after shots rang out at Santana High near San Diego on March 5, cable TV
news shows filled up with experts ticking off the warning signs that might
predict the next student to go berzerk. The FBI's list of "risk factors" for school shootings reads like a definition
of a teenage Internet geek: "Inappropriate humor," writing about
"committing violent acts," and "no limits to, or monitoring of ...
But parents who worry that suspicious online activity is going
unpunished haven't checked out the Student Press Law Center's breaking news page lately. In the 30 days before
Santana, for example:
- SchoolRumors.com, a popular anonymous bulletin board where teens
from Los Angeles' San Fernando Valley called each other "fags" and
"sluts," was shut down March 2 by its Internet service provider after
one mocked girl reportedly became "very suicidal."
- A 13-year-old eighth-grade girl at Von E. Mauger Middle School in
Middlesex, New Jersey, was charged Feb. 16 with 10 counts of making "terrorist threats" against classmates she put on a
"People2Kill" hit list. She was suspended indefinitely and put under
- A 13-year-old eighth-grade boy from John F. Kennedy Middle School in
Bethpage, New York, was suspended from school and investigated by police after
posting the names and photographs of 36 classmates on his personal "hit
list," and warning that he would "attack when it gets warmer."
- The New York Post reported February 18 that a 12-year-old student
of Halsey Junior High in Queens was suspended for two days because of
his Web site's depiction of teachers as "sluts," strippers, and engaging
in oral sex. The paper said that the local teachers union filed a
greivance, and the student's parents -- also educators -- accused the
school of overreacting.
- Seventeen-year-old senior Aaron Fiehn of Belleview High in Ocala,
Florida. was suspended for 10 days February 14, for creating a Web
site that used "vulgar language" to criticize the school. After the American Civil Liberties Union
got involved, Fiehn was reinstated four days later.
- The North Thurston County School District in Washington agreed
February 20 to pay former Timberline High student Karl Beidler $62,000,
two years after expelling him for pasting a head-shot of an assistant
principal onto an image of Marge Simpson having sex with Homer. A
Superior Court judge had ruled last July that the school's punishment violated
Beidler's right to off-campus free speech.
- The school district in Rolla, Missouri, agreed to an unspecified
out-of-court settlement with former Rolla High student Dustin Mitchell,
who was suspended in 1999 for 10 days and given 42 hours of community
service for answering "Yes!" on an Internet bulletin board to a question
about whether a Columbine-type shooting could happen at his school, the
SPLC reported February 8. The ACLU had filed
suit on Mitchell's behalf last October.
Meanwhile, anyone with a television and some free time Monday nights
can watch a controversial student Web publisher on Fox's randy new high
school drama Boston Public. Character Sheryl Holt, whose Holt 45
Web site is filled with sex gossip and unflattering animations of various teachers, was suspended
late last year, and she even filed a lawsuit against her school.
|Anyone with a television and some
free time Monday nights can watch a controversial student Web
publisher on Fox's randy new high school drama. |
The demographic bubble of Americans born between 1975-84 is rapidly
becoming known for three things: tarty pop stars, school shootings, and
total Internet penetration. That volatile mix has helped create an entire
legal category -- inflammatory off-campus Internet speech by minors --
that virtually didn't exist three years ago.
"It's not unusual for us to school officials reasonably believe it could disrupt the school, or where
it seriously threatens or actually causes harm to teachers or others,"
Simpson wrote. "The still-open question is whether this authority extends
to off-campus speech and whether school officials can punish students for
comments made in cyberspace that are merely uncivil or disrespectful."
