All school leaders today are keenly aware of the power of the Internet as a platform for communication. Every school is coping with its impact. The Internet has made what used to be mostly private comments highly public, highly permanent, and available. However, the public and permanent nature of the Internet is not intuitive to all children. Many students view the Internet as a private space to talk with friends or to vent their frustrations. Some of this communication inevitably relates to the school environment and thus finds the principal’s purview.
These instances of online student speech have proven particularly challenging to discipline, as the line separating the school environment from students’ private lives has blurred. This gray area of off-campus online speech has given rise to a generation of new federal court cases as students, administrators, and the courts all try to determine their proper role in this ever-changing environment.
Circuit Court Ruling
There has been no U.S. Supreme Court decision on students’ First Amendment rights and off-campus Internet speech. The latest federal circuit court to weigh in was the Fifth Circuit Court of Appeals. This decision is binding in Mississippi, Texas, and Louisiana. In this case, a high school student in Mississippi sued the school board, the superintendent, and the principal, claiming that they violated his First Amendment rights when disciplining him for his off-campus Internet speech. The student had created a rap song that he posted on Facebook and YouTube, which included some of the following lyrics:
“Let me tell you a little story about these Itawamba coaches / dirty a******* like some f***ing coacha roaches / … This n***** telling students that they sexy, betta watch your back / I’m a serve this n****, like I serve the junkies with some crack / Quit the damn basketball team / the coach a pervert / can’t stand the truth so to you these lyrics going to hurt. What the hell was they thinking when they hired Mr. R[.] / dreadlock Bobby Hill the second / He the same see / Talking about you could have went pro to the NFL / Now you just another pervert coach, fat as hell / Talking about you gangsta / drive your mama’s PT Cruiser / Run up on T-Bizzle / I’m going to hit you with my rueger. …”
After school officials learned about the song, they suspended the student for seven days and sent him to an alternative school for five weeks. The school district accused him of making false allegations and threats against the coaches profiled in the rap song. The student argued that this song was created off-campus, without school resources, and was never played or accessed on school property. Although the student’s complaint alleged a few different claims, this article focuses on the First Amendment issue.
The federal district court had ruled in favor of the school district, finding that the student’s speech was not related to a matter of public concern and that Tinker v. Des Moines (1969) permitted school officials to regulate student off-campus speech that caused a material and substantial disruption at the school. On appeal, the Fifth Circuit overturned this decision, ruling that school officials did violate the student’s First Amendment rights. The Fifth Circuit found that the district court had incorrectly applied the Tinker decision because the student’s off-campus speech did not cause a material and substantial disruption at school and that school officials could not have reasonably forecast a disruption. The school district appealed. The Fifth Circuit agreed to rehear the case en banc (with all judges on the Fifth Circuit participating) and to vacate the earlier decision.
In its en banc decision, the court affirmed the district court’s decision in favor of the school district. While relying on Tinker, the court also cited other U.S. Supreme Court decisions addressing student speech that do not require school officials to prove that a disruption has occurred. The court reasoned that “off-campus threats, harassment, and intimidation directed at teachers create a tension between a student’s free speech rights and a school official’s duty to maintain discipline and protect the school community.” The court also found that because the rap song was specifically directed at the school community, Tinker applied in this case. The court also stressed that when Tinker was decided, smartphones, the Internet, and digital social media did not yet exist.
Takeaways for Principals
As this case illustrates, even different panels of the same court can reach different conclusions within the gray area of off-campus student speech. Without clear guidance, principals must make decisions within their understanding of the First Amendment while taking pains to protect the school environment. In doing so, principals should focus deeply on the particular context of both the individual student and the community in question. The expertise of the principal on those immediate questions is the most well-informed and well-placed. Thus, the vast majority of these decisions are never questioned in the courts.
However, to cope with all of this public, permanent communication, schools must put a primary focus on teaching digital citizenship to their learners. Many sites now exist to aid schools in teaching digital citizenship and responsible online behavior. Also, tools such as the Digital Driver’s License have emerged to provide a structured learning experience on digital citizenship that students must complete before being granted Internet access at school.
The task of reactively regulating the gray area of student off-campus speech is unquestionably a high priority for principals, but the task of teaching students how to make good choices within these gray areas online must be a core mission of the school. Cases will continue to emerge that slowly shed light on these gray areas, but in the meantime, principals can continue to focus on the task of shaping great citizens who make intelligent public choices, whether online or not.
Justin Bathon, JD, PhD, is an associate professor of educational leadership and director of Innovative School Models at the University of Kentucky. He also serves as a co-director of STEAM Academy High School in Lexington, KY.
Suzanne E. Eckes, JD, PhD, is a professor of educational leadership and policy studies at Indiana University. She was recently elected to the Education Law Association’s executive committee.