Student Speech

School officials at Eden Prairie High School outside of Minneapolis punished 13 students after discovering photographs of them drinking on Facebook.com. As punishment, the students were banned from their sports teams or other extracurricular activities.

According to the Minneapolis Star Tribune:

Some parents are reportedly considering legal action because they view the school's action as too harsh. But legal experts say the area is muddy, because the mushrooming popularity of social networking sites is so new, challenges have yet to work their way up through the courts.

In the words of one student, the idea of school administrators nosing around social networking websites might be "creepy," but it is not necessarily unconstitutional. In this case, the school punished students for underage drinking, not their expression, and the athletes who were punished had signed a pledge not to drink as a condition of playing in the Minnesota State High School League. In addition, it is unlikely that the school violated the students' privacy rights by looking at pictures available to the public on the Internet.

It would be much more problematic if public schools tried to ban their students from using social networking sites altogether. Such a policy is not as unlikely as it may seem. Last spring, the University of Minnesota at Duluth announced a new policy barring all of its student athletes from participating in social networking websites such as MySpace.com and Facebook.com on the theory that the content of such websites placed the student-athletes and the school in a negative light.

If a university is banning its student-athletes from using social networking sites, a similar policy on the high school level is just around the corner.

As ridiculous as such a policy might sound, it is arguably constitutional under current case law. Several lower courts have held that students do not have a constitutional right to participate in extracurricular activities, and in 2002, the Supreme Court rejected a Fourth Amendment challenge to a public school rule requiring all students who participated in extracurricular activities to submit to random drug testing. See Pottawatomie County v. Earls, 536 U.S. 822 (2002). Based on these cases, it would be no small leap for a court to conclude that it would be constitutional for a public school to condition its students' participation in extracurricular activities on the forfeiture of their First Amendment rights.

This is not to say that such a policy should be constitutional, or that it would be a good idea. Banning students entirely from social networking sites in order to crack down on underage drinking and drug use would not prevent students from engaging in the unlawful activities and instead would simply cut them off from an essential forum for communication. And practically speaking, such a policy would be next to impossible to enforce.
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Last week a Massachusetts district court rejected a school district's effort to dismiss a novel student speech case, Bowler v. Town of Hudson, in which school administrators removed the Hudson High School Conservative Club's posters advertising its first meeting because the posters contained the website address for the club's national organization, which in turn contained a link to graphic videos on another site that depicted beheadings in Iraq. Perplexed as to how such a tenuous chain of references and links could warrant the removal of the posters? Well, so was the district court, which rejected the school's motion for summary judgment and allowed the case to go forward to trial.

Back in the fall of 2004, two students at Hudson High School ("HHS") in Hudson, Massachusetts formed a Conservative Club in an effort to provide a forum for pro-conservative views on campus. The HHS Conservative Club was affiliated with a national organization, the High School Conservative Clubs of America, whose slogan is "Protecting American Freedom, Faith, and Morality." Among other things, the group endorses Second Amendment rights, the "restoration" of Christian values to schools and government, and the closing of the nation's borders to all immigrants; the group is opposed to gay marriage, affirmative action, and abortion.