Two basic Supreme Court rulings govern high school speech law: 1969's
Tinker v. Des Moines, and 1988's Hazelwood School District v. Kuhlmeier. Tinker,
which concerned students being suspended for wearing black armbands to
school in protest the Vietnam war, established that a school cannot
restrict expression on campus unless it can prove that the speech
"materially disrupts classwork or involves substantial disorder or
invasion of the rights of others." Hazelwood, generated after a
school spiked articles from the school paper about divorce and pregnancy,
rolled back some of Tinker's freedoms by giving administrators the right
to censor -- on "educational" grounds -- speech that comes as part of an
Two lower-court rulings from 1969 and 1972 (Sullivan
v. Houston Independent School District, and Fujishima v. Board
of Education), affirmed students' rights to publish off-campus
newspapers and even distribute them at school without administrative
approval, as long as they did not materially interfere with school
discipline. (For more on these cases and the evolving Web site case law,
please read Andy Carvin's excellent rundown
for the Benton Foundation).
Advocates on each side, naturally, differ over what these precedents
signify for the Internet era.
"There isn't a single case, or even a series of cases, that sets out
the principles -- that's what makes this so difficult," said Darden.
SPLC's Goodman points out that students "are legally obligated to
follow the same legal rules that anyone else is," covering libel,
defamation, terrorist threats and so on. "So there is a remedy when
students have crossed the line," he said. "What the schools are saying is
that we should have a venue for punishing expression that no other
government agency has, even though this expression doesn't take place at
The vast majority of what Carvin estimates as "hundreds" of legal
disputes over Web sites between students and schools over the past few
years have been settled out of court. Of those that have produced rulings,
in the words of
education lawyer David Splitt, "One thing is clear: Most of the time,
when a principal or other official takes action against a student for
something on the student's private web site, it is legally an
TECHNOLOGY ETHICS & LAW
The major cases were:
- Beussink v. Woodland R-IV School District. On
February 17, 1998, Woodland High junior Brandon Beussink was suspended
10 days and ordered to take down his Web site, which called the
principal an "asshole," and listed several reasons why the school was
"fucked." With ACLU backing, Beussink sued the district to revoke the suspension, saying it
violated his First Amendment rights. In December 1998, U.S. District Judge
Rodney Sippel agreed, writing: "Speech within the school that
substantially interferes with school discipline may be limited.
Individual student speech which is unpopular but does not substantially
interfere with school discipline is entitled to protection." The two
sides settled on undisclosed terms in July 1999.
- Emmett v. Kent School District. In February 2000, Kentlake
High basketball star Nick Emmett and another student were suspended five
days for creating the "Unofficial Kentlake High Home Page," which
contained mock obituaries of classmates and invitations to suggest who
should "die" -- or receive a new mock obituary -- next. The ACLU helped Emmett challenge the suspension in District
Court, and Chief Judge John Coughenour quickly issued a temporary restraining order, ruling
that "the speech was entirely outside of the school's supervision
or control," and that the district presented "no evidence that the
mock obituaries and voting were intended to threaten anyone, did
actually threaten anyone, or manifested any violent tendencies
whatsoever." The two
sides settled five weeks later, with the school lifting the
suspension, picking up $6,000 in legal fees, and paying Emmett $1.
- Karl Beidler v. North Thurston County School District. As
mentioned above, in February 1999 Beidler posted some crude satire of
the Timberline High vice principal gobbling Viagra and sodomizing a pig,
and was promptly expelled. The ACLU
filed suit two months later, and in July 2000, Superior Court Judge
Thomas McPhee ruled the school violated Beidler's First Amendment
rights, and failed to prove the site substantially disrupted school.
Last month, the school district agreed to pay Beidler $52,000 in lawyer fees and $10,000 in
- J.S. v. Bethlehem Area School District. This is the only
major case where a student Web publisher lost -- and he lost big. When
Justin Swidler was in eighth grade in 1998 at Nitschmann Middle School
in Bethlehem, Pennsylvania, he made a Web site offering $20 for a hitman
to kill his math teacher Kathleen Fulmer, depicting her as morphing into
Adolf Hitler, and containing profane insults about school principal A.
