The ability of school officials to limit student free speech has been a matter of significant debate since the seminal case of Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). In Tinker the First Amendment rights of several students were violated when the students were suspended for wearing black armbands in silent protest of U.S. involvement in Vietnam. In response the Supreme Court explicitly stated that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Id. Before restricting a students First Amendment rights the Court placed the burden on the school district to show that the speech would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school” Id.at 509. The Court restricted the holding of Tinker somewhat in Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986), finding that lewd, profane, and vulgar speech used on school property is subject to regulation.
However, the educational system has evolved since the days of Tinker and what constitutes the “schoolhouse gate” is no longer clear. Students are now capable of instantaneous communication and dissemination of information through the use of social media websites that further blur the definition of on-campus speech. What triggers the ability of school authority to regulate speech that occurs off campus but potentially effects activities and individuals at school is not always obvious.
Most recently the Second Circuit has held that school officials may regulate conduct occurring off-campus if that behavior will create a foreseeable risk of intruding onto school property with the potential to create a substantial disruption. See Doniger v. Niehoff,642 F.3d 34 (2d Cir. 2011). In Doniger, members of the student council created a blog after the school canceled a school-sponsored battle of the bands. The blog expressed the students’ disapproval over the schools actions and encouraged classmates to contact the administration in order to further condemn the school’s decision. The Court held that the students’ blog could be expected to reach school property and cause a substantial disruption as the administration would be inundated with calls and emails. Id.at 39.
Conversely, a Third Circuit decision held that “[i]t would be an unseemly and dangerous precedent to allow the state, in the guise of school authorities, to reach into a child’s home and control his/her actions there to the same extent that it can control that child when he/she participates in school sponsored activities.” Layshock ex. rel. Layshock v. Hermitage School District, 650 F.3d 205 (3d Cir. 2011). In Layshock, a student utilized his grandmother’s computer to create a fake MySpace profile for his principle. The Court held that a “sufficient nexus” could not be established between the students speech in creating the fictitious profile and “a substantial disruption of the school environment” Id.at 214.
The Supreme Court’s decision in Tinker has been continuously reinterpreted at the Circuit Court level and it is likely to remain a contested issue until revisited by the Supreme Court.
If your institution has any further questions or concerns about education law related matters, please email James G. Ryan at jryan@cullenanddykman.com or call him at 516-357-3750.
A special thanks to Cynthia Thomas a law clerk at Cullen and Dykman, for help with this post.