Lack of Legal Precedent Poses Major Problem for Schools

May 22, 2006

School administrators are increasingly asked what kind of cyberspeech causes campus disruption. As more students — from elementary school to college — network online, more are being punished for their postings.



Last month, five Etiwanda High School students were suspended for creating an "unharmonious school atmosphere” after posting vulgar language in criticizing a teacher.



Traditionally, schools do not interfere with behavior at home, but local school officials say they will act if activity from home computers causes school disruption.



Greg Lukianoff, president of Foundation for Individual Rights in Education, said he has seen an upswing in free speech cases involving networking sites such as Myspace.com.



"I’ve seen a very pronounced jump in the last six months,” said Lukianoff. "There’s also been an upswing in the number of seminars for administrators terrified over the forum that Myspace presents.”



Lukianoff, who heads the foundation that defends rights in higher education, said some cases border on the silly.



Last month, the foundation helped a University of Central Florida student win a case after being charged with harassment. The student had called a student government candidate a "jerk and a fool” on the social networking site Facebook.com.



One reason schools have found themselves in precarious situations is that few court cases have set precedent on Internet free speech issues.



The last time the U.S. Supreme Court addressed a First Amendment case involving student speech was in 1988, long before the Internet became popular. In Hazelwood School District v. Kuhlmeier, the Supreme Court ruled that school officials could censor certain articles in the school paper.



But the Hazelwood standard applies to speech made on school grounds and because pages such as Myspace are blocked in most area schools, it is a standard that can’t be applied.



Some lower court cases have weighed in but have done little to remedy the contentious issues.



In Beussink v. Woodland R-IV School District, a federal court in Missouri ruled in 1998 that a school had violated First Amendment rights when it suspended a student for using profanity when criticizing school officials on a personal Web page.



But in 2002, the Pennsylvania Supreme Court ruled in favor of the school district in a similar case. In J.S. v. Bethlehem Area School District, the court said that a student’s Web site created off-campus was considered on-campus speech because the student had accessed the site at school and told other students about it.



Kevin Bankston, staff attorney at Electronic Frontier Foundation, said cyberspeech cases involving schools date back to the adoption of the Internet. With more students blogging, he said, more teachers and administrators are reacting in unconstitutional ways. Bankston said schools must have evidence that students have caused a disruption in order to justify punishment.



"Criticizing teachers, even using vulgar language, doesn’t arise to material disruption,” said Bankston. "Without that evidence, schools don’t have a leg to stand on.”

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Schools: University of Central Florida Cases: University of Central Florida: Censorship of Internet Speech