Case underscores tricky student-speech issues

Monday, February 21, 2011

This year’s national First Amendment Moot Court Competition featured the hypothetical case of McCord v. Rocky Fork Unified School District, in which a public school principal punished a student for a poem she wrote and posted online off school grounds. 
The poem criticized the principal, allegedly targeted a fellow student with hurtful language and caused concern — if not disruption — at school. This past week law students from 34 law schools argued the problem before panels of judges, including many distinguished jurists in the semifinal and final rounds. (College of William and Mary Law School took top honors.) 
Although McCord is a fictional case — the brainchild of the problem writers of Vanderbilt Law School’s Moot Court Board — the issues it presented are palpably real. Federal and state courts continue to grapple with the extent of school authority in the age of the Internet and cyberbullying. 
Many questions remain in the area of off-campus student speech. How far does the arm of school authority reach and can public school officials punish students for speech created entirely off-campus? Is it enough to protect the speech if the student-creator’s friends are the sole intended audience? 
Other questions focus on how to apply existing precedent from a bricks-and-mortar analysis to the online world. The bulk of the U.S. Supreme Court’s existing student-speech cases were decided well before the Internet became a regular means of communication. 
In 1969, the Court ruled in Tinker v. Des Moines Independent Community School District that public school students could wear black peace armbands to school because they did not cause a substantial disruption of school activities or invade the rights of others. The opinion observed that the school officials couldn’t reasonably forecast a disruption. 
In 1986, the Court ruled in Bethel School District v. Fraser that public school officials in Washington could discipline a student for a lewd speech delivered before the student assembly — a captive audience. That opinion talked about school officials’ duty to teach students “the boundaries of socially appropriate behavior.” 
Lower courts have had difficulty in applying Tinker and Fraser to online student-speech cases. Here’s a sample of the tough questions they’ve raised: What is enough of a reasonable forecast of substantial disruption? When can online student speech invade the rights of other students? Does Bethel v. Fraser apply beyond the confines of a school assembly to any online student speech that is vulgar? 
In June 2010, the 3rd U.S. Circuit Court of Appeals heard oral arguments in a pair of decisions involving students suspended for derogatory MySpace profiles of their principals. Two three-judge panels had earlier reached different decisions, compelling the entire 3rd Circuit to examine the issues. No one knows what or when the 3rd Circuit will rule. 
But as First Amendment Center President Ken Paulson wrote: “The two cases involving Pennsylvania school principals and MySpace could hold the key to the future of free expression for public school students.” 
Many predict that whatever the 3rd Circuit decides, the losing parties will appeal to the U.S. Supreme Court. Perhaps then school communities will get some much-needed answers to the many questions surrounding school authority and online student speech.