The Internet has significantly altered the playing field for student expression, particularly at the high school level -- and many school officials are having a difficult time accepting a new, judicially enforced role as passive observers.

    For about 14 years, since the U.S. Supreme Court’s decisions in Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986), and Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), the First Amendment scale has been decidedly tipped in favor of public school officials who elect to censor high school student expression in school-sponsored activities, such as an official in-school assembly or a student newspaper or yearbook.

    While six states (Arkansas, California, Colorado, Iowa, Kansas, and Massachusetts) have passed laws restoring some student freedoms, for most students in this country First Amendment rights in school-sponsored activities are significantly limited. Administrative censorship in high school has become a way of life.

    The Internet, however, provides a forum outside of the school. Students can create and publish a Web site from their own home after school using their own computer and Internet account. And although the content of these Web sites may be devoted entirely to school news or commentary and be directed toward an audience of other students, the expression itself exists entirely apart from school.

    School officials have not always accepted this geographic limitation on their ability to censor -- and thus have attempted to punish students for outside-school expression on the Internet. When students have contested such punishment (as discussed below), they have generally been successful. All courts have recognized the distinction between school-sponsored student speech that occurs on campus and independently produced student speech.

    Less uniform, however, is agreement on the proper First Amendment standard for protecting off-campus, private student speech. Supreme Court decisions suggest that outside the special circumstances of the school environment, students have the same rights as any other citizens engaged in expressing themselves. However, some courts have suggested that students (presumably based on their status as minors) may always receive a lesser degree of First Amendment protection regardless of the context in which their expression occurs.

    The first known incident of school officials taking action against a student because of his or her private Web site occurred in 1995. Paul Kim, a senior honor student at Newport High School in Bellevue, Wash., created a Web site called "The Newport High School Unofficial Home Page." The satirical site included information on Kim’s friends and their preoccupation with football and sex. After viewing the site, the school’s principal contacted National Merit Scholarship officials and the colleges to which Kim had applied and rescinded the school’s recommendations. After Kim threatened to file a lawsuit, the school apologized, paid him $2,000, and reinstated its recommendations.

    Since then, there have been dozens of similar incidents reported. Most of these, like Kim’s, are resolved short of litigation and almost always in favor of the student. To date, only four cases have resulted in a court ruling.

    In December 1998, a federal district court in Missouri was the first to issue a decision in a case involving a public high school’s punishment of a student based on his private use of the Internet. Beussink v. Woodland School District, 30 F. Supp. 2d 1175 (E.D. Mo. 1998). In that case, the court found that Woodland High School officials violated junior Brandon Beussink’s First Amendment rights when they suspended him for 10 days for his independent Web site. The site criticized the school, its teachers, and administrators, using what the court described as "crude and vulgar" language. The suspension resulted in Beussink failing all of his classes.

    In its ruling on a motion for a preliminary injunction, the court determined that the appropriate standard for review was that outlined by the Supreme Court in its 1969 decision Tinker v. Des Moines Independent School District, 383 U.S. 503 (1969). That case has traditionally been used to determine the free speech rights of students and teachers while at school. Under Tinker, school officials cannot punish for or censor independent student speech on school grounds unless such speech would result in a "material and substantial disruption of normal school activities" or invades the rights of others.

    Without explanation, the court examined whether Beussink’s Web site, which all parties acknowledged was created entirely off campus using a personal computer and private Internet account, had caused any disruption at school. The court found that it had not.

    The second court to rule in a case brought by a high school student after school officials punished him for his private Web site also found that the school had crossed constitutional lines. Emmett v. Kent School District No. 415, 92 F. Supp. 2d 1088 (W.D. Wash. 2000).

    Nick Emmett, an 18-year-old honor student with an otherwise exemplary record at Kentlake High School in Kentlake, Wash., created the "Unofficial Kentlake High Home Page." The site was created entirely outside of school. The site included "mock obituaries" of at least two of Emmett’s friends. The obituaries were written tongue-in-cheek -- inspired, apparently, by a creative writing class in which students were assigned to write their own obituaries. In addition, Emmett allowed Web site visitors to vote on who should be the subject of the next obituary. The site included a disclaimer pointing out that it was for entertainment purposes only.