Thomas Kartsotis. Swidler was expelled in August, and his parents filed
a First Amendment lawsuit in October against the school district. Fulmer
filed a defamation lawsuit against the Swidlers in November 1998, and
Kartsotis followed suit in May 1999. The family counter-sued.
The Pennsylvannia Commonwealth Court ruled against the Swidlers' original suit in July 2000,
arguing that the Web site materially disrupted the educational process
by making a teacher feel threatened. Then a jury awarded Fulmer $500,000 in damages for suffering
"invasion of privacy," and six weeks later the Swidlers settled out of
court with Kartsotis for an unpublished sum.
Aside from the cases that have been judged, the many out-of-court
settlements have also contributed to the evolving legal climate for free
speech versus school safety. Some key cases include:
- Newport High student Paul Kim received a public apology and
restitution of a $2,000 merit scholarship in December 1995 from his
school district in Bellevue, Washington, after officials withdrew
college letters of recommendation to punish him for his satirical
"Unofficial Newport" site.
O'Brien of Westlake, Ohio, was given $30,000 by the Westlake School District in
April 1998 to drop his federal First Amendment lawsuit, filed after
officials suspended him 10 days for insulting his band teacher on his site. District Court
Judge John Manos had previously ordered the school to reinstate O'Brien,
and to stop trying to restrict his off-campus speech. O'Brien later died
in a car crash.
- Brian Condradt of Carmel, Indiana, gave a negotiated
$5,000 settlement and written apology last April to three Carmel
High teachers who he had called Satan worshipers. The settlement ended a
- Justin Redman of Jonesboro, Arkansas, settled a lawsuit with Valley View School District,
allowing him to start 10th grade on time after his Valley View Junior
High School suspended him the last 10 days of last year for posting a
"vulgar" parody of the school's official site. The settlement came just
after a District Court judge issued a restraining order against
WHAT COMES NEXT
Darden says the key issue from the schools' perspective as case law
builds up will be to link the Tinker ruling to off-campus speech.
"In order to defeat the constitutional claim ... you have to start
building your connections back. There has to be what they call a nexus
between the off-campus activity and the on-campus discipline."
Possibilities for linkage include: if a student called up the Web site
at school, if the creator of the offending site learned HTML in a class,
if students are talking about the site to the detriment of classwork, or
if people were otherwise changing their on-campus behavior.
SPLC's Goodman doesn't see as much wiggle room around Tinker,
the First Amendment, or the handful of disputes ruled on to date by the
"They've all been pretty uniform in saying that when the expression
occurs outside of school, and isn't produced using school facilities,
school officials do not legally have the authority to punish students for
those activities. The only exception to that is the Pennsylvania case," he
The most interesting conflict on the immediate horizon is that of Ian
Lake, a former student of Milford High in Beaver, Utah, who was actually
jailed for seven days last May and charged with criminal libel for creating a parody Web site that
called then-Milford principal Walter Schofield "the town drunk." Lake, who
now lives in Palm Springs, California is the first person to be tried
under Utah's criminal libel statute since 1987, and the first Internet publisher anywhere to face the charge. Lake's ACLU
attorneys' attempt to get the law declared unconstitutional failed
in December; meanwhile Schofield has filed a civil lawsuit, and Lake
has declared intentions to counter-sue.
And, in one of the few cases where a controversial student
hasn't shut down his Web site, Clayton Telles of Ostego, Ohio, is
carrying on with his OstegoSucks.com, despite serving a 10-day suspension for it in October. He has hired a laywer
to seek reversal of the suspension, laced his site with disclaimers and
defiant links to ACLU free speech cases, and continued encouraging his
fellow students to wear obscene T-shirts and insult "skanks."
"I started this site as a joke," Telles writes in the "My Side
of the Story" section. "But it has now elevated to a battle of freedom
Should society be concerned about the Web-based efforts of high
school journalists like Sergio Bichao at dahiller.com? Does it fall under
the purview of the high school or the law? Tell
us in the OJR Forums.