Published by MARE, January 2013

In October, the United States Court of Appeals in the Eighth Circuit reversed a District Court’s decision to grant an injunction to two Missouri students who claimed that their school district violated their First Amendment free speech rights by suspending them.  Two brothers who were high school students at Lee’s Summit North High School created a website that contained a blog.  According to the two students, the purpose of the blog was to discuss, satirize, and vent about events at Lee’s Summit North.  According to the Appeals Court, the two students added posts to the blog that contained a variety of offensive and racist comments, as well as sexually-explicit and degrading comments about particular female classmates whom they identified by name.  The parties disputed the extent to which the two students used Lee’s Summit North computers to create, maintain or access the website/blog.  The students claimed that they initially told only five or six school friends about their website and that they only wanted their friends to know about it.  Regardless, the student body learned about the website and blog.  The school’s administrators linked the students to the website and suspended both brothers from Lee’s Summit North for 180 days.

The students filed suit against Lee’s Summit North and asked the court for a preliminary injunction ordering the suspensions lifted.  The District Court conducted a preliminary injunction hearing.  At the hearing, the brothers testified that they intended the posts on the website to be satirical rather than serious.  They also testified that the school day on which the other students found out about the website, December 16, was a normal school day free from significant disruptions.  Conversely, Lee’s Summit North’s witnesses testified that the discovery of the website caused a substantial disruption on the day in question at their school.  Lee’s Summit North’s computer records from December 16 showed numerous computers were used to access or to attempt to access the webpage.  In addition, District teachers testified they experienced difficulty managing their classes because students were distracted and in some cases, upset by the webpage.  Notable was testimony from two teachers at the District who described the day in question as one of the most or the most disrupted days of their teaching career.  District administrators testified that local media arrived on campus and that parents contacted the school with concerns about safety, bullying and discrimination both on December 16 and for some time afterward.

The District Court credited the testimony of the District teachers and found that the website “caused considerable disturbance and disruption” on the school day in question.  The District Court also found that the website blog was targeted at Lee’s Summit North.  However, because of other reasons, including finding that there was a “distinct possibility the defendants (the brothers) could be exonerated” based on legal cases, and agreeing with the students that they would suffer irreparable harm if not allowed to continue school at Lee’s Summit North, the District Court concluded that the balance of equities favored the students and granted the preliminary injunction allowing the students to return to Lee’s Summit North.

Lee’s Summit North appealed the grant of the preliminary injunction. In overturning the District Court’s decision, the Appeals Court did not find that the District Court made inadequate factual findings, instead it concluded that the District Court’s findings did not support the relief granted.  Ultimately, the Appeals Court held that the students were unlikely to succeed on the merits of their case under the relevant case law.  The Appeals Court also found that the District Court’s findings did not establish sufficient irreparable harm to the students to justify a preliminary injunction.  Therefore, the court reversed the preliminary injunction.

In the Appeal Court’s discussion about whether the students would likely succeed on the merits of their claim, the Court examined both parties’ arguments.  The students argued that all off-campus speech is protected and cannot be the subject of school discipline, even if the speech is directed at the school or specified students.  Alternatively, the students argued that if the court found that the Tinker case test applied, then the student speech was not directed at the school and did not create a substantial disruption.  Under Tinker, student speech that causes a substantial disruption is not protected.  Based on other relevant cases, and the District Court’s finding that the website blog was “targeted” at Lee’s Summit North, the Appeals Court found that Tinker was likely to apply.  The Appeals Court also found that the speech in this case was similar to the speech in other court cases in that the students’ posts “could reasonably be expected to reach the school or impact the environment.” Further, because the District Court found that the students’ posts caused a substantial disruption, the Appeals Court found the students are unlikely to succeed on the merits under the Tinker case.

While the Appeals Court did not analyze the interest of Lee’s Summit North, its students, or the public, it did take the opportunity to briefly touch on those interests:

However, our decision not to analyze the interests of the School District, its students, and the public does not mean those interests are unimportant; they are important.  The specter of cyber-bullying hangs over this case.  The repercussions of cyber-bullying are serious and sometimes tragic.  The parties focus their arguments on the disruption caused by the racist comments, but possibly even more significant is the distress the [students’] return to Lee’s Summit North could have caused the female students whom the [students] targeted.

While the Appeals Court decision focused on the preliminary injunction, and did not decide the entire underlying case, the Court’s finding that the students were unlikely to be successful on the merits of the underlying claim is still an important decision for school districts.  The case is helpful in providing guidance and support in similar cases of schools disciplining students for off-campus student speech that is targeted at school districts and causes a substantial disruption.  Likewise, school districts should find it encouraging that the Eighth Circuit recognizes that cyberbullying is an important issue that school districts have to consider when making their decisions regarding student discipline.  Overall, this case was a positive case for school districts.  However, as it is not always clear how a court will determine cases of student discipline for off-campus speech based on a given set of facts, it is advisable to speak with your legal counsel before making such decisions.

© 2013 Mickes Goldman O’Toole, LLC