Written by Laura Fishwick
Edited by Adam Lewin
The most recent U.S. Supreme Court case to address the legality of school-imposed punishment for student expression was more than forty years ago in Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969). In that seminal case, the Supreme Court found that a state’s interest in maintaining its educational system can justify limitations on students’ First Amendment rights to the extent necessary to maintain an effective learning environment. Id. In Tinker, school officials suspended students for wearing black arm bands to protest the Vietnam War. Articulating the standard still used by courts today, the Court held that a school may regulate student speech or expression if school officials can reasonably conclude that such speech caused or is likely to cause a “material and substantial” disruption to school activities. Id. at 513 (finding no substantial disruption because the protests were non-violent and did not interfere with class activities).
Tinker and subsequent Supreme Court cases have not addressed whether a school may regulate student speech that occurs off campus or online and is not connected to a school event, but that nonetheless causes disruption on campus or in the classroom. Further complicating the analysis of on campus, off campus, and online speech are additional factors such as the location where recorded activity takes place before it is posted online, and the location of the computer used to upload data onto the Internet. This comment explores the recent lower court decisions applying the Tinker standard to school-enforced limits on student speech made on the Internet. In cases of off campus or online speech, some courts have responded to the fact that Tinker involved on campus speech by requiring the school to show a substantial nexus between the speech and the school before applying Tinker. Beyond the nexus inquiry, courts move onto Tinker and examine the intensity of on campus discussions surrounding the expression, the burden the expression places on the administration, and whether the expression contains violent content.
The Threshold Question
Lower courts are divided on the issue of whether to ask a threshold question — is there a sufficient nexus between the off campus speech and the school — before reaching Tinker’s “material and substantial disruption” test. The majority of district courts have not required this threshold inquiry, but some courts, notably the Second Circuit, have required that a nexus be shown by proving that it was “reasonably foreseeable” that the speech would reach a school’s campus. See J.C. v. Beverly Hills Unified Sch. Dist., 711 F. Supp. 2d 1094, 1107 (C.D. Cal. 2010) (summarizing the rift among courts on the nexus threshold question). Courts that ask the nexus question are concerned with whether the student, at the time he posted the expression, should have foreseen that the speech would enter and affect activities on campus. This standard is different from the Tinker standard, discussed in the next section, which is concerned with whether the expression has caused or foreseeably will cause substantial disruption on campus, from the perspective of the school officials when they decided to punish the student or prevent the conduct.
Many courts find that schools may regulate any speech which causes or is likely to cause a substantial disruption of school activities whether or not there is a nexus between the speech and the school. See Beverly Hills, 711 F. Supp. 2d at 1107. For example in Harrell, the court did not consider the nexus issue where a school punished a college student for his comments on an online forum as part of the curriculum for an online class. Harrell v. S. Oregon Univ., No. 08-3037-CL, 2009 WL 3562732, *5–6 (D. Or. 2009), aff’d, 381 Fed. Appx. 731 (9th Cir. 2010). In another case, the Western District of Pennsylvania applied Tinker without regard to the geographic origin of the speech where a student composed a degrading “top-ten” list that he distributed to friends over email, and where one recipient brought the list to campus. See Killion v. Franklin Reg’l Sch. Dist., 136 F. Supp. 2d 446, 455 (W.D. Pa. 2001); see also, O.Z. v. Bd. of Trustees of Long Beach Unified Sch. Dist., No. CV 08-5671 ODW, 2008 WL 4396895, *4 (C.D. Cal. 2008) (applying Tinker where a student created a video off campus depicting a graphic dramatization of a teacher’s murder, which he posted online); Beussink v. Woodland R-IV Sch. Dist., 30 F. Supp. 2d 1175, 1180 (E.D.Mo. 1998) (applying Tinker where a student created a website while he was off campus that criticized school authorities, and another student showed the website to a teacher). Courts that bypass the nexus question generally do not give their reasoning for doing so but simply choose to not consider the issue.
