The Regulation of Student Expression in the Era of Social Media

by Matthew Hall

Students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”  This was the principle enunciated by the United States Supreme Court in the 1969 landmark Opinion, Tinker v. DesMoines Independent Community Area School District wherein the Court acted to protect students’ rights to wear black armbands in silent protest of the Vietnam War.  The Court found that the school’s disciplinary action was unjustified where it acted to prohibit the expression of “one particular opinion” without demonstrating that the armbands would sufficiently disrupt the operation of the school.

In reaching this holding, the Court declared that “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.  They may not be confined to the expression of those sentiments that are officially approved.”  However, the Court also recognized that student expression rights are not completely unbounded.  School administrators possess the authority to regulate and suppress speech where it would “materially and substantially disrupt the work and discipline of the school.”  In Tinker, the Court confined the discussion regarding a school’s justified regulation of student expression to speech occurring within school hours and within its walls.

In the decades since Tinker, federal courts have continued to grapple with striking a balance between students’ rights to free expression against a school’s legitimate interest in providing structure and maintaining order.  In its post-Tinker decisions, the latter of these interests has dictated the results.  Bethel School District v. Fraser (1986), upheld a school’s right to discipline a student for giving a sexually suggestive speech at a school assembly. Hazelwood v. Kuhlmeier (1988), upheld a principal’s decision to censor certain articles from the school newspaper. And Morse v. Frederick (2007), upheld the suspension of a student who held up a banner promoting drug use.  However, like Tinker, these decisions have not strayed far from the schoolyard itself.

While this doctrine was developing, the dawn of social media and students’ prolific use of it has evaporated the significance of the school-house gate as a doctrinal division between regulated and unregulated student expression environments.  Sites like Facebook and Twitter allow a student to instantly broadcast posts and tweets to his or her entire social network, the entire school or the public with a single click. The effect of the communication is the same whether published from a seat in math class or after school hours from the kitchen table.  Statements that were once made to a few students in the cafeteria are now being published in a permanent digital format visible to nearly anyone interested.

Use of social media by students has created new and unique challenges for educators across the country.  For example, in cases of cyberbullying, a bully can utilize social media, unbounded by time or place, to assault his or her fellow student victim.  Teen suicides as the result of cyberbullying have been well-documented over the last decade and have often led to lawsuits against the school for a failure to monitor and regulate the bully’s use of social media.

Unsurprisingly, students have also utilized social media to deride and mock teachers and school administrators.  In two recent Pennsylvania federal cases, Layshock v. Hermitage School District (2010) and J.S. ex. rel. Snyder v. Blue Mountain School District (2011), students set their sights on their school’s principal.  In Layshock, the student created a MySpace profile impersonating his principal and mocking the principal’s weight and physical appearance.  In Snyder, a middle school student also created a fake profile.  The student used crude sexual language to describe and mock her principal.  In both cases, the Third Circuit Court of Appeals applied the standard outlined in Tinker.  In both of the cases, the student expression was protected – holding that schools have a legitimate interest in preventing educational disruption, but they have no right to clamp down on students’ online speech simply because they do not like it.

In the most recent major federal case involving student expression, Bell v. Itawamba County School Board (2015), the Fifth Circuit also applied the Tinker standard but reached the opposite result.  The case involved a senior in high school, an aspiring rapper, who was suspended after posting a video on Facebook and YouTube depicting his performance of a song meant to criticize two coaches at his school for allegedly engaging in improper sexual relations with female students.  The lyrics made multiple references to violent acts.  In upholding the student’s suspension, the Court found that the song violated school policies against threats and harassment, was intentionally directed at the school community and created a reasonable risk of a substantial disruption.  The United States Supreme Court declined review when it denied the student’s cert petition earlier this year.

The split between the Third and Fifth Circuit is illustrative of the fractured state of the law in this area nationwide.  Purportedly applying the same standard, some courts protect student speech vigorously and are willing to bear the risk of disruption at the cost of protecting freedom of expression for students, while others grant broad discretion to school authorities to regulate student speech inside and outside of school in the interest of promoting structure and maintaining order.  For years, commentators have called for the United States Supreme Court to provide guidance to the lower courts on this issue.  However, following the recent denial of cert in Bell, the Supreme Court has again decided to hang back and allow the doctrine to develop in the lower courts.

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