Many high school students can hardly imagine life without Facebook, Twitter, SnapChat, and Instagram. These platforms offer a chance for young people to speak without adult supervision or intervention.
That makes many adults very, very nervous–especially the adults who are in charge of operating public schools.
Of course there are times when it is right to be concerned about what's happening online; administrators and educators are tasked with maintaining a healthy and respectful learning environment free from harassment.
But how lawmakers and school officials police social media can have serious implications for youth free expression. We have seen students punished for online speech that was discovered by faculty, reported by other students or with the aid of surveillance companies like SnapTrends, CompuGuardian, Gaggle, and Social Sentinel Inc. Punishment for speech often comes under the veneer of keeping schools “safe,” whether from physical violence or emotional distress.
But how far can that authority legally extend? When do schools go too far in policing student speech online? As we'll explain, the lines are not as clear as one might think.
Student Speech in the Courts
"It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."
The key Supreme Court case on school censorship is Tinker v. Des Moines Independent Community School District (1969). A group of students had been suspended for protesting the Vietnam War by wearing black armbands to school. The justices ruled in their favor, establishing one of the guiding principles in the cases that would follow: This case, and others like it, establish the rights of students to speak out so long as their words did not constitute a "material disruption" of a school's educational activities.
That case presented one standard– speech that "materially and substantially disrupts the work and discipline of the school" can be the basis of some punishment or sanction.
Of course, there are bound to be different ideas about what constitutes a "material disruption." And subsequent court decisions have not always clarified what kinds of speech–either in school newspapers, off-campus publications or any other venues–is permissible or punishable. .
In the 1986 case Bethel v. Fraser, the Court ruled that a student could be punished for delivering a speech during an assembly that was “offensively lewd and indecent" and thus undermined the school's educational mission. There was not an argument that the speech caused a disruption.
Almost 20 years later, the Morse v. Frederick decision offered another case that helped define the contours of students' First Amendment rights. At a school-sanctioned, off-campus event, a student held up a banner that read, "Bong Hits for Jesus." The school's suspension of the student was upheld on the grounds that the student's speech could be "reasonably viewed as promoting illegal drug use," an activity that the school would want to discourage.
Off-Campus Internet Speech
But what are the standards when the speech in question is happening away from school, but might be seen by students or address issues that are happening on campus? In 2007 a Connecticut high school student posted critical comments about school officials after a dispute over a battle of the bands event. In response, school administrators barred the student, Avery Doninger, from student government. She sued, and a district court ruled that the school's punishment was justified on the grounds that her call for readers to complain to the school was disruptive. That ruling was upheld in 2011 by the U.S. Court of Appeals for the Second Circuit.
Other cases have involved students directly mocking school officials. In 2005 high school senior Justin Layshock made a MySpace profile to mock his principal, and was suspended. His parents decided to sue, and they prevailed in a Third Circuit decision, which found no reason to consider the site a material disruption.
A similar case emerged around the same time when a Pennsylvania middle school student created another parody MySpace profile for her principal. The school's suspension was upheld in two court decisions, one of which determined that the school could lawfully punish “vulgar, lewd, and potentially illegal speech that had an effect on campus." In a 2010 appeal to the full Third Circuit, several free speech groups argued that the threshold established in one of those cases was inconsistent with other decisions by the same court. The following year, the court overturned the earlier decision, and found the school's discipline violated the student's First Amendment rights.
BUSTED: Fifteen Times Students Got in Trouble For Speaking
Whatever a public school or district's policy might be, how they react to real-life cases is where the rubber meets the road. And there are plenty of examples of schools taking extreme measures against students who were engaged in speech that, while perhaps ill-advised, rude, or offensive, was fully protected.
1. Pot Picture? You're Off the Team
Ohio high school student Jakob Neumann was suspended from the soccer team for retweeting a message about marijuana. His father complained that there was a "constitutional issue" in play: "It happened during the summer vacation, on our home computer — and he didn’t make any mention of the school or the team."
The school initially suspended Neumann from the team for an entire year, then reduced the penalty to a third of the season after an appeal was filed. After he says an administrator hassled him at a school function, Neumann decided to file suit.