Many other courts choose not to address whether the nexus test should be used when the resolution of the issue is not essential to the outcome of the case. See e.g., J.S. ex rel. Snyder v. Blue Mountain, 650 F.3d 915, 926 (3d Cir. 2011) cert. denied, 2012 WL 117558 (U.S. Jan. 17, 2011) (No. 11-502); T.V. & M.K. v. Smith-Green Cmty. Sch. Corp., No. 1:09-CV-290-PPS, 2011 WL 3501698, *11 (N.D. Ind. 2011). In Beverly Hills, the Central District Court of California found that because the threshold question as framed by the Second Circuit would have been easily met, it did not need to decide whether or not a nexus inquiry was necessary before moving to Tinker. 711 F.Supp.2d at 1107–09. The plaintiff in that case, a high school student, posted on YouTube a video of another student making disparaging and defamatory comments of a third student. Id. at 1097–98. The court found that it was foreseeable that the video would reach the school’s campus because the plaintiff posted the video on a weeknight, contacted five to ten students to tell them to watch the video after it was posted, contacted the subject of the video, and made the kind of defamatory and derogatory comments that would compel a parent to bring the video to the attention of school officials. Beverly Hills, 711 F.Supp.2d at 1107–09. Even though students did not have access to the video while on campus due to the school’s restrictive Internet policies, the court still found the “reasonable foreseeability” nexus standard could have been satisfied, were it necessary, because administrators had access to the video while on campus. Id.
However, as mentioned earlier, a minority of courts require a showing of “a sufficient nexus” before they will confront the Tinker standard. These courts though are divided when it comes to defining this term. The requirement that the speech be sufficiently related to the school for Tinker to apply was first articulated by the Second Circuit in Thomas v. Bd. of Educ., Granville Cent. Sch. Dist., 607 F.2d 1043, 1050 (2d Cir. 1979). In Thomas, the court found that Tinker was inapplicable where students created a satirical newspaper that they deliberately tried to keep off campus because “all but an insignificant amount of relevant activity in this case was deliberately designed to take place beyond the schoolhouse gate.” Similarly in a later case, the Fifth Circuit found Tinker inapplicable where a student brought a violent drawing that his brother had made at home two years earlier to school because the brother did not take any action to increase the chances that the drawing would make its way to campus and the drawing was not “publicized in a way certain to result in its appearance at [the School].” Porter v. Ascension Parish Sch. Bd., 393 F.3d 608, 615–20 (5th Cir. 2004).
Several decades after Thomas, the Second Circuit addressed online speech in Wisniewski and adopted the “reasonably foreseeable” test to determine whether there was sufficient nexus between the speech and the school. Wisniewski v. Bd. of Educ. of the Weedsport Ctr. Sch. Dist., 494 F.3d 34, 39–40 (2d Cir. 2007). In Wisniewski, school officials suspended a middle school student for using an AOL Instant Messaging avatar that depicted a pistol firing a bullet at a man’s head above the message “kill [the student’s English teacher].” Id. at 35–36. The court required that the student’s expression reaching school property be reasonably foreseeable before applying Tinker, and found foreseeability because the image was of a violent nature and because the student had transmitted the image to fifteen other students during a three week period. Id. at 39–40.
In another case involving online expression before the Second Circuit, school officials had reprimanded a high school student for emailing students and parents and posting a message on her personal blog that criticized the school for canceling a school event, encouraging students and parents to complain to the school. Doninger v. Niehof, 642 F.3d 334, 345–47 (2nd Cir. 2011), cert denied, 2011 WL 3204853 (2011). Applying the standard found in Wisniewski, the court found that it was reasonably foreseeable that the student’s message would disrupt school activities or administration because it directly encouraged students and parents to contact the school. Id. at 48–50 (holding that “a student may be disciplined for expressive conduct, even conduct occurring off school grounds, when this conduct ‘would foreseeably create a risk of substantial disruption within the school environment,’ at least when it was similarly foreseeable that the off-campus expression might also reach campus”).
