 403 v. Fraser, 478 U.S. 675, 683 (1986)(emphasis supplied). Thus they make the
same unprecedented leap into blanket censorship that the district court made below, without explaining why this
Court should follow suit.
For example, in discussing the same four Supreme Court cases on student speech analyzed by the plaintiff and the
district court, the defendants ignore one overriding principle: Student speech ias analyzed under narrower standards
“in light of the special characteristics of the school environment.” Hazelwood School District v. Kuhlmeier, 484 U.S.
260, 266 (1988) (emphasis supplied), quoting Tinker v. Des Moines Independent Community School District, 393
U.S. 503 (1969). Therefore, what may be subject to censorship in school is quantitatively and qualitatively different
from similar enforcement outside the school community. Thus, the defendants' reliance on Frederick v. Morse, 551
U.S. 393, 127 S.Ct. 2618 (2007), affirming disciplinary action against a student who unfurled his “Bong Hits for
Jesus” banner, is deficient because they fail to acknowledge that if Fraser displayed his message “in a public forum
outside the school context, it would have been protected [speech].” Id. at 2622. Even the defendants' “distilled”
lessons from Guiles ex rel. Guiles v. Marineau, 461 F.3d 320, 325 (2d Cir. 2006)fail to concede the requirement of a
campus nexus that allows school officials to assert authority over student speech, because “a school may not
regulate student expression unless the regulation may be ‘justified by a showing that the student['s speech] would
materially and substantially disrupt the work or discipline of the school.’ ” Id. at 325.
***
Defendants' explanation of Wisniewski v. Board of Education of the Weedsport Central School District, 494 F.3d 34
(2d Cir. 2007), is incomplete, at they ignore a central holding of the case; id. at 39; that Wisniewski's instant
message icon not only reached the campus, but was likely to cause a “substantial disruption within the school
environment” (and did so)—requiring application of the Tinker framework. The defendants discuss only the first
prong of Wisniewski—the “reasonable foreseeability” of the communication coming to the attention of school
authorities. Def. Br. p. 33. The plaintiff certainly concedes that in the twenty-first century, any electronic posting on
any subject might reach school officials, particularly when a school administrator asks her adult son to troll the
internet looking for her name. This does not, however, give school officials the power of censorship for
communications they find offensive. In fact, this is no different than predicting that a satirical off-campus newspaper
might reach school administrators—speech that is clearly beyond the reach of a principal's disciplinary powers. See
Thomas v. Board of Ed., Granville Central School District, 607 F.2d 1043 (2d Cir. 1979). Therefore, the Tinker
disruption component is a critical finding that is not only glaringly absent from the facts of this case, but, alas, from
the defendants' analysis, as well.
B. The Defendants' Assertion of Actual Disruption is Belied By the Record.
*2 The defendants further claim that the need to question Avery and the other student council leaders about their
April 24th e-mail is some evidence of the blog's disruptive impact on the school is particularly specious. Since the
defendants did not learn about the livejournal.com posting until weeks later, and then waited eight more days to
discuss it with Avery, their claim—in contravention of the district court finding—that it caused disruption is just
patently false, providing no basis to justify discipline. See Amicus Brief of the Center for First Amendment Rights,
Inc. (hereinafter “CFAR”) at pp. 17-19. Moreover, the defendants misstate the record when they claim that the blog
was “extensively distributed” and that “certainly more than fifteen people read” it. Def. Br. pp. 34-35. No evidence
supports these assertions at all. Only three people were known to have viewed the posting. Pl. Exh. 2 (J.A. 67). The
defendants' reference to page 56 of its supplemental appendix fails to support their contrary claim.
***
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Page 3
C. Assuming Arguendo that Avery's Blog was Offensive to the Defendants, it Still Constituted
Constitutionally Protected Speech.
*3 The defendants also argue that the use of the term “douchebags” was “unquestionably vulgar,” citing to the online MSN ENCARTA Dictionary; Def. Br. p. 36. They then conclude, citing F.C.C. v. Pacifica Foundation, 438
U.S. 726, 746 (1978), that “Avery's vulgar speech is not protected by the First Amendment.” Def. Br, p. 38. Once
again, the defendants fail to grasp the heightened constitutional protection given to impolite words—even
obscenity—in the course of communication. They fail to distinguish between the broadcast industry regulations
examined in Pacifica and written journals created by individuals. While the plaintiff assumes arguendo that the term
“douchebags” may be offensive or even “inappropriate” in certain contexts, and that Schwartz was offended by the
reference, that does not lessen the importance or constitutional protection of Avery's blog; nor does it diminish the
role of the plaintiff as parent in deciding what—if any—consequences would befall her daughter for typing it.
First, the plaintiff rejects the characterization that Avery's posting—including the use of the term “douchebags”—
was inherently “vulgar.” The term regularly appears in prime-time network television shows. To be sure, the
defendants cite to the on-line ENCARTA Dictionary as its source for the proposition that the term is “highly
offensive” and “taboo.” Def. Br. p. 36. What the defendants neglect to mention is that the ENCARTA website is a
resource for school children. Its website content policy states, in relevant part:
Encarta takes seriously its responsibilities both to encourage learning and to respect the role of parents in their
children's education. We have rated our dictionary content according to the guidelines of the Internet Content Rating
Association (ICRA). You can set your Internet browser to help block potentially objectionable material, including
dictionary entries that may be considered offensive.
http://encarta.msn.com/encnet/features/dictionary/dictionaryhome.aspx.
The aforementioned ICRA, in turn, is an organization geared towards children's access to the internet:
ICRA (formerly the Internet Content Rating Association) is part of the Family Online Safety Institute, an
international, non-profit organization of internet leaders working to develop a safer internet... ICRA has long
believed that self-regulation leads to the best balance between the free flow of digital content and protecting
children from potentially harmful material.
Users, especially parents of young children, can then use filtering software to allow or disallow access to web sites
based on the information declared in the label. A key point is that ICRA does not rate internet content—the content
providers do that, using the ICRA labeling [sic] system. ICRA makes no value judgment about sites.
http://www.fosi.org/irca/ (emphasis supplied).
Thus, the defendants' reference choice hardly qualifies as authoritative on the subject of vulgarity, and certainly does
not apply either to Livejournal.com's website or to Avery's specific posting from home. Moreover, defendants ignore
the fact that a primary purpose of ENCARTA as an on-line resource is to “respect the role of parents in their
children's education”—something lacking in their actions toward Avery in this case. [FN4]
FN4. The defendants' reliance on a New York Times editorial as proof that the term “douche bag” is
“vulgar,” not only misses the point made in the editorial about the sanctity of speech, but is otherwise
irrelevant to the instant analysis. Whether or not calling someone a “douche bag” during a heated argument
might constitute “fighting words” (which fall outside first amendment protection under Chaplinsky v. New
Hampshire, 315 U.S. 568 (1942)), this is clearly different than using a pejorative term to describe
unidentified officials as part of a broader on-line posting seeking public reaction to an official's decision.
See, e.g. Cohen v. California, 403 U.S. 15 (1971) (upholding the right of [a] citizen to wear [a] “Fuck the
Draft” shirt in public area as a political statement, despite the high likelihood that the term will offend most
citizens).
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
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Page 4
Anticipating the defendants' instant argument, the plaintiff set forth in her original brief, at pages 24-27, how
Avery's internet blog was a political message designed to address the use of taxpayer-funded facilities and to rally
public support by asking citizens to contact public officials. The blog, therefore, occupies the “highest rung of the
hierarchy of First Amendment values. Yet, its political nature is only relevant because it is at the core of what the
First Amendment was designed to protect; Virginia v. Black, 538 U.S. 343, 365 (2003); and its censorship deserves
more scrutiny, perhaps, than other more mundane types of student speech. However, even if the Court were to
conclude, to the contrary, that Avery's speech was not political in nature, the outcome here would be the same under
Guiles, supra, 461 F.3d at 326 (rejecting notion that student's speech must address a matter of public concern in
order to merit First Amendment protection and noting that “Tinker applies to all non-school-sponsored student
speech that is not [within the Tinker prohibitions].” See, also, CFAR Br. pp. 15-16. In any event, the defendants fail
to address the Guiles Court's judicial limitation on—and the inability to give a “precise definition” of—what
constitutes “plainly offensive” and “vulgar” language. Id. at 327. See also Pl. Br. pp. 43-44.
As Amicus CFAR argues, school officials could conceivably cross the campus boundary and reach into the plaintiff's
home “only if the non-disruptive, off-campus vulgarity undermined the school's educational mission”—which
necessarily ends at “the schoolhouse gate.” CFAR Br., p. 13. The defendants' bold and unconstitutional reach into
Avery's bedroom to censor and punish her for a written communication, is likely to cause (and may have already
caused) a chill to countless other students, who will fear punishment for what they say or write outside school,
because some priggish and thin-skinned school official may deem it “offensive.” As Amicus Thomas Jefferson
Center for the Protection of Free Expression (hereinafter “TJC”) aptly notes, “The potential reach of such a concept
seems virtually limitless. Every off-campus or underground newspaper or magazine would seem equally vulnerable
to school sanctions.” TJC Brief, p. 11.[FN5]
FN5. A plausible scenario suggested here by plaintiff illustrates the untenable nature of defendants'
position. Conceivably, under the authority they proclaim, another student could lose her student council
seat if the principal overheard her uttering an offensive word in the school parking lot. The defendants
might even have a stronger argument because that speech occurred on campus. However, that position is
not consistent with prior precedent. Unlike the captured audience in attendance during the assembly in
Fraser, supra, public school officials cannot take random disciplinary action against students because they
over hear some offensive words, even on campus outside of class or the auditorium, without running afoul
of the first amendment. Otherwise any student could be targeted arbitrarily for discipline.
CONCLUSION
*4 For the foregoing reasons, for the reasons set forth in plaintiff's original brief, as well as for all the reasons set
forth in the briefs of amici curiae, the plaintiff respectfully requests that this Court reverse the decision of the district
court.
Lauren DONINGER, P.P.A. as Guardian and Next Friend of Avery Doninger, a minor, Plaintiff-Appellant, v.
Karissa NIEHOFF and Paula Schwartz, Defendants-Appellees, American Civil Liberties Union of CT, Amicus
Curiae.
2007 WL 6158455 (C.A.2 ) (Appellate Brief )
END OF DOCUMENT
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Florida Law Review
December, 2008
Dunwody Distinguished Lecture in Law
Articles
STUDENT SPEECH RIGHTS IN THE DIGITAL AGE
Mary-Rose Papandrea [FNa1]
Copyright (c) 2008 Florida Law Review; Mary-Rose Papandrea
*1028 I. Introduction
Last year, the Supreme Court missed an opportunity to determine whether public schools have authority to
restrict student speech that occurs off school grounds. In Morse v. Frederick, [FN1] Joseph Frederick unfurled a
banner proclaiming “BONG HiTS 4 JESUS” during the Olympic torch relay as it passed through his hometown in
Alaska. [FN2] Although the Court noted that “[t]here is some uncertainty at the outer boundaries as to when courts
should apply school-speech precedents,” it paid little attention to Frederick's argument that the school lacked
authority to restrict his speech because he displayed his sign on a public sidewalk, off school property, at *1029 an
event attended by the general public. [FN3] Instead, the Court accepted the school's contention that Frederick was
under its authority at the time of the parade because the students attended the parade as part of a school-sanctioned
activity. [FN4]
*1029 The Court's refusal to address Frederick's argument was unfortunate. For several decades lower courts
have struggled to determine when, if ever, public secondary schools should have the power to restrict student
expression that does not occur on school grounds during school hours. [FN5]In the last several years, courts have
struggled with this same question in a different context—the digital media. Around the country, increasing numbers
of courts have been forced to confront the authority of public schools to punish students for speech on the Internet.
In most cases, students are challenging punishments they received for creating fake websites mocking their teachers
[FN7] or school administrators [FN8] or for making offensive comments on websites or in instant messages. [FN9]
*1030Permitting school officials to restrict student speech in the digital media expands the authority of school
officials to clamp down on juvenile expression in a way previously unthinkable. For young people today, digital
media is an essential part of their everyday lives. Almost all of them are accessing websites on the Internet; many
have social networking sites, produce and edit videos to post on YouTube.com and elsewhere, and engage in instant
messaging. In addition, the use of cell phones—particularly sending text messages and taking photographs and video
footage—has become an increasingly important way in which young people communicate with each other. The
importance of these new technologies to the development of not only their social and cultural connections but also
their identities should not be underestimated.
Although Morse provided little guidance to lower courts confronting off-campus student speech cases, it did
continue the trend of the Court to move away from the robust vision of student speech rights it embraced in Tinker
v. Des Moines Independent School District [FN10]—rights that could be overcome only in the most compelling of
circumstances—in favor of emphasizing the need to defer to school authorities. [FN11] In Morse, the Court held that
it was constitutional for a school to restrict Frederick's “BONG HiTS 4 JESUS” banner because the school had
reasonably regarded the sign as promoting illegal drug use. [FN12] Although the Court explicitly stated that its
decision was limited to student speech concerning illegal drug use, [FN13] as a theoretical matter it is difficult to
accept such a narrow view of the holding. Instead, the decision emphasizes the control and responsibility schools
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have over their students and the need for courts to defer to the decisions of school officials. [FN14]
The decision in Morse, as well as the dramatic increase in the number of student speech cases involving the
digital media, begs for a closer examination of the scope of school officials' authority to censor the expression of
minors as well as the scope of juvenile speech rights generally. Permitting schools to restrict student speech in the
digital media would necessarily interfere with the free speech rights juveniles enjoy when they are outside the
schoolhouse gates. Those scholars who support *1031 censorship to protect children do not contend that children
fall entirely outside the protection of the First Amendment, but some have argued that they are entitled to lesser or
reduced rights. [FN15] Some point to the line of Court decisions upholding efforts to protect minors from sexually
explicit expression as evidence that minors have limited speech rights. [FN16] Others contend that the theoretical
justifications for the First Amendment—the promotion of self-government, the search for truth in the marketplace of
ideas, and the fostering of autonomy and self-fulfillment—apply with limited force to minors and warrant reduced
protection. [FN17] For their part, various members of the Supreme Court have suggested that the need to defer to
school officials outweighs student speech rights due to the importance of supporting parental decision-making, the
in loco parentis doctrine, the inherent differences between children and adults, and the so-called “special
characteristics” of the school environment. [FN18]
***
*1038 III. Student Speech Rights
When the Court first approached student speech right cases, it did so with the understanding that minors were
entitled to full constitutional rights that might need to be adjusted slightly given the context of the school
environment. The Court tended to emphasize the role of parents, rather than the public schools, in inculcating
democratic values. In its more recent student speech cases, the Court has retreated from its defense of student speech
rights in favor of emphasizing deference to school authorities.
A. The Early Cases
***
The Court offered students strong speech right protections in Tinker v. Des Moines Independent Community
School District in 1969. [FN73]*1039The Supreme Court viewed the case as a conflict between the speech rights of
students and the need for schools to control conduct in schools. [FN78] On the one hand, the Court explained, “[i]t
can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or
expression at the schoolhouse gate.” [FN79] To support this point, the Court cited a long line of due process clause
decisions striking down statutes that interfered with the liberty of teachers, parents, and students. [FN80] On the
other hand, the Court recognized the need “for affirming the comprehensive authority of the States and of school
officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools.”
[FN81]
The Court ultimately struck the balance in favor of the students, holding that there was “no evidence whatever
of petitioners' interference, actual or nascent, with the schools' work or of collision with the rights of other students
to be secure and to be let alone.” [FN82] Although outside the classrooms a few students made hostile remarks to
the students wearing armbands, no violence or threats of violence occurred on school premises. [FN83] Citing
Terminiello v. City of Chicago, [FN84] the Court explained that schools cannot repress student speech based on
“undifferentiated fear or apprehension of disturbance,” [FN85] even though “[a]ny word spoken, in class, in the
lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a
disturbance.” [FN86]
*1040 In perhaps the most strongly worded portion of the majority opinion, Tinker declared that schools
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cannotbe “enclaves of totalitarianism” with “absolute authority over their students.” [FN87]*1041 Instead, student
speech, whether in the classroom or on the playground, is an important part of the “marketplace of ideas,” [FN90]
and “personal intercommunication among the students” is “an important part of the educational process.” [FN91]
The Court tempered its broad defense of student speech rights by recognizing that such rights must be “applied
in light of the special characteristics of the school environment.” [FN93] The Court gave schools leeway to restrict
student speech rights if the speech at issue would cause “material and substantial interference with schoolwork or
discipline,” [FN94] or “invasion of the rights of others.” [FN95] The Court concluded that the school failed to prove
that the “silent, passive” wearing of black armbands met this standard. [FN96] Although the armbands provoked
discussion, they did not cause a disruption. [FN97]
*1042 In dissent, Justice Black argued that although he believed the government has no authority to
regulate the content of speech, he had “never believed that any person has a right to give speeches or engage in
demonstrations where he pleased and when he pleases,” [FN101] and that students are sent to public school “to
learn, not teach.” [FN102] He viewed the black armbands as significantly disruptive to the school day; even though
the students wearing the armbands did not make obscene remarks or behave in a boisterous manner, they provoked
comments and warning from other students, they “practically ‘wrecked”’ a mathematics class, and they certainly
diverted the students' attention from their classwork. [FN103] In addition, Justice Black emphasized the importance
of school discipline as “an integral and important part of training our children to be good citizens—to be better
citizens.” [FN104] He argued that by striking down the armband regulation, the Court had inappropriately taken into
its own hands the control of the school environment that should rest in the discretion of school officials. [FN105]
***
B. From Fraser to Morse
*1045 In its more recent student speech cases, the Court has retreated from its broad protection of student
speech rights in Tinker and has instead become increasingly deferential to school officials who punish students for
their expressive activities.
