Factors School Administrators Should Consider
in Regulating Student Internet Speech

Schools should consider several factors before punishing students for online speech. Questions that should be asked include:

1. Was the content created as part of the school curriculum, such as a class project or school newspaper?

2. Was the content created on school computers?

If the answer to the first question is yes, then school officials have a good argument under Kuhlmeier that they can punish the student for material delivered at home. The Supreme Court in Kuhlmeier held that school officials can exercise greater control over student expression that "students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school."¹⁹¹

School officials might also ask whether the student's website links to the school's website. In Beussink, the federal district court noted that "Beussink's homepage also contained a hyperlink that allowed a reader to access the school's homepage from Beussink's homepage."¹⁹² However, the court in Beussink did not find that fact to be very probative.¹⁹³ Instead, the court in Beussink analyzed the case under the Tinker "substantial disruption" standard.¹⁹⁴ One attorney who has handled at least three student Internet website cases says that a link to a web page is no different than giving the call number on the book in a library or citing information in a footnote.¹⁹⁵

Another question to ask would be whether the student distributed his online content at school. If a student actively distributes his or her online material at school, then the school could analyze the case as an underground student newspaper case.¹⁹⁶

An open question that remains is whether student online content can be analyzed under the Tinker standard, if the student does not take any steps to distribute the online content or advocate disruption at the school. In Boucher v. School Board of the School District of Greenfield,¹⁹⁷ the Court of Appeals for the Seventh Circuit applied the Tinker standard to say that school officials could prohibit the publication of an underground newspaper entitled "The Last" that contained an article "So You Want to Be a Hacker."¹⁹⁸ The Seventh Circuit determined that Tinker's "substantial disruption" standard applied in part because the article was distributed on campus and the article "advocates on-campus activity."¹⁹⁹

The Beussink Court also applied the Tinker standard even though the website at issue was not distributed at school nor advocated any "on-campus activity."²⁰⁰ The court did not explain why it found Tinker to be controlling.²⁰¹ The court may have applied Tinker because Beussink's web page talked about the school, contained a hyperlink and was accessed by others at school.²⁰²

The Emmett Court seemed to apply the better analysis. There, the court simply stated that "the speech was entirely outside of the school's supervision or control."²⁰³ School officials may argue that Tinker should apply because the intended audience was members of the school. However, the Emmett Court dismissed this factor, pointing out that the school simply did not have supervision of this speech.²⁰⁴ Speech on a website should be no different than if a student had a conversation with other students off campus about a school administrator. The discipline, if any, should come from parents rather than school administrators.

The question becomes more difficult if the Internet content is created wholly away from school and the creator does not distribute the material, but the material indeed creates a substantial disruption at school.²⁰⁵ One commentator says that if school officials can document substantial disruption, then school officials "should be able to punish the student speech that caused this disruption without fearing that they will violate the First Amendment."²⁰⁶ However, the commentator recognizes that school officials "must remember they do not have unlimited discretion to censor nonthreatening speech simply because they disagree with the underlying message or because the speech casts the school in an unfavorable light."²⁰⁷

The problem is that this analysis would allow school officials to punish students for off-campus conduct — an area beyond their jurisdiction.