Attention Boys and Girls: The Tinker Schoolhouse Gates May Extend to Your Cell Phones, Macs, and PCS - How the Internet Is Redefining Public School Discipline
Snyder, Jesse D. H., Faulkner Law Review
"We do not realize how large a part of our law is open to reconsideration upon a slight change in the habit of the public mind." (1)--Oliver Wendell Holmes, Jr.
During the summer of 2011, I visited the United States Air Force Academy for the first time since graduating some nine years earlier. While touring the base, I was overwhelmed with memories of my four years as a cadet. Although the school produced many memorable moments, I will never forget Basic Military Training during my first summer in Colorado Springs. While visiting, I watched the newly-minted Class of 2016 during their Basic Training. Much the same as the summer of 1998, the new cadets all looked very young and a little scared, but filled with pride. When I arrived at the scene, the upper class cadets had just called for a rare break in training to coordinate the next activity. During my Basic Training, we would spend these few moments waiting in silence. Much to my surprise, that was not the case in 2011. These cadets were very active and fully engaged on cell phones during their break! Even at our nation's most traditional institutions, technology is changing the way we experience life.
Just as technology has altered the experiences for cadets at the Air Force Academy, the Internet is changing the dynamics in public schools. Now more than ever, the true extent of a public school's disciplinary reach is in a state of ambiguity. In the venerable 1969 case of Tinker v. Des Moines, Justice Fortas famously declared that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." (2) Even so, Tinker recognized that students do not enjoy coextensive rights with adults. (3) In fact, school administrators may prohibit student expression that "materially and substantially disrupt[s] the work and discipline of the school." (4) Over forty years later, there is a renewed debate about how wide the Tinker schoolhouse gates swing with the advent of the Internet. To varying degrees of success, recent cases have forced courts to grapple with where to draw the line between traditional free speech jurisprudence and a school's ability to discipline students under Tinker for online expression. (5)
Amid diverging opinions and growing uncertainty among circuit courts, this Paper argues that courts should apply the Tinker material and substantial disruption standard beyond the physical schoolhouse gates when a student uses the Internet to purposefully aim expression into the classroom environment. First, this Paper explores the history of the Internet and the advent of the Information Society to provide context. Second, this Paper highlights major milestones in public school free speech jurisprudence. Third, this Paper reviews the three prevailing approaches to address student speech cast over the Internet. Finally, this Paper argues that courts should apply the Tinker standard beyond the physical schoolhouse gates. This proposition is a logical and common sense extension from case law and developing technology. Moreover, to avoid confusion and achieve more predictable outcomes, courts should determine if the online expression is purposefully aimed into the classroom environment by inquiring about whether the student knew or should have known that the speech targeted the classroom environment.
II. THE DAWN OF THE INFORMATION SOCIETY
Social theorists recognize that technology increasingly enables unprecedented volumes of information to be exchanged between people, thereby creating "profound social consequences." (6) To these theorists, the societal changes underway "represent not just quantitative but qualitative social change--transforming almost every realm of social life." (7) Comparable to the shift from an agrarian civilization to an industrial society, commentators refer to this new societal norm as the "Information Society." (8) This social shift is fomented by greater content, readily available platforms to create content, and an ever-increasing number of portable devices to access this content. …