In Bethel School District No. 403 v. Fraser, [FN138] the Court took a much more restrictive view of student
speech rights than it had in Tinker and gave great deference to school officials to censor student speech in the name
of promoting “socially appropriate behavior.” [FN139] In that case, Chief Justice Burger, writing for the majority,
upheld a school's decision to discipline a high school student who had given a speech with a sexual metaphor and
suggestive innuendos when nominating a fellow student for elective office at a school assembly. [FN140]
*1046 Although the Court majority gave lip service to Tinker's declaration that “students do not ‘shed their
constitutional rights to freedom of speech or expression at the schoolhouse gate,”’ [FN144] Fraser was less
concerned with students' free speech rights than with deferring to the school's “basic educational mission” [FN145]
to inculcate the “‘fundamental values necessary to the maintenance of a democratic political system.”’ [FN146] The
Court explained that although democratic values include “tolerance of divergent political and religious views,” they
also include “teaching students the boundaries of socially appropriate behavior.” [FN147] The Court majority
emphasized that in this case, unlike Tinker, “the penalties imposed . . . were unrelated to any political viewpoint.”
[FN148] Famously stating that “‘the First Amendment gives a high school student the classroom right to wear
Tinker's armband, but not Cohen's jacket,”’ [FN149] the Court made clear that the free speech rights of students
were not co-extensive with the rights of adults. [FN150] The Court also stated that federal courts should defer to the
school board's determination of what speech is appropriate in a school assembly. [FN151]
Although the Court noted that some students in the audience “hooted and yelled” and “graphically simulated the
sexual activities pointedly alluded to in respondent's speech,” and that one teacher was required to devote part of her
lecture to a discussion of the speech, [FN152] its decision did *1047 not rest on an application of Tinker's
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substantial disruption standard. [FN153] Instead, the Fraser decision echoed the concurring and dissenting opinions
in Tinker almost twenty years earlier. The Fraser majority opinion followed Justice Black's argument in his Tinker
dissent that the Court must give school officials deference to maintain discipline in their institutions; indeed, the
Court even cited a lengthy passage from Justice Black's dissent to support its argument. [FN154]
***
*1048 In a dissenting opinion, Justice Marshall criticized the Court for not requiring the school to satisfy
Tinker's materially disruptive standard. He stated that although “the school administration must be given wide
latitude to determine what forms of conduct are inconsistent with the school's educational mission . . . where speech
is involved, we may not unquestioningly accept a teacher's or administrator's assertion that certain pure speech
interfered with education.” [FN163]
***
*1051 In its next student speech case, Hazelwood School District v. Kuhlmeier, [FN173] the Court upheld a
public school's decision to censor a student newspaper, created as part of a journalism class, that contained articles
about pregnant students and the effect of divorce on students at the school. [FN174] The Court held that schools had
broad authority to restrict the “expressive activities that students, parents, and members of the public might
reasonably perceive to bear the imprimatur of the school.” [FN175] The Court made it clear that the school's
authority to curb such speech was not limited to expression that substantially interfered with its work or with the
rights of other students. [FN176] Instead, drawing on Fraser's broad language suggesting that federal courts should
defer to school administrators' decisions to restrict speech that is “inconsistent with its ‘basic educational mission,”’
[FN177] the Court held that educators are permitted to control student speech in school-sponsored activities
provided that “their actions are reasonably related to legitimate pedagogical concerns.” [FN178] The Court said that
this conclusion was consistent with its longstanding view that “the education of the Nation's youth is primarily the
responsibility of parents, teachers, and state and local school officials, and not of federal judges.” [FN179] Justice
Brennan, joined by Justices Marshall and Blackmun, authored a lengthy dissent in which he attacked the majority
for abandoning the fundamental principles of Tinker. [FN180]
*1052 In Morse v. Frederick, [FN183] the Supreme Court's first student speech case in twenty years, the Court
held that it is constitutional for a school to restrict student speech that is reasonably regarded as promoting illegal
drug use. [FN184] The Court concluded that even though the phrase might be “[g]ibberish,” the principal's
interpretation of the banner as promoting illegal drug use was “plainly a reasonable one,” [FN189] particularly given
its “undeniable reference to illegal drugs.” [FN190] Similar to its decision in Fraser, the Court rejected arguments
that the principal had restricted speech conveying a political or religious message, proclaiming that “this is plainly
not a case about political debate over the criminalization of drug use or possession.” [FN192]
In reaching its conclusion, the Court made clear that Tinker's materially disruptive analysis was not the only
governing standard for permissible restrictions of student expression. [FN193] Instead, the Court emphasized that
the important principle flowing from Tinker and Fraser is that students in public schools simply do not enjoy the
same level of constitutional rights as adults due to the “‘special characteristics of the school environment.”’ [FN194]
***
While the school won the case, it did not win on all its legal arguments. The school and several of its supporting
amici had argued for an expansion of Fraser that would permit public schools to restrict not just lewd or obscene
speech but any student expression that they might determine to be offensive to the school's educational mission.
[FN199] In rejecting this argument, the majority expressed concern that “much political and religious speech might
be perceived as offensive to some.” [FN200]
***
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*1053 Although the Court emphasized that its holding in Morse was limited to speech concerning illegal drug use,
[FN218] it is hard to accept such a narrow view of the holding as a theoretical matter. Indeed, some lower courts
have held that a school may now restrict the expression of its students whenever school officials reasonably believe
that the speech is harmful or threatening to the students.
***
*1054 IV. Lower Court Treatment of Student Speech in the Digital Media
The Court's school cases provide little direct guidance to the lower courts concerning the authority of school
officials to punish student speech involving the digital media. On the one hand, all the Court's school speech cases to
date have involved speech on school grounds or during a school-sponsored activity; this fact arguably renders all
their cases inapplicable to digital speech, which typically is created, shared, and viewed off the school grounds.
[FN221] On the other hand, the Court's increasing deference to school administrators indicates that the Court is
willing to give schools wide berth when it comes to disciplining their students for their expression, regardless of
which medium they use. As a result of the lack of clear guidance from the Court, it is perhaps not surprising that the
lower courts have reached different conclusions on student speech rights in the digital age.
A. Guidance—or Lack Thereof—from the Supreme Court
Although in Morse the Court had an opportunity to offer some guidance on schools' authority to restrict speech
outside school grounds, it dodged the issue. In that case, the student had argued that the school lacked authority to
restrict his speech because he displayed his sign on a public sidewalk, off school property, at an event attended by
the general public. [FN224] The Court gave short shift to this argument and instead accepted the school's contention
that the students were participating in a school-*1055 sanctioned activity with adult supervision and that accordingly
it was a typical school speech case. [FN225] At the same time, the majority recognized that “[t]here is some
uncertainty at the outer boundaries as to when courts should apply school-speech precedents, but not on these facts.”
[FN226] Only Justice Alito's concurring opinion suggested that a distinction between on-campus and off-campus
speech might be warranted. He argued that the reason schools have greater leeway to regulate student expression is
that parents are not present during school hours to protect and guide their children, who “may be compelled on a
daily basis to spend time at close quarters with other students who may do them harm.” [FN227] In contrast, Justice
Alito argued, when students are away from school, “parents can attempt to protect their children in many ways and
may take steps to monitor and exercise control over the persons with whom their children associate.” [FN228]
Morse effectively expanded the school's authority to punish student expression, and this holding could have
ramifications for speech on the Internet. Morse gave tremendous deference to school officials' interpretation of the
meaning and likely effect of student speech. [FN231] The Court's apparent willingness to continue to expand the
power of school officials to punish student expression indicates that, at least on a theoretical basis, the Court might
be willing to give schools broader authority.
B. Various Approaches of the Lower Courts
*1056 Given that all the Supreme Court's student speech cases involve speech on campus or during a schoolsponsored activity, it is not surprising that some lower courts confronting a student speech issue first ask whether the
expression at issue can be considered on-campus or off-campus speech. [FN233] Among those courts grappling with
this question, two general approaches to answering it have developed. The first is to consider whether the speech at
issue is physically on campus, which can mean that it was accessed by someone electronically on campus or that a
copy of the speech at issue was brought onto campus. [FN234] The second, more expansive approach is to consider
whether the speech is either “aimed” at the school or whether it should have been “reasonably foreseeable” to the
student that the speech would come to the attention of the school authorities. [FN235]
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1. Territorial Approach
*1057 Many courts confronting a student speech case first consider whether the student-speaker used school
computers or servers to create, print, or view the expression, or whether they or other students brought hard copies
of the material onto the school's campus. [FN237]
*1058 Most courts taking this sort of territorial approach make clear that it must be the student-speaker
himself—and not another pupil or school administrator—who has accessed the speech at school or otherwise caused
the speech or a copy of it to physically appear on campus. [FN238] In other words, for these courts the speech
cannot become on-campus speech simply whenever a third party or a school official brings or accesses the material
on the Internet at school. [FN239]
***
*1059In J.S. v. Bethlehem Area School District, [FN256] the Pennsylvania Supreme Court applied the
territorial approach to a website. The court held that speech will be considered on-campus speech “where speech
that is aimed at a specific school and/or its personnel is brought onto the school campus or accessed at school by its
originator.” [FN257] Applying this rule to the case before it, the court concluded that a student's website was oncampus speech because although the student had created the objectionable “Teacher Sux” website off campus, he
had accessed the website at school, shown it to another student, and told other students about his website. [FN258]
2. More Expansive “Directed” and “Foreseeable” Approaches
Other courts have been willing to conclude that student speech constitutes on-campus speech whenever the
student has directed his speech to campus, or when it is reasonably foreseeable that the speech will come to the
attention of school authorities. [FN259]
A panel of the Second Circuit took this expansive approach in Wisniewski v. Board of Education. [FN260] Led
by Judge Newman, [FN261] the panel *1060 held that a school can apply the Tinker standard to student speech on
the Internet as long as there is a “reasonably foreseeable risk that [the speech] would come to the attention of school
authorities . . . .” [FN262] Judge Newman held that it was constitutional for a public school to punish eighth-grade
student Aaron Wisniewski for sending instant messages from his home computer to fifteen friends (some of whom
were classmates) with an icon depicting a pistol firing a bullet at a person's head and the words “‘Kill Mr.
VanderMolen,”’ Wisniewski's English teacher. [FN263] Although Wisniewski did not IM his teacher or any other
school official, VanderMolen learned about his icon when another student heard about the icon and told the teacher
about it. [FN264]
***
Wisniewski's family filed a lawsuit on his behalf, arguing among other things that the icon was protected speech
under the First Amendment and did not constitute a “‘true threat.”’ [FN270] The district court granted the summary
judgment to the school, [FN271] and the Second Circuit upheld the decision on appeal. [FN272] Judge Newman,
writing for the panel, emphasized that “[t]he fact that [the student]'s creation and transmission of the IM icon
occurred away from school property does not necessarily insulate him from school discipline.” [FN273] Judge
Newman explained that the Tinker *1061 standard governed because it was “reasonably foreseeable” that
Wisniewski's icon would come to the attention of school authorities and that it would “‘materially and substantially
disrupt the work and discipline of the school.”’ [FN274]
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***
*1062 In a subsequent case, another panel of the Second Circuit refined this “reasonably foreseeable” test. In
Doninger v. Niehoff, [FN280] junior class secretary Avery Doninger was frustrated with a decision of school
officials regarding a music festival she had been planning and wrote about her concerns on her blog at
Livejournal.com. [FN281] On this publicly accessible website, she called school officials “‘douchebags”’ and asked
students and parents to call the school to complain. [FN282] When school officials learned about the comments
Doninger had made on her website, they punished her by disqualifying her from running for class secretary during
her senior year. [FN283]
The district court rejected her claim on two separate grounds. First, the district court concluded that because
Doninger was not suspended or expelled from school but simply barred from participating in an extracurricular
activity, neither Tinker nor Fraser applied. [FN284]Second, in an alternative holding, the district court concluded
that the school had broad authority to restrict Doninger's blog because it could be considered on-campus speech
under Wisniewski's “reasonably foreseeable” test. [FN287]
***
Given that the blog could be considered on-campus speech, the court held *1063 that the school could restrict it
under Fraser because it interfered with the school's “‘highly appropriate function . . . to prohibit the use of vulgar
and offensive terms in public discourse.”’ [FN289]
***
On appeal, the Second Circuit affirmed the district court's decision, but on more narrow grounds. [FN292]
Holding that the Tinker standard was sufficient to resolve the case, the court declined to determine whether offcampus student speech could be restricted under Fraser. [FN293] Like the district court, the Second Circuit first
concluded that it was “reasonably foreseeable” that Doninger's blog posting, although created off-campus, would
reach the campus.” [FN294] After concluding that it was reasonably foreseeable that Doninger's speech would reach
campus, the court concluded that the school could punish her under Tinker because it was foreseeable that her post
would create a risk of substantial disruption at the school. [FN296]*1064 Like the district court, the Second Circuit
hedged the scope of its decision by noting that it had “no occasion to consider whether a different, more serious
consequence than disqualification from student office would raise constitutional concerns.” [FN302]
***
4. Inconsistent Application of Tinker
*1065 The lower courts are all over the map in the way in which they apply Tinker's requirement that the
expression cause a material-and-substantial disruption or interfere with the rights of others. This confusion indicates
that one key to determining whether schools can restrict student expression is to decode Tinker itself.
Some courts conclude that Tinker's material-and-substantial disruption standard is met when other students
distribute, read, and react to the material at issue, or even when only the school administration reacts to the speech.
For example, in one Minnesota case, a district court concluded that the school had demonstrated that an underground
newspaper distributed in the school lunchroom caused a substantial disruption of school activities when students
other than the plaintiffs disrupted the classes that followed “by passing around, reading, and reacting to plaintiff's
paper.” [FN308]
***
*1066 Other courts have applied the material disruption standard much more strictly. [FN314] For example, in
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Klein v. Smith, [FN315] a student gave a teacher the finger at a restaurant parking lot after school hours. [FN316] A
district court in Maine rejected the teacher's claim, supported by his colleagues, that this gesture undermined the
ability of the teacher to discipline students at school. [FN317]
***
*1067 Unfortunately, most courts that apply the Tinker standard are far too deferential to the schools' claims
that the speech at issue caused a reasonable fear of a substantial disruption. [FN324]
***
5. Hesitancy to Apply Fraser
*1069 One interesting wrinkle in many of the digital student speech cases is that several courts that are perfectly
willing to extend Tinker to digital speech have been hesitant to apply Fraser to the same expressive activity.
[FN345] For example, in Killion v. Franklin Regional School District, [FN346] a district court found that the Tinker
standard applied equally to on-campus and off-campus speech, [FN347] but that the Fraser prohibition against
profanity did not apply to speech that “occurred within the confines of [the student]'s home, far removed from any
school premises or facilities.” [FN348]
Although these courts do not provide a detailed analysis of their reasoning, it may be that courts are more
reluctant to apply Fraser to off-campus speech than Tinker because at least Tinker requires a showing that the
expression disrupted or could reasonably be expected to disrupt school activities; Fraser does not. [FN355] In other
words, courts must recognize that even if they conclude that the Tinker test applies to off-campus speech, that test
still requires schools to meet the substantial disruption standard prong of Tinker. As a result, some courts applying
Tinker to Internet speech have nevertheless rejected the authority of school officials to regulate that speech when
officials fail to demonstrate that it materially disrupted the school. [FN356]
***
B. An Examination of the Various Justifications
*1070 Courts and commentators offer at least five different justifications for permitting schools to restrict the
speech rights of their students: (1) First Amendment theory; (2) the differences between adults and children; (3) the
need to provide support to parents; (4) the in loco parentis doctrine; and (5) the “special characteristics” of the
school environment. A close examination of these various theories reveals that none of them can support broad
authority of a school to restrict student speech in the digital media.
***
VI. Rethinking Student Speech Rights in the Digital Age
*1089 Allowing school officials to have the authority to punish students for expression that they create on
digital media, typically when they are away from school, begs the question what sort of free speech rights juveniles
in our society enjoy generally. Although minors are plainly subject to the control of their parents, it does not
necessarily follow that they should also be subject to the control of their schoolmasters.
Determining whether school officials have the authority to punish digital student expression would not be so
difficult if we decided that minors simply do not enjoy full speech rights outside the schoolhouse gates; however, the
Court has never taken this position and it lacks a sound basis in constitutional law.
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***
*1090 In student speech cases involving the digital media, courts have typically focused on whether the speech
at issue could be considered on-campus speech, or they have simply applied Tinker's material-and-substantial
disruption test. Applying the Tinker test to all speech, whether digital or not, has some intuitive appeal, but this
approach is likewise unsatisfying because it gives schools far too much authority to restrict juvenile speech rights.
