Keep out of MySpace!: Protecting Students from Unconstitutional Suspensions and Expulsions

By Cassel, Christi | William and Mary Law Review, November 2007 | Go to article overview

Keep out of MySpace!: Protecting Students from Unconstitutional Suspensions and Expulsions


Cassel, Christi, William and Mary Law Review


TABLE OF CONTENTS

INTRODUCTION
  I. WHAT'S ALL THE FUSS ABOUT?
 II. SCHOOL DISCIPLINE: PROTECTING STUDENTS AND
     SAFEGUARDING RIGHTS
     A. Constitutional Safeguards for
        Public School Students
        1. Due Process Requirements
        2. Student Speech
           a. Speech in Schools
           b. Unprotected Speech: "Offensively Lewd and
              Indecent Speech," "True Threats," and
              "Fighting Words".
           c. Off-campus Speech
           d. Internet Speech
        3. Accessing Information and Ideas
III. ADDITIONAL CONSTITUTIONAL PROTECTIONS FOR
     STUDENT MYSPACERS
     A. Combining the Right to Privacy and the
        Right To Receive Information
     B. Rights to Expressive Association
     C. Advocacy of the Use of Force or Law Violation
IV. PROTECTING STUDENTS' CONSTITUTIONAL FREEDOMS:
    A SUGGESTED TEST
V. APPLICATION OF THE THREE-PRONG MYSPACE TEST
CONCLUSION

INTRODUCTION

On February 15, 2006, twenty students were suspended from their middle school in Costa Mesa, California. (1) The students had not been in fights. They had not skipped class. In fact, none of the students' behavior on school grounds necessitated disciplinary action. Instead, the students were suspended for their use of MySpace, (2) a social-networking website, from the privacy of their own homes after school hours. (3)

The suspensions punished activity that began in January 2006. (4) A TeWinkle Middle School student created a MySpace group and sent an online invitation to his MySpace "friends" to join it. (5) The invitation contained a "colorful psychedelic picture" and the name of the group, "I hate [girl's name with an expletive and racial reference]," but did not include a description of the group. (6) Approximately twenty TeWinkle students accepted the invitation and joined the group. (7)

Five days later, the group creator sent a MySpace message to the students who had joined his group. (8) directing group members to click on a nondescript folder. (9) When members opened the folder, a post appeared, which read, "Who here in the 'I hate (girl's name with an expletive and racial reference)' wants to take a shotgun and blast her in the head over a thousand times?" (10) The post asked group members who agreed to reply. (11) None of the TeWinkle students replied. (12) Several days later, TeWinkle teacher Elizabeth Copeland discovered the threatening post on the group's page while browsing MySpace and immediately alerted school administrators. (13)

School officials informed the group creator and message poster that he faced expulsion. (14) He was not the only student punished, however. All twenty TeWinkle students who had joined the group received suspensions. (15) Although the initial invitation to join the group and the second message by the group's creator did not give any indication of the page's threatening content, (16) school officials deemed it appropriate to suspend all of the group members simply for their association with the group. (17) The principal explained that the punishments were necessary because administrators perceived that group membership caused concern for the safety of students on campus. (18) Parents were outraged and believed that the school had "overstepped its bounds by disciplining students for actions that occurred on personal computers, at home and after school hours." (19)

The TeWinkle suspensions are but one of the many recent examples of suspensions and expulsions for MySpace-related activity around the country. (20) As student MySpace usage continues to grow, student MySpacers are falling prey to increased authoritative measures by school administrators. (21)

The United States Supreme Court has yet to issue any decisions regarding schools' limits in regulating or punishing off-campus Internet activity, and only a handful of state and federal courts have tackled the issue. (22) Lower court decisions have focused solely on disciplinary action regarding student Internet speech. …

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