Can schools punish students for off-campus, online behavior?

In St. Louis, five boys posted a "hot or not" list of 100 junior girls at their high school, including lewd descriptions of the girls' bodies, on Facebook, the St. Louis Post-Dispatch reports. The school district gave them each 10-day suspensions. But, in light of a New Jersey case where a student was suspended after posting a parody profile of his principal on MySpace, schools have to be sure they are on firm legal footing before taking action against cyberbrats. The school district in that case wound up paying out more than $100,000 to settle the student's suit, apparently for wrongful suspension.

The Supreme Court's Tinker v Des Moines decision (393 U.S. 503) in 1969 holds that schools can restrict students' free speech rights only when it materially disrupts school operations.

In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. 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, just as they themselves must respect their obligations to the State. In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved. In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views.

Here, school officials say the boys' actions did disrupt school. Girls were in tears one day at school and staff spent most a morning dealing with the situation. While the boys didn't intend for it to reach the school, the act of putting it online had that effect.

Tinker was a free-speech case in which students protested the Vietnam War by wearing black armbands to school. That was clear political speech and the Court held that since the armbands were not disruptive to school operations, administrators could not ban them. But what about online behavior that isn't clearly covered by the First Amendment, which indeed veers close to defamation? The Post notes:

More recently, lower courts have produced a mixed bag of decisions. A federal court in Missouri, for example, ruled in 1998 that the Woodland School District was wrong to discipline a student for offensive comments about his school and faculty that he posted on his Web site. The court found that the comments weren't disruptive enough to meet the Tinker standard.

Two years later, a federal court in Washington state took a different approach. Instead of asking if a student's Web site - created and maintained off-campus - disrupted the school, it concluded that the site fell outside the school's jurisdiction entirely.

Even so, schools have asserted a right to control students' online behavior. A school in Illinois voted Monday to require students to sign a statement agreeing that the district can punish them for inappropriate postings on a blog.

Fort Zumwalt School District's discipline policy states that students can be disciplined if their conduct - including "off-campus misconduct which is not school related" - is "prejudicial to good order and discipline in the schools or impairs the morale and good conduct of students."

These suspensions may not hold constitutional muster, the ACLU thinks.

"This was off-campus speech," said Tony Rothert, legal director of the American Civil Liberties Union of Eastern Missouri. "It wasn't these students that caused the disruption. . . . If they'd done something to bring it into the school, it would be a different case."

Even if Tinker does apply to off-campus speech, it sets a high burden for what speech schools can punish, said Kevin Bankston, a staff attorney for the Electronic Frontier Foundation, a group that advocates for digital privacy. "A few people with hurt feelings is not a material disruption," Bankston said.

While it is an unsettled area of law, it really comes down to whether the behavior disrupts the school. If so, schools can probably discipline. But that will be hard to prove.

Alan Howard, a St. Louis University constitutional law professor, said he thinks schools would generally be hard-pressed to show that a student's off-campus speech caused enough disruption to meet the Tinker standard - if Tinker applies in such cases at all. "On their free time, students should have the maximum of free speech rights," he said.