2. Suspended Over Anti-Bullying Video
In 2012, a high school freshman decided to make an anti-bullying video for an assignment on persuasive speech. But school officials in Longwood, New York gave her more than a bad grade: they suspended her.
The video was about a fictional character who, among other things, receives taunting and abusive messages on Facebook. A parent at the school didn't know the account portrayed in the video was fake, and she informed school officials, who took action because the video posed a "substantial disruption." But after local media took up the case, the school reversed its decision.
3. Whistleblowing? You're Out
The same can't be said for a student in Pickerington, Ohio, who re-posted a racially charged video on Twitter to expose the behavior of two of his fellow students. All three were disciplined, with the sophomore whistleblower receiving a 10-day suspension and a threat of expulsion. He was told that because he had re-posted the video during class, it created an “educational disruption.” Never mind the fact that he was standing up against something threatening to 25 percent of the student population, just three months after another image of a student wearing a KKK costume circulated on Snapchat.
4. It Doesn't Matter that You Didn't Write It
Social media is often just about passing along gossip or giving a thumbs up to a joke. But those actions can you get a student in trouble. In 2014, South Carolina senior Demi Grant got into trouble for 'favoriting' messages on a gossipy feed because she thought they were funny. School officials didn't agree. They reportedly called a few dozen students into the library for a meeting about the Twitter account in question. Many of them were disciplined, but Grant was suspended for five days.
In Salem, Oregon, 20 students at McKay High School were suspended for retweeting a message from a feed called "Salem Confessions" that suggested a teacher flirted with students. The state ACLU called the punishments "a clear violation of both the United States and Oregon Constitutions." After the controversy made headlines, the school would up expunging the students' suspensions.
5. Hand Over Your Password
In 2012 a twelve-year old Minnesota student wrote that she "hated" a hall monitor at school. Somehow her principal at Minnewaska Area Middle School found out and called her into a meeting to tell her she would receive detention for bullying. When she wrote a follow up on Facebook wondering who told on her, the school suspended her. That wasn't it; after a complaint from a parent later that year, the same student was called into a meeting and told she would have to give school officials her password. The student sued, and won a $70,000 judgment–and the school changed its policies regarding social media.
6. Jeering New Cheering Rules
In January 2016 the Wisconsin Interscholastic Athletic Association sent out an email laying out new rules concerning behavior at student sporting events. Popular chants like "Air ball!" were now out. And one student athlete decided to have a little fun with the new rules. Hilbert High School's April Gehl, who plays three sports, wrote a three word response: Eat shit WIAA."
Not everyone thought it was funny. The athletic association apparently spoke to school officials, and Gehl was suspended for five games. Gehl didn't challenge the punishment, but had this to say: "I was like, ‘Really? For tweeting my opinion?’ I thought it was ridiculous.”
7. That Joke Isn't Funny
Two words can get you suspended. Reid Sagehorn was an honors student at Minnesota's Rogers High School, and captain of the football and basketball teams. But that didn't matter to school officials when they found out that he had posted a message on a "Rogers Confessions" twitter page. In response to a question about making out with a teacher, Sagehorn responded– "Actually, yes"– which he insisted was not meant to be taken seriously.
The school suspended him for 5 days, and then increased the penalty to two months. He withdrew from the school, but he and his parents decided to fight the suspension. After a district court ruled that Sagehorn's case could move forward, in December 2015 the district decided to settle for $425,000.
8. He Blows? You'd Better Apologize
When high school senior Emma Brown visited the Kansas state capitol she apparently got a look at Governor Sam Brownback. She wasn't impressed, posting this message on Twitter: "Just made mean comments at gov. brownback and told him he sucked, in person #heblowsalot." A member of the governor's staff wasn't amused, and contacted the student group that organized the trip to complain. When word got to Sullivan's school, her principal called her into a meeting and demanded that she go into "damage control" mode and write an apology.
To her credit, Sullivan refused–and the governor wound up apologizing. It's good that a student was able to teach a valuable First Amendment lesson to a group of powerful grown ups.