A. Criticism of Territorial Approaches
*1091 Many courts facing a student speech case ask as a threshold matter whether the speech can be considered
on-campus or off-campus expression. In making this determination, some courts consider whether the digital speech
was accessed on campus, whether the speech was directed to campus, or whether it was reasonably foreseeable that
the speech would come to the attention of school authorities. All three approaches give schools too much authority
to restrict juvenile speech rights generally.
***
B. Application of Tinker is Inappropriate
*1092 The application of Tinker's materially and substantially disruptive standard to all digital speech is also a
tempting but ultimately unsatisfying approach. As a threshold matter, lower courts applying the Tinker standard
have tended to give substantial deference to a school's determination that the challenged expressive activity was in
fact substantially and materially disruptive. As a result of this deference, schools are engaging in the sort of
standardless discretion that is anathema to the First Amendment. [FN491] But *1093 even if courts rigorously
applied Tinker's materially disruptive standard, a fundamental problem would remain: the Tinker approach to
student speech is ill-suited to deal with off-campus expression.
***
More fundamentally, applying Tinker's disruption standard to digital speech permits school officials to
exercise too much control over juvenile expression generally. Lots of off-campus speech and conduct can distract
students from their schoolwork. [FN492] It would be unthinkable to permit school officials to control their students'
access to television shows, movies, public libraries, and other materials on the Internet.
***
VII. Conclusion
*1101 The rise of student speech in the digital media provides a perfect opportunity to reconsider the free
speech rights of minors and the authority of school officials to restrict their expression. The three primary
justifications given for the protection of the freedom of speech—the promotion of democratic self-government, the
search for truth in the marketplace of ideas, and the fostering of autonomy and self-fulfillment—all point in the
direction of protecting adolescent speech on and off school grounds.
***
*1102 Having concluded that minors are entitled to robust speech rights, this Article argues that schools should
have very little authority to restrict student speech in the digital media. Most courts confronting a student speech
case ask as a threshold question whether the speech at issue can be considered “on-campus” speech. Some courts
apply a territoriality test that asks whether the speech literally appeared on school grounds. Although such an
approach has the benefit of forbidding a school to restrict the bulk of student speech in the digital media, its rigidity
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has led some courts to reject it. Instead, recently some courts have held that student speech can be considered oncampus speech whenever it is reasonably foreseeable that it will come to the attention of school officials. This
approach threatens to grant schools virtually unlimited authority to restrict student expression because it is arguably
foreseeable that virtually any speech that concerns the school, its personnel, or its students will come to the attention
of school officials.
The application of Tinker's materially disruptive standard-regardless of whether it is preceded with an inquiry
into whether the speech is properly labeled “on-campus” or “off-campus” speech-provides little protection to
students' expressive rights. The Tinker test is ill-suited to speech in the digital media. Many off-campus events and
activities can distract students from their work, but it would make no sense to permit schools to serve as a cultural
censor. Schools plainly lack authority to prevent their students from watching the latest television show or playing
the newest video game; schools should likewise have no authority to restrict the distracting expression their students
create.
***
[FNa1]. Assistant Professor, Boston College Law School.
[FN1]. 127 S. Ct. 2618 (2007).
[FN2]. Id. at 2622.
[FN3]. Id. at 2622, 2624.
[FN4]. Id. at 2624.
[FN5]. This Article does not concern the speech rights of private school students. Because the protections of the
First Amendment do not apply unless the entity restricting the freedom of expression is a state actor, private school
students cannot claim that their schools have infringed upon their free speech rights under the U.S. Constitution.
See, e.g., Brentwood Academy v. Tennessee Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001) (noting that
the Constitution applies only to state actors). This Article also does not concern the First Amendment rights of
public university students. As adults, they are entitled to the full protection of the First Amendment, and courts have
rejected as unconstitutional attempts to restrain student speech rights in hate speech codes. See, e.g., UWM Post,
Inc. v. Bd. of Regents, 774 F. Supp. 1163, 1166, 1181 (E.D. Wis. 1991); Doe v. Univ. of Mich., 721 F. Supp. 352
(E.D. Mich. 1989). This Article addresses only the rights of public secondary school students.
[FN7]. See, e.g., M.K. v. Three Rivers Local Sch. Dist., No. 1:07CV1011 (S.D. Ohio Dec. 28, 2007) (granting
preliminary injunction to students who were expelled for creating and posting a parody profile of a teacher on
Facebook.com); Requa v. Kent Sch. Dist. No. 415, 492 F. Supp. 2d 1272, 1273-74 (W.D. Wa. 2007) (rejecting
student's request for a temporary injunction enjoining his school from suspending him for posting video mocking his
teacher on YouTube.com).
[FN8]. Snyder v. Blue Mountain Sch. Dist., 2008 WL 4279517 (M.D. Pa. Sept. 11, 2008) (rejecting First
Amendment claims of student who created fake personal profile for principal on MySpace.com); Layshock v.
Hermitage Sch. Dist., 496 F. Supp.2d 587 (W.D. Pa. 2007) (granting summary judgment in favor of student who
claimed school violated his First Amendment rights by punishing him after he created an unflattering mock profile
of his principal on MySpace.com); see also Moriah Balingit, Ind. High School Student Punished for Calling
Administrator an “Ass” on Facebook, Student Press Law Center (Oct. 12, 2007), available at
http://splc.org/newsflash_archives.asp? id=1627&year=2007.
[FN9]. See, e.g., Doninger v. Niehoff, 514 F. Supp. 2d 199, 202, 206 (D. Conn. 2007) (upholding punishment of
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student who called school principal a “‘douchebag[]”’ on her social networking website); see also Wisniewski v. Bd.
of Educ., 494 F.3d 34, 35 (2d Cir. 2007), cert. denied, 128 S. Ct. 1741 (2008) (upholding the suspension of student
based on a crude but threatening sketch of his teacher that the student attached to the instant messages that he sent
only to his friends); J.S. ex rel H.S. v. Bethlehem Area Sch. Dist., 807 A.2d 847 (Pa. 2002) (upholding school's
decision to expel student for website he created titled “Teacher Sux”).
[FN10]. 393 U.S. 503, 509 (1969) (“In our system, state-operated schools may not be enclaves of totalitarianism.
School officials do not possess absolute authority over their students. Students in school as well as out of school are
‘persons' under our Constitution.”).
[FN11]. Morse v. Frederick, 127 S. Ct. 2618, 2629 (2007) (“The First Amendment does not require schools to
tolerate at school events student expression that contributes to [the dangers of illegal drug use].”).
[FN12]. Id. at 2622, 2624-25.
[FN13]. Id. at 2629.
[FN14]. Id. at 2628-29.
[FN15]. See Alan Garfield, Protecting Children from Speech, 57 Fla. L. Rev. 565, 579-81 (2005) (addressing the
arguments of child-protection censorship proponents).
[FN16]. Id. at 568-71.
[FN17]. Id. at 580.
[FN18]. See infra Part V.B.2-5.
[FN73]. 393 U.S. 503, 513-14 (1969).
[FN78]. Id. at 507.
[FN79]. Id. at 506.
[FN80]. Id. at 506-07.
[FN81]. Id. at 507.
[FN82]. Id. at 508.
[FN83]. Id.
[FN84]. 337 U.S. 1 (1949).
[FN85]. Tinker, 393 U.S. at 508.
[FN86]. Id.
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[FN89]. Id. at 511.
[FN90]. Id. at 512 (quoting Keyishian v. Bd. of Regents, 385 U.S. 589, 603 (1967)).
[FN91]. Id.
[FN93]. Tinker, 393 U.S. at 506.
[FN94]. Id. at 511.
[FN95]. Id. at 513.
[FN96]. Id. at 514.
[FN97]. Id.
[FN101]. Tinker, 393 U.S. at 517 (Black, J., dissenting).
[FN102]. Id. at 522.
[FN103]. Id. at 517-18.
[FN104]. Id. at 524.
[FN105]. Id. at 517-20.
[FN138]. 478 U.S. 675 (1986).
[FN139]. Id. at 681.
[FN140]. Id. at 677-78, 685.Although Chief Justice Burger described Fraser's speech as containing an “elaborate,
graphic, and explicit sexual metaphor,” id.at 678, the speech did not seem to warrant any of those three adjectives,
see id. at 689 n.2 (Brennan, J., concurring) (“Indeed, to my mind, [Fraser]'s speech was no more ‘obscene,’ ‘lewd,’
or ‘sexually explicit’ than the bulk of programs currently appearing on prime time television or in the local
cinema.”). The content of Fraser's speech was as follows:
‘I know a man who is firm-he's firm in his pants, he's firm in his shirt, his character is firm-but most . .
. of all, his belief in you, the students of Bethel, is firm. Jeff Kuhlman is a man who takes his point and pounds it in.
If necessary, he'll take an issue and nail it to the wall. He doesn't attack things in spurts-he drives hard, pushing and
pushing until finally-he succeeds. Jeff is a man who will go to the very end-even the climax, for each and every one
of you. So vote for Jeff for A.S.B. vice-president-he'll never come between you and the best our high school can be.’
Id. at 687.
[FN141]. Id. at 677-78 (majority opinion).
[FN142]. Id. at 679.
[FN143]. Id. at 694 (Stevens, J., dissenting) (noting that not only does the rule apply to “conduct” and not “speech,”
but also that “even if the language of the rule could be stretched to encompass the nondisruptive use of obscene or
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profane language, there is no such language in respondent's speech”).
[FN144]. Id. at 680 (majority opinion) (quoting Tinker, 393 U.S. at 506).
[FN145]. Id. at 685.
[FN146]. Id. at 681 (quoting Ambach v. Norwick, 441 U.S. 68, 76-77 (1979)).
[FN147]. Id.
[FN148]. Id. at 685.
[FN149]. Id. at 682-83 (quoting Thomas v. Bd. of Educ., 607 F.2d 1043, 1057 (2d Cir. 1979) (Newman, J.,
concurring)). In Cohen v. California, the Court upheld the right of an adult to wear a jacket proclaiming “Fuck the
Draft.” Cohen v. California, 403 U.S. 15, 16-17 (1971).
[FN150]. Fraser, 478 U.S. at 682.
[FN151]. Id. at 683.
[FN152]. Id. at 678.
[FN153]. The Court confirmed this in Hazelwood School Disrict. v. Kuhlmeier, 484 U.S. 260, 271 n.4 (1988).
[FN154]. Fraser, 478 U.S. at 686 (quoting Tinker, 393 U.S. at 526) (Black, J., dissenting)). Fraser also echoed
Justice Harlan's dissent in Tinker. See Tinker, 393 U.S. at 526 (Harlan, J., dissenting) (arguing that “school officials
should be accorded the widest authority in maintaining discipline and good order in their institutions” and that
student speech restrictions should be tolerated unless “a particular school measure was motivated by other than
legitimate school concerns”).
[FN163]. Fraser, 478 U.S. at 690 (Marshall, J., dissenting).
[FN173]. 484 U.S. at 260.
[FN174]. Id. at 276.
[FN175]. Id. at 271.
[FN176]. Id.
[FN177]. Id. at 266-67 (citing and quoting Fraser, 478 U.S. at 683, 685).
[FN178]. Id. at 273.
[FN179]. Id.
[FN180]. Id. at 277-91 (Brennan, J., dissenting).
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[FN183]. 127 S. Ct. 2618 (2007).
[FN184]. Id. at 2629.
[FN189]. Id. at 2624-25.
[FN190]. Id. at 2625.
[FN192]. Id.
[FN193]. Id. at 2627.
[FN194]. Id. at 2626-27 (quoting Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969)).
[FN199]. Id. at 2629; see also id. at 2637 (Alito, J., concurring).
[FN200]. Id. at 2629 (majority opinion).
[FN218]. See Morse, 127 S. Ct. at 2628-29.
[FN221]. See Clay Calvert, Off-Campus Speech, On-Campus Punishment: Censorship of the Emerging Internet
Underground, 7 B.U. J. Sci. & Tech. L. 243, 269-70 (2001) (noting that none of the Supreme Court's student speech
cases involve off-campus speech).
[FN224]. Morse, 127 S. Ct. at 2622.
[FN225]. Id. at 2624. In a footnote, Justice Stevens remarked that Frederick may not have realized that the school
policy governing student expression applied to his speech because it did not take place on school premises and did
not occur at a school social event or class trip, as the school policy appears to require. Id. at 2647 n.2 (Stevens, J.,
dissenting). But Justice Stevens's comments appear directed only at how to interpret the school policy, not the
jurisdiction of the school over student speech.
[FN226]. Id. at 2624 (majority opinion) (citation omitted).
[FN227]. Id. at 2638 (Alito, J., concurring).
[FN228]. Id.
[FN231]. As Justice Stevens persuasively argued in his dissent, it was not very reasonable to interpret the phrase
“BONG HiTS 4 JESUS” as expressly advocating illegal drug use. Id. at 2646 (Stevens, J., dissenting). Justice
Stevens conceded that some high school students are “dumb,” but “most students know dumb advocacy when they
see it,” and no reasonable student would be persuaded to engage in illegal drug use as a result of seeing this banner.
Id. at 2649. Justice Stevens accused the Court of “abdicat[ing] its constitutional responsibility,” id. at 2647, pointing
to a long line of Supreme Court cases in which the Court has been unwilling to accept the subjective interpretation
of expression by either a listener or a legislature, id. at 2647-50. In this case, even if it is unclear what the message
means, Stevens argued that “the tie would have to go to Frederick's speech, not to the principal's strained reading of
his quixotic message.” Id. at 2649.
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[FN233]. See Porter v. Ascension Parish Sch. Bd., 393 F.3d 608, 615 n.22 (5th Cir. 2004) (listing cases that involve
on-campus speech, off-campus speech later brought onto campus, and Internet speech). This is also the approach
courts have generally taken to student speech rights cases that do not involve digital media, such as cases involving
“underground” or unofficial student newspapers distributed off campus.
[FN234]. See infra Part IV.B.1.
[FN235]. See infra Part IV.B.2. At least one commentator has argued that because the Internet can be accessed
anywhere, and because students frequently talk about material posted on the Internet while they are at school, speech
on the Internet is “‘virtually’ on campus.” See Susan Kosse, Student Designed Home Web Pages: Does Title IX or
the First Amendment Apply?, 43 Ariz. L. Rev. 905, 920 (2001). Not surprisingly, no court has taken this approach.
[FN237]. See Boucher v. Sch. Bd., 134 F.3d 821, 828-29 (7th Cir. 1998) (holding that Supreme Court's student
speech cases applied in case where unofficial student newspaper was distributed on campus, especially since it
advocated hacking into the school's computers); Sullivan v. Houston Indep. Sch. Dist., 475 F.2d 1071, 1072, 107475 (5th Cir. 1973) (holding that school had authority to punish student for underground newspaper published off
campus that was distributed near campus); J.S. v. Bethlehem Area Sch. Dist., 807 A.2d 847, 850-51, 865 (Pa. 2002)
(holding as a threshold matter that a student website created off campus called “‘Teacher Sux”’ constituted “oncampus speech” because he had accessed the website at school, showed it to a fellow student and had informed other
students of the existence of the website). But see Layschock v. Hermitage Sch. Dist., 496 F. Supp. 2d 587, 591-92,
599-601 (W.D. Pa. 2007) (applying Fraser and Tinker tests and holding that school lacked authority to punish
student for creating fake MySpace.com profile for principal even though student had showed the profile to other
students and accessed the profile from school twice); Calvert, supra note 221, at 265-67 (arguing that if a student
downloads or otherwise “‘brings”’ his off campus website to school, “schools may properly act as a quasi-official
third arm of the justice system and punish that expression”).
[FN238]. One exception to this general rule is Snyder v. Blue Mountain Sch. Dist., No. 3:07cv585, 2008 WL
4279517 (M.D. Pa. Sept. 11, 2008). In that case, the court held that there was a sufficient connection between the
website at issue and the school campus because, in addition to other factors, a student had brought a paper copy of it
to school. Id. at *7. There is no indication in the court's opinion that the student who created the website brought it
to school himself. See id. at *2 (noting that “a student” gave the principal a copy of the website).
[FN239]. See Calvert, supra note 221, at 266.
[FN256]. 807 A.2d 847 (Pa. 2002).
[FN257]. Id. at 865.
[FN258]. Id. In addition, the court noted that school officials were able to access the site because it was not
password-protected, and the subject matter of the website concerned teachers at that school. The court concluded
that “it was inevitable that the contents of the web site would pass from students to teachers, inspiring circulation of
the web page on school property.” Id.
[FN259]. Some commentators have advocated for variations of this approach. See Aaron H. Caplan, Public School
Discipline for Creating Uncensored Anonymous Internet Forums, 39 Willamette L. Rev. 93, 163 (2003) (“An
exception to the rule against treating off-campus speech that affects school as if it occurred on-campus may exist for
conduct that is directed exclusively at the school (as opposed to the world at large), that is maliciously intended for
the purpose of disrupting school, and that has a high likelihood of succeeding in its purpose.”); Renee Servance,
Comment, Cyberbullying, Cyberharassment, and the Conflict between Schools and the First Amendment, 2003 Wis.
L. Rev. 1213, 1239 (2003) (arguing that schools should have authority to punish cyberbullying or harassment when
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it has an impact on campus and proposing a test for determining whether such impact occurred).
