In 1995, Paul Kim, a senior at Newport High School, in Bellevue,Wash., lost the chance to compete for a National Merit scholarship when his principal rescinded the school’s recommendation. The principal informed all of the colleges to which Kim had applied that the school no longer endorsed him. The admissions officer sat one of those colleges were curious to find out what he had done to receive such punishment. They called and found out: Kim had created a website at home on his own computer, on an Internet account he paid for, titled “The Newport High Unofficial Home Page.”
The satirical site included information on Kim’s friends and their preoccupation with football and sex. It also contained links to sites that offered sexually explicit material.[1] However, there were no legal problems with his website; nothing was libelous, obscene or otherwise unprotected by the First Amendment.[2]
A few months later Abe Haim, a student at Hickman High School in Columbia, Mo., was searched, suspended for five days and prohibited from taking his exams.[3] Haim’s crime: he had published a newspaper that he paid for, wrote and distributed off campus and after school hours. The school alleged that his paper contained racist and anti-Semitic remarks. However, the newspaper contained no illegal speech.
Both of these students probably assumed their out-of-school speech was protected by the First Amendment. It may not have occurred to them that school officials might try to control what they did during their hours away from school. As they and others have learned, many school administrators believe that their control does not end when the last bell rings.
Fortunately for Kim and Haim their situations were settled amicably. Most situations like these are settled before legal action is necessary. In the few cases that have gone to trial,courts have been generally very protective of students’ off-campus speech. Unfortunately, some have not been particularly clear in their reasoning.
A few courts, however, have allowed punishment for off-campus speech to stand. Such was the case in Wisconsin when a highschool student was expelled from school his senior year after writing an article in an underground paper instructing how to hack the school’s computers.[4] The court held that such instruction had the potential to cause or incite illegal conduct and was therefore properly banned.
Although most of these cases have involved student print publications,it is a fair assumption that the same rules would apply to other First Amendment activities, including protests, picketing, speeches and websites.
A note to private school students.
Students as ‘citizens’
For years, students in public high schools have had to accept that their First Amendment rights while at school “are not automatically coextensive with the rights of adults in other settings.”[5]But what about when they are not in school? Do students have the same rights off-campus as any other citizen or does their “student status” somehow carry over into their non-student lives?As the Supreme Court has said: “Students in school as well as out of school are ‘persons’ under our Constitution. They are possessed of fundamental rights which the State must respect….”[6]
Another court was even more to the point. “School officials may not judge a student’s behavior while he is in his home with his family nor does it seem to this court that they should have jurisdiction over his acts on a public street corner.”[7]
Yet, as the examples at the beginning of this article show,school officials continue in their attempts to punish students for their out-of-school behavior.
Desktop computers, omnipresent copy shops and perhaps most significantly, the Internet have changed the rules. Now almost anyone can make themselves an independent, and in the case of Internet Web sites, a worldwide “publisher.” And students,perhaps more than any other group, have taken to the new medium with fervor. For all of these reasons, students do themselves a favor by knowing their rights ahead of time and doing what they can to avoid trouble in the first place.
What category does your speech fall into?
Courts and off-campus speech
In Thomas v. Granville Central School District,[8]four high school students published an underground newspaper with their own money and distributed it off-campus before and after school. The students were suspended for five days, had to write essays on the harm their speech caused and had suspension letters included in their permanent files.[9] The school said the students’ speech caused a disturbance on campus and that their paper was obscene; the court found no evidence of either.[10]
The students had asked occasional questions of an English teacher and typed a few of the articles on school typewriters. Even so,such minimal use of school property did not change the court’s assessment that the students were essentially operating off campus.[11] The court noted that no school funds were used to produce the paper and that the students had included in their paper a notice that disclaimed any connection with the school.[12]
In ruling for the students, the Thomas court was clear:”[T]he First Amendment forbids public school administrators and teachers from regulating the material to which a child is exposed after he leaves school each afternoon.”[13]
After school hours are traditionally the realm of parents,the court said, and therefore the court was loathe to allow the school to regulate that time.[14] As members of the public,students are subject to the same laws as any other citizen, and therefore school regulations are unnecessary, the court said.