9. Good for Trump, Bad for You
As part of a homework assignment that involve watching a Republican presidential debate, Revere High School student Caley Godino tweeted something that she thought sounded like candidate Donald Trump. Responding to a teacher's comment about low voter turnout, she wrote that "only 10 percent of Revere votes for mayor cause the other 90 percent isn't legal." Revere superintendent Dianne Kelley insisted to a local TV newscast that the Massachusetts district supports free speech, but they have a funny way of showing it: Godino was removed from the cheerleading team for the rest of the year.
10. Bullying or Political Disagreement?
New Jersey high school student Bethany Koval was called into the principal's office and given a serious warning: She may have broken the state's anti-bullying law. But her possible 'crime' seemed to amount to getting into an argument about Mideast politics.
Another student at Fair Lawn High School was upset by their interaction and went to school officials to complain, leading to her meeting with an assistant principal who warned that "what you put out electronically can also get you in trouble in school. Koval responded by saying that having controversial opinions shouldn't be a problem, he replied, “There’s a state law that might interpret it different.” Koval recorded the interaction, and the incident received news coverage around the world.
11. Settlement Over School-Hating Site
In one of the earliest student social media speech controversies, Ryan Dwyer was suspended and temporarily removed from the Maple Place Middle School baseball team in 2005 for creating an “Anti-Maple Place” website. The site called his New Jersey school “downright boring” and offered a guest book in which visitors could share their own distaste (however, it told them not to curse or threaten teachers). Dwyer took down the private, off-campus site after a week at school officials’ request, and filed suit after receiving the aforementioned punishment.
The case was settled in Dwyer’s favor to the tune of $117,500, with a district court determining administrators had indeed violated his First Amendment rights.
12. Profanity at Home
In 2012, Garrett High School in Indianapolis expelled senior Austin Carroll after, late one night at home, he tweeted “Fuck is one of the fucking words you can fucking put anywhere in a fucking sentence and still fucking makes sense.” School officials claimed they were in the right because Carroll had used a school-issued computer or email account to issue the tweet, thus violating students’ internet “Respectable Use Policy."
Carroll insisted that he had used his own computer, and the Respectable Use Policy did not specifically mention foul language or students’ personal social media posts. The school's action drew widespread attention, and some were especially outraged by the fact that the school seemed to be tracking students' social media posts as a matter of policy. Carroll did not, in the end, challenge the school's actions.
13. Suspended for… Insulting the Football Team?
In May 2013, the senior class president at Heights High School in Kansas was suspended for a serious infraction: Making fun of the school's hapless football team.
Wesley Teague was suspended for the remainder of the school year after tweeting "'Heights U' is equivalent to WSU's football team." Though seemingly innocuous to an outsider– there is no longer a team at WSU (Wichita State University), school officials claimed the comparison "acted to incite a disturbance" and "aggressively disrespected many athletes."
Teague, a student athlete himself, could no longer give the commencement speech at graduation. He had 'bullied' the football team.
14. Harsh Hashtag Backlash
There are always debates about how schools should spend their money. But students might not get a vote–or a voice. In June 2013, Cicero-North Syracuse High School senior Pat Brown was suspended for three days after creating the Twitter hashtag "#shitCNSshouldcut,” jokingly suggesting ways his New York school could save money in the wake of failed budget changes. The principal accused Brown of harassing him and "inciting a social media riot that disrupted the learning environment."
15. Preventing Fights or Preventing Scrutiny?
In Huntsville, Alabama, where superintendent Casey Wardynski was under fire in 2014 for surreptitiously monitoring students’ social media accounts for 18 months after claiming he received a “tip” from the NSA (proven untrue), one student was expelled in February 2016 for filming a fight on school grounds and then posting it online. Wardynski instituted a new policy stating that it was under the district's authority to prevent fights by monitoring students on social media, and insisted that students who posted the videos were looking for attention.
After the student's family hired a lawyer to contest the expulsion, her punishment was overturned. It's still not clear if such an act would be cause for such extreme measures in the city in the future.