Students’ punishment for off-campus Web sites unconstitutional, federal court rules

ARKANSAS — A high school principal’s decision to punish two students for comments made in their personal Web sites — which were created, maintained and accessed off-campus — was unconstitutional, a federal court judge ruled Feb. 18.

Greenwood High School seniors Justin Neal and Ryan Kuhl sued their principal, Jerry Efurd, for suspending them in August 2004 for posting violent illustrations and critical comments about the school on their Web sites.

Kuhl’s online journal, “Fuck Greenwood,” referred to the recent student orientation as “dreadfully boring.” Neal posted a comic strip on his Web site that depicted a school authority figure who shoots students at an assembly.

According to court documents, school officials testified that the Web sites created a “buzz” at school and were disruptive, so they had the authority to punish the students for the comments and drawings published on the sites.

But U.S. District Court Judge Jimm Hendren ruled that the postings on Neal and Kuhl’s Web are protected under the First Amendment. Hendren further ruled that under the standard created by the Supreme Court’s decision in the 1969 case Tinker v. Des Moines Independent Community School District, Greenwood school officials did not have permission to regulate the students’ content.

The ruling prohibits Greenwood school officials from punishing Neal and Kuhl for any further postings on their Web sites and from mentioning the students’ punishment on their academic records.

Under the Tinker standard, school officials may regulate speech that would “substantially disrupt school operations or interfere with the rights of others,” according to court documents. But testimony by school officials, the court ruled, “establishes neither that the speech of Neal and Kuhl was the cause of those disruptions, nor that the disruptions were substantial within the meaning of Tinker.”

Instead, the court said, the disruptions were caused by school officials’ investigations into the students’ Web sites and their decision to suspend Neal and Kuhl, “because [other Greenwood] students wanted to discuss the suspensions and the First Amendment.”

The students’ attorney, Chip Sexton, said he was “very pleased” with the court’s ruling.

“I think it reaffirms that students have First Amendment rights,” Sexton said. “And that schools need to look at communications made by students before punishing the students to see if there’s really a threat posed by what the communication says.”

According to court documents, teachers at the school testified that Efurd sent an e-mail to faculty members after Neal and Kuhl were suspended, telling teachers that the students were punished for “threatening statements they made [on several Web sites] regarding a couple of staff members.” But in fact Efurd knew that neither Neal nor Kuhl had posted threats on their Web site, the court ruled. Further, each of the faculty members who testified were under the impression at a January court hearing that the students had made threats and posted them on the Web sites.

“The Court is not unsympathetic to concerns about violence in the public schools,” Hendren wrote. “That being said, it must also be recognized that responsible school administrators and teachers must also be able to distinguish between true threats and non-threatening statements couched in less-than-temperate language.”

Greenwood High School principal Jerry Efurd and Greenwood Schools superintendent Kay Johnson did not return calls for comment.

Judge Hendren said Neal and Kuhl’s Web sites provided an opportunity to teach students about the freedoms provided by the First Amendment.

“The Court believes that, in a classroom setting, questions raised by students concerning First Amendment issues might well be viewed more as learning opportunities concerning fundamental rights of citizenship than as substantial disruptions of the educational environment,” Hendren wrote.

Neal said the process afforded him a chance to consider the ongoing debate over whether the First Amendment offers too much protection for certain kinds of speech.

“I see where a lot of the debate comes from now and where a lot of people are divided on things. The perception of threats, yelling ‘Fire’ in a movie theater, saying you’re going to kill someone in a letter or to their face. I can see where people would be offended by that,” Neal said. “But I also see where we need to have room … so that people can express themselves strongly and non-conventionally.”

–By Campbell Roth

: Neal, et al. v. Efurd, No. 04-2195 (W.D. Ark. Feb 18, 2005)
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