Other courts have set more vague standards for finding a sufficient nexus between the expression and the school. For example, the Supreme Court of Pennsylvania found a sufficient nexus in Bethlehem where a student had created a website — that he had accessed during class and informed other students about — containing violent, highly threatening, and derogatory comments about school officials. J.S. v. Bethlehem Area Sch. Dist., 807 A.2d 847, 666 (Pa. 2002) (specifying that purely off campus speech would “arguably be subject to some higher level of First Amendment protection”). Without citing the Second Circuit’s foreseeability test, the court reasoned that such a nexus existed because of the easy access that students and school officials had to the website, and because school officials were subjects of the website. Id. at 667–68.
Despite requiring a threshold showing of a nexus before they will apply the Tinker standard, few courts, if any, have found that a sufficient nexus does not exist between online speech and a school when applying the “reasonably foreseeable” test. As the Beverly Hills court noted, cases requiring this threshold question “more readily find a sufficient nexus where speech over the Internet is involved.” Beverly Hills, 711 F.Supp.2d at 1108. This is most likely due to the uniquely pervasive and widely accessible nature of the Internet, because of which it is foreseeable that almost anything posted online may be viewed in schools by students, teachers, and administrators, thereby satisfying the foreseeability nexus threshold test.
Even though it is nearly always satisfied in cases of online speech, this test shows no signs of disappearing, and courts continue to administer the threshold nexus test before asking whether the expression did in fact or was foreseeably likely to cause substantial disruption. The persistence of the nexus test may be explained by the fact that courts do not undergo different analyses for online speech and off campus speech, and many courts even tend to view online speech as a subset of off campus speech. Unlike cases of online speech, courts do find that some off campus speech cases fail to satisfy the sufficient nexus test. See, e.g., Porter, 393 F.3d at 615–20; Thomas, 607 F.2d at 1050. In this sense, asking whether there is a sufficient nexus in cases of online speech is a vestigial question of the pre-Internet era.
Despite the absence in the case law of courts finding that online speech did not foreseeably reach campus, one can imagine cases that might fail the nexus test: where the student did not consent to uploading a recording of the speech onto the Internet, or where the student actively tried to keep the expression away from the school. Such cases would be analogous to Thomas and Porter, discussed above, where the courts found that Tinker did not apply because the students involved either did not play a role in bringing the off campus speech onto campus or actively tried to keep the speech off campus. On the other hand, even private online communications can be easily shared, making it unrealistic to expect that most online speech would not reach a school’s campus.
The future utility of the nexus test should not be understated. It may be seen as a way for courts to avoid applying the Tinker substantial disruption test in cases of valuable online speech made by students that is not directed at the school or its students. See Blue Mountain, 650 F.3d at 939 (Smith, J., concurring) (observing that applying Tinker in all cases would allow school officials “to regulate students’ expressive activity no matter where it takes place, when it occurs, or what subject matter it involves — so long as it causes a substantial disruption at school”). The Supreme Court in Tinker could not have intended to allow schools to regulate all student expression that occurs anywhere simply because it happens to disrupt school activities. A student might upload a blog post discussing a sensitive political or social topic that is unrelated to the school or its students but that causes substantial disruption at the school. Allowing a school to punish that student might raise serious constitutional issues. An easy way for courts to avoid this problem would be to use a nexus test and to find that such speech cannot be regulated because it does not have a sufficient nexus with the school.
