Cyber Speech and Student Discipline
2012-01/27 Kevin J.T. Terry

Last week the U.S. Supreme Court turned down appeals from two Pennsylvania school districts that were successfully sued by students who posted malicious mockeries of their school principals on the internet.  In doing so, the Supreme Court opted to stay out of the controversial issue confronting schools across the country.  The Court’s action, or inaction, puts school officials on notice that they may violate the First Amendment if they discipline students for online posts made from a student’s home computer.

The basic legal principle that school officials have followed for years has been that while they hold supreme control in the school setting, they generally do not have authority over students elsewhere – unless they can show that off-campus activity directly implicates the operation of the schools.  Supreme Court decisions declare that even if the student expression occurs within the school itself – officials may regulate it, or discipline the student, only if the expression will “materially and substantially” disrupt the activities and discipline in the school.  The internet muddies this principle.  It is difficult to keep a nasty comment made by a student on Facebook or Twitter out of the school setting.

The National School Boards Association, and a host of other educational groups, pleaded with the Supreme Court to address this issue and provide clear guidance on the power of public school officials to punish students for “cyber bullying” and other kinds of misconduct.  “The ubiquitous use of social networking and other forms of online communication,” the Supreme Court was told, “has resulted in a stunning increase in harmful student expression that school administrators are forced to address with no clear guiding jurisprudence.”

School administrators should consult with legal counsel prior to issuing a disciplinary decision concerning student expression on the internet.  Contact Kevin Terry, the author of this article, or any of the attorneys in the School Districts and Educational Institutions Focus Team of Ruder Ware: Dean Dietrich, Steve Immel, Steve Lipowski, Randi Osberg, Ron Rutlin (of Counsel), Mary Ellen Schill, or Bryan Symes.

© 2012 Ruder Ware, L.L.S.C. Accurate reproduction with acknowledgment granted. All rights reserved.
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