The Digital Divide

The Constitution has spoken, the courts have spoken — even the TV series”Boston Public” has spoken. But administrators are not listening.

In a recurring storyline on “Boston Public,” Fox’s new series chroniclingthe lives of teachers working in an urban public high school, a studentfinds a way to irk administrators each week with a Web site ridiculingschool staff. Fed up with animations on the site, including one depictingan elderly male teacher in a bra and panties, the principal finally decidesto suspend the student. She sues the school for violating her First Amendmentrights — and wins.

For a series that focuses on events ripped from the headlines, an episodeabout a student who riles school officials with an irreverent Web sitewas a good call. And for a television show that often depicts the moresensational aspects of high school life, it was pretty realistic: Administratorsroutinely punish students for off-campus Web sites they dislike — andthe students who sue almost always win.

Since 1998 at least 18 students have been disciplined by school administratorsfor Web sites created on home computers, including four since January.Because this estimate does not include punishments for which students didnot seek legal assistance or incidents that were not reported by the media,it is likely their number is much higher.

School officials say they have the right to punish students for conductthat is disruptive to the school — even if that conduct occurs outsideof school. First Amendment advocates, on the other hand, say students’off-campus free-speech rights should not be limited just because of theirstatus as students.

The widespread popularity of the Internet, coupled with the ease ofposting Web pages, has given teen-agers a new outlet for expression thatis capable of reaching more people than at any other time in history. Thatis a pretty heady prospect for a 15-year-old who finds herself routinelycensored in a school newspaper distributed to only 1,000 students. It isno wonder then that many students have created off-campus Web sites thatdiscuss the most pervasive institution in their lives: school.

As technology blurs the line between home and school, what happens whenstudents cross that line? In other words, can administrators punish studentsfor what they say outside of school when that speech is about-and possiblyaccessible from-school?

Most courts have said no. Although only five courts have ruled on theissue, four of the five rulings have favored the student. (See Cyberlaw)

Yet despite court rulings that say administrators do not have the rightto discipline students for independent Web sites, many continue to do justthat.

In most cases when students are disciplined for off-campus Web sites,it is because the sites criticize or ridicule school administrators orthe school itself.

A federal judge recently awarded a Pennsylvania high school student$20,000 in damages plus $43,000 in attorney’s fees and costs after rulingthat school administrators violated his First Amendment rights when theysuspended him for an e-mail he wrote off campus (Killion v. FranklinRegional Sch. Dist., 2001 WL 321581 (W.D. Pa., 2001).

Zachariah Paul, a former student at Franklin Regional High School, wassuspended in 1999 after an e-mail he sent to 23 of his friends containinga “Top Ten” list circulated throughout the school. The e-mail ridiculedthe school’s athletic director, naming 10 reasons why he is “always sopissed off” that included comments about his weight and sex life.

Paul received a 10-day out-of-school suspension, five Saturday morningdetentions and a 20-hour in-school suspension.

Paul sued the school district to get the suspension lifted, arguingthat his free-speech rights were violated. A judge agreed.

In a similar incident in Florida, a Belleview High School studentwas punished in February after he posted a Web site that the principalconsidered “disruptive to the school environment.”

Seventeen-year-old Aaron Fiehn was suspended for 10 days after administratorssaw his Web site, which included foul language and derogatory commentsabout Belleview.

Fiehn was reinstated with no penalties after serving four days of thesuspension following several meetings between principal Jim Whorley andattorneys for the American Civil Liberties Union of Florida, who were contactedby Fiehn.

In March, a 12-year-old student at Halsey Junior High School in NewYork was suspended for two days after administrators found a Web sitehe created that made fun of school faculty members.

The site included an altered photo of a teacher with the word “slut”inserted over her dress, a comment referring to another teacher as a stripperwith a partial picture of a real stripper and comments about a male teacherimplying he engaged in oral sex.

In most cases, administrators claim they punished the students becausetheir sites were — or possibly could have been — disruptive to the school.

