October 19, 2012
Students' Offensive Web-Site Likely Not Protected by Free Speech
A three-judge panel of the Eighth Circuit ruled this week in S.J.W. v. Lee's Summit R-7 School District that two students were not likely to succeed on the merits of their First Amendment challenge to their suspension from school for creating and blogging on an offensive web-site directed at their school and its community. The ruling reverses an earlier district court injunction against the school and almost certainly means that the two students will have to leave the school under their original suspension and attend a different school.
The case arose out of a web-site created by two eleventh-grade students, twins, at Lee's Summit North High School. The web-site, called NorthPress, included a blog on which the students posted a variety of offensive and racist comments and sexually explicit and degrading comments about particular female classmates. A third student added another racist post.
The students said they told only a small group of friends about the site. But word quickly spread (as you might expect), and, as soon as it did, Lee's Summit North suspended the two students for 180 days but allowed them to enroll in another school, Summit Ridge Academy, for the duration of their suspensions.
The students sued and sought a preliminary injunction. The district court found that the web-site "caused considerable disturbance and disruption [in the school] on Friday, the 16th," and that the blog was targeted at the school. But it nevertheless issued a preliminary injunction (finding, among other things, a likelihood of success on the merits of the students' First Amendment claim).
The Eighth Circuit reversed. Applying Tinker v. Des Moines Ind. Community Schools--the part that says student speech that materially disrupts classwork is unprotected--the panel ruled that the students were not likely to succeed on the merits, because they targeted the blog at the school and because it caused disruption in the school. The court, citing its own law and the law of other circuits, said that it didn't matter that the blog was physically off-campus; it was enough that the blog was directed at the school and disrupted classwork there.
The court also rejected the students' claim that absent a preliminary injunction they'd suffer irreparable harm. The court said that they could attend Summit Ridge, and they'd already suffered any harm that they claimed as a result of attending Summit Ridge (and not Lee's Summit North).
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