Misbehaving in home room has resulted in punishment for many students, probably since the time of the Roman pedagogue. But, misbehaving on your home page? It seems while the Internet has opened many avenues through which students may gain easy access to knowledge and information, as well as readily express their own ideas, a parallel resource has developed by which schools may exercise control over their pupils beyond the physical boundaries of the campus. A recent case in Missouri has made this evident.

Brandon Beussink, a junior at Woodland High School in Marble Hill, Missouri created a home page on the Web. He used this page to advance his opinions on a variety of issues, including: his principal, a teacher, Congressional Republicans, and the investigation of President Clinton. The page also contained a link to the home page of Woodland High. Some of the language used, as admitted in his Complaint, "might be considered profane". The Principal demanded that he remove the page (which he did), and rewarded his compliance with an immediate ten day suspension. This suspension was affirmed by the School's superintendent. Ultimately, this suspension resulted in our young Prometheus,while not being chained to a rock so that eagles might feast on his liver, to the educational equivalent thereof, being left back.

While the Web brought about Beussink's travails, it was also the source of his salvation. Resigned to the fate of a home(page)less drifter, he surfed upon the web site of the American Civil Liberties Union (ACLU), according to a National Law Journal report. After Beussink explained his plight, ACLU attorney Stephen Ryals brought suit against the school, in the federal District Court for the Eastern District of Missouri, pursuant to 42 U.S.C. §1983, the federal civil rights statute which protects individuals from violations of their Constitutional rights by state actors. (For more information regarding the Constitution and federal statutes visit the Library of Congress's THOMAS) web site. More specifically, the Complaint charges that the school officials violated his right to speech under the First Amendment, which is extended to cover the actions of state and local officials by the Fourteenth Amendment. School officials counter that Beussink's hyperlink to the school's web page constituted a sufficient relationship to allow them to discipline him for his speech. What does the law dictate as the result?

The Supreme Court of the United States has dealt with the issue of free speech in the schools on several occasions. One of the most important cases in this area was Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), in which the Court examined the ability of schools to regulate the content of school sponsored newspapers. In that case, the newspaper was written in conjunction with a journalism class. The principal, concerned that two of the articles (one dealing with teen pregnancy and the other with divorce), contained objectionable material, because of the nature of their content as well as their potential to embarrass individuals whose identities might be recognized from reading the pieces, pulled the pages from production. The Court held that the school officials had the right to regulate the content of the paper in a reasonable manner, in order to make sure it did not conflict with the educational mission of the school. Justice White, however, writing for the majority, distinguished between a school having to "tolerate particular student speech", and "affirmatively promot[ing] particular student speech."

As illustrated by this holding, there is a different level of tolerance that a school must afford when speech is purely associated with the individual student, compared to when that same speech could in some manner be associated with the school. So, the stricter (in terms of its restriction of free speech) standard announced in Hazelwood, which allows schools to prohibit speech which could contravene their educational mission, should not apply in the case of Beussink. From the facts known about the case, his home page, true to its moniker, was created at home, using a private Internet access account set up by his parents. The hypertext link, as his attorney put it, was a "one-way street". Anyone rationally viewing Beussink's home page would not think the school endorsed or condoned his statements simply because of the link, any more than someone looking at the web site of an anti-government militia with a hypertext link to the White House, would attribute the group's views to the Executive Branch. The hyperlink to the school is the high-tech equivalent of writing an op-ed piece to a newspaper, criticizing a public official, and putting that official's mailing address at the end of the piece so that others might write with their opinions.

Because the speech on Mr. Beussink's home page was his individual speech, not attributable to the school, a different constitutional standard should apply. This standard was set forth in the seminal Supreme Court case, decided during the Vietnam Era, Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). In that case, the Court struck down a school regulation which forbade students from wearing black armbands in protest of the war in Southeast Asia. The Court ruled that "[i]t can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech at the schoolhouse gate." The students in the Woodland Hills School District have gone from shedding their rights at the schoolhouse gate, to molting them at the gateway to cyberspace. The reason for the regulation in Tinker is similar to the rationale employed by the school officials in Woodland Hills. They were uncomfortable with the views expressed by their students. They feared the speech might cause a disturbance. But, as was stated in Tinker, "undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression". As the Court noted any word spoken, whether it be in class or out, has the potential of causing an argument. "But our Constitution says we must take this risk; and our history says that it is this sort of hazardous freedom -- this kind of openness -- that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious society." The Court ultimately concluded that unless the school board could demonstrate that the speech involved would "substantially disrupt" or "materially interrupt" the school's activities, it is protected.

The speech involved in Beussink's case, not only could not be attributed to the school or its officials, it did not even take place at the school. What if instead of publishing derogatory comments about the school and its officials (and the quality of its web site, giving rise to an (un)familiar adage, "say whatever you want, but don't disrespect my web page"), Beussink instead delivered his polemic from the rostrum of a park bench, or while at summer camp. Then we probably would say it was absurd if the school tried to discipline him; as absurd as if his teacher called his house and sent him to bed without dinner for not finishing his homework. This is not our schools' job, lest they become the "enclaves of totalitarianism" about which the Tinker Court warned.

Speech on the Internet is an important new medium of communication. As the Supreme Court recognized in Reno v. ACLU, 521 U.S. __ (1997), "[t]hrough the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamhleteer....' [T]he content on the Internet is as diverse as humanthought.'"(See another one of our e-zine articles dealing with this decision).

The actions of the school officials thus appear clearly to transgress the U.S. Constitution, even though they are understandable. The school administration felt disrespected and unappreciated. A student made unkind even antogonistic and insulting remarks and viewing themselves as akin to parents their reaction was to make him behave in the fashion they thought approrpriate. Under our system of law, however, the prerogative of such out-of-school discipline rests not with the government and, if anything, is a matter for parental discretion.

The theory underlying the First Amendment is that the right of speech is alive and should not be constrained by government unless that speech can adduce significant secondary effects which so outweigh the discourse that it should be forbidden. The First Amendment dictates that speech unregulated by government is on the whole the healthiest way to deal with problems and concerns. If schools can silence students when they express criticism outside of school, then won't government set the opposite example of what we would desire those same students, in their adult years when possibly in adult positions of political power or influence, to follow in managing the political affairs of our towns, cities, counties, states and federal government? Is it not better to show that criticism should be talked out, not fought out? If so, then political discussion, and even criticism, of our local school officials, via the industriousness of a home page is an outlet we should allow and perhaps even encourage, not condemn. In that sense the First Amendment serves not just to protect the right of the solitary individual to express his or her views, but also serves as a societal safety valve through which anger and frustration is released in a potentially productive, or at the very least innocuous, manner.

The whole point of free speech is not that we only allow that which we want to hear. That would make the First Amendment superfluous. Let us heed the words of Justice Robert H. Jackson in West Virginia v. Barnette, 319 U.S. 624 (1943), the case which protected the right of school children to not pledge allegiance to the flag. "We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order."

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