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School Districts Continue to Address Student Free Speech

November 5, 2012

A Missouri school district is the latest in a line of public schools that have ended up in litigation over the issue of disciplining students for online speech. On October 17, 2012, a three-judge panel for the U.S. Court of Appeals for the 8th Circuit reversed a preliminary injunction granted by a federal district court which had prevented the school district from proceeding with a 180 day suspension which had been imposed on twin brothers in connection with offensive and sexist comments posted on a website which they had created. See S.J.W. v. Lee’s Summit R-7 Sch. Dist., No. 12-1727 (W.D. Mo. Oct. 17, 2012).

According to the facts of this case, in early December 2011, the brothers (both juniors at the high school) had created a website and accompanying blog in order to “discuss, satirize and ‘vent’ about events” at their high school. While the parties dispute the extent to which the school’s computers were used in creating, maintaining or accessing the website, records indicated that one of the brothers had used a school computer to upload files needed to create the site and that school computers had also been used to log onto the site on at least two occasions. Posts on the website included “offensive and racist comments as well as sexually explicit and degrading comments about particular female classmates, whom [the brothers] had identified by name.” By December 16, 2011, the entire student body knew about the website and it had been directly linked to the two brothers.

The school initially suspended the two boys for 10 days, and following a hearing, an appeal and a second hearing, extended the suspensions for a full 180 school days. The boys’ family filed suit, seeking a preliminary injunction, which was granted by the District Court on March 22, 2012, thus allowing the boys to return to school. The school district appealed. On appeal, the 8th Circuit concluded that the district court had erred in granting the injunction, noting that it had mistakenly concluded that the two students were likely to succeed on the merits of their claims under applicable caselaw. The panel reviewed similar decisions from other circuit courts, including the 2nd Circuit’s decision in Doninger v. Niehoff, and determined that the standards applied by the district court were erroneous and that the student speech should have analyzed under the substantial disruption standard articulated in Tinker v. Des Moines Indep. Sch. Dist., 383 U.S. 503 (1969). The panel further noted that the location, i.e. on campus of off-campus, of the speech was less important than analyzing whether there the speech was reasonably likely to cause substantial disruption to the educational environment, as speech which “actually causes such substantial disruption is not protected by the First Amendment.”

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