In addition, the court was wary of the potential consequences of allowing such regulation. If the court upheld the regulation,it wondered whether school officials might not then be able to punish a student who legally purchased a “bad” magazine off-campus and then lent it, or “distributed” it, toa friend while visiting at the friend’s house. The court rejected such far-reaching administrative control and commented that after-school activities are “the proper subjects of parental discipline….”[15]School officials, the court said, were not empowered to assume the role of parens patriae [surrogate parent].[16]
A Texas court responded in a similar vein, chastising school officials who sought to punish students for the off-campus distribution of an independent newspaper the students had created.
“It should have come as a shock to the parents of five high school seniors…that their elected school board had assumed suzerainty [control] over their children before and after school,off school grounds, and with regard to their children’s rights expressing their thoughts. We trust that it will come as no shock to the school board that their assumption of authority is an unconstitutional usurpation of the First Amendment.”[17]
While these cases involved student publications, other courts have recognized the difference between off-campus and on-campus speech in other contexts and have limited the right of school officials to punish students for conduct outside of school that clearly would have been punishable if it occurred in the classroom.
In Klein v. Smith,[18] for example, a student made an obscene gesture to a teacher in the parking lot of anoff-campus restaurant. The court agreed that such behavior would be unacceptable on campus, and would also be unacceptable if the gesture had undermined the teacher’s authority in school.[19]But because the act was so far removed from school, the student’s right to speak as he wished was accorded First Amendment protection and his suspension was overturned.[20]
While most courts recognize the constitutional limitations placed on public school authorities to punish students for their off-campus activities, a few have been very reluctant to tie the hands of school officials completely. Some courts have gone out of their way to justify a school’s response, suggesting that students may not have the same rights as the general public when their off-school speech has a “disruptive” effect on campus.
In Baker v. Downey City Board of Education,[21]school officials claimed that the underground newspaper two students created and distributed off campus caused a disturbance on campus.The court accepted their testimony, and upheld the suspensions of the students. In addition, the court upheld the removal of the students from their elected offices.[22] Although the students claimed they were being punished for the content of their speech, the court disagreed, saying they were punished because of the “profane and vulgar manner” of their speech.[23] The court held that when there is a disturbance, a student can be punished due to the school’s interest in a disturbance-free school day.[24]
However, the validity of the almost 30-year-old Baker decision is in question. Its sweeping holding has not been followed by other courts. In addition, the holding is almost certainly invalid in California due to more recent state laws that give broad protection to student expression, both on and off campus.[25]
Courts have also at times expressed a willingness to “fudge”the geographic boundaries of on-campus speech to include some off-campus speech that had an impact on school grounds. For example,the Baker court virtually eliminated the distinction between non- and off-campus speech stating that “school authorities are responsible for the morals of the students while going to and from school, as well as during the time they are on campus.”[26]
Another court upheld the ability of school officials to regulate the distribution of publications handed out “near” campus in a “manner calculated to result in their presence on campus.”[27]A third court stated that “[t]he width of a street might very well determine the breadth of the school board’s authority,”[28]suggesting its willingness to adopt a “sliding scale”to determine how far off campus school authorities’ power extends.Under this court’s rationale, peaceful and orderly student speechthat took place just outside school grounds could not be subject to school regulation while speech that significantly disrupted school activities might be regulated, even when it occurred some distance away.
Finally, a few courts have allowed schools to punish students for engaging in otherwise lawful speech off school grounds not because of the content of the speech, but rather because of the student’s inappropriate conduct.[29] In 1973, for example,a high school student in Texas distributed a newspaper off campus,after school. The principal suspended him for violating a prior review policy. As the student left the principal’s office, he slammed the door and swore at the secretary. The student continued to come on campus during his suspension and swore again, this time at the principal.[30]
In upholding the student’s suspension the court did not deal with the question of his published speech or the validity of the school’s policy. Rather, it concentrated on the student’s actions.The court was clearly disturbed by the what it viewed as a flagrant disregard of authority. The court found that the student’s actions after distribution of his newspaper disrupted the school day; therefore, his speech rights were subsumed by the school’s interest in maintaining a peaceful school environment.[31]
As the court said: “We ask only that the student seeking equitable relief from allegedly unconstitutional actions by school officials come into court with clean hands.”[32]
What about prior review?
