Just as the Internet promises to change the delivery of instruction, it challenges as well the administration of school discipline. In a recent wave of cases, lower federal courts have reached contradictory conclusions about school officials' authority to punish students' speech in social media, raising difficult questions about the applicability of today's First Amendment doctrine to online speech. The Supreme Court has declined three times to review off-campus speech cases but is likely to be drawn in eventually.
At work are two doctrinal impulses pulling in opposite directions. Under Tinker v. Des Moines (1969), still the lodestar for school discipline cases, schools can punish student speech only if it will cause a substantial disruption or violate the rights of others. But the trend of federal courts since the 1980s has been to give school officials more authority in judging what would cause a substantial disruption, as well as allowing them to punish and censor vulgar speech, school-sponsored speech, and pro-drug speech. The obvious question is whether schools can punish
off-campus speech that they believe can cause an on-campus disruption. Students have always said unflattering things about teachers and classmates, but, prior to the Internet, for such speech to reach enough people to cause a significant disruption it had to be uttered on campus or brought there. With the Internet, entire student bodies, if not the whole world, can receive slanderous gossip or obscene speech without anyone setting foot on campus.
So far schools have punished students for, among other things, tweeting vulgarities on a school-provided laptop, creating fake Myspace pages that imply their principals are drunk and have hit on students and their parents, and for using a personal blog to encourage fellow students to call school officials "douchebags" for canceling a "jamfest." In the Myspace cases, appellate courts held that the fake pages did not create a substantial disruption and thus couldn't be punished. But in the jamfest case, the appellate court held that the student could be punished, since she was a member of student government and her blog post was "potentially disruptive to student government functions." And in the case of a student who had used a Myspace profile to mock another girl as a slut who had herpes, the Fourth Circuit upheld the school's decision to suspend the student for violating a policy against harassment and bullying. …