"The ubiquitous use of social networking and other forms of online communication," the Supreme Court was told recently, "has resulted in a stunning increase in harmful student expression that school administrators are forced to address with no clear guiding jurisprudence."
That was part of a plea by the National School Boards Association and a host of other educational groups seeking "clear guidance" from the Justices on the power of public school officials to punish students for using the Internet for what is now called "cyber bullying," or for other kinds of electronic misbehavior.
This week, however, the Supreme Court opted to stay out of this spreading controversy, turning aside without comment two cases involving public school students' use of their MySpace sites to harshly ridicule other students or a school principal. That left the issue to school officials -- and lower courts -- to find their own way, at least for the time being.
In doing so, the Court has left unsettled an issue that the educational groups assumed had been resolved: whether, as a matter of law, school administrators "are forced to address" how students use social networking sites, when the students do so on computers over which the school supposedly has no control -- in the privacy of their own homes. That, in fact, was the situation in the cases appealed to the Court: one by a student in Inwood, W.Va., and one a joint appeal by school boards in two Pennsylvania communities -- Orwigsburg and Hermitage.
As these cases illustrate, a school board's use of its authority beyond the school grounds often leads these days to a First Amendment lawsuit, as students disciplined for their Internet writings or depictions are claiming a violation of their free-speech rights. And, as these cases illustrate further, that claim sometimes works, and sometimes doesn't. That, of course, is why the school organizations asked the Supreme Court to provide some clarity.
It has long appeared to be a basic legal principle that, while public school officials are the masters of their own domain, they generally do not have authority elsewhere -- unless they can show that off-campus activity directly implicates the operation of the schools.
But it is difficult, indeed, to say where the Internet starts and stops: does a nasty verbal or character assault on a classmate or a school official, even if done on a home computer, stay in the home? Not likely, especially if the student invites friends to visit, say, a MySpace site, and what is there then becomes the talk of the school.
The Supreme Court, in a famous decision in 1969 involving students' wearing of black armbands to protest the Vietnam War, ruled that public school officials do have authority to regulate on-campus student speech in some circumstances. But that ruling, in Tinker v. Des Moines School District, declared that -- even if the student expression occurs within the school itself -- officials may regulate it only if it will "materially and substantially" disrupt the work and discipline of the school.
Although the Court has several times returned to the issue of public school regulation of student speech, it has never ruled explicitly on a case where officials had reached beyond school property. The just-rejected cases of Kowalski v. Berkeley County Public Schools and Blue Mountain School District v. Snyder involved exactly that situation.
When the Justices decide to bypass a case such as these, the order usually does not say why. It did not do so this time, either. The conflicting practical result was that Kara Kowalski of Inwood, W.Va., lost her challenge to her ten-day suspension from school for a MySpace posting that was a thinly disguised attack on a female classmate, but an eighth grader (identified only as "J.S.") in Orwigsburg, Pa., and a senior, Justin Layshock, in Hermitage, Pa., had their First Amendment rights vindicated for obscene MySpace postings about the principals of their schools.
What made the difference? The Kowalski case went to the Fourth U.S. Circuit Court of Appeals, which ruled that the posting "collided with the rights of other students to be secure and to be let alone," and created an "actual or threatened disruption." The Pennsylvania incidents were reviewed by the Third U.S. Circuit Court of Appeals, which ruled that the First Amendment "prohibits the school from reaching beyond the schoolyard to impose what might otherwise be appropriate discipline."
As the National School Boards Association had said in its filing, in the Third Circuit case, only the Supreme Court "can remedy the legal confusion" that school officials face as they try "to each students the bounds of civil discourse." For now, though, the remedy will have to wait for another case, another time.
Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 53 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.