[FN260]. 494 F.3d 34 (2d Cir. 2007), cert. denied, 127 S. Ct. 1741 (2008).
[FN261]. Judge Newman had written a concurring opinion in Thomas criticizing the Second Circuit for adhering to
a rigid territoriality principle, Thomas v. Bd. of Educ., 607 F.2d 1043, 1058 n.13 (Newman, J., concurring). In
Thomas, Judge Newman argued that a school should have the authority to restrict student speech that is “aimed at
students of a particular school, is sold exclusively to students of that school, and is distributed near the school
grounds” because such speech clearly concerns the school community. Id.
[FN262]. Wisniewski, 494 F.3d at 38.
[FN263]. Id. at 35-36, 40.
[FN264]. Id. at 36. The student-informant did not receive the icon from Wisniewski himself; he learned about the
icon from another student. Wisniewski v. Bd. of Educ., No. 5:02-CV-1403, 2006 WL 1741023, at *1 (N.D.N.Y.
June 20, 2006), aff'd, 494 F.3d 34 (2d Cir. 2007).
[FN270]. Id.
[FN271]. Wisniewski, 2006 WL 1741023, at *9.
[FN272]. Wisniewski, 494 F.3d at 40.
[FN273]. Id. at 39.
[FN274]. Id. at 38-39 (quoting Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 513 (1969)).
[FN280]. 527 F.3d 41 (2d Cir. 2008).
[FN281]. Id. at 44-45.
[FN282]. Id. at 45.
[FN283]. Id. at 46.
[FN284]. Doninger v. Niehoff, 514 F. Supp. 2d 199, 213 (D. Conn. 2007).
[FN287]. Id. at 216-17.
[FN289]. Id. at 217 (quoting Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 683 (1986) (alteration in original)).
[FN292]. Doninger v. Niehoff, 527 F.3d 41, 54 (2d Cir. 2008).
[FN293]. Id. at 49-50.
[FN294]. Id. at 50.
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[FN296]. Doninger, 527 F.3d at 50-51.
[FN302]. Id. at 53.
[FN303]. No. 3:07cv585, 2008 WL 4279517 (M.D. Pa. Sept. 11, 2008).
[FN304]. Id. at *7.
[FN305]. 136 F. Supp. 2d 446 (W.D. Pa. 2001).
[FN306]. Id. at 448-49; see also Shanley v. Ne. Indep. Sch. Dist., 462 F.2d 960, 974-75 (5th Cir. 1972) (implicitly
suggesting that school can exercise authority over off-campus expression if it causes or may foreseeably cause
substantial disruption on campus); Emmett v. Kent Sch. Dist., 92 F. Supp. 2d 1088, 1090 (W.D. Wash. 2000)
(applying Supreme Court's student speech cases to website created off campus); Beussink v. Woodland R-IV Sch.
Dist., 30 F. Supp. 2d 1175, 1177-78, 1180 (E.D. Mo. 1998) (applying Tinker to student's home page created off
campus but concluding that standard was not met under facts of the case; mentioning but not discussing significance
of facts that student did not intend the home page to be accessed or viewed at his school, and that the student who
brought the web page to the school's attention did so without the creator's authorization or knowledge); Fenton v.
Stear, 423 F. Supp. 767, 769 (W.D. Pa. 1976) (upholding school punishment of student who called teacher a
“‘prick”’ in an off-campus parking lot on a Sunday, holding that “[t]o countenance such student conduct . . . could
lead to devastating consequences in the school”).
[FN307]. See, e.g., Thomas v. Bd. of Educ., 607 F.2d 1043, 1052 n.17 (2d Cir. 1979) (stating that the Supreme
Court's student speech cases do not apply to off-campus speech, but leaving open the possibility of applying Tinker
in a case where off-campus speech causes substantial on-campus disruption); J.S. ex rel H.S. v. Bethlehem Area
Sch. Dist., 807 A.2d 847, 864 n.11 (Pa. 2002) (“Although not before our court, we do not rule out a holding that
purely off-campus speech may nevertheless be subject to regulation or punishment by a school district if the dictates
of Tinker are satisfied.”).
[FN308]. Bystrom v. Fridley High Sch., 686 F. Supp. 1387, 1392 (D. Minn. 1987).
[FN314]. See, e.g., Beussink v. Woodland R-IV Sch. Dist., 30 F. Supp. 2d 1175, 1178-80 (E.D. Mo. 1998) (finding
Tinker standard not met where principal made decision to discipline student “immediately upon seeing the
homepage” because the principal was upset by its content, not because he had a reasonable fear of substantial
disruption, and noting that only disruption in classroom was caused by delivery of disciplinary notices to the
student).
[FN315]. Klein v. Smith, 635 F. Supp. 1440 (D. Me. 1986).
[FN316]. Id. at 1440-41.
[FN317]. Id. at 1141 & n.4.
[FN324]. See, e.g., Cuff v. Valley Centr. Sch. Dist., 559 F. Supp. 2d 415, 420 (S.D.N.Y. 2008) (noting deferential
approach of courts to First Amendment challenges to schools disciplining students); Bystrom v. Fridley High Sch.,
686 F. Supp. 1387, 1389-92 (D. Minn. 1987) (noting that deference to school officials is not limitless, yet
concluding that school could punish student even though distribution of underground newspaper did not disrupt any
regular school activity).
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[FN345]. Not all courts share this reluctance. In Snyder v. Blue Mountain School District, No. 3:07cv585, 2008 WL
4279517 (M.D. Pa. Sept. 11, 2008), for example, the court did not hesitate to apply Fraser to uphold the suspension
of student who posted an unflattering parody of his principal on MySpace.com that admittedly did not cause a
substantial disruption under Tinker because it considered the parody to be particularly offensive and vulgar. See id.
at *6-8. Interestingly, the court suggested that schools do not have unlimited authority to punish their students for
lewd and offensive speech on the Internet but rather that they have such authority when the expression is particularly
offensive. See id. (noting repeatedly that the website at issue in the case was especially lewd, vulgar, and offensive).
[FN346]. 136 F. Supp. 2d 446 (W.D. Pa. 2001).
[FN347]. Id. at 445. The court ultimately concluded that the school had failed to demonstrate that the speech at issue
created a substantial disruption or reasonable fears of such a disruption. Id. at 455-56.
[FN348]. Id. at 456-57.
[FN355]. Compare Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 514 (1969) (noting that the school
authorities failed to introduce any evidence that would lead to an expectation of substantial disruption or that any
disruption actually occurred), with Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 685 (1986) (holding that the
school acted permissibly under the First Amendment when it sanctioned the student for speech it considered “lewd”
and “indecent”).
[FN356]. Killion v. Franklin Reg'l Sch. Dist., 136 F. Supp. 2d 446, 455-56 (noting that the school had failed to
satisfy the Tinker test as it failed to show either that school activities were actually disrupted or that the school could
expect disruption).
[FN491]. See Forsyth County v. Nationalist Movement, 505 U.S. 123, 133 (1992) (striking down parade and
assembly ordinance because it permitted too much discretion); Shuttlesworth v. City of Birmingham, 394 U.S. 147,
153 (1969) (noting that unfettered discretion permits government officials “to roam essentially at will, dispensing or
withholding permission to speak, assemble, picket, or parade according to their own opinions regarding the potential
effect of the activity in question on the ‘welfare,’ ‘decency,’ or ‘morals' of the community”).
[FN492]. Caplan, supra note 259, at 163.
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Akron Law Review
2010
Notes
FROM ARMBANDS TO DOUCHEBAGS: HOW DONINGER V. NIEHOFF SHOWS THE SUPREME COURT
NEEDS TO ADDRESS STUDENT SPEECH IN THE CYBER AGE
Allison E. Hayes [FNa1]
Copyright (c) 2010 Akron Law Review; Allison E. Hayes
I. Introduction
*248 The Internet has revolutionized communication, allowing people to converse instantaneously at the click
of a button. Young people are beginning to use the Internet with a greater frequency and at a younger age. [FN1] A
2005 poll showed that 87 percent of kids aged 12-17 use the Internet. [FN2] This speech-enhancing medium has led
to numerous controversies, causing its regulation to become a flashpoint in First Amendment jurisprudence. The
rising use of the Internet has presented a critical First Amendment question unique to public schools: When, if ever,
may school administrators punish students for the content of their online speech?
***
II. Background
A. The Supreme Court and the First Amendment in Public Schools
***
2. Tinker v. Des Moines Independent Community School District
*251 The trend toward greater respect for students' freedom of speech rights began when the Supreme Court
ruled in Tinker v. Des Moines Independent Community School District that public school officials violated several
students' First Amendment rights by suspending them for wearing black armbands to school as a silent protest of
U.S. involvement in Vietnam. [FN19] The Court began its reasoning by stating, “[i]t can hardly be argued that either
students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
[FN20] The Court ruled that a school's fear or apprehension of a disturbance is not enough to overcome First
Amendment rights. [FN21]In order for a school to prohibit speech, it must show “that its action was caused by
something more than a mere desire to avoid the discomfort and unpleasantness that always accompanies an *252
unpopular viewpoint.” [FN23] Tinker sets a very high standard: a student's speech must “materially and
substantially interfere” with the school's administrative order to be prohibited. [FN24]
3. Bethel School District No. 403 v. Fraser
In 1986, the Supreme Court applied an exception to the Tinker standard in Bethel School District No. 403 v.
Fraser. [FN26] In Bethel, Matthew Fraser delivered a speech nominating a fellow student for elective office in front
of approximately 600 of his high school peers. [FN27]During the entire speech, Fraser referred to his friend in terms
of an elaborate, graphic, and sexual metaphor. [FN29] The Court held that “[t]he constitutional rights of students in
public schools are not automatically co-extensive with the rights of adults in other settings.” [FN30] The Court
established a balancing test, weighing the freedom of articulating unpopular and *253 controversial ideas with
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society's countervailing interest of teaching students the values of civil discourse and where to draw the line of
socially appropriate behavior. [FN31]
4. Hazelwood School District v. Kuhlmeier
Less than two years later, the Court added another exception to the Tinker standard when it decided Hazelwood
School District v. Kuhlmeier. [FN33] In Kuhlmeier, a principal objected to publishing a high school newspaper that
discussed teenage pregnancy and the impact of divorce upon teenagers. [FN34] The issue in this case was slightly
different than those in Tinker and Fraser because it dealt with whether the school had to lend its resources to, and
affirmatively endorse, the student speech with which it disagreed. [FN35] The principal reasoned that because the
newspaper was part of the curriculum, educators were permitted greater deference in determining its contents to
assure that the writer's views were not attributed to the school. [FN36]
***
5. Morse v. Frederick
The Court did not revisit the extent to which public school students enjoy freedom of speech until 2007, when it
decided Morse v. Frederick. [FN38] The 5-4 decision produced two concurring opinions, one concurrence in the
judgment and dissent in part, and three dissents, *254 suggesting that the current state of the law is ambivalent at
best. [FN39] In Morse, school officials allowed students to leave school to watch the Olympic Torch Relay pass
through their city. [FN40] Once camera crews arrived from area news channels, Joseph Frederick and his friends
unfurled a fourteen-foot banner which read “BONG HiTS 4 JESUS.” [FN41] When Frederick refused the principal's
request to take the banner down, he was subsequently suspended from school for ten days. [FN42] The Court
declined to apply Tinker's “substantial disruption” standard and instead held that “[t]he ‘special circumstances of the
school environment’ and the governmental interest in stopping student drug abuse . . . allow[s] schools to restrict
student expression that they reasonably regard as promoting illegal drug use.” [FN43]
***
*256B. The Lower Courts' Attempts at Creating a Workable Standard for Student Speech Originating on the Internet
***
1. Internet Speech Brought on Campus by the Speaker
a. J.S.' Solicitation of a Hitman
*257 In J.S. v. Bethlehem Area School District, an eighth-grader created a website from his home computer
titled “Teacher Sux” which listed reasons why his algebra teacher should die, showed a drawing with her head
severed and dripping blood from her neck, and solicited twenty dollar donations to help pay for a hitman. [FN50]
The court considered this to be on-campus speech because J.S. accessed the website at school, told other students
about the website, and showed it to a classmate. [FN51] The Pennsylvania Supreme Court found the website caused
actual and substantial disruption of the school's operations, was the direct and indirect impact of the teacher's
emotional injuries, and caused students to fear for their safety. [FN52] As a result, J.S.'s permanent expulsion was
upheld. [FN53]
***
2. Internet Speech Brought on Campus by Another Student
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a. Wisniewski's Buddy Icon
*258 In Wisniewski v. Board of Education of the Weedsport Central School District, eighth-grader Martin
Wisniewski created an AOL Instant Messenger “buddy icon” [FN58] of a pistol firing a bullet above a *259 person's
head, complete with splattered blood and the words “Kill Mr. VanderMolen,” despite the administration's warning a
few weeks prior that threats would be treated as acts of violence and would not be tolerated. [FN59] During the
three-week period he used the icon, Martin chatted with fifteen of his friends. [FN60] When a classmate told Mr.
VanderMolen of Martin's icon, the school suspended Martin for a semester. [FN61] Given the content of the icon,
Martin's distribution of it, and the period of time he used it, the Second Circuit concluded that Martin's conduct
crossed the protected student speech boundary, that it posed a reasonably foreseeable risk that the icon would come
to the attention of school authorities, and that it materially and substantially disrupted the school's operations.
[FN62]
***
*261
3. Internet Speech that may Foreseeably Reach Campus
a. Mahaffey's Satanic Support
In Mahaffey v. Aldrich, high school student Joshua Mahaffey created a website entitled “Satan's web page,”
which listed people he wished would die and gave readers a murder “mission.” [FN71] A classmate's parent notified
the police about the website. [FN72] Although the police did not pursue criminal charges, the school district
determined the website violated the school's computer use policy. [FN73] The district court found that there was no
evidence that the website interfered with the school's duties, thus failing the Tinker standard. [FN74]
***
III. Statement of the Case
A. Statement of the Facts
*262 During the 2006-2007 school year, Avery Doninger was a 16-year-old junior at Lewis S. Mills High
School (“LMHS”). [FN80] As the Junior Class Secretary and a member of Student Council, [FN81] Avery was
largely responsible for coordinating “Jamfest,” an annual “battle of the bands” concert held at LMHS. [FN82] Due
to the construction of a new auditorium and scheduling conflicts, students were concerned Jamfest might have to
take place in an alternate venue, be postponed from the much anticipated April 28, 2007 date, or be cancelled
altogether. [FN83]
***
*263 During the morning of April 24, 2007, Avery and three other students sent a mass email to the city's taxpayers
explaining the students' dilemma and asking for their support to convince the administration to hold the concert in
the school's auditorium, despite the scheduling conflict. [FN87] Around noon the same day, Avery encountered
Principal Karissa Niehoff, visibly upset, in the hallway. [FN88] Avery claimed that Principal Niehoff told her that
Jamfest had been cancelled. [FN90] Principal Niehoff testified that she told Avery she was disappointed in the
students' decision to send the email, but that she was open to rescheduling Jamfest so it could be held in the
auditorium on a different date. [FN91]
***
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*264 At approximately 9:30 P.M. on April 24, 2007, still upset from her conversation with Principal Niehoff, Avery
posted an entry to her LiveJournal.com [FN96] blog from her home computer which referred to the administration
as “douchebags” and suggested she would support her readers if they wrote Superintendent Schwartz or “call[ed]
her to piss her off more.” [FN97]
***
*265 It was not until May 7, 2007 that the administration found out about Avery's blog post. [FN102] Avery
was not permitted to serve as Senior Class Secretary. [FN105] Principal Niehoff *266 explicitly denied that the
email from April 24, 2007 was the basis of any disciplinary action. [FN106]
1. Avery's Argument
Avery argued that the administration violated her First Amendment rights when they prevented her from
running for Senior Class Secretary and when they did not permit her to wear a “Team Avery” t-shirt into the
auditorium on May 25, 2007. [FN107] She contended that because her blog post took place within the confines of
her home, the administration reached beyond its authority in disciplining Avery. [FN108]
***
2. Second Circuit Court of Appeals Decision
*269 The Second Circuit affirmed the district court's holding that Avery failed to make an appropriate showing
on both her First Amendment and Equal Protection claims, although it did so on different grounds. [FN125] The
court was unclear whether Fraser applied to off-campus speech, but concluded that the Tinker standard was
adequately established. [FN126] The Second Circuit recognized the lack of Supreme Court guidance of a school's
authority to regulate off-campus speech. [FN127] While the court may not have agreed with her punishment, it
concluded that it was not authorized to intervene absent “violations of specific constitutional guarantees.” [FN128]
IV. Analysis
A. The Doninger Courts Misinterpreted Supreme Court Precedent
*271 The Supreme Court has not yet provided the necessary guidance to decide student cyberspeech cases.
