On Campus Versus Off Campus

One of the most pressing issues in student-speech jurisprudence concerns when school officials can punish public school students for posting profane, racy, bullying or otherwise objectionable material online.

Several federal courts of appeals have weighed in on the issue, heightening the possibility of U.S. Supreme Court review.

A court – as some concurring judges did in the 3rd Circuit’s en banc decision in J.S. v. Blue Mountain School District http://www.ca3.uscourts.gov/opinarch/084138p1.pdf – could simply hold that school officials simply don’t have jurisdiction over material created off-campus and not brought to school by the creating student.

Other courts have applied the familiar “substantial disruption” test from Tinker v. Des Moines Independent School District (1969) and asked whether school officials could reasonably forecast that the student online speech would create a substantial disruption or material interference with school activities. The 4th U.S. Circuit Court of Appeals used this test to find that school officials in West Virginia had the authority to punish a student for objectionable online material in Kowalski v. Berkeley County Schools. http://pacer.ca4.uscourts.gov/opinion.pdf/101098.P.pdf

In the past a few courts have even relied on the Supreme Court’s 1986 ruling Bethel School District v. Fraser in which the Court ruled that public school officials can punish students for vulgar and lewd speech. Other courts have limited application of the Fraser test to speech that actually takes place on school grounds, as Matthew Fraser delivered his sexually-laced speech before an actual school assembly. http://www.firstamendmentcenter.org/matthew-fraser-speaks-out-on-15-year-old-supreme-court-free-speech-decision

As I discuss in my new book – Let The Students Speak: A History of the Fight for Free Expression (Beacon Press, 2011) http://www.beacon.org/productdetails.cfm?PC=2204- school officials have been grappling over how far their arms of authority extend for many years.

In the book I tell the story of two federal district court cases – Klein v. Smith, 635 F.Supp. 1440 (D. Me. 1986) and Fenton v. Stear, 423 F.Supp. 727 (W.D. Pa. 1976).

In Klein, a student gave the middle-finger salute to a teacher off campus and received a 10-day suspension. In memorable language, the federal district court judge said that the “digital posturing of this splenetic, ill-manner” kid was “too attenuated” to school activities to give school officials authority to discipline.

However, in Fenton, the federal district court ruled that a kid could be punished for calling a teacher “a prick” off campus.
The U.S. Supreme Court likely will hear one of these online student speech cases in the near future.

A petition for writ of certiorari has been filed in Doninger v. Niehoff (11-113) http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/11-113.htm Former student Avery Doninger asks the Court to overrule a 2nd Circuit decision giving school officials qualified immunity and otherwise ruling against her First Amendment claims.
School officials disciplined her after her online post calling a school official a “douchebag.”

Blue Mountain School District has asked and received permission from the U.S. Supreme Court (particularly Justice Samuel Alito) to extend its deadline for filing its petition seeking review of the 3rd Circuit’s decision. See Blue Mountain School District v. J.S. http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/11-113.htm

Factor in the stark reality that there is so much legislative activity and public concern over cyber bullying and there could be the perfect storm for another student First Amendment case at the Supreme Court.