• 11 November 2009

A Relational Approach to Schools’ Regulation of Youth Online Speech

Benjamin F. Heidlage - Law Clerk to Judge Patrick Higginbotham

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In 2006, Aaron Wisniewski, a middle school student at Weedsport Middle School in upstate New York, logged onto his home computer after school hours and sent his friends instant messages featuring a buddy icon depicting a gun shooting a cartoon individual and bearing the caption “Kill Mr. VanderMolen,” a teacher at Wisniewski’s school.1 The school, alerted to the icon, suspended Wisniewski, and after Wisniewski challenged his suspension in court, the Second Circuit upheld it.2

This Editorial addresses the recent problems created by youth Internet speech that makes its way into school communities, such as Wisniewski’s buddy icon.  As the Internet does not easily conform to notions of place or physicality and is increasingly integrated into students’ lives, regulation of the Internet provides a growing opportunity for schools to monitor and control student conduct in what were previously private or familial realms.  It is well-established constitutional doctrine that student speech receives a lower level of First Amendment protection than general adult speech; yet, because of the Internet’s characteristics, lower courts have struggled to find a coherent doctrine to determine when the less protective student-speech standard applies to Internet speech and when young people receive full First Amendment protection online.

I argue that the approach increasingly favored by courts, which looks to the effect of the speech on the school community, too greatly expands school power into youths’ private lives.  Instead, I propose what I term the “relational approach.”  This approach is derived from Supreme Court precedent and scholarly debate about the role of the school vis-à-vis the student and the appropriate nature of this relationship in democratic society.  The relational approach holds that the less protective student-speech test should apply only when a youth acts in the role of a student.

Supreme Court Doctrine

Lower courts determining how much protection to afford youth speech have received little guidance from the Supreme Court, whose four decisions on the matter constitute a somewhat disjointed jurisprudence.  In the Court’s first modern student speech case, Tinker v. Des Moines Independent Community School District,3 the Court issued its famous school speech test:  that to be prohibited, speech must “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school” and that such a finding must be based on “the special characteristics of the school environment.”4 Exactly what these characteristics would permit was unclear.

In subsequent cases, the Court only marginally clarified the limits of students’ speech rights.  In Bethel School District No. 403 v. Fraser,5 Hazelwood School District v. Kuhlmeier,6 and most recently in Morse v. Frederick,7 the Court upheld the prohibition on sexual innuendo in student government speeches, the censorship of school newspapers, and the prohibition of language that could be interpreted as encouraging drug use (the famous “BONG HiTS 4 JESUS” sign) respectively.  But these cases lack a clear jurisprudence for the lower courts and are more a series of fact specific examples.

Lower Courts’ Attempts To Address Off-Campus and Online Youth Speech

Given the paucity of Supreme Court jurisprudence in this area, lower courts have struggled to articulate limits to school authority over student speech.  Lower courts have largely taken two approaches:  (1) the “geographical approach,” which focuses on the physical location of the speech; and (2) the “substantial disruption approach,” which focuses on whether the student’s speech “materially disrupts class work or involves substantial disorder or invasion of the rights of others.”8

Courts have occasionally attempted to apply the geographical approach to the Internet.  For instance the Pennsylvania Supreme Court found that the fact that students and administrators viewed a website in school was sufficient to designate the speech “on-campus” and thus subject to the lower student-speech standard.9

But such analogies to physical location seem forced, and many courts have recognized the limitations of a hard-line geographical approach.  They instead have simply applied the substantial disruption test.  The concern with this approach is that expanding school authority to include anything that could create a substantial disruption in school gives the school license to monitor and discipline all aspects of a student’s life.

The curtailment of student rights through the use of the substantial disruption test is perhaps most evident in the case mentioned above, Wisniewski v. Board of Education of Weedsport Central School District.10 Wisniewski never sent the icon to a school official, nor did he ever view it or send it while physically on school grounds.11 However, the court found that this disconnect from school property was immaterial.

A subsequent Second Circuit ruling, Doninger ex rel. Doninger v. Niehoff,12 seems to acknowledge the potential expansiveness of the approach in Wisniewski.  In Doninger, the court upheld a school’s prohibition of a student running for school government after she had used her personal blog to lambast the school administration over a disagreement regarding the scheduling of a school event, calling the administration “douchebags.”13 The Second Circuit acknowledged the issue of off-campus speech and stated, “We are acutely attentive in this context to the need to draw a clear line between student activity that affects matter of legitimate concern to the school community, and activity that does not.”14 But though the Second Circuit made overtures to limit the school’s reach, the court still found that since “it was reasonably foreseeable that other . . . students would view the blog and that school administrators would become aware of it,” the school was free to apply the less protective substantial disruption standard.15

The problem with this approach is that students in their everyday lives, even outside of school, usually direct their speech to other students, and all Internet speech has the potential to reach other students and school administrators.

A New Methodological Framework: The Relational Approach

The relational approach I propose recognizes that the social role of schools lies at the heart of the student-speech First Amendment inquiry.  The relational approach clarifies the distinction between the two questions at issue in the student-speech problem:  First, when does the student-speech standard apply?  Second, if the student-speech standard does apply, what is the substance of that standard?  The relational approach responds to the first question by looking to whether the youth was speaking in the role of a student.  If the youth was speaking as a student, the relational approach uses the “substantial disruption test” to answer the second question.  If, however, the youth was speaking outside his role as student and was speaking instead as a general citizen, then the full First Amendment protections apply.16

This approach accounts for the Internet’s lack of spatial determinancy.  By not trying arbitrarily to place Internet speech within a geographic category—on campus or off campus—the relational approach avoids emphasizing a distinction that youths themselves might not make.  In order to understand fully the value of the relational approach, I offer two brief examples to demonstrate how the relational approach would avoid producing conflicting outcomes between “real” world speech and online speech.