    When school officials learned of the site, they put Emmett on emergency expulsion for intimidation, harassment, disruption to the educational process, and violation of Kent School District’s copyright. The expulsion was later changed to a five-day suspension.

    In finding that school officials had violated Emmett’s First Amendment rights, the court discussed but did not apply either the Hazelwood or Tinker standard to the case. Rather, the court explicitly distinguished between an underground newspaper distributed on school grounds and the private Web site at issue. "Although the intended audience was undoubtedly connected to Kentlake High School, the speech was entirely outside of the school’s supervision or control," the court wrote.

    Finding that the school presented no evidence that Emmett’s site posed any genuine threat or that it "manifested any violent tendencies whatsoever," the school ordered the school to immediately lift the suspension. The school also later agreed to pay Emmett $1 in damages plus $6,000 in legal costs.

    In yet another case out of Washington State, a state court ruled that school officials at Timberline High School in Lacey violated the First Amendment when they punished Karl Beidler, then a 17-year-old junior, for his private Web site that ridiculed a school administrator in January 1999. Beidler v. North Thurston County (Wash.) School District, No. 99-2-00236-6 (Thurston County Super. Ct. July 18, 2000) (unpublished). Officials suspended Beidler for the remainder of the school year for "exceptional misconduct."

    The court quickly dismissed the school’s claims that the Supreme Court’s decision in either Hazelwood or Bethel justified the actions. But it also sidestepped the question of whether Tinker was the appropriate standard for speech that occurs outside of school. The court ruled that the evidence did "not show a material and substantial disruption of the work or discipline of the school [the Tinker standard] ... regardless of where the geographical limits of school authority may lie...."

    The final case -- and the only one to side with school officials -- involved the expulsion of an eighth-grade student from a Pennsylvania middle school after he created a Web site titled "Teacher Sux" on his home computer. J.S. v. Bethlehem Area School District, 757 A.2d 412 (Pa. Commw. Ct. 2000).

    The site, which the student claimed was done in jest, included derogatory comments about the student’s algebra teacher and principal, including an image of the teacher’s face morphing into Adolph Hitler, a picture of her severed head dripping with blood, and a request that visitors to the site contribute $10 to cover the cost of a hit man. When school officials learned of the site they contacted local police and the FBI, both of which investigated the case and found no reason to pursue the matter. The school district concluded that the site constituted a threat to the teacher, harassment of both parties, and harm to the health, safety, and welfare of the school community. At trial, evidence was introduced showing that the teacher had suffered harm because of her reaction to the site and was unable to return to school at the end of the year.

    In a 2-to-1 decision, the appellate court explicitly recognized the distinction between in-school and out-of-school student speech. Nevertheless, it found that Tinker controlled "where it is established that the [off-school] conduct materially and substantially interferes with the educational process."

    Unfortunately, the court then proceeded to water down Tinker’s language and to cloud the in-school/out-of-school distinction by looking to Bethel. The court cited this case, involving a high school student’s speech to a school-sponsored assembly, to justify the school district’s determination that the Web site "hindered the educational process." "The schools, as instruments of the state, may determine that the essential lessons of civil, mature conduct cannot be conveyed in a school that tolerates lewd, indecent, or offensive speech and conduct such as that indulged in by this confused boy." Bethel School District No. 403, 478 U.S. at 683.

    The court also reached its decision by citing an earlier Pennsylvania case, Commonwealth v. Baker, 722 A.2d 718 (Pa. Super. Ct. 1998), to find that "lewd, obscene, profane, libelous and insulting [speech] is not constitutionally protected," a sweeping pronouncement that certainly exceeds the Supreme Court’s First Amendment jurisprudence.

    For many high school students today, the opportunity to express themselves in a school-sponsored medium without administrative censorship has been all but eliminated. The Internet has created a meaningful alternative. But it has also created a legal battleground.

    While the law (at least for now) favors students, the first wave of cases makes clear that some courts are reluctant to completely tie the hands of school officials, even when the expression at issue exists entirely outside of school. Additionally, courts may -- where they find the facts particularly unpalatable -- go out of their way to "stretch" the law and allow school officials to supersede parents when it comes to regulating student expression.