Tinker’s Substantial Disruption Standard
Beyond the nexus inquiry, the Tinker substantial disruption test requires a showing that either actual substantial disruption to school activities occurred on campus or that school officials reasonably foresaw substantial disruption and acted to prevent that disruption or deter future disruption. Tinker, 393 U.S. at 513. Though no actual disruption is required for school officials to have reasonably foreseen disruption, Tinker required school officials to at least have evidence of future substantial disruption, more than an “undifferentiated fear or apprehension of disturbance.” Id. at 508. The Court also required something more than “a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.” Id. For example, in holding that substantial disruption was not foreseeable, the court in Smith-Green rejected the School’s arguments that the principal had experience with similar situations that caused a disturbance and wanted to “get off on the right foot” at the start of the school year, finding that more evidence was required. Smith-Green, 2011 WL 3501698, at *14. The court in Bowler also found that substantial disruption was not reasonably foreseeable where students would need to go through a complex series of steps to be disturbed by links on a student’s website that the student had advertised on posters hung around the school. Bowler v. Town of Hudson, 514 F. Supp. 2d 168, 177–78 (D. Mass. 2007).
First, in determining the extent of the disruption, courts explore the magnitude of student discussions in classrooms and around campus. The speech at issue must actually or foreseeably disrupt classroom activities, more than merely causing discussion of the speech among students. See Beverly Hills, 711 F. Supp. 2d at 1111. In Harrell, the court found that a university student, who had criticized and put-down his professor and other students many times in two online class forums, had substantially disrupted class activity because his hostility caused many students in the class to stop participating online or to become significantly discouraged from doing so. Harrell, 2009 WL 3562732, at *4, 6 (one teacher commented that the student had “shredd[ed] the other students’ espirit de corps irreparably”). This case is contrasted with Blue Mountain, where the court noted in dicta that no actual disruption had occurred after the plaintiff student created a fake MySpace profile for her school principal, which depicted the principal as a pedophile and sex addict, because only a few students discussed the profile with the plaintiff at school and did not interrupt class time apart from discussions led by a few teachers. 650 F.3d at 928.
Courts also consider whether school administrators are pulled away from their ordinary tasks to respond to the effects of the student’s speech. See Beverly Hills, 711 F. Supp. 2d at 1113–14. In Doninger, for example, the court found substantial disruption where the student’s conduct resulted in “a deluge of calls and emails” for the principal and superintendent “and many upset students.” 642 F.3d at 51. At the other end of the spectrum, in Smith-Green, the court found no evidence of actual substantial disruption because only two parents complained to the administration and there was otherwise no disruption to any school activity. 2011 WL 3501698, at *12–13.
While courts do not normally claim to distinguish between valuable speech in the public interest and speech that serves no public good such as the mean spirited speech at issue in Blue Mountain, 650 F.3d at 940–41 (Smith, J., Concurring), courts may take exception where a student’s speech is violent or threatening. For example, in Bethlehem, the court found that disruption was foreseeable where a student created a website containing violent and highly threatening material targeted at school officials. 807 A.2d at 852; see also Wisniewski, 494 F.3d at 40 (finding foreseeable substantial disruption where a student used an AOL Instant Messaging avatar of a man’s head being shot above the message “kill [the student’s English teacher]”).
To summarize, in determining whether the student’s influence around the school is characterized as “substantial disruption,” courts are concerned with the level of conversations held by other students in class and elsewhere on school grounds, the speech’s effects on the administration, and the violent nature of the speech. However, it is not clear whether any single factor is necessary to establish substantial disruption or dispositive of this issue. For example, after discussing all of these factors and taking them together, the court in Beverly Hills held that no reasonable jury could find that the YouTube video at issue caused substantial disruption because the video was not violent or threatening, there was no verbal or physical confrontation at school and “no widespread whispering campaign,” and no students watched the video at school. 711 F. Supp. 2d at 1117–19. It also found that substantial disruption was not reasonably foreseeable, even though the video had one hundred views by the time it was seen by the school officials, because the officials only had evidence that there would be a general buzz around campus. Id. at 1119–22.
