Law Bytes:
"Tinkering" with Substantial Disruptions
Lex-IS Services
Legal Instruction and Support for School Leaders
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February 13, 2009
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Vol. B09-01
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"Tinkering" with Substantial Disruptions
School leaders must occasionally decide whether and how to discipline students for their personal conduct or communications off school grounds. In legalese, when do schools have "jurisdiction" over such conduct? Most recent examples typically involve personal student websites, social network postings and blogs, and other off-site e-communications. More traditional examples include expressions made in non-school forums like the shopping mall, in an "underground" newspaper, at a public event, etc.
Particularly difficult are those expressions that are blatantly offensive - demeaning, derogatory, profane, or vindictive - often containing negative statements about the school, school officials, and/or other students.
In the 1960's a group of high school students opposed to the Vietnam War came to school wearing black armbands in silent protest. School officials prohibited these as inappropriate political expression, resulting in a lawsuit. In Tinker v. Des Moines Independent School District, the U.S. Supreme Court ruled for the students, establishing the now-famous "Substantial Disruption" standard. The court ruled that the students' expression was protected speech because the expression did not substantially disrupt or materially interfere with school operations.
This bright-line standard does not always provide clarity when applied to murkier fact situations, especially when dealing with electronic communications. As one court noted,
"[T]he advent of the Internet has complicated analysis of restrictions on speech.... Indeed, Tinker's simple armband, worn silently [in a] classroom, has been replaced by ... complex multi-media Web site[s], accessible to fellow students, teachers, and the world."
In the early years of School Cyberlaw litigation, students often prevailed when posting offensive web content, as long as they did not create the site using school computers or open the pages at school. Unless these personal websites produce an actual or likely disruption - a substantial one, not a limited one - they are usually "off limits" in terms of disciplinary action involving suspension or other loss of educational rights.
In short you usually cannot suspend a student for off-campus speech, however offensive, unless such speech poses a Tinker-based threat of substantial disruption. (This article does not address the expanded options if such speech comes onto campus.)
Practice Points
· Avoid "knee-jerk" reactions and facile assumptions about the disruptive potential of highly offensive personal websites or other e-communications. A really nasty web page, though it may be wrong and hurtful, isn't necessarily disruptive. Take the time to deliberate carefully about the nature of the communication, context, possible or manifested disruptions, and potential discipline.
· When such a site becomes known, investigate thoroughly and involve all the necessary personnel (e.g., technology staff, teacher, school counselor, central office supervisor, school attorney, law enforcement).
· Websites that threaten the safety of others or school property generally warrant more aggressive action and usually don't warrant the same speech protections. Contact law enforcement immediately; you may need to move the student pending investigation. You must also determine whether the threat or potential threat is real, not just a hoax or harmless chatter.
· Even if you lack jurisdiction to suspend or impose other significant discipline there are other practical options, e.g., (1) meet with the parents and/or student; (2) contact the internet service provider (e.g., MySpace); (3) consider the propriety of lesser discipline involving suspension (or threat thereof) of school "privileges" such as participation in extra-curricular activity or use of school technology (but check with your attorney first.)
· School and school system Student Conduct and Acceptable Use Policies should contain a "Tinker Provision" giving students notice that their personal off-campus expressions, including e-communications, may be subject to discipline if they threaten to disrupt school operations.
· Because technology increasingly pervades school instruction and management, we recommend to our clients that they consider developing separate, consolidated, and comprehensive technology policies as part of their policy manuals. These can be used not only to guide decisions and conduct, but afford an excellent means of reviewing, planning for, and instructing users on the school or school system's technology practices and acceptable uses.
We hope you find this Law Byte helpful. Please let us know if we can be of further assistance.
Best regards,
David Hostetler, J.D.
Director
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