In 1969’s Tinker v. Des Moines Independent School District, the Supreme Court declared that students do not shed their constitutional rights to freedom of speech at the schoolhouse gates. While the Court's memorable rhetoric recognizes the First Amendment’s application to student speech, Tinker also recognizes that school authorities may regulate student speech without offending the First Amendment as long as they have “reason to anticipate [the speech will] substantially interfere with the work of the school or impinge upon the rights of other students.” For more than four decades now, lower courts have applied this “substantial-disruption test” to determine whether various forms of student expression fall within a public school’s authority to regulate.
While the circuits agree that the substantial-disruption test applies to student speech that originates on campus, they are split on the question of whether this test governs student speech that originates off campus. This is particularly true in cases where students have expressed themselves online, commonly referred to as "cyberspeech," from a computer at home or otherwise off campus.
For example, in her petition for writ of certiorari in Doninger v. Niehoff, Avery Doninger--a student punished for her off-campus cyberspeech--recently requested that the Supreme Court resolve the “division between the Second and Third Circuit Court of Appeals [concerning] whether, consistent with the [F]irst [A]mendment, school authorities may punish internet speech by [students] when they are posting messages on the internet from their own home on matters of some general public concern, even if that concern involves school issues.”
Angry that her school was considering cancelling its annual “JamFest,” Avery Doninger posted a comment on her blog from her home computer calling school officials “douchebags” and encouraging readers to flood the administration with complaints. The school responded by prohibiting Avery from running for office in a student election. Applying Tinker’s substantial-disruption test, the Second Circuit held that Avery’s online speech “foreseeably create[d] a risk of substantial disruption within the school environment” and therefore fell within the school’s authority to regulate. On October 31, 2011, however, the Supreme Court declined to grant certiorari in Doninger v. Niehoff.
By contrast, the Third Circuit recently issued two decisions en banc--Hermitage School District v. Layshock and Blue Mountain School District v. J.S.--in which the court ruled in the student's favor. Both cases involved students who were punished by their respective schools for creating fake profiles lampooning their principals. The crude profiles, however, were created from computers off campus. Under the substantial-disruption test, the Third Circuit found that neither school could show that its administrators reasonably forecasted a substantial disruption because of the fake profiles. Therefore, unlike the Second Circuit in Doninger, the Third Circuit held that the schools in both cases violated the students' First Amendment rights since the speech originated off campus and failed the substantial-disruption test.
The parties have since combined their actions into a single petition to the Supreme Court, Blue Mountain School District v. J.S., which is still pending as of November 25, 2011. A student whose punishment was recently upheld by the Fourth Circuit for creating a MySpace page about a classmate on which lewd, defamatory remarks were posted has also requested the Supreme Court's review of the school's authority over off-campus cyberspeech by students. This case, Kowalski v. Berkeley County Schools, is also presently awaiting the Court's grant or denial of certioriari.
First Amendment scholar David L. Hudson Jr. has stated his belief that "[t]he sheer number of these cases percolating in the lower courts may make the Blue Mountain petition appealing enough for the Court to address the contours of student online speech and explain just how far school official jurisdiction extends." (See here.) Considering the fact that the Supreme Court has only decided three student-speech cases over the last four decades since Tinker, countless judges, scholars, educators, and students hope the Court will take this opportunity to bring some much-needed clarity to this issue that has left the circuits split.