[FN136] All four of the cases the Court decided deal with speech occurring on-campus (Tinker and Fraser) or during
a school-sanctioned activity off-campus (Kuhlmeier and Morse). Avery's speech is far different because it originated
in her own home outside of school hours, thus lacking a geographical nexus to the school. There is a seeming
disconnect between the student expression and any actual disruption to the classroom. [FN137]
1. Avery's Speech Did Not Fall within a Tinker Exception, so Tinker Should Have Controlled
*272 The Kuhlmeier and Morse exceptions can quickly be rejected as irrelevant to Avery's case because her
speech was not school-sponsored; it occurred in her free time from her home computer, [FN140] and it was not drug
related. [FN141] The Fraser exception is more difficult to dispel. In deciding the Doninger case, the Second Circuit
failed to rely on the Fraser exception because it believed the Fraser standard to be unclear as to whether it applies to
off-campus speech. [FN142]
2. The Doninger Court's Disapproval of Avery's Speech Motivated its Rulings: Avery's Conduct Failed to Meet
Tinker's Material and Substantial Disruption Standard Required to Regulate her Speech
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*273 The Second Circuit relied on two factors in determining that Avery's blog foreseeably created a risk of
substantial disruption within the school environment. [FN148] First, the language Avery used to express her
displeasure with the school's administration was “not only plainly offensive, but also potentially disruptive of efforts
to resolve the ongoing controversy.” [FN149]
What the court appeared to pay little regard was that this speech came from a sixteen-year-old high school
junior, not a member of the Peace Corps. The court's reasoning is extreme and a bit out of touch *274 with the
current makeup of high school students' vocabulary. [FN150]
Moreover, Avery's online journal was not a place she should have been concerned with “resolv[ing] the ongoing
controversy,” [FN153] but rather existed as a forum for her to vent and allow her peers to comment just the same as
young people have been doing for generations. [FN154]
*276 Second, the court argued that, “Avery's post used . . . ‘at best misleading and at wors[t] false’ information
that Jamfest had been cancelled in her effort to solicit more calls and emails to Schwartz.” [FN157]
***
While the court argued that all that is required is for school officials to reasonably portend disruption, *277 there is
no indication that the school received, or would receive in the future, any calls from Avery's post. Likewise,
LiveJournal.com is a social networking site dominated primarily by the younger generation. [FN164] Because
Avery's blog was predominately, if not almost exclusively, viewed by her peers, school officials should not have
reasonably expected that Avery's post would encourage an older generation, those that likely sent the emails and
made the phone calls, to contact administrators “to piss [them] off more.” [FN165]
Furthermore, the court noted that its decision relied on the fact that Avery's post was “at best misleading and at
worst false.” [FN166] LiveJournal's very purpose is to be used as “a private journal, a blog, a discussion forum or a
social network.” [FN167]
***
*280 Accordingly, the district court failed to show that Avery's speech met Tinker's standard of material and
substantial disruption. [FN181] The Second Circuit's reliance on the offensive nature of Avery's speech, coupled
with Principal Niehoff's insistence that Avery's post was vulgar and inaccurate suggests that they merely
disapproved of Avery's speech.
***
B. The Doninger Courts Distinguished Their Rulings from Patterns Evolving in Lower Courts
Section II of this Note contains three categories of student speech in the lower courts: (1) Internet Speech
Brought on Campus by the Speaker; (2) Internet Speech Brought on Campus by Another Student; and (3) Internet
Speech that may Foreseeably Reach Campus. [FN184] There is no indication from either the District of Connecticut
or the Second Circuit that Avery's blog was ever accessed by her or another student at *281 LMHS. [FN185] While
the purpose of her post was unquestionably to solicit action which would occur on campus, it cannot fall under
category (1) because, unlike J.S., Avery never accessed the website at school, nor told other students about the
website, nor showed it to another classmate while at school. [FN186]
Even assuming that we consider Mrs. Schwartz's adult son a “student” at LMHS and thus classify Avery's
speech in category (2), courts are split as to whether the speech is protected under a student's First Amendment
rights. [FN188]*282 Avery's post fell well short of even implying a threatening or violent nature, nor is there any
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evidence that the student body was warned of such a strict intolerance.
***
*283 Because Avery's speech was neither brought on campus by her nor by another student, it seems that its most
logical fit would be under category (3): Internet Speech that may Foreseeably Reach Campus.
***
C. Recommendations for a More Workable Standard
1. The Supreme Court Must Decide This Issue to Create a Standard That Lower Courts Can Universally Apply
*284 Even though most courts continue to apply the Tinker test to student Internet speech cases, the Supreme
Court must offer guidance to lower courts in order to achieve consistency. [FN208] Some commentators believe
Tinker to be an effective test, [FN209] while others believe it is the “wrong tool” for the job. [FN210] As it stands,
“[t]here is no clear line . . . And the line appears to be moving.” [FN211]
***
2. School Administrators Cannot Punish Student Online Expression Merely Because They Disapprove of the
Message
*286 When schools rely on the “I do not like the speech the student chose to use” rationale, courts have a
tendency to invalidate the student's punishment. [FN217] “[T]he government may not prohibit expression simply
because it disagrees with its message . . . .” [FN218] However, when administrators can provide evidence of how the
student's speech substantially negatively impacted the school's operations, courts are more likely to uphold the
school's disciplinary measures. [FN219]
***
3. School Officials May Resort to Alternative Measures to Address Harmful Material Students Post on the Internet
*287 School administrators do not have to ignore harmful material surfacing online even if their authority may
be limited. Before infractions occur, schools should educate their students on how to use the Internet safely and
responsibly. If students do not comply, there are alternatives to school-sanctioned punishment, such as notifying the
parents or police, talking to the students involved, and offering support services to any troubled student. [FN222]
Schools can effectively ensure that troubled students receive the help they need without overzealously policing their
every online commentary.
V. Conclusion
Student Internet speech may be tactless and inflammatory, causing infinite problems for school administrators
attempting to maintain order and teach civility to young people. [FN227] Nevertheless, students are entitled to First
Amendment rights in public schools, even if the rights are somewhat limited. [FN228] This Note proposes that
under current Supreme Court precedent, Avery Doninger's speech did not materially and substantially disrupt her
school's operations. [FN229] In the alternative, this Note explains that the District of Connecticut and the Second
Circuit should have followed evolving lower court precedent in their Doninger holdings because Avery's language
was not brought on-campus by her or another student but rather it was speech that may have foreseeably
*289reached campus. [FN230]
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***
[FNa1]. J.D. Candidate, The University of Akron School of Law, 2010.
[FN1]. See Emily Nussbaum, Kids, the Internet, and the End of Privacy: The Greatest Generation Gap Since Rock
and Roll, Feb. 2007, at 2, available at http://nymag.com/news/features/27341 (suggesting that Internet use in the
younger generation comes easier to them than it does an older generation).
[FN2]. Pew Internet & American Life Project, Teens and Technology: Youth are Leading the Transition to a Fully
Wired and Mobile Nation (July 27, 2005), http://www.pewinternet.org/pdfs/PIP_Teens_Tech_July2005web.pdf (last
visited Dec. 29, 2008). This figure rose from a mere 73 percent just five years prior. Id.
[FN19]. See 393 U.S. 503, 504 (1969).
[FN20]. Id. at 506.
[FN21]. Id. at 508. Justice Fortas noted that any departure from the school's absolute regimentation may cause
trouble. Id. Any deviation from the majority may start an argument or disrupt the peace. Id. He believed that these
risks are substantially outweighed by constitutional freedoms. See id.
[FN23]. Tinker, 393 U.S. at 509.
[FN24]. Id.
[FN26]. See 478 U.S. 675, 685 (1986).
[FN27]. Id. at 677.
[FN29]. Id. Fraser's speech:
I know a man who is firm - he's firm in his pants, he's firm in his shirt, his character is firm - but most .
. . of all, his belief in you, the students of Bethel, is firm.
Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he'll take an issue and nail it to
the wall. He doesn't attack things in spurts - he drives hard, pushing and pushing until finally - he succeeds.
Jeff is a man who will go to the very end - even the climax, for each and every one of you.
So vote for Jeff for A.S.B. vice-president - he'll never come between you and the best our high school can
be.
Id. at 687 (Brennan, J., concurring in the judgment). The next day, Fraser was suspended three days for violating the
school's disruptive conduct rule. Id. at 678.
[FN30]. Id. at 682. The Court ruled that it is rightly the school board's responsibility to make the determination of
what classroom or class assembly speech is appropriate. Id. at 683. The Court believed that Fraser's pervasive sexual
innuendo was “plainly offensive” to both students and teachers. Id. Justice Burger wrote, “[a] high school assembly
or classroom is no place for a sexually explicit monologue directed towards an unsuspecting audience of teenage
students.” Id. at 685.
[FN31]. See id. at 681.
[FN33]. See 484 U.S. 260, 273 (1988).
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[FN34]. Id. at 263.
[FN35]. Id. at 270-71. By contrast, Tinker addressed when the First Amendment required schools to tolerate student
speech. Melinda Cupps Dickler, The Morse Quartet: Student Speech and the First Amendment, 53 Loy. L. Rev. 355,
367 (2007) (discussing the Kuhlmeier exception).
[FN36]. Kuhlmeier, 484 U.S. at 271. The Court stated that a school must be able to take into account the intended
audience's emotional maturity when determining whether it is appropriate to disseminate student speech on
potentially sensitive topics. Id. at 272.
[FN38]. See 551 U.S. 393 (2007).
[FN39]. See id. at 404 (acknowledging that the mode of analysis employed in Fraser was not entirely clear).
[FN40]. Frederick Schauer, Abandoning the Guidance Function: Morse v. Frederick, 2007 Sup. Ct. Rev. 205, 210
(2007). In 2002, the Winter Olympic Games were held in Salt Lake City, Utah. Id. As per custom, the Olympic
Torch is passed from the site of the previous Winter Games to the current site. Id. On the day in question, the Torch
was passing through Juneau, Alaska, where Joseph Frederick was then a senior at Juneau-Douglas High School. Id.
The Supreme Court determined that this was a school-sanctioned and school-supervised event because it occurred
during normal school hours and was sanctioned by Principal Morse as an approved social event. Morse, 551 U.S. at
400. The Court agreed with the school's superintendent that Frederick cannot “stand in the midst of his fellow
students, during school hours, at a school-sanctioned activity and claim he is not at school.” Id. at 401.
[FN41]. Schauer, supra note 40, at 210. Frederick claimed that the nonsense banner was simply a way to appear on
television. Morse, 551 U.S. at 401.
[FN42]. Morse, 551 U.S. at 396. The Court believed that although the banner was “cryptic,” it was reasonable that
the high school principal regarded it as promoting illegal drug use which directly conflicted with the established
school policy prohibiting such messages at school events. Id. at 401. Frederick appealed his suspension to the
Juneau School District Superintendent, who described Frederick's stunt as “a fairly silly message promoting illegal
drug usage in the middle of a school activity,” but nevertheless, reduced his suspension to eight days. Schauer, supra
note 40, at 211.
[FN43]. Morse, 551 U.S. at 408 (quoting Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969)).
The Court reasoned that the danger in this case was far more severe than the “mere desire to avoid the discomfort
and unpleasantness that always accompany an unpopular viewpoint” set forth in Tinker. Id. The Court felt student
drug abuse extends well beyond a theoretical desire to avoid controversy. Id.
However, the Court was unwilling to accept Morse's argument that Frederick's speech should fall under the
Fraser standard as plainly offensive. Id. The Court stated that Fraser should not be stretched to prohibit any speech
that could fit under some definition of “offensive.” Id. Chief Justice Roberts reasoned that most political and
religious speech could be offensive to some. Id. The offensiveness of Frederick's speech was not part of the Court's
concern, but rather, that his conduct was reasonably viewed as promoting illegal drug use. Id.
[FN50]. 807 A.2d 847, 850-51 (Pa. 2002). As a result of viewing the website, the algebra teacher testified that she
feared someone was going to kill her, suffered stress, anxiety, loss of appetite, loss of sleep, weight loss, and a
general sense of loss of well-being. Id. at 852. She suffered from short-term memory loss and headaches, was
required to take anti-anxiety/anti-depression medication, and was unable to converse in crowds. Id. The teacher was
granted a medical leave for the school year causing three substitutes to fulfill her duties which “disrupted the
educational process of the students.” Id. Principal Kartsotis explained that the school's morale was the lowest he had
seen in forty years of education - comparable to the death of a student or staff member. Id.
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[FN51]. Id. at 865. The court considered there to be a “sufficient nexus” between the website and the school to
consider the speech as occurring on campus, holding, “[w]here speech that is aimed at a specific school and/or its
personnel is brought onto the school campus or accessed at school by its originator, the speech will be considered
on-campus.” Id.
[FN52]. Id. at 869. Despite finding the statements regarding solicitation of a hitman and reasons why the teacher
should die to be stated unconditionally and unequivocally, the court felt they fell short of constituting a true threat.
Id. at 859. The court wrote:
We believe the website . . . was a sophomoric, crude, highly offensive and perhaps misguided attempt
at humor or parody. However, it did not reflect a serious expression of intent to inflict harm . . . . Distasteful and
even highly offensive communication does not necessarily fall from First Amendment protection as a true threat
simply because of its objectionable nature.
Id. at 859-60. However, the court found that the website created disorder and significantly and adversely impacted
education, particularly considering the student and staff's feeling of helplessness and low spirits. Id. at 869.
[FN53]. Id. at 847.
[FN58]. AOL Instant Messenger allows a person to exchange messages in real time with members who have the
same AOL software on their computer. 494 F.3d 34, 35 (2d Cir. 2007), cert. denied, 128 S. Ct. 1741 (2008). The
program enables users to transmit an icon, created by the sender, on the computer screen during an IM exchange. Id.
at 36. The image remains on the screen for the duration of the online conversation. Id. at 35.
[FN59]. Id. at 36.
[FN60]. Id.
[FN61]. Id.
[FN62]. Id. at 39-40. The court confirmed prior precedent that off-campus conduct could create a foreseeable risk of
substantial disruption within a school. Id. at 39. In discussing the extent of the discipline, the court was mindful that
“[i]t is not the role of the federal courts to set aside decisions of school administrators which the court may view as
lacking a basis in wisdom or compassion.” Id. at 40.
[FN71]. 236 F. Supp. 2d 779, 781-82 (E.D. Mich. 2002). Near the bottom of Joshua's website, the page read:
SATAN'S MISSION FOR YOU THISWEEK:
Stab someone for no reason then set them on fire throw them off of a cliff, watch them suffer and
with their last breath, just before everything goes black, spit on their face. Killing people is wrong don't do
It. unless Im there to watch. Or just go to Detroit. Hell is right in the middle. Drop by and say hi.
PS: NOW THAT YOU'VE READ MY WEB PAGE PLEASE DON'T GO KILLING PEOPLE AND
STUFF THEN BLAMING IT ON ME. OK?
Id at 781 (all grammatical errors and capitalizations are part of the original).
[FN72]. Id at 782.
[FN73]. Id. According to a police officer's testimony, Joshua admitted contributing to the website and stated that
school computers “may have” been used in creating the site. Id. The school suspended Joshua for his contributions.
Id.
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[FN74]. Id. at 784. The court agreed with the plaintiffs that school officials had exceeded their powers when they
punished Joshua for his out of school conduct. See id. The court also ruled that Joshua's actions fell short of
constituting a “true threat” because there was no evidence Joshua communicated the website's statements to anyone.
Id. at 786. Likewise, a reasonable person would not interpret Joshua's remarks as intending to harm or kill anyone
listed on the website. Id. at 786.
[FN80]. Doninger v. Niehoff, 514 F. Supp. 2d 199, 203 (D. Conn. 2007). The district court referred to Avery as
“poised, intelligent, and articulate.” Id. at 202.
[FN81]. Doninger v. Niehoff, 527 F.3d 41, 44 (2d Cir. 2008).
[FN82]. Doninger, 514 F. Supp. 2d at 203.
[FN83]. Id. at 203-04.
[FN87]. Id. at 205. The parties disagree as to who suggested sending the email. According to Avery, a faculty
advisor insinuated that the students explain their situation via a mass email to the taxpayers in hopes of enlisting
their support. Id. at 204. The faculty advisor testified that her recommendation was for the students to compile a list
of reasons Jamfest should continue as planned, which they could present to the school's administration. Id. The other
students involved presented testimony somewhere between Avery's and the faculty advisor's version of events. Id.
One student in the group accessed his father's address book and extracted the majority of the addresses for the email.
Id. at 205. The email explained the Jamfest situation to the taxpayers and asked them to contact the central office
and to “forward [the email] to as many people as you can.” Id.
[FN88]. Id.
[FN90]. Id.
[FN91]. Id.
[FN96]. LiveJournal.com is “[a] blogging platform and online community built around personal journals.”
LiveJournal Inc. - About Us, http:// www.livejournalinc.com/aboutus.php (last visited Sept. 27, 2008). A visitor
need not be registered to view other user's blogs unless the user has adjusted her privacy settings to restrict access.
Doninger, 514 F. Supp. 2d at 206. On April 24, 2007 Avery's blog setting was “public.” Id. LiveJournal.com is a
website unaffiliated with LMHS. Doninger v. Niehoff, 527 F.3d 41, 45 (2d Cir. 2008).
[FN97]. Doninger, 527 F.3d at 45. Avery's LiveJournal blog stated:
jamfest is cancelled due to douchebags in central office. here is an email that we sent to a ton of people
and asked them to forward to everyone in their address book to help get support for jamfest. basically, because we
sent it out, Paula Schwartz is getting a TON of phone calls and emails and such. we have so much support and we
really appriciate it. however, she got pissed off and decided to just cancel the whole thing all together. anddd so
basically we aren't going to have it at all, but in the slightest chance we do it is going to be after the talent show on
may 18th. andd..here is the letter we sent out to parents. [The entry then reproduced the email from earlier in the
day.]