Marc Abrams, a Portland (Ore.) School Board member and former executivedirector of the Student Press Law Center, said that is the problem.

“Principals frequently overstate what disruption is,” Abrams said. “Disruptionhas to be imminent and must disrupt the educational process.

“Disrupting the educational process has nothing to do with fervent debatein the halls, it means you can’t conduct your math class,” he added.

But Michael D. Simpson, general counsel for the National Education Associationand another former SPLC executive director, said school administratorsare allowed to take action against students if they can show they used”reasonable judgement” in determining that the speech is disruptive tothe school environment.

“[Criticism of school administrators] is not the sort of speech thecourts will allow administrators to punish,” Simpson said. “But the casessay that if the school administrator reasonably believes that the students’speech on these off-campus Web sites may have a disruptive effect on theschool or may interfere with the rights of others, then the student canbe punished.”

Defenders of the First Amendment disagree.

“Various courts have already held that you can’t suspend or punish astudent for speech off campus,” said Randall C. Marshall, legal directorof the ACLU of Florida. “The school may have some ability to control whatstudents write as part of a school-sponsored newspaper or a school-sponsoredWeb site, but certainly, students don’t lose their constitutional rightssimply because they’re students.”

According to Doug Honig, a spokesman for the ACLU of Washington, thereare already laws in place to punish students who make libelous statementson their sites, and schools should not have the authority to punish studentsfor defamatory remarks.

But Web sites critical of school administrations are not the only onesunder fire.

In light of recent school shootings, students are also being suspendedfor off-campus Web sites that include things school officials considerthreatening. Sites containing hit lists, most-hated lists and violent picturesor stories have all led to student suspensions.

But deciding whether a story, picture or list of names is truly threateningis not easy to determine.

In July, a Pennsylvania state court judge ruled against a studentwho sued his school district after he was expelled for a Web site thatfeatured, among other things, a list of reasons why his math teacher shouldbe fired and a request for donations toward hiring a hit man to kill her.

“Regrettably, in this day and age where school violence is becomingmore commonplace, school officials are justified in taking very seriouslythreats against faculty and other students,” Judge Jess S. Jiuliante saidin his decision.

But Honig argued that administrators cannot punish students for off-campusspeech simply because they sense a threat.

“We are in a political climate where administrators feel a lot of pressureto take actions that appear to protect school safety,” Honig said. “Butsometimes people overreact, and that’s what’s been going on here.”

Simpson, who said determining whether speech should be punished is harderin some cases than in others, said it is not a matter of overreacting.Rather, administrators have to use their judgment to decide what constitutesa threat in order to protect their school.

Direct threats are easier to handle, Simpson said.

“I don’t think that administrators have to prove that a student hasthe current capacity to carry through with the threat,” Simpson said. “Ifthe fact that some students are named on a hit list is upsetting to themand it interferes with their ability to get an education, then administratorshave the right to punish.”

But Honig contends that those students are subject to criminal chargesand that there is no need for schools to take these matters into theirown hands.

In fact, disciplining students for Web sites made off school groundshas many long-term effects-not just for the student being punished-butalso for schools and other students.

If school administrators decide they have the authority to punish studentswho create Web sites on their own time using home computers, they run therisk of being held legally liable for other off-campus activities thatstudents get involved in, Abrams said.

“As a school board member, I think the real problem is if we start exertingcontrol off campus, we will be liable for what happens off campus,” Abramssaid. “They go hand in hand.”

“I don’t think that’s our authority,” he added. “We are not the kids’parents, and we are not law enforcers.”

According to Honig, the more serious long-term effect will be the dissipationof students’ First Amendment rights. As the number of students punishedfor off-campus Web sites increases, more and more students may refrainfrom exercising their free-speech rights for fear of being reprimanded.

“Students’ ability to speak their minds and say things critical of theschool would be chilled,” Honig said.

He believes, however, that punishing students for off-campus speechviolates the First Amendment and that administrators will eventually realizethis.

“It’s a new area of law,” Honig said. “And as with any new area, ittakes a while for people to get the message.”