In one of the few cases to address student-on-student bullying online, the Fourth Circuit recently found evidence of actual and foreseeable substantial disruption in Kowalski v. Berkeley Cnty. Sch., 652 F.3d 565, 575–76 (4th Cir. 2011), cert. denied, 2012 WL 117817 (U.S. Jan. 17, 2012) (No. 11-461). In that case, school officials suspended plaintiff, a high school student, for creating a group MySpace page largely dedicated to ridiculing another student through disparaging comments and photographs about her personality and sexual history. Id. at 566–69. The plaintiff invited approximately 100 of her MySpace “friends” to join the group, some of whom added their own content. Id. The posting induced conversations among some students at school and shamed the target student into missing school for a day. Id. The court was persuaded that the school’s pedagogical interests in preventing and punishing bullying were sufficiently strong to justify the action taken by school officials. Id. at 572.
One can read this case as holding that emotionally disturbing a student into missing a single day of class meets the substantial disruption standard because it disrupts that student’s ability to learn. This reading of Kowalski could allow school officials to punish students for bullying that occurs off campus or online when it causes the bullied student to miss school, and would thus depend largely on the subjective feelings of the bullied student.
Another potential issue that follows from the Kowalski opinion is whether courts should focus on the nature of the plaintiff’s speech and its typical effects on learning environments, or solely its effects on the school in the particular case at issue. Id. at 572–74 (stating that the plaintiff’s harassing speech was “not the conduct and speech that our educational system is required to tolerate” and that the federal government recognizes student-on-student bullying as a major concern that causes students to be fearful of attending school). Courts already consider the violent or threatening nature of speech when deciding whether it causes substantial disruption, and bullying is a type of negative, low-value speech. But in principle, the Tinker standard is concerned with the actual or foreseeable effects of student speech on the school’s educational environment not the type of speech at issue, and following Kowalski, future courts may need to resolve messy questions about the type of student speech that should be protected.
In addition to finding actual substantial disruption, the court found that there was foreseeable substantial disruption because, had officials not intervened, the page could have had a snowballing effect, potentially resulting in “copycat” efforts by other students. Id. at 576–77. But the court did not find any clear evidence suggesting that future bullying was more likely because of the posting, and therefore this argument does not seem to rise above an “undifferentiated fear or apprehension of disturbance” that was not sufficient to find foreseeable substantial disruption in Tinker, 393 U.S. at 508.
Lower courts have consistently interpreted Tinker to apply to online speech using its standard of substantial disruption. Before applying the Tinker standard in cases involving off campus or online speech, some courts require a threshold showing of a substantial nexus between the speech and the school, typically requiring the school to prove that a student should have foreseen that his or her expression would reach the school’s campus. Then, in determining whether the substantial disruption standard from Tinker is met, courts inquire into the magnitude of student conversations about the school, the burden on the administration, and the violent nature of the speech. Recently in Kowalski, the Fourth Circuit held that a school could punish a student for online bullying, in part because bullying is a major pedagogical concern in schools, even though the disruption amounted to one student missing a day of school out of embarrassment and some student conversations. The Supreme Court may address the issue of student speech online in the near future if it accepts Kowalski’s petition for certiorari. However, Kowalski may also not be the best test case for the Court to decide such an important issue. Since the plaintiff in Kowalski is so unsympathetic, the Court will be hard-pressed to protect student First Amendment rights, if it chooses to do so, by deciding in the bullying student’s favor.
 While Tinker is still the general standard, the Supreme Court has since carved out three limited categories of speech that schools may restrict even without showing actual or foreseeable substantial disruption. See Morse v. Frederick, 551 U.S. 393, 403 (2007) (holding that school officials “may restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use”); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988) (holding that the school can “exercis[e] editorial control over the style and content of student speech in school-sponsored expressive activities as long as their actions are reasonably related to legitimate pedagogical concerns”); Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 681 (1986) (holding that schools may regulate vulgar, lewd or “patently offensive” speech that occurs on campus to teach students the value of civil habits and “the boundaries of socially appropriate behavior”).