And here is a letter my mom sent to Paula and cc'd Karissa to get an idea of what to write if you want to
write something or call her to piss her off more. im down.Id. (all misspellings and grammatical errors are part of the original blog post). Avery then reproduced an email Ms.
Doninger had sent Superintendent Schwartz earlier in the day. Id. Several LMHS students commented on Avery's
blog post, including one student who referred to Superintendent Schwartz as a “dirty whore.” Doninger, 514 F.
Supp. 2d at 207.
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[FN102]. Doninger, 527 F.3d at 46. According to Superintendent Schwartz's testimony, she alerted Principal
Niehoff of Avery's blog post after her adult son found it while using an internet search engine. Id.
[FN105]. Doninger, 514 F. Supp. 2d at 209. In an email to Ms. Doninger, Principal Niehoff reasoned, “Avery
received a consequence because she posted the extremely disrespectful blog despite previous conversations with her
addressing the Jamfest event, the use of the auditorium, and appropriate conduct as a class officer.” Id.
[FN106]. Id. The district court credited Principal Niehoff's testimony because none of the other three students who
signed the Jamfest email made blog posts similar to Avery's. Id. As such, the other students did not receive any
disciplinary action and were permitted to run for class officer and Student Council. Id.
[FN107]. Id. at 211. The complaint also alleged that the school's administration denied Avery's First Amendment
protection when she was not permitted to give a speech during the class elections held on May 25, 2007. Id. The
court considered this sanction to be synonymous with the school preventing Avery from running for Senior Class
Secretary for purposes of its analysis. Id. The court did not consider any First Amendment claims relating to the
students' Jamfest email. Id.
Doninger's attorney also argued that balancing the relative harms easily justified granting a temporary
injunction because without it, she would continue to be deprived of her fundamental right to Freedom of Speech,
Equal Protection, and Due Process. Memorandum of Law in Support of Plaintiff's Application for Temporary
Injunction at 15, Doninger v. Niehoff, 514 F. Supp. 2d 199 (D. Conn. July 26, 2007) (No. 3:07-cv-1129) [hereinafter
Application for Temporary Injunction]. In contrast, if a temporary injunction was granted, the defendants' only
“hardship” would be holding another election for Senior Class Secretary and allowing Avery the opportunity to give
a speech to her class. Id. According to Attorney Schoenhorn, “[b]asically, [the injunction] requires the defendants to
start obeying the law - a burden that should not be onerous to them.” Id.
[FN108]. Doninger v. Niehoff, 527 F.3d 41, 49 (2d Cir. 2008). Avery maintained that her blog did not contain
“fighting words,” “true threats,” or other exceptions to her absolute right to free speech. Application for Temporary
Injunction, supra note 107, at 5.
[FN125]. Doninger v. Niehoff, 527 F.3d 41, 54 (2d Cir. 2008).
[FN126]. Id. at 50. Therefore, the court did not decide the extent of Fraser: “We therefore need not decide whether
other standards may apply.” Id. However, because the Second Circuit declined to decide Avery's case under a Fraser
standard, the court may have “intended to gently telegraph to the [district court] that it erred in its analysis of Fraser.
Doninger v. Niehoff, 594 F. Supp. 2d 211, 221 (D. Conn. 2009).
[FN127]. Doninger, 527 F.3d at 48. In the 40 years since the Tinker decision, there have been only three Supreme
Court cases dealing with a student's right to free speech, despite significantly more litigation in the lower courts on
this subject. See Hazelwood School Dist. No. 403 v. Kuhlmeier, 484 U.S. 260 (1988); Bethel School Dist. No. 403
v. Fraser, 478 U.S. 675 (1986); Morse v. Frederick, 551 U.S. 393 (2007). The Second Circuit has previously held
that a student may be disciplined for expressive conduct, even if the speech occurred off school grounds, when the
conduct “would create a risk of substantial disruption within the school environment” provided it was foreseeable
that the expression might make its way onto campus. Wisniewski v. Bd. of Educ. of the Weedsport Cent. Sch. Dist.,
494 F.3d 34, 40 (2d Cir. 2007), cert. denied, 128 S. Ct. 1741 (U.S. 2008) (following the Tinker standard). The court
followed this reasoning in holding that Avery's conduct posed a substantial risk that LMHS administrators would
further be diverted from their core educational responsibilities in order to repel incessant emails and phone calls.
Doninger, 527 F.3d at 51-52.
[FN128]. Doninger, 527 F.3d at 54.
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[FN136]. Doninger v. Niehoff, 527 F.3d 41, 48 (2d Cir. 2008). “The Supreme Court has yet to speak on the scope of
a school's authority to regulate expression that, like Avery's, does not occur on school grounds or at a schoolsponsored event.” Id. The Second Circuit noted that they have visited this issue before when deciding that a student
may be disciplined for expressive conduct off school grounds when this conduct “‘would foreseeably create a risk of
substantial disruption within the school environment’ at least when it was similarly foreseeable that the off-campus
expression might also reach campus.” Id. (citing Wisniewski v. Bd. of Educ. of the Weedsport Cent. Sch. Dist., 494
F.3d 34, 40 (2d Cir. 2007), cert. denied, 128 S. Ct. 1741 (U.S. 2008)). Here, the court observed the need to “draw a
clear line between student activity that ‘affects matter[s] of legitimate concern to the school community,’ and
activity that does not.” Id. (citing Thomas v. Bd. of Educ., Granville Cent. Sch. Dist., 607 F.2d 1043, 1058 (2d Cir.
1979) (Newman, J., concurring in the result).
[FN137]. Mary-Rose Papandrea, Dunwoody Distinguished Lecture in Law: Student Speech Rights in the Digital
Age, 60 Fla. L. Rev. 1027, 1054 (Dec. 2008) (implying there is too attenuated of a link to draw a causal correlation
between student speech occurring off-campus and disruption within the school).
[FN140]. See Hazlewood School District v. Kuhlmeier, 484 U.S. 260, 273 (1988); Morse v. Frederick, 551 U.S.
393, 409 (2007).
[FN141]. See Morse, 551 U.S. at 409.
[FN142]. Doninger, 527 F.3d at 49. The court said that it need not determine Fraser's scope because it was uncertain
whether Fraser applied to off-campus speech. Id. The court noted:
If Avery had distributed her electronic posting as a handbill on school grounds, this case would fall
squarely within the Supreme Court's precedents recognizing that the nature of a student's First Amendment rights
must be understood in the light of the special characteristics of the school environment and that, in particular,
offensive forms of expression may be prohibited.
Id. The Second Circuit believed that had Avery's comments occurred in the classroom, Fraser would certainly apply
because there is nothing in the First Amendment that prohibits school authorities from discouraging inappropriate
conduct in the school environment. Id.
[FN148]. Id. at 50.
[FN149]. Id. at 50-51. The court remarked that her chosen words “were hardly conducive to cooperative conflict
resolution.” Id.
[FN150]. Posting of Mitchell H. Rubenstein to Adjunct Law Prof Blog: Law Review Ideas,
http://lawprofessors.typepad.com/adjunctprofs/law_review_ideas (May 30, 2008) (discussing the Second Circuit
decision in Donniger as a major student First Amendment decision involving blogs).
[T]his was a good student. She had a disagreement with the school and used the word [douchebag] . . .
. The speech was off campus and the speaker was a high school student. This is exactly what the First Amendment
protects. If this type of speech is not protected, then what type of speech will be protected? Is a student limited to
merely saying “I disagree” or “please Mr. [P]rincipal, change your mind[?]” Is the problem with the speech here that
the word [douchebag] was used? If so, then the court is completely out of touch [with] how students and others
(lawyers too) talk to one another. Was there a real threat of disruption? I think not.
Id.
[FN153]. Doninger, 527 F.3d at 51 (quoting the court's disdain of Avery's word choice).
[FN154]. See Papandrea, supra note 137 at 1037. “Although social networks, blogs, and text messaging are
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relatively new technologies, what young people do with them is . . . not that much different from what prior
generations did without technology.” Id. at 1036. Much of this litigation involving student speech on the Internet is
the same quite harmless and at worst tasteless expression that went unpunished when young people voiced their
opinions using diaries, landline phones, pig Latin, or gossiping at the soda shop. Id. at 1036-37. “Students are going
to be talking about their teachers and their classmates anyway; now they are simply using digital media to do it.” Id.
at 1093. “Indeed, members of the Court have pointedly noted that the expression at issue [in student speech cases,
generally] would be plainly protected had it occurred in the fabled town square.” Id. at 1089.
[FN157]. Doninger, 527 F.3d at 51 (quoting the lower court's decision).
[FN164]. Nussbaum, supra note 1, at 2 (discussing the generation gap between people under 25 and the
unnaturalness of “older people” utilizing such social networking sites).
[FN165]. Doninger, 527 F.3d at 45 (quoting Avery's blog post). See also supra note 185 and accompanying text
(noting that Superintendant Schwartz required the assistance of her adult-son to actually find and access Avery's
blog-post).
[FN166]. Id. at 51.
[FN167]. LiveJournal Home Page, http://www.livejournal.com (last visited Sept 23, 2009).
[FN181]. The district court's only mention of the school administration continuing to receive phone calls and emails
after the April 25, 2007 meeting was that “the two administrators continued to receive phone calls and emails
regarding Jamfest, and it is unclear which of those communications, if any, resulted from Avery's blog.” Doninger v.
Niehoff, 514 F. Supp. 2d 199, 207 (D. Conn. 2007). The Second Circuit said only, “Schwartz and Niehoff . . .
continued to receive phone calls and emails in the controversy's immediate aftermath.” Doninger, 527 F.3d at 46
(emphasis added).
[FN185]. See Doninger, 527 F.3d at 46 (finding that the administration learned of Avery's LiveJournal post only
after Superintendent Schwartz's adult son found it while using an internet search engine).
[FN186]. See supra Part II.B.1.
[FN188]. See supra Part II.B.2.
[FN208]. See Papandrea, supra note 137, at 1065. “The lower courts are all over the map” in the way they apply
Supreme Court precedent. Id.
[FN209]. See, e.g., David L. Hudson, Jr., First Amendment Center, Student Online Expression: What do the Internet
and
MySpace
Mean
for
the
Students’
First
Amendment
Rights?
21
(2006),
http;//www.firstamendmentcenter.org/PDF/student.internetspeech.pdf.
“I actually think Tinker is a good balance . . . . You have the right to swing your fist in the air until it
threatens the security of my nose. You have the right to express your thoughts freely, until your expression of
thoughts is or has the potential of causing substantial harm. We all need to be able to deal with disagreements, and
people in positions of authority certainly must deal with the expression of speech that challenges their exercise of
authority. But trashing other people for the enjoyment of trashing other people does not serve any purpose.”
Id. (quoting Nancy Willard of the Center for Safe and Responsible Internet Use).
[FN210]. Kyle W. Brenton, BONGHiTS4JESUS.COM? Scrutinizing Public School Authority over Student
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Cyberspeech Through the Leans of Personal Jurisdiction, 92 Minn. L. Rev. 1206, 1226-27 (2008).
Any off campus speech, by any speaker, may create a material and substantial disruption on campus.
To employ the Tinker test to answer the threshold question of when [student cyberspeech should be regulated] is to
use the wrong tool for the wrong job.
Id.
[FN211]. Hudson, Jr., supra note 209, at 19 (quoting Nancy Willard).
[FN217]. See, e.g., Beussink v. Woodland R-IV Sch. Dist., 30 F. Supp. 2d 1175 (E.D. Mo. 1998). “Disliking or
being upset by the content of a student's speech is not an acceptable justification for limiting student speech under
Tinker.” Id. at 1180.
[FN218]. Texas v. Johnson, 491 U.S. 397, 416 (1989) (stating the First Amendment prohibits viewpoint based laws,
“[w]e do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this
cherished emblem represents.”) Id. at 420.
[FN219]. See, e.g., supra notes 50-52 (discussing the Supreme Court of Pennsylvania's holding in J.S. v. Bethlehem
Area School District). See also Posting of “SHG” to The Cool Justice Report, http://
cooljustice.blogspot.com/2008/05/more-coverage-of-douche-bag-court.html (May 30, 2008) (stating that the Ninth
Circuit did not provide evidence of how Avery's remarks created a foreseeable risk of substantial disruption):
While the earlier rule [Tinker] held that students maintained a constitutional right to speech, even
within the school yard, the [Ninth] Circuit's vision is that they not only forfeit speech going into the school, but do
so again on the way out. Avery's challenge to school officials' hegemony was made in a blog post, well beyond the
proverbial schoolhouse gates of the past . . . . The test applied by the Circuit is extremely curious . . . weeding out
acceptable exercise of Freedom of Speech because it had the potential to create thought and ideas that might be
disruptive fundamentally undermines the right.
Id.
[FN222]. See, e.g., Hudson, Jr., supra note 209 at 26. “There is a lot that schools can do short of imposing
disciplinary actions, such as educating kids about responsibilities online and educating parents about the Internet. If
a school official is aware of cyberbullying, one option is . . . [to] call the parent of the student.” Id. (quoting National
School Boards Association Staff Attorney Thomas Hutton).
[FN227]. See supra Section II.
[FN228]. See id.
[FN229]. See supra Part IV.A.2.
[FN230]. See supra Part II.B.3.
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40 AZSLJ 257
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Arizona State Law Journal
Spring 2008
Comment
*257 A CASE FOR STRENGTHENING SCHOOL DISTRICT JURISDICTION TO PUNISH OFF-CAMPUS
INCIDENTS OF CYBERBULLYING
Todd D. Erb [FNd1]
Copyright (c) 2008 Arizona State Law Journal; Todd D. Erb
***
Cyberbullying occurs when students use electronic means, including the use of Internet web sites, chat rooms,
instant messaging, text and picture messaging on phones, and blogs, to bully peers. [FN4] “The only real difference
*258 between cyberbullying and traditional bullying is that cyberbullying takes place on the Internet,” and thus
“cyberbullying results in greater impact because Internet content is widely distributed and more public than
traditional bullying.” [FN5] Furthermore, most of the content produced by cyberbullying originates away from the
school campus on personal computers; however, the effects of such content can be felt every day within the
schoolhouse gates. [FN6]
***
*259 The viewpoint that harassment and bullying by one's peers is relatively harmless and a rite of passage for
school children changed drastically in 1999 when two bullying victims entered Columbine High School in Littleton,
Colorado, and killed a teacher, twelve of their classmates, and finally themselves. [FN17] In the aftermath of the
Columbine massacre, many states adopted bullying statutes that went further than mere verbal denunciations that
“bullying is bad and won't be tolerated.” [FN18] States differ on the appropriate definition of bullying, but most
statutes prohibit written or verbal expressions, or physical acts or gestures, that are intended to cause distress to
another student while on school grounds or at school activities. [FN19] Through these statutes, school districts
around the country are better equipped to handle incidents of bullying that occur on their campuses. [FN20]
Despite the efforts of state legislatures, state antibullying statutes fail to address off-campus Internet
communications between students. The court system has also struggled with how to handle cyberbullying incidents.
Judges often use traditional legal doctrines that leave students without the protection of either the educational or law
enforcement community. Consequently, the use of cyberbullying as a new means of harassing one's peers has fallen
into a virtual “no-man's-land” of legal liability.
*260 This Comment will explore the need for the legal system to expand school district authority to punish
cyberbullying incidents. The Comment will then outline why the current constitutional test is insufficient to handle
cyberbullying cases and also examine how criminal and civil remedies also fail the victims of cyberbullying.
*261 I. Background
A. The Current Constitutional Test: Tinker and Its Progeny
1. Tinker v. Des Moines Independent Community School District
When dealing with issues of student free-speech rights, almost every legal analysis begins with the Supreme
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Court decision of Tinker v. Des Moines Independent Community School District. [FN28] In Tinker, the Supreme
Court found that wearing the armbands was expressive conduct protected by the First Amendment, and that unless
the school “showed a substantial disruption of or material interference with school activities[,]” it could not ban the
armbands. [FN31]The “material interference” and “substantial disruption” component of the Tinker decision has
been the precedent most frequently applied to incidents of home-created, web-based expression. [FN33]
2. Bethel School District v. Fraser
The U.S. Supreme Court addressed the issue of student free-speech rights in schools seventeen years later in the
case of Bethel School District No. 403 v. Fraser. [FN34] *262 Although the Court reaffirmed Tinker, it reasoned
that speech rights of students were not coextensive with those of adults. [FN36] The Court refused to protect student
expression that intruded upon the work of the school and held that vulgar, indecent, or disruptive speech can be
punished if it occurs on campus or during school activities because such speech is contrary to the school's
educational objectives. [FN37]
3. Hazelwood School District v. Kuhlmeier
The third seminal Supreme Court case addressing student speech is Hazelwood School District v. Kuhlmeier.