At a number of schools, administrators require that official student publications be submitted for review and approval prior to distribution. This practice, known as prior review, is virtually unknown in the off campus world. Commercial newspapers and private citizens do not have to submit their speech to government officials for pre-approval. Indeed, courts have made it clear that any such prior restraint on publication is repugnant to our notion of freedom,and is but for extremely rare exceptions unconstitutional.[33] Independent, off campus student speech should be treated with the same respect. There is no valid reason to conclude that students relinquish their rights as citizens just because they attend school.
While a few courts[34] have suggested that prior review of off-campus student speech might be permissible where school officials can show that the speech could have a disruptive effect on campus or where the speech was in close physical proximity to campus, such cases are far from conclusive. Given that more recent cases have barred school officials from engaging in prior review of independent student publications, even where they are intentionally distributed in school,[35] the right of school officials to preview off-campus student speech is highly suspect. As one court has said, a school can never “exercise more control over off-campus behavior than on-campus conduct.”[36]
A few last words
As a journalist, your obligation is to ensure that the publicis informed. That means writing stories about issues that affect you and your fellow students. If that scares your administration,so be it. You may be a student, but you still have rights. Know them. Exercise them.
Practical guide for avoiding trouble when publishing off-campus publications
1 Internet Prank Costs Student Scholarship, Student Press Law Center Report, Fall 1995, at 25.
2 Id.
3 Gaining Popularity, SPLC Report, Spring 1996, at 7.
4 Boucher v. School Bd. of the Sch. Dist. ofGreenfield, 134 F.3d 821 (7th Cir. 1998).
5 Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682 (1986).
6 Tinker v. Des Moines Indep. Sch. Dist.,393 U.S. 503, 511 (1969).
7 Sullivan v. Houston Indep. Sch. Dist. [Sullivan I], 307 F. Supp. 1328, 1340 (S.D. Tex. 1969).
8 607 F.2d 1043 (2d Cir. 1979).
9 Thomas, 607 F.2d at 1046.
10 Id. at 1052.
11 Id. at 1045.
12 Id.
13 Id.
14 Id. at 1050.
15 Thomas, 607 F.2d at 1051.
16 Id.
17 Shanley v. Northeast Indep.Sch. Dist.,462 F.2d 960, 964 (5th Cir. 1972).
18 635 F. Supp. 1440 (D. Me. 1986).
19 Id. at 1441.
20 Id. at 1442.
21 307 F. Supp. 517 (C.D. Cal. 1969).
22 Id.
23 Baker, 307 F. Supp. at 527 (emphasis in original).
24 Id. at 523.
25 Calif. Educ. Code Secs. 48907 and 48950.
26 Baker, 307 F. Supp. at 526.
27 Sullivan v. Houston Indep. Sch. Dist. [Sullivan II], 475 F.2d 1071, 1073 (1973).
28Shanley, 462 F.2d at 974.
29 See Sullivan II, 333 F. Supp. 1149, vacated, 475 F.2d 1071 (5th Cir. 1973), cert. denied, 414 U.S. 1032 (1973).
30 Id.
31 Id.
32 Sullivan II, 475 F.2d at 1077, cert. denied, 414 U.S. 1032 (1973).
33 See e.g., Near v. Minnesota, 283 U.S. 697 (1931).
34 See e.g., Shanley, 462 F.2d 960.
35 See Burch v. Barker, 861 F.2d 1149 (9th Cir. 1988), Johnston-Loehner v. O’Brien, 859 F. Supp. 575 (M.D. Fla. 1994).
36 Sullivan I, 307 F. Supp. at 1341.