A.     Online Message Boards

One common scenario is the online message board (the comment section of this website would be included).  The relational approach would look to the nature of the message board as a whole and not to the individual comment.  Using the relational approach, the result in Doninger17 makes perfect sense.  The relational approach focuses on the general context of the forum itself, ignoring the rather arbitrary questions (and probably fortuitous answers) of whether the webpage was accessed on school grounds or whether it would foreseeably be accessed by school administrators.  The question might thus be framed this way:  Does the board operate as an alternative to a schoolyard or classroom interaction, or as an alternative to general social interaction?  The former suggests that the youths are interacting as students, while the latter suggests interaction simply as citizens.

B.     Email, Instant Messages, and Text Messages

Secondly, the treatment of instant messages, emails, and perhaps even text messages poses another challenge.  Like a profile on a social networking website, a youth’s instant messages, text messages, and emails to another youth are very likely to be seen under the relational approach as merely interpersonal communication between individuals rather than students.

As demonstrated by the Wisniewski18 case, any online conversation may be printed out and brought to class, creating the potential for substantial disruption.  To ignore the context and roles of the speakers and simply focus on the effects or facial subject matter of the speech is to collapse all personal conversations into conversations under school authority.  In the case of Wisnieswki, the student was clearly acting in his role as a member of the general public and was not acting in the role of student.  Of course, when the speech is intended to substitute for conversations that would have otherwise taken place within the academic setting and simply represents an attempt to avoid the teacher’s gaze, the student understands himself to be speaking within the school setting as a student and should be recognized as doing so by the courts.

Relational Approach Is Superior to Current Approaches

A key concern of any test is whether it is practicable for courts.  The relational test is accessible to courts and school administrators for two reasons.  First, while the relational test may not always provide a bright line answer, neither do the existing approaches (as the confusion of the lower courts amply demonstrates).  Furthermore, the relational approach is more accessible to teachers and school administrators than current doctrine.  Teachers are not lawyers, and obtuse legal tests may be difficult for them to execute.  The relational approach is not obtuse or case law-dependent; rather, it asks teachers and administrators to look at the nature of their own relationships to students vis-à-vis the speech at issue.  The relational test, by relying on an area of expertise of school officials, will be easier to implement than existing doctrine.


The current approaches of lower courts are unable to handle the complexities and the nuances of Internet speech while providing reasonable boundaries to school power.  The relational approach provides a theoretically coherent framework with which to address Internet speech.  By accepting the relational approach, lower courts will be forced to address the complicated constitutional values at issue head-on and, more importantly, will begin to form a coherent school-speech jurisprudence for the Internet age.dingbat



Copyright © 2009 New York University Law Review.

Benjamin F. Heidlage is a Law Clerk for Judge Patrick E. Higginbotham on the Fifth Circuit Court of Appeals. J.D., 2009, New York University School of Law. Special thanks to Professor Geoffrey Stone, Jeremy Weinberg, Drew Johnson-Skinner, Nelly Ward, Corinne Nippert, Melissa Krenzel Lang, Rebecca Talbott, and the New York University Law Review.

This Legal Workshop Editorial is based on the following Student Note: Benjamin F. Heidlage, Note, A Relational Approach to Schools’ Regulation of Youth Online Speech, 84 N.Y.U. L. REV. 572 (2009).

  1. Wisniewski v. Bd. of Educ., 494 F.3d 34, 35-36 (2d Cir. 2007), cert. denied, 128 S. Ct. 1741 (2008).
  2. Id.
  3. 393 U.S. 503 (1969).
  4. Id. at 506, 509.
  5. 478 U.S. 675 (1986).
  6. 484 U.S. 260 (1988).
  7. 551 U.S. 393 (2007).
  8. Tinker, 393 U.S. at 513.
  9. J.S. v. Bethlehem Area Sch. Dist., 807 A.2d 847, 865 (Pa. 2002).
  10. 494 F.3d 34 (2d Cir. 2007), cert. denied, 128 S. Ct. 1741 (2008); see supra notes 1-3 and accompanying text.
  11. Wisniewski, 494 F.3d at 35-36.
  12. 527 F.3d 41 (2d Cir. 2008).
  13. Id. at 44-45.
  14. Id. at 48 (internal quotation marks omitted).
  15. Id. at 50 (internal quotation marks omitted).
  16. This idea is arguably similar to that proposed in Garcetti v. Ceballos, 547 U.S. 410, 426 (2006) (holding that First Amendment does not “shield{} from discipline the expressions employees make pursuant to their professional duties”). See, e.g., Steven J. Stafstrom, Jr., Note, Government Employee, Are You a “Citizen”?: Garcetti v. Ceballos and the “Citizenship” Prong to the Pickering/Connick Protected Speech Test, 52 ST. LOUIS U. L.J. 589, 603-05 (2008) (highlighting citizen/employee distinction made in Garcetti).
  17. 527 F.3d. 41.
  18. 494 F.3d 34 (2d Cir. 2007), cert. denied, 128 S. Ct. 1741 (2008); see supra notes 1-3 and accompanying text.

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