[FN38]The school district did not allow students to publish articles in the school newspaper on sexual activities and
birth control because it felt that the sexual references were inappropriate for younger students. [FN40] The court
suggested that, although Tinker requires schools to tolerate particular student speech, the First Amendment does not
require a school to affirmatively promote particular student speech. [FN41]
*263 4. Morse v. Frederick
The Supreme Court once again visited the issue of school district jurisdiction to punish student speech in its
2007 term. In Morse v. Frederick, [FN43] a high school student brought an action against his principal and school
board alleging that his First Amendment rights had been violated when he received a ten-day suspension for
unfurling a banner stating “BONG HITS 4 JESUS” at an off-campus, school-approved activity. [FN44] The Court
held that the school's disciplinary measures were constitutional in light of the pro-drug message espoused by the
banner. [FN45]
***
B. Application of Supreme Court Precedent to Cyberbullying Cases
Today, courts use the Tinker test, with some nuances, to analyze incidents of cyberbullying that originate on
personal computers but affect students in the public school system. [FN48] Courts analyze several factors when
addressing the narrow issue of whether web site content posted on personal computers can be punished by school
administrators. First, courts must address the threshold issue of whether Internet speech originating on personal
computers is “on-campus” or “off-campus” speech. [FN49] When doing *264 so, courts have analogized these
incidents to cases dealing with “underground newspapers” or other types of publications that were printed offcampus but later made their way onto campus. [FN50] In some cases, courts have found that where there is a
“sufficient nexus between the web site and the school campus” the speech can be considered “on-campus.” [FN51]
This nexus has been established in cases where a student accessed a web site at school during class [FN52] and in
cases where the web site content was aimed specifically at the school and was carried by students onto campus.
[FN53]
*265 The majority of courts, however, have found that Internet speech created off-campus cannot be subject to
the jurisdiction of school disciplinary action. [FN54] The court in Emmett v. Kent School District No. 415
considered the appropriateness of a student suspension for creating a web site from his home without using school
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resources or time and stated:
In the present case, Plaintiff's speech was not at a school assembly, as in Fraser, and was not in a schoolsponsored newspaper, as in Kuhlmeier. It was not produced in connection with any class or school project.
Although the intended audience was undoubtedly connected to [the school], the speech was entirely outside
of the school's supervision or control.[FN55]
Therefore, in most jurisdictions, even if the “intended audience was undoubtedly connected to [the school],”
[FN56] courts will refuse to address *266 incidents of cyberbullying. [FN57]
***
In the rare case when the court does find a sufficient nexus between the speech and the school campus, it will then
examine whether the speech substantially or materially disrupted the learning environment. [FN59] There is not a
precise test for what defines a substantial disruption, but courts have reasoned that there must be more than some
mild distraction or curiosity created by the speech, [FN60] but “complete chaos is not required.” [FN61] In
determining the magnitude of the disruption, courts will consider factors such as: the reaction of the students and
teachers to the speech, [FN62] whether any students or teachers had to take time off from school because of the
speech, [FN63] whether teachers were incapable of controlling their classes because of the speech, [FN64] whether
classes were cancelled, [FN65] and how quickly the administration responded to the speech. [FN66] If the court
does find that the Internet speech actually disrupted or foreseeably could have disrupted the school's learning
environment, the administration's disciplinary measures will most likely be upheld. [FN67]
*267 Additionally, courts must evaluate the content of the speech to see if it falls outside the ambit of First
Amendment protection on other grounds. Threats of harm or violence constitute a good portion of bullying
incidents, and cyberbullying is no exception.
***
C. Cyberbullying Cases: The Muddled Law as Applied by Courts
The following cases reveal how lower courts have applied the above-mentioned Supreme Court precedent to
handle the emerging problem of cyberbullying. The cases highlight the unreasonably high “substantial *268
disruption” benchmark the Supreme Court has set to uphold school district disciplinary measures taken against
cyberbullies. The cases also show the difficulty of proving that student speech falls into the constitutionally
unprotected category of true threats.
1. Brandon Beussink and His Offensive Homepage
In early February 1998, Brandon Beussink created a web site at home on his personal computer. [FN73]
Brandon's web site was “highly critical of the administration at Woodland High School,” and he “used vulgar
language to convey his opinion regarding the teachers” and school administrators. [FN74] Brandon's web site “also
invited readers to contact the school principal and communicate their opinions regarding” the school. [FN75] A
fellow student of Brandon's became angry with him when she saw the web site comments, so she printed a copy and
showed school administrators. [FN76] Several of the teachers and administrators were visually agitated and
offended by the comments, so the administration decided to handle the problem immediately. [FN77]
Consequently, the administration gave Brandon a ten-day suspension and ordered him to shut down the web
site. [FN78] A district court granted Brandon's motion for a preliminary injunction, however, reasoning that
Brandon would likely succeed on the merits because the school discipline stemmed from the fact that the
administrators were offended by the web site content rather than from a fear of disruption or interference with
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school discipline as required by Tinker. [FN79]
***
3. J.S.: An Outlier to the Trend
*269 In J.S. v. Bethlehem Area School District, a student created a web site entitled “Teacher Sux” on his home
computer and posted it on the Internet. [FN88] The student told his friends about the web site, and ultimately faculty
and administrators of the school district viewed the web site from school computers. [FN89] The web site became a
topic of conversation at the school by both faculty and students, especially because one page outlined reasons why a
particular teacher should die and solicited funds from visitors to pay for a hitman. [FN90] When the student's
teacher viewed the web site she became very distressed, as manifested by the onset of physical illness. [FN91]
*270 In its analysis, the court found that although the intended victim exhibited severe mental and physical
distress from viewing the site and the statements were unconditional and unequivocal, the fact that the school
administration delayed in taking immediate steps against the student undermined its position that the web site was
truly threatening. [FN93] However, the court held that the web site caused a substantial disturbance because it
disrupted the entire school community—students, teachers, and parents. [FN94] In addition, the court pointed out
that the impact of the emotional and physical injuries to the teacher caused a significant disruption of the school
environment because a teacher's absence “unquestionably disrupted the delivery of instruction to the students and
adversely impacted the educational environment.” [FN95]
***
II. Where to Turn for Redress: A No Man's Land
A. Insufficiency of the Tinker Test in Curbing Cyberbullying [FN103]
*271 Although the court in J.S. found that the web site speech sufficiently affected the on-campus atmosphere
to justify disciplinary action by the school, [FN104] it stands as an exception to the trend. Most courts addressing the
issue of off-campus Internet speech have denied school districts power to punish students for what, many times, is
vulgar, cruel, sexually explicit, and threatening speech. [FN105] Because the current trend has been to give offcampus Internet speech First Amendment protection, many school officials are frustrated and left wondering what
can be done to address speech that does not rise to the level of a “true threat” and does not cause enough problems
on campus to rise to the level of a “substantial or material disruption,” but still negatively affects the school
environment and the students that attend the school. [FN106]
The cyberbullying cases presented above highlights the many problems with the current constitutional test and
shows the loopholes *272 available to students. [FN107] It puts administrators in the difficult position of having to
gauge when web site content has caused a sufficiently large disruption to address through disciplinary measures;
otherwise, they run the risk of being unable to provide enough evidence in court that the entire educational
environment was disrupted. J.S. shows that Internet speech must practically ruin an individual's career, wreak havoc
throughout the entire school community, and cause severe emotional distress to be classified under Tinker as a
substantial disruption of the learning environment. [FN110] Therefore, the lack of a bright-line rule with which to
evaluate cyberbullying incidents has left school administrators to play a guessing game when deciding what sort of
conduct should be punished.
B. Conflicting Messages in State Laws and School Board Policies: Some Bullying Will Be Punished, Some Bullying
Will Not
In response to the deadly consequences of allowing bullying to go unchecked, states have scrambled to
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strengthen school districts' jurisdiction over incidents of bullying taking place on their campuses, at school activities,
or on the way to and from school. [FN111] Schools have now developed procedures to track incidents of bullying,
inform parents of such incidents, and enact disciplinary measures to punish breaches of the antibullying policies.
[FN112]
*273Although the effects of cyberbullying can be the exact same as traditional bullying, courts have restricted
school district jurisdiction because the cyberbullying incidents originate “off-campus.” However, there is already
strong precedent for schools to monitor off-campus bullying incidents. [FN115] Through good-neighbor policies,
schools have long been able to discipline students for off-campus conduct such as fighting, destruction of property,
and violating traffic laws. [FN116]*274 Furthermore, off-campus conduct such as alcohol consumption, drug
activity, or assault has been subject to school disciplinary authority. [FN120] Traditional methods of bullying have
now been prohibited by state statutes, [FN121] and some school district policies include cyberbullying provisions.
[FN122] But unlike other provisions in school district policies that courts extend to off-campus incidents,
cyberbullying policies have been ineffective at punishing off-campus cyberbullies. [FN123]
Although the Tinker standard allows schools to punish cyberbullying incidents that escalate in a dramatic
nature, it is absurd that courts continually overlook the fact that bullies usually target specific individuals, not the
“entire school environment.” Bullies naturally pick on weak individuals rather than large numbers of students. The
effects of bullying may be excruciating to bear for that individual, but the rest of the student body may not even
know about the bullying, much less feel its effects. Since bullying is often “individualized,” there is a diminished
chance that cyberbullying incidents will cause a “substantial or material disruption” to the school environment. It
may cause a “substantial or material disruption” to one student's learning environment, but such a disruption would
most likely fail the high standard required in cases like J.S.
Therefore, the legal system has supplied mixed messages about bullying. A bully that harasses another student
will be subject to discipline as long as it occurs on campus, at a school activity, or on the way to and from school.
But the instant the bully enters his home, sits down at his computer, and spends hours creating a web site to
intimidate, scare, and ruin the reputation of another student, he will face no consequences for his actions. It is a good
time to be a cyberbully.
***
III. Finding Solutions to the Cyberbullying Problem
A. Schools as Mediating Institutions: A Historical Perspective
*280 Traditionally, American schools served society as “mediating institutions” and were considered hybrid
institutions that were “viewed as a natural extension of family life and parental interests” rather than governmental
bureaucracies. [FN154] From the inception of public education, the school system has been empowered by
delegated parental authority to nurture and instruct children in the intellectual and social processes necessary for the
“development of personal autonomy and public citizenship.” [FN155]
***
During the 1960s, however, progressive social movements that used the public school systems as battlegrounds
changed the way Americans perceived public schools and how the courts defined the schools as institutions.
[FN159]*281 These changes have been reinforced in our current generation through initiatives like the No Child
Left Behind Act, solidifying the image that the public school system is just another bureaucratic institution rather
than a localized extension of the family unit. [FN162]
***
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Treating schools as purely governmental institutions under the law misconstrues the true character of schools as
mediating institutions, but the judicial branch has done just that. For example, the Tinker court reasoned “that a
school's attempt to limit any student expression is presumptively chilling, and in the absence of a reasonable basis
for forecasting serious disruption [to the school environment], any doubts of either fact or law should be resolved
against the [school administration].” [FN168] Even though the Supreme Court has recognized the principle that
“constitutional rights of students in public school are not automatically coextensive with the rights of adults in other
settings,” [FN170]*282 courts continually hold school districts to higher standards of scrutiny than those to which
other governmental institutions are subject.
***
C. A Chilling Effect That Should Be Encouraged
*283 Another of the criticisms set forth in opposition to allowing school districts to gain jurisdiction over offcampus cyberbullying is that there will be a “chilling effect on speech because it gives rise to self-censorship and
diminishment of the marketplace of ideas.” [FN175] Such a statement makes sense when considering cases such as
Tinker that involved a political statement about an unpopular war. [FN176] Grouping cyberbullying into the same
category of political or academic speech, however, is illogical and falters when confronted by common sense.
***
The right for one student to feel safe and comfortable in the school setting should outweigh another student's right to
make offensive remarks. [FN177] Hateful or purposefully derogatory speech should be treated *284 differently than
political or academic speech, especially when directed to those of tender years.
IV. Plausible Solutions to the Cyberbullying Problem
Policymakers and judges have two distinct options if they want to truly address the problem of cyberbullying in
our schools: either strengthen civil and criminal remedies with which victims could deter harassers, [FN178] or
defer to school discretion in punishing abusive Internet speech.
***
The more feasible option is to return schools to the status of “mediating institutions” that they once
occupied and allow them substantial deference in disciplining conduct that affects the educational environment on
their campuses. Bruce C. Hafen, a preeminent scholar on education-related constitutional law, has suggested a
system giving schools broad powers, allowing them to discipline off-campus speech under their own discretion, and
then permitting courts to review school discipline for fairness and abuses of discretion. [FN179] Such a broad
standard of review raises issues of judicial efficiency and predictability.
***
*285 Another commentator, Renee L. Servance, has suggested a more narrow approach: a three-part test that (1)
replaces the on-campus/off-campus threshold test with an “impact analysis” that would evaluate whether “both the
target and the speaker are members of the same school community,” (2) requires the school to assess “whether the
speech would cause the negative side-effects of traditional bullying,” and (3) requires schools to show that the
impact of the speech “disrupts their ability to educate students or maintain sufficient . . . control over the classroom.”
[FN180] The most significant portion of Servance's proposal is replacing the on-campus/off-campus threshold test
with an impact analysis because it will allow schools to discipline cyberbullying incidents when only a small
number of students are affected by the speech, as opposed to the current trend that requires the speech to negatively
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affect the entire school environment to fall under school jurisdiction.
***
The Second Circuit, in a recent groundbreaking opinion that showed substantial deference to school
administrators' decision to punish a cyberbully, performed a similar inquiry into the value of the speech involved. In
Wisniewski v. Board of Education of Weedsport Central School District, an eighth-grader's instant messaging
interface had an icon of a small drawing of a pistol firing a bullet at a person's head and was accompanied by the
words “Kill Mr. VanderMolen” (the student's English teacher). [FN182] Although the argument was made that the
“icon depicting and calling for the killing of his teacher could be viewed as an expression of opinion within the
meaning of Tinker,” the court concluded the icon *286 “crosse[d] the boundary of protected speech and
constitute[d] student conduct that . . . would ‘materially and substantially disrupt the work and discipline of the
school.”’ [FN183]
In addition to showing how courts should analyze the “value of speech” [FN184] in cyberbullying cases, the
Wisniewski case is a beacon of hope for school administrators that have continually had their disciplinary decisions
overturned by jurists.
***
V. Conclusion
The problem of cyberbullying on school campuses closely parallels the traditional problems associated with offcampus speech that has made its way onto school campuses. However, the current trend to treat all off-campus
speech equally, whether it be political or harassing in nature, has failed many of the students in our nation's schools
and has deprived them of the right to receive an undisturbed education. Therefore, policymakers and judges should
revert to the former practice of treating schools as mediating institutions and expand school jurisdiction to punish
cyberbullying incidents.
Courts can implement the expansion of school district jurisdiction by replacing the current “sufficient nexus”
and “substantial disruption” tests with an “impact analysis.” Alternatively, courts could adopt the practice of
reviewing school district disciplinary measures with a more deferential standard of review such as “abuse of
discretion.” By expanding school district jurisdiction to punish off-campus cyberbullying incidents that impact the
in-school learning environment, *287 courts will protect innocent students and teachers from undue harassment and
simultaneously allow schools to reassume their role as the mediating social institutions.
[FNd1]. Note and Comment Editor, Arizona State Law Journal. J.D. Candidate, Sandra Day O'Connor College of
Law at Arizona State University, 2008; B.A. Political Science, Brigham Young University, 2005.
[FN4]. Renee L. Servance, Comment, Cyberbullying, Cyber-Harassment, and the Conflict Between Schools and the
First Amendment, 2003 Wis. L. Rev. 1213, 1218 (2003).
[FN5]. Id. at 1219.
[FN6]. Id.
[FN17]. Columbine High School Massacre, http://en.wikipedia.org/wiki/Columbine_High_School_massacre (last
visited Feb. 26, 2008).
[FN18]. Fred Hartmeister & Vickie Fix-Turkowski, Getting Even with Schoolyard Bullies: Legislative Responses to
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Campus Provocateurs, 195 Educ. L. Rep. 1, 3 (2005).
[FN19]. See id. at 8-11; see also Ark. Code Ann. § 6-18-514(a)(3)(A), (b)(2) (Supp. 2007); Cal. Educ. Code §
35294.21(b)(1), (c)(10) (West Supp. 2007); Colo. Rev. Stat. § 22-32-109.1(2)(a)(X) (2007); Ga. Code Ann. § 20-2751.4(a) (2005); N.J. Stat. Ann. § 18A:37-16 (West Supp. 2007); Or. Rev. Stat. § 339.351 (2005).
[FN20]. See Hartmeister & Fix-Turkowski, supra note 18, at 3.
[FN28]. 393 U.S. 503 (1969).
[FN31]. Id. at 513-14.
[FN33]. See, e.g., Killion v. Franklin Reg'l Sch. Dist., 136 F. Supp. 2d 446, 455 (W.D. Pa. 2001); J.S., 807 A.2d at
850, 861.
[FN34]. 478 U.S. 675 (1986).
[FN36]. Id. at 682-83.
[FN37]. Id. at 683, 685 (quoting Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 508 (1969)) (“Surely
it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in
public discourse. Indeed, the ‘fundamental values necessary to the maintenance of a democratic political system’
disfavor the use of terms of debate highly offensive or highly threatening to others. Nothing in the Constitution
prohibits the states from insisting that certain modes of expression are inappropriate and subject to sanctions. The
inculcation of these values is truly the ‘work of the schools.”’).
[FN38]. 484 U.S. 260 (1988).
[FN40]. Id. at 263-64.
[FN41]. Id. at 270-72.
[FN43]. 127 S. Ct. 2618 (2007).
[FN44]. Id. at 2622.
[FN45]. Id. at 2625, 2629.
[FN47]. Clay Calvert & Robert D. Richards, ‘Morse v. Frederick’: A Narrow Win for Schools, Nat’l L.J., Aug. 1,
2007, at 26 (“[Morse] does nothing to answer the important and timely question of just how far a school's authority
may reach in punishing expression, such as the kind that students transmit through electronic means like homemade
Web pages, social-networking sites, text messages and e-mail-- arguably the most muddled area of student speech
rights today.”).
[FN48]. See, e.g., J.S. v. Bethlehem Area Sch. Dist., 807 A.2d 847, 869 (Pa. 2002) (using the Tinker test to hold that
a student's Internet web site was not a true threat because the district's lack of immediate steps to correct the problem
showed that the district did not take the threat seriously, but finding that the speech was not protected under the First
Amendment because it caused a substantial disruption to the school environment when the threatened school teacher
took a leave of absence for the remainder of the year).
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[FN49]. Porter v. Ascension Parish Sch. Bd., 393 F.3d 608, 615 (5th Cir. 2004); J.S., 807 A.2d at 865. Several
courts have considered the question of whether off-campus emails or web site postings constitutes on-campus or offcampus speech, but these courts have come to different conclusions. Compare Killion v. Franklin Reg'l Sch. Dist.,
136 F. Supp. 2d 446, 448-49, 455 (W.D. Pa. 2001) (where email was created off campus, but printed and carried on
school grounds by others, court surveyed case law and determined that, whether speech was on- or off campus,
speech should be analyzed in accordance with Tinker), with Emmett v. Kent Sch. Dist. No. 415, 92 F. Supp. 2d
1088, 1090 (W.D. Wash. 2000) (in granting temporary restraining order in favor of student, web site characterized
as having “out-of-school nature”).
[FN50]. See LaVine v. Blaine Sch. Dist., 257 F.3d 981, 983-84, 989 (9th Cir. 2001) (analyzing a poem composed
off-campus and brought onto campus by the student under the Tinker standard); Boucher v. Sch. Bd. of the Sch.
Dist. of Greenfield, 134 F.3d 821, 822-23 (7th Cir. 1998) (where a student was disciplined for an article printed in
an underground newspaper that was distributed on school campus); Sullivan v. Houston Indep. Sch. Dist., 475 F.2d
1071, 1074-77 (5th Cir. 1973) (punishing a student for authoring an article printed in an underground newspaper
distributed off-campus, but near school grounds).
[FN51]. J.S., 807 A.2d at 865. The determination of whether a sufficient nexus exists between off-campus speech
and a school environment is based upon the point of receipt, not necessarily transmission. Id.; see also Layshock v.
Hermitage Sch. Dist., 496 F. Supp. 2d 587, 598 (W.D. Pa. 2007) (“It is clear that the test for school authority is not
geographical. The reach of school administrators is not strictly limited to the school's physical property.”). With oral
speech, the distinction is clear-cut because both the transmission and receipt take place at the same time. See, e.g.,
Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 685 (1986) (student's vulgar speech at a school assembly was not
protected by First Amendment). With written speech or cyber-speech, the analysis is more complicated. For
example, a school cannot ban an underground newspaper that is published and distributed off campus, but if the
speech is brought onto campus the school may take disciplinary action because a sufficient nexus was established by
students bringing the speech onto campus. See, e.g., Boucher, 134 F.3d at 822-23 (student disciplined for an article
printed in an underground newspaper that was later distributed on school campus). As a result, similar to
underground newspapers, courts have generally focused on where the cyber-speech was received rather than where
it was created. See, e.g., Layshock, 496 F. Supp. 2d at 599 (“[I]n cases involving off-campus speech, such as this
one, the school must demonstrate an appropriate nexus.”).
[FN52]. See, e.g., J.S., 807 A.2d at 852, 865 (illustrating a time when students and administrators accessed a web
site at school); Beussink v. Woodland R-IV Sch. Dist., 30 F. Supp. 2d 1175, 1177-80 (E.D. Mo. 1998) (using the
Tinker standard for on-campus speech when students and teachers access the web site on school computers, but
ruling that the web site did not cause a substantial disturbance).
[FN53]. See, e.g., J.S., 807 A.2d at 865. In some jurisdictions, when cyber-speech is aimed at a specific school or its
personnel and is brought onto campus, the speech will be considered “on-campus.” In J.S., a student created a web
site entitled “Teacher Sux” on his home computer and posted it on the Internet. Id. at 850-51. The student told other
students about the web site, and ultimately faculty and administrators of the school district viewed the web site from
school computers. Id. at 851-52. The court held that there was a sufficient nexus between the web site and the school
campus to consider the speech as occurring on-campus. Id. at 865. In its reasoning, the court found several factors to
be dispositive in the analysis, including the fact that (1) the student “inform[ed] other students ... of the existence of
the web site[;]” (2) the speech was brought onto the school campus; (3) the students, faculty members, and
administrators accessed the web site at school; (4) “the web site was aimed not at a random audience, but at the
specific audience of students and others connected with” the school; and (5) it was foreseeable to the student “that
the contents of the web site would pass from students to teachers, inspiring circulation of the web page on school
property.” Id. Conversely, where a student takes no action to increase the chances of off-campus speech finding its
way onto campus, the speech will be considered “off-campus” in nature. See, e.g., Porter, 393 F.3d at 615. In Porter,
a student sketched a violent drawing of an attack on his school while in the privacy of his own home. Id. at 611. The
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student stored the drawing in his closet, but two years later, his younger brother brought the drawing to school and
showed it to other students. Id. The court held that the drawing was not on-campus speech because it
“serendipitously” made its way onto campus and because the student took no action that would increase the chances
that his drawing would find its way to the school. Id. at 615, 617.
[FN54]. See, e.g., Emmett, 92 F. Supp. 2d at 1090; cf. Killion, 136 F. Supp. 2d at 454 (reasoning that “school
officials' authority over off-campus expression is much more limited than expression on school grounds”).
[FN56]. Emmett, 92 F. Supp. 2d at 1090.
[FN57]. See, e.g., id. at 1090; cf. Killion, 136 F. Supp. 2d at 454 (reasoning that “school officials' authority over offcampus expression is much more limited than expression on school grounds”). But see Wisniewski v. Bd. of Educ.
of Weedsport Cent. Sch. Dist., 494 F.3d 34, 39, (2d Cir. 2007) (“The fact that [the student's] creation and
transmission of the IM icon occurred away from school property does not necessarily insulate him from school
discipline.”).
[FN59]. See, e.g., Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 513-14 (1969); Boucher v. Sch. Bd.
of the Sch. Dist. of Greenfield, 134 F.3d 821, 827-28 (7th Cir. 1998).
[FN60]. Burnside v. Byars, 363 F.2d 744, 748 (5th Cir. 1966) (“The record indicates only a showing of mild
curiosity on the part of other school children ... [which] did not hamper the school in carrying on its regular schedule
of activities....”).
[FN61]. J.S., 807 A.2d at 868.
[FN62]. Id. at 869.
[FN63]. Id.; Killion v. Franklin Reg'l Sch. Dist., 136 F. Supp. 2d 446, 455 (W.D. Pa. 2001).
[FN64]. Killion, 136 F. Supp. 2d at 455.
[FN65]. Layshock v. Hermitage Sch. Dist., 496 F. Supp. 2d 587, 600 (W.D. Pa. 2007) (“The actual disruption was
rather minimal--no classes were cancelled ....”).
[FN66]. See id.; J.S., 807 A.2d at 869.
[FN67]. See, e.g., Wisniewski v. Bd. of Educ. of Weedsport Cent. Sch. Dist., 494 F.3d 34, 38-40 (2d Cir. 2007)
(upholding school disciplinary measures because it was reasonably foreseeable that the student's conduct would
“disrupt the work and discipline of the school”) (internal quotation omitted); Bystrom v. Fridley High Sch., 686 F.
Supp. 1387, 1390, 1392 (D. Minn. 1987) (finding that an underground publication that contained vulgar language
and advocated violence against teachers substantially disrupted school operations because teachers “found it
necessary to interrupt their teaching to quell these disruptions”); J.S., 807 A.2d at 869.
[FN73]. Beussink v. Woodland R-IV Sch. Dist., 30 F. Supp. 2d 1175, 1177 (E.D. Mo. 1998).
[FN74]. Id.
[FN75]. Id.
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[FN76]. Id. at 1178.
[FN77]. Id.
[FN78]. Id. at 1179.
[FN79]. Id. at 1180.
[FN88]. J.S. v. Bethlehem Area Sch. Dist., 807 A.2d 847, 850-51 (Pa. 2002).
[FN89]. Id. at 851-52.
[FN90]. Id.
[FN91]. Id. at 852.
[FN93]. Id. at 852, 856-59.
[FN94]. Id. at 868-69.
[FN95]. Id. at 869.
[FN103]. Tinker and other Supreme Court precedents are ill suited to deal with off-campus student expression that is
brought onto campus unintentionally by others. See Porter v. Ascension Parish Sch. Bd., 393 F.3d 608, 615 (5th Cir.
2004). University of Pennsylvania Professor Clay Calvert, when speaking about the current state of law, asserted:
“The bottom line is that off-campus-created Web sites raise new issues and require new rules; they are not addressed
either well or adequately by existing Supreme Court precedent, especially when a student does not ‘bring’ the site on
campus.” Clay Calvert, Off-Campus Speech, On-Campus Punishment: Censorship of the Emerging Internet
Underground, 7 B.U. J. Sci. & Tech. L. 243, 279 (2001).
[FN104]. J.S. v. Bethlehem Area Sch. Dist., 807 A.2d 847, 868 (Pa. 2002).
[FN105]. Coy v. Bd. of Educ. of N. Canton City Sch., 205 F. Supp. 2d 791, 800-01 (N.D. Ohio 2002) (expressing
skepticism about the school district's position because there was no evidence the web site substantially disrupted
school activities even though the student accessed the web site from a school computer); Beidler v. N. Thurston Sch.
Dist., Case No. 99-2-00236-6 (Wash. Super. Ct. July 18, 2000), available at http://
web.archive.org/web/20050425161759/http://www.aclu-wa.org/legal/Beidler-Court's+Opinion.html (rejecting the
school district's argument because the record established that the student's on-campus activities concerning the web
site were de minimus).
[FN106]. Lisa L. Swem, Sticks and Stones in Cyberspace, Leadership Insider: Practical Perspectives on Sch. L. &
Pol'y, Aug. 2006, at 5, 11.
[FN107]. Supra Part I.B.
[FN110]. See J.S. v. Bethlehem Area Sch. Dist., 807 A.2d 847, 869 (Pa. 2002).
[FN111]. Hartmeister & Fix-Turkowski, supra note 18, at 1-2.
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
40 AZSLJ 257
40 Ariz. St. L.J. 257
Page 12
[FN112]. See, e.g., Peoria Unified School District No. 11 Policy Manual, Governing Board Policy, Bullying §
5.1.7.6.2
(2006),
available
at
http://
portal.peoriaud.k12.az.us/Governing%20Board/Governing%20Board%C20Policy%
20Manual/PUSD%20Governing%C20Board%20Policy/Governing%20Board%C20Policy%C20Section%0
5.htm#_Toc181089089.
[FN115]. Wisniewski v. Bd. of Educ. of Weedsport Cent. Sch. Dist., 494 F. Supp. 3d 34, 39, (2d Cir. 2007) (“We
have recognized that off-campus conduct can create a foreseeable risk of substantial disruption within a school ....”);
Layshock v. Hermitage Sch. Dist., 496 F. Supp. 2d 587, 598 (W.D. Pa. 2007) (“It is clear that the test for school
authority is not geographical. The reach of school administrators is not strictly limited to the school's physical
property.”).
[FN116]. See, e.g ., Peoria Unified School District No. 11 Policy Manual, Governing Board Policy Student Conduct
Within the School Community § 5.1.7.4 (2006), available at http://portal.peoriaud.k12.az.us/Governing%
20Board/Governing%20Board%C20Policy%20Manual/PUSD%20Governing%C20Board%
20Policy/Governing%20Board%C20Policy%C20Section%2005.htm#_Toc181089085 (“School rules and other
reasonable expectations for acceptable student behavior are extended to include student conduct while going to and
from school and while off campus during the normal school day, attending other schools or events on or off campus
after the school day ends. This includes the responsibility to observe traffic and pedestrian laws and the
responsibility to act as a good neighbor, respecting the safety, welfare, and property of others during lunch hour and
released periods. Failure to conduct oneself in a safe manner or to act as a good neighbor within the school
community may result in disciplinary action.”).
[FN120]. Bush v. Dassel-Cokato Bd. of Educ., 745 F. Supp. 562, 564, 572-73 (D. Minn. 1990).
[FN121]. See, e.g., Ariz. Rev. Stat. Ann. § 15-341(A)(40) (2007).
[FN122]. Tanya Caldwell, Schools Crack Down on Cyberbullies, Orlando Sentinel, Aug. 5, 2007.
[FN123]. See, e.g., Layshock v. Hermitage Sch. Dist., 496 F. Supp. 2d 587, 604-05 (W.D. Pa. 2007) (criticizing the
Hermitage School District computer and harassment policies as overbroad).
[FN154]. Bruce C. Hafen, Developing Student Expression Through Institutional Authority: Public Schools as
Mediating Institutions, 48 Ohio St. L.J. 663, 670-71 (1987).
[FN155]. Id. at 671.
[FN159]. Id. at 677-81.
[FN162]. See No Child Left Behind, Act of 2001, Pub. L. No. 107-110, 115 Stat. 1425 (codified in scattered
sections of 20 U.S.C.).
[FN168]. Hafen, supra note 154, at 692.
[FN170]. Bethel Sch. Dist. No. 403 v. Fraser, 484 U.S. 675, 682 (1986).
[FN175]. Aaron H. Caplan, Public School Discipline for Creating Uncensored Anonymous Internet Forums, 39
Willamette L. Rev. 93, 148 (2003).
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
40 AZSLJ 257
40 Ariz. St. L.J. 257
Page 13
[FN176]. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 503-04 (1969).
[FN177]. Servance, supra note 4, at 1243.
[FN178]. See Phinjo Gombu, Teen Girls Charged in Murder Plot; School Target of Cyber Threats, The Hamilton
Spectator, Apr. 27, 2006, at A01 (“The bullying issue hit the news this week when Regina City Council passed a
bylaw that allowed police to issue tickets that can result in fines of up to $2,000 for bullying either in public or in
cyberspace. The bylaw does not apply to students under 12.”).
[FN179]. Hafen, supra note 154, at 722-23.
[FN180]. Servance, supra note 4, at 1239.
[FN182]. Wisniewsk v. Bd. of Edu.of Weedsport Cent. Sch. Dist., 494 F.3d 34, 36 (2d Cir. 2007).
[FN183]. Id. at 38-39 (quoting Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 405, 513 (1969)).
[FN184]. The Supreme Court has continually reaffirmed the notion that children can be protected from speech that
has lesser social value. See Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 684 (1986) (“We have also recognized
an interest in protecting minors from exposure to vulgar and offensive spoken language.”).
40 Ariz. St. L.J. 257
END OF DOCUMENT
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
Memorial Boulevard Middle School Honor Code
Policy 5131.913(a)
Students – Bullying – Cyberbullying
<http://www.bristol.k12.ct.us/page.cfm?p=5730>
(last visited April 15, 2012, 5:00 pm)
The Bristol Board of Education provides computers as tools to enhance our students’ education.
The District’s computer network and the Internet, whether accessed on campus or off campus,
during or after school hours, may not be used for the purpose of harassment of any kind. All
forms of harassment over the Internet, commonly referred to as cyberbullying, are unacceptable
and viewed as a violation of this policy and the District’s acceptable computer use policy and
procedures.
Malicious use of the District’s computer system is prohibited. Users are responsible for the
appropriateness of the material they transmit over the system. Hate mail, harassment,
discriminatory remarks, or other antisocial behaviors are expressly prohibited.
Cyberbullying includes, but is not limited to the following misuses of technology: harassing,
teasing, intimidating, threatening, or terrorizing another person by sending or posting
inappropriate and hurtful e-mail messages, instant messages, text messages, digital pictures or
images, or Website postings, including blogs. It is also recognized that the author (poster or
sender) of the inappropriate material is often disguised (logged on) as someone else.
Students and community members who believe they have been the victims of such misuses of
technology, as described in this policy, should not erase the offending material from the system.
A copy of the material should be printed and brought to the attention of the school administrator.
The administration shall fully investigate all reports of cyberbullying.
In situations in which the cyberbullying originated from a non-school computer, but brought to
the attention of school officials, any disciplinary action shall be based upon whether the conduct
is determined to be severely disruptive of the educational process so that it markedly interrupts
or severely impedes the day-to-day operations of a school. In addition, such conduct must also be
violative of another District policy. Such conduct includes, but is not limited to threats made on
or off school grounds, to kill or hurt a staff member or student.
Disciplinary action may include: the loss of computer privileges, detention, suspension, or
expulsion for verified perpetrators of cyberbullying. In addition,when any kind of threat is
communicated or when a hate crime is committed, the administration will report such crimes to
